[Title 25 CFR E]
[Code of Federal Regulations (annual edition) - April 1, 2004 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter E - EDUCATION]
[From the U.S. Government Publishing Office]
25INDIANS12004-04-012004-04-01falseEDUCATIONESUBCHAPTER EINDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR
SUBCHAPTER E_EDUCATION
PART 31_FEDERAL SCHOOLS FOR INDIANS--Table of Contents
Sec.
31.0 Definitions.
31.1 Enrollment in Federal schools.
31.2 Use of Federal school facilities.
31.3 Non-Indian pupils in Indian schools.
31.4 Compulsory attendance.
31.5 Consent for transfer.
31.6 Coercion prohibited.
31.7 Handling of student funds in Federal school facilities.
Authority: Sec. 1, 41 Stat. 410; 25 U.S.C. 282, unless otherwise
noted.
Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted.
Sec. 31.0 Definitions.
As used in this part:
(a) School district means the local unit of school administration as
defined by the laws of the State in which it is located.
(b) Cooperative school means a school operated under a cooperative
agreement between a school district and the Bureau of Indian Affairs in
conformance with State and Federal school laws and regulations.
(35 Stat. 72, 25 U.S.C. 295)
[33 FR 6472, Apr. 27, 1968]
Sec. 31.1 Enrollment in Federal schools.
(a) Enrollment in Bureau-operated schools is available to children
of one-fourth or more degree of Indian blood reside within the exterior
boundaries of Indian reservations under the jurisdiction of the Bureau
of Indian Affairs or on trust or restricted lands under the jurisdiction
of the Bureau of Indian Affairs except when there are other appropriate
school facilities available to them as hereinafter provided in paragraph
(c) of this section.
(b) Enrollment in Bureau-operated boarding schools may also be
available to children of one-fourth or more degree of Indian blood who
reside near the reservation when a denial of such enrollment would have
a direct effect upon Bureau programs within the reservation.
(c) Children of Federal employees, whether Indian or non-Indian, are
deemed eligible on the same basis as other eligible students for
enrollment at facilities provided by the school district (including
cooperative schools) wherein they reside.
(35 Stat. 72, 25 U.S.C. 295)
[33 FR 6473, Apr. 27, 1968; 33 FR 6968, May 9, 1968]
Sec. 31.2 Use of Federal school facilities.
Federal Indian school facilities may be used for community
activities and for adult education activities upon approval by the
superintendent or officer in charge.
Sec. 31.3 Non-Indian pupils in Indian schools.
Indian and non-Indian children who are not eligible for enrollment
in Bureau-operated schools under Sec. 31.1 may be enrolled in such
schools under the following conditions:
(a) In boarding schools upon payment of tuition fees, which shall
not exceed the per capita cost of maintenance in the school attended,
when their presence will not exclude Indian pupils eligible under Sec.
31.1.
(b) In day schools in areas where there are no other adequate free
school facilities available, tuition fees may be charged for such
enrollment at the discretion of the superintendent or other officer in
charge provided such fees shall not exceed the tuition fees allowed or
charged by the State or county in which such school is located for the
children admitted in the public schools of such State or county.
(34 Stat. 1018, 35 Stat. 783, 40 Stat. 564; 25 U.S.C. 288, 289, 297)
[29 FR 5828, May 2, 1964]
Sec. 31.4 Compulsory attendance.
Compulsory school attendance of Indian children is provided for by
law.
(60 Stat. 962; 25 U.S.C. 231)
Cross Reference: For penalties for the failure of Indians to send
children to school and for contributing to the delinquency of minors,
see Sec. 11.424 of this chapter.
[[Page 129]]
Sec. 31.5 Consent for transfer.
Consent of the parents or next of kin, given before the
superintendent or other duly authorized person, must be obtained before
an Indian child is sent to a school beyond the limits of the State or
Territory in which the reservation is located.
(Sec. 1, 28 Stat. 906; 25 U.S.C. 286)
Sec. 31.6 Coercion prohibited.
There shall be no coercion of children in the matter of transfers
from one school to another, but voluntary enrollment should be effected
through maintenance of Federal Indian schools or programs which suit the
needs and interests of the areas in which they are located.
(Sec. 1, 29 Stat. 348; 25 U.S.C. 287)
Sec. 31.7 Handling of student funds in Federal school facilities.
The Secretary or his authorized representative may authorize
officials and employees of the Bureau of Indian Affairs to accept and to
disburse deposits of funds of students and student activity associations
in schools operated by the Bureau in accordance with the purposes of
such deposits. The following steps shall be taken to safeguard these
funds:
(a) A written plan of operation shall be developed by the membership
of each student activity group. The plan of operation subject to the
approval of authorized officials shall outline procedures and provide
for a system of accounting for the student funds commensurate with the
age and grade level of the students yet adequate for financial control
purposes and shall stipulate the maximum operating capital of activity.
(b) Appropriate safekeeping facilities shall be provided for all
student personal and group funds and for the accounting or bookkeeping
records.
(c) Employees handling student funds in cumulative amounts in excess
of $100 shall be covered by a comprehensive fidelity bond the penal sum
of which shall be appropriately related to fund amounts handled.
(d) Student funds accumulated in excess of the amount authorized for
operating purposes by the plan of operation shall be deposited in
federally insured depositories.
(e) Periodic administrative inspections and financial audit of
student fund operations shall be conducted by authorized Bureau
personnel.
[26 FR 10637, Nov. 14, 1961]
PART 32_INDIAN EDUCATION POLICIES--Table of Contents
Sec.
32.1 Purpose and scope.
32.2 Definitions.
32.3 Mission statement.
32.4 Policies.
32.5 Evaluation of implementation of Pub. L. 95-561.
Authority: Secs. 1130 and 1133 of Title XI of the Education
Amendments of 1978 (92 Stat. 2143, 2321 and 2325, Pub. L. 95-561; 25
U.S.C. 2010 and 2013).
Source: 44 FR 58098, Oct. 9, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 32.1 Purpose and scope.
The purpose of this part is to state the policies to be followed by
all schools and education programs under the jurisdiction of the Bureau
of Indian Affairs. Contract schools operated by Indian Tribes or Alaska
Native entities may develop their independent policies, consistent with
contractual obligations, or adhere to these. The adherence to the
appropriate policies shall reflect the best interests of the student,
the Federal government, the Tribes and Alaska Native entities, and shall
be based on educationally sound judgment.
Sec. 32.2 Definitions.
As used in this part, the term:
(a) Agency School Board means a body, the members of which are
appointed by the school boards of the schools located within such
agency, and the number of such members shall be determined by the
Director in consultation with the affected Tribes or Alaska Native
entities except that, in agencies serving a single school, the school
board of such school shall fulfill these duties.
(b) Alaska Native means an Indian, Eskimo, or Aleut who is a member
of an Alaska Native entity.
[[Page 130]]
(c) Alaska Native Entity means any Alaska Native village or regional
or village corporation as defined in or established pursuant to the
Alaska Native Claims Settlement Act (85 Stat. 688; 43 U.S.C. 1601 et
seq.).
(d) Alaska Native Village means any Native village as defined in
section 3(c) of the Alaska Native Claims Settlement Act (85 Stat. 689;
43 U.S.C. 1602 (c)).
(e) Boarding school, hereinafter referred to as residential school,
means a Bureau school offering residential care and support services as
well as an academic program.
(f) Bureau means the Bureau of Indian Affairs of the Department of
the Interior.
(g) Consultation means a conferring process with Tribes, Alaska
Native entities, and Tribal organizations on a periodic and systematic
basis in which the Bureau and Department officials listen to and give
effect, to the extent they can, to the views of these entities.
(h) Contract school means a school (other than a public school)
which is Tribally operated and aided by a financial assistance contract
with the Bureau.
(i) Day school means a Bureau school offering an academic program
and certain support services such as counseling, food, transportation,
etc., but excluding residential care.
(j) Director means the Director, Office of Indian Education
Programs, Bureau of Indian Affairs.
(k) Early childhood education means comprehensive education
activities with continuity of educational approach for children ages 0-8
years and their familes, appropriate for their age, development,
language and culture which supplement and support usual family
responsibilities for child growth and development. They are coordinated
with, but do not supplant, existing educational, health, nutritional,
social and other necessary services.
(l) Exceptional Education Programs mean the provision of services to
those children who are identified as handicapped and have been found to
meet the criteria of handicapped as defined in Pub. L. 94-142, and
programs for gifted and talented students.
(m) Indian means a member of an Indian Tribe.
(n) Indian Organization means any group, association, partnership,
corporation, or other legal entity owned or controlled by a federally
recognized Indian Tribe or Tribes, or a majority of whose members are
members of federally recognized Indian Tribes.
(o) Indian Tribe or Tribe means any Indian tribe, band, nation,
rancheria, pueblo, colony, or community which is recognized as eligible
for the special programs and services provided by the United States to
Indians because of their status as Indians.
(p) Local school board, when used with respect to a Bureau school,
means a body chosen in accordance with the laws of the Tribe or Alaska
Native entity to be served or, in the absence of such laws, elected by
the parents of the Indian children attending the school, except that in
schools serving a substantial number of students from different Tribes
or Alaska Native entities the members shall be appointed by the
governing bodies of the Tribes and entities affected; and, the number of
such members shall be determined by the Director in consultation with
the affected Tribes and entities.
(q) Post-secondary education means any education program beyond the
age of compulsory education, including higher education, career,
vocational, and technical.
(r) Tribal Organization means an organization composed of or duly
representing Tribal governments which may be national or regional in
scope and function.
Sec. 32.3 Mission statement.
Recognizing the special rights of Indian Tribes and Alaska Native
entities and the unique government-to-government relationship of Indian
Tribes and Alaska Native villages with the Federal Government as
affirmed by the United States Constitution, U.S. Supreme Court
decisions, treaties, Federal statutes, and Executive Orders, and as set
out in the Congressional declaration in sections 2 and 3 of the Indian
Self-Determination and Education Assistance Act (Pub. L. 93-638; 88
Stat. 2203; 25 U.S.C. 450 and 450a), it is the responsibility and goal
of the Federal
[[Page 131]]
government to provide comprehensive education programs and services for
Indians and Alaska Natives. As acknowledged in section 5 of the Indian
Child Welfare Act of 1978 (Pub. L. 95-608; 92 Stat. 3069; 25 U.S.C.
1901), in the Federal Government's protection and preservation of Indian
Tribes and Alaska Native villages and their resources, there is no
resource more vital to such Tribes and villages than their young people
and the Federal Government has a direct interest, as trustee, in
protecting Indian and Alaska Native children, including their education.
The mission of the Bureau of Indian Affairs, Office of Indian Education
Programs, is to provide quality education opportunities from early
childhood through life in accordance with the Tribes' needs for cultural
and economic well-being in keeping with the wide diversity of Indian
Tribes and Alaska Native villages as distinct cultural and governmental
entities. The Bureau shall manifest consideration of the whole person,
taking into account the spiritual, mental, physical and cultural aspects
of the person within family and Tribal or Alaska Native village
contexts.
Sec. 32.4 Policies.
In carrying out its Education mission, the Assistant Secretary for
Indian Affairs through the Director shall:
(a) Policy making. (1) Assure that no new policy shall be
established nor any existing policy changed or modified without
consultation with affected Tribes and Alaska Native Government entities.
(2) Be guided in policy formulation and funding priorities,
including the proposing and awarding of contracts and grants, by
periodic and systematic consultation with governing bodies of Tribes and
Alaska Native entities.
(3) Ensure that Indian Tribes and Alaska Native entities fully
exercise self-determination and control in planning, priority-setting,
development, management, operation, staffing and evaluation in all
aspects of the education process.
(4) Ensure that each agency or local school board shall be
authorized and empowered to function as the policy making body for the
school, consistent with the authority granted by the tribes or Alaska
Native entity(ies) served by the school(s).
(b) Student rights. Ensure the constitutional, statutory, civil and
human rights of all Indian and Alaska Native students, and respect the
role of Tribal judicial systems where appropriate including, for
example, ensuring that students have the right to be free from cruel and
unusual punishment and that all disciplinary procedures shall be
consistent with appropriate customs and practices of the appropriate
Indian Tribe or Alaska Native village.
(c) Equity funding. Assure that resources for all education programs
are equitably distributed for the benefit of all Indian and Alaska
Native students, taking into account special educational needs where
they exist, as further described in part 39 of this subchapter.
(d) Direction of programs. Ensure that the education function be
structured in such a manner that all matters relating to the operation
of education programs be administered by or be under the direction of
education personnel.
(e) Respect for family. Promote, respect and defend the cohesiveness
and integrity of the family, and Tribal and Alaska Native community, as
they relate to the educational and social prerogatives of the Tribes and
Alaska Native entities.
(f) Religious freedom. Promote and respect the right to cultural
practices and religious freedom for all students, consistent with Tribal
and Alaska Native entities' wishes and with the provisions of the
American Indian Religious Freedom Act (92 Stat. 469; Pub. L. 95-341; 42
U.S.C. 1996).
(g) Tribal rights regarding governing bodies and planning. (1)
Develop in consultation with Tribes and Alaska Native entities a plan to
include their direct involvement in short and long-range planning of
Bureau operated post-secondary schools through the formation of policy
making governing boards.
(2) Encourage and defend the right of the Tribes and Alaska Native
entities to govern their own internal affairs in all matters relating to
education, and their right to determine the equitable
[[Page 132]]
and appropriate composition of governing boards at Bureau off-
reservation and post-secondary schools.
(h) Multilingual education. Provide for a comprehensive
multicultural and multilingual educational program including the
production and use of instructional materials, culturally appropriate
methodologies and teaching and learning strategies that will reinforce,
preserve and maintain Indian and Alaska Native languages, cultures, and
histories which school boards, Tribes and Alaska Native entities may
utilize at their discretion.
(i) Choice of school. Afford Indian and Alaska Native students the
opportunity to attend local day schools and other schools of choice and
the option to attend boarding schools when the student and parent or
guardian determine it is in the student's best interest and consistent
with the provisions of the Indian Child Welfare Act of 1978 (Pub. L. 95-
608) except that, residential schools shall not be used as substitutes
for providing adequate local family social services. Each school shall
establish its attendance area in cooperation with neighboring schools.
(j) Tribal education plans. Assist Tribes and Alaska Native entities
at their request in the development of Departments of Education,
education codes, and comprehensive education plans.
(k) Advocacy and coordination. (1) Serve as an advocate for Indian
Tribes and Alaska Native entities in education matters before the
Federal, State and local governments.
(2) Assume an assertive role in coordinating comprehensive support
for Indian and Alaska Native students internally and from other agencies
in education, mental and physical health, juvenile justice, job
training, including apprenticeship programs and other related Federal,
State and local programs and services.
(3) Serve as an advocate and carry out responsibilities for Indian
and Alaska Native students in public and other non-Bureau operated
schools consistent with the wishes of the appropriate Indian Tribes and
Alaska Native entities, particularly in regard to Impact Aid (Pub. L.
81-874), Johnson-O'Malley, and all Elementary and Secondary Education
Act programs.
(l) Student assessment. Establish and maintain a program of research
and development to provide accurate and culturally specific assessment
instruments to measure student performance in cooperation with Tribes
and Alaska Native entities.
(m) Recruitment of Indians. Adopt procedures to insure that
qualified Indian and Alaska Native educators are recruited for positions
appropriate to their cultural background and qualifications.
(n) Priorities in contracts and grants. Provide financial support
through contracts, grants or other funding mechanisms with first
priority given to the Tribes and Alaska Native entities, Tribal
organizations, Tribally controlled community colleges, and Indian or
Alaska Native professional or technical assistance organizations which
have the sanction of the benefitting Tribes and Alaska Native entities.
(o) Community school concept. Promote the community school concept
by encouraging year around multi-use of educational facilities,
equipment and services for Tribal, Alaska Native village, and community
development.
(p) Education close to home. Provide day and residential educational
services as close to an Indian or Alaska Native student's home as
possible, except when a student elects to attend a school elsewhere for
specialized curricular offerings or services.
(q) Tribal notification and involvement and program flexibility. (1)
Notify Indian Tribes and Alaska Native entities of proposed, pending or
final Federal legislation, appropriations, Solicitor's and Attorney
General's opinions and court decisions affecting Indian and Alaska
Native education for the purposes of information and consultation,
providing them ready access at the local level to all evaluations, data
records, reports and other relevant information, consistent with the
provisions of the Privacy and Freedom of Information Acts.
(2) Implement rules, regulations, procedures, practices, and
standards to insure flexibility in the exercise of local Tribal or
Alaska Native village options, and provide for input in periodic
reviews, evaluations, and revisions to
[[Page 133]]
meet changing needs and circumstances.
(r) Career and higher education. (1) Ensure to the extent possible
that all students who choose to pursue career and post-secondary
education, including but not limited to, undergraduate and graduate
programs, or preparation for skilled trades, receive adequate academic
or other preparation, at the schools of their choice, assuring that
students are provided adequate support services to enable them to meet
their educational goals.
(2) Extend to Tribes and Alaska Native entities the prerogative of
determining those critical professions and fields of study in post-
secondary education which are of the highest priority to meet their
economic and cultural goals.
(s) Planning, maintenance and use of facilities. (1) Ensure that the
needs of the students and Tribal or Alaska Native community will receive
first priority in the planning, design, construction, operation and
maintenance of Bureau schools and residential facilities, rather than
other considerations, such as ease of maintenance, and that these
facilities assure a supportive environment for learning, living and
recreation.
(2) Maintain all school and residential facilities to meet
appropriate Tribal, State or Federal safety, health and child care
standards. If a conflict exists in these standards, the Federal standard
shall be followed; in the absence of a Federal standard, the Tribal
standard shall be followed. In case of conflict, any such Tribal health
or safety standards shall be no greater than any otherwise applicable
State standard.
(t) Alternative, innovative and exemplary programs. Vigorously
encourage and support alternative, innovative and exemplary programs
reflecting Tribal or Alaska Native village specific learning styles,
including but not limited to, parent-based early childhood education
programs, adult and vocational technical education, library and media
services, special education including programs for handicapped, gifted
and talented students, summer programs, and career development.
(u) Training. Provide support and technical assistance at all levels
for the training of duly sanctioned Tribal and Alaska Native education
representatives involved in educational decisionmaking, including pre-
service and in-service training for educators.
(v) Tribally controlled community colleges. Assist Tribes and Alaska
Natives in their planning, designing, construction, operation and
maintenance of Tribally controlled community colleges, consistent with
all appropriate legislation. (See part 41 of this subchapter.)
(w) Equal opportunity. Establish and enforce policies and practices
to guarantee equal opportunity and open access to all Indian and Alaska
Native students in all matters relating to their education programs
consistent with the provisions of the Privacy and Freedom of Information
Acts.
(x) Accountability, evaluation of MIS. (1) Enforce a strict standard
of fiscal, programmatic and contract accountability to the Tribes and
Alaska Native entities and assist them in the development of their own
standards of accountability and carry out annual evaluations of all
Bureau-operated or funded education programs.
(2) Provide and make available a computerized management information
system which will provide statistical information such as, but not
limited to, student enrollment, curriculum, staff, facilities, student
assessments and related educational information.
(y) Accreditation. (1) Encourage and assist all Bureau and contract
schools to attain appropriate State, regional, Tribal or national
accreditation.
(2) Assist and promote the establishment of Indian regional and/or
national accrediting associations for all levels of Indian Education.
(z) Eligibility for services. Serve Indian and Alaska Native
students who are recognized by the Secretary of the Interior as eligible
for Federal services, because of their status as Indians or Alaska
Natives, whose Indian blood quantum is \1/4\ degree or more. In the
absence of other available facilities, children of non-Indian Bureau
personnel or other non-eligibles may be served subject to the provisions
of 25 U.S.C. 288 and 289.
(aa) Appropriations. Aggressively seek sufficient appropriations to
carry out
[[Page 134]]
all policies herein established subject to the president's budget and
the Department's budgetary process.
Sec. 32.5 Evaluation of implementation of Pub. L. 95-561.
The Director, Office Indian Education Programs will develop
guidelines for evaluating all functional and programmatic
responsibilities associated with title XI of the Education Amendments of
1978 (Pub. L. 95-561), and in the January 1, 1981 annual report, as
provided in section 1136, of Pub. L. 95-561 include a statement of the
specific program toward implementing these policies.
PART 33_TRANSFER OF INDIAN EDUCATION FUNCTIONS--Table of Contents
Sec.
33.1 Definitions.
33.2 Policy.
33.3 Delegation of authority.
33.4 Redelegation of authority.
33.5 Area education functions.
33.6 Agency education functions.
33.7 Implementing procedures.
33.8 Realignment of area and agency offices.
33.9 Development of procedures.
33.10 Issuance of procedures.
Authority: Sec. 1126, Pub. L. 95-561, Education Amendments of 1978
(92 Stat. 2143, 2391; 25 U.S.C. 2006).
Source: 44 FR 58103, Oct. 9, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 33.1 Definitions.
(a) Agency means that organizational unit of the Bureau which
provides direct services to the governing body or bodies and members of
one or more specified Indian Tribes.
(b) Early childhood means education activities serving the 0 to 8
year old child, including pre-natal, child care, kindergarten, homebase,
homebound, and special education programs.
(c) Elementary and secondary education means those programs serving
the child from grade one through grade twelve.
(d) Operating level means the organizational level at which direct
educational services are performed.
(e) Personnel directly and substantially involved means those
persons who provide services which affect the operation of Indian
education programs, including (but not limited to) school or institution
custodial or maintenance personnel, and whose services for Indian
education programs require the expenditure of at least 51 percent of the
employee's working time.
(f) Post-secondary means education programs that are provided for
persons past the age for compulsory education to include continuing
education, higher education, undergraduate and graduate, career and
adult education. As used in this Act, the term Post-Secondary shall
include those Bureau of Indian Affairs programs operated at Southwestern
Indian Polytechnic Institute, the Institute of American Indian Arts, and
Haskell Indian Junior College, and those operated at Tribally controlled
community colleges under Pub. L. 95-471.
Sec. 33.2 Policy.
It is the policy of the Department of the Interior that:
(a) Indian control of Indian affairs in all matters relating to
education shall be facilitated.
(b) Authority to perform education functions shall be delegated
directly from the Assistant Secretary-Indian Affairs to the Director,
Office of Indian Education Programs.
(c) Administrative authority shall be compatible with program
authorities; and, both shall be delegated to the operating level to
assure efficient and effective delivery of education services to Indian
children, youth, and adults.
(d) The Director, Office of Indian Education Programs shall
supervise the operation of Indian education program personnel at the
Arena, Agency, and the three Bureau of Indian Affairs post-secondary
institutions.
(e) Indian Education program functions to be performed at the Area
office level shall include those dealing with higher education, Johnson-
O'Malley aid to non-Bureau schools, off-reservation boarding schools,
those education program operations serving tribes from more than one
Agency except those at the three post-secondary institutions,
[[Page 135]]
on-reservation education functions located at an Agency where no
educational personnel are assigned, education contract operations, and
adult education.
Sec. 33.3 Delegation of authority.
The administrative and programmatic authorities of the Assistant
Secretary--Indian Affairs pertaining to Indian education functions shall
not be delegated to other than the Director, Office of Indian Education
Programs. The Assistant Secretary shall publish delegations of
authorites to the Director in the Bureau of Indian Affairs Manual after
the effective date of these regulations.
Sec. 33.4 Redelegation of authority.
The authorities of the Assistant Secretary--Indian Affairs as
delegated to the Director, Office of Indian Education Programs may be
redelegated by the Director to a Bureau of Indian Affairs Agency
Superintendent for Education, to a Bureau Area Education Programs
Director, or to a President of a Bureau of Indian Affairs post-secondary
education institution.
Sec. 33.5 Area education functions.
A Bureau Area Education Programs Director shall perform those Bureau
of Indian Affairs education functions related to Johnson-O'Malley aid to
non-Bureau schools, higher education, Bureau peripheral dormitories,
adult education, off-reservation residential schools, on-reservation
functions located at an Agency where no education personnel are
assigned, education contract operations, and those education program
operations serving Tribes from more than one Agency, except those of the
Bureau's post-secondary institutions.
Sec. 33.6 Agency education functions.
A Bureau Agency Superintendent for Education shall perform those
education functions related to elementary and secondary education, early
childhood education, peripheral dormitories which have been supervised
prior to Pub. L. 95-561, and exceptional education programs as defined
in 25 CFR part 32. This section shall not be construed to remove higher
education, adult education and/or Johnson-O'Malley programs currently
administered at the Agency level. Further, the Director under the
authority of Sec. 33.4 will periodically review Area programs such as
higher education, adult education, and Johnson-O'Malley for
consideration to assign to Agency level administration.
Sec. 33.7 Implementing procedures.
(a) The Assistant Secretary--Indian Affairs shall:
(1) Implement the transfer for Indian education functions from the
jurisdiction of Agency Superintendents and Area Office Directors to the
Director, Office of Indian Education Programs.
(2) Modify existing descriptions of positions for Area Office
Directors, Agency Superintendents, and all other personnel directly and
substantially involved with the provisions of education services by the
Bureau of Indian Affairs.
(b) The Director, Office of Indian Education Programs shall:
(1) For Area, Agency, and Bureau of Indian Affairs postsecondary
institutional personnel:
(i) Properly list the duties of each employee required to perform
functions redelegated by the Director;
(ii) Define the responsibilities for monitoring and evaluating
education programs; and
(iii) Exercise supervision of these employees.
(2) Define responsibilities for employees providing technical and
coordinating assistance for support services to the Director, Office of
Indian Education Programs and his/her subordinates, including
procurement, contracting, personnel, and other administrative support
areas.
[44 FR 58103, Oct. 9, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982,
as amended at 49 FR 12702, Mar. 30, 1984]
Sec. 33.8 Realignment of area and agency offices.
The Assistant Secretary--Indian Affairs shall implement Bureau of
Indian Affairs Area Office and Agency Office reorganizations required to
structure these offices consistent with education program activities to
be undertaken at those levels.
[[Page 136]]
Sec. 33.9 Development of procedures.
The Director, Office of Indian Education Programs shall prepare and
promulgate procedures to govern the provision of support services by the
Bureau of Indian Affairs for the education function. These procedures
shall be consistent with existing laws, regulations, Executive Orders,
and Departmental policies governing administrative support services.
These provisions shall be prepared in consultation with those personnel
within the Bureau of Indian Affairs who are responsible to the
Commissioner of Indian Affairs for providing support services.
Sec. 33.10 Issuance of procedures.
The Assistant Secretary--Indian Affairs, directly or through the
Commissioner of Indian Affairs, shall issue procedures in the Bureau of
Indian Affairs Manual governing the provision of support services to the
Bureau's Education Office function.
PART 36_MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF INDIAN
CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS--Table of Contents
Subpart A_General Provisions
Sec.
36.1 Purpose, scope, and information collection requirements.
36.2 Applicability.
36.3 Definitions.
Subpart B_Educational Management
36.10 Standard I--Philosophy and goals.
36.11 Standard II--Administrative requirements.
36.12 Standard III--Program needs assessment.
36.13 Standard IV--Curriculum development.
Subpart C_Minimum Program of Instruction
36.20 Standard V--Minimum academic programs/school calendar.
36.21 Standard VI--Kindergarten instructional program.
36.22 Standard VII--Elementary instructional program.
36.23 Standard VIII--Junior high/middle school instructional program.
36.24 Standard IX--Secondary instructional program.
Subpart D_Student Instructional Evaluation
36.30 Standard X--Grading requirements.
36.31 Standard XI--Student promotion requirements.
36.32 Standard XII--Graduation requirements for a high school diploma.
Subpart E_Instructional Support
36.40 Standard XIII--Library/media program.
36.41 Standard XIV--Textbooks.
36.42 Standard XV--Counseling services.
36.43 Standard XVI--Student activities.
Subpart F_Evaluation of Educational Standards
36.50 Standard XVII--School program evaluation and needs assessment.
36.51 Standard XVIII--Office of Indian Education Programs and Agency
monitoring and evaluation responsibilities.
Subpart G_Compliance and Waivers
36.60 Compliance for minimum academic standards.
36.61 Waivers and revisions.
Subpart H_National Dormitory Criteria
36.70 Scope of subpart.
36.71 General provisions.
36.72 Elementary level dormitories.
36.73 Secondary level dormitories.
36.74 Homeliving (dormitory operations).
36.75 Space and privacy.
36.76 Compliance for the National Criteria for Dormitory Situations.
36.77 Waivers and revisions.
Authority: Section 502, 25 U.S.C. 2001; section 5101, 25 U.S.C.
2001; Section 1101, 25 U.S.C. 2002; 5 U.S.C. 301; 25 U.S.C. 2 and 9; 25
U.S.C. 2901, Title I of P.L. 101-477.
Source: 50 FR 36816, Sept. 9, 1985, unless otherwise noted.
Subpart A_General Provisions
Sec. 36.1 Purpose, scope, and information collection requirements.
(a) The purpose of this rule is to establish minimum academic
standards for the basic education of Indian children for Bureau-operated
schools and for those Indian-controlled contract schools which adopt
these standards and to establish national criteria for dormitory
situations for schools operated by the Bureau of Indian Affairs
[[Page 137]]
and for Indian-controlled contract schools operating dormitories.
(b) These academic standards and dormitory criteria will take effect
thirty (30) days after the date of their publication in the Federal
Register. The Bureau of Indian Affairs intends to review and evaluate
the applicability of the academic standards and dormitory criteria under
this part after two years and make appropriate revisions.
(c) The information collection requirement contained in Sec.
36.61(a) has been approved by the Office of Management and Budget under
44 U.S.C. 3507 and assigned clearance number 1076-0092. The information
is being collected to evaluate waiver request(s) from tribal
government(s) and school board(s). The information will be used to
ascertain the approval of academic waiver request. The obligation to
respond is mandatory under 25 U.S.C. 2001. The information collection
requirements contained in Sec. Sec. 36.71(g), 36.74(f), and 36.76(b) of
this rule are not required to be approved by the Office of Management
and Budget since less than ten persons or tribes are affected by the
information collection requirement of this rule. However, when ten or
more persons or tribes become affected by this requirement, the Bureau
will submit an approval request.
Sec. 36.2 Applicability.
(a) The minimum academic standards for the basic education of Indian
children established under this part, subparts B through G, are
mandatory for all Bureau of Indian Affairs operated schools unless a
tribal governing body or the local school board, if so designated by the
tribal governing body, waives, in part or in whole, the standards
established under this part. When a tribe(s) formally takes action to
waive, in total or in part, standards contained in this part, proof of
such action shall be forwarded to the Agency Superintendent for
Education (ASE) or area Education Programs Administrator (EPA). Within
15 days of receipt of such documentation the ASE or EPA shall notify, in
writing, the parents or legal guardians whose children are attending the
school(s) affected.
(b) The minimum academic standards for the education of Indian
children established under subparts B through G are not applicable to
Indian-controlled contract schools unless the Indian-controlled contract
school board formally adopts them in whole or in part. The Bureau will
not refuse to enter into a contract on the basis of failure to meet
these standards but will, through contracting procedures, assist the
school in reaching compliance, if so requested by the Indian-controlled
contract school board.
(c) The national criteria for dormitory situations established under
subpart H will serve as a minimum requirement and shall be mandatory for
all Bureau-operated and Indian-controlled contract schools.
(d) Standards and criteria contained under this part will serve as
minimum requirements for the regular school educational program.
(e) In states where additional minimum academic standards exist or
are established, those state standards shall also apply.
Sec. 36.3 Definitions.
For purposes of this part, the following definitions apply:
Accreditation means a school has received an official decision by
the State(s) department(s) of education, or another recognized agency
having official authority, that, in its judgment, the school has met the
established standards of quality.
Agency means the current organizational unit of the Bureau which
provides direct services to the governing body or bodies and members of
one or more specified Indian tribes.
Agency school board as defined in sec. 1139(1), Pub. L. 95-561,
means a body, the members of which are appointed by the school boards of
the schools located within such Agency. The number of such members shall
be determined by the Director in consultation with the affected tribes.
In Agencies serving a single school, the school board of that school
shall function as the Agency school board.
Agency Superintendent for Education means the Bureau official in
charge of education functions at an Agency and to whom the school
supervisor(s) and other educators under the Agency's jurisdiction
report.
[[Page 138]]
Area Education Programs Administrator means the Bureau official in
charge of Bureau education programs and functions in a Bureau Area
Office and is responsible for off-reservation residential schools, and,
in some cases, peripheral dormitories and on-reservation day schools not
receiving services from the Agency Superintendent for Education.
Assistant Secretary means the Assistant Secretary for Indian Affairs
of the Department of the Interior.
Authentic assessment means the testing of higher order thinking
skills by monitoring performance of tasks requiring analysis,
creativity, and application skills in real life situations.
Average daily membership (ADM) means the aggregate days membership
of a given school during a given reporting period divided by the number
of days school is in session during this period. Only days on which the
students are under the guidance and direction of teachers shall be
considered as days in session. The reporting period is generally a given
regular school term.
Basic academic skills means the abilities acquired by observation,
study, or experience in mental and/or physical performance (e.g.,
proficiency in planning and investigating, operational techniques,
comprehension, organization, execution, remembrance and application of
knowledge to acquire a desired result) basic to the mastery of school
work or other activity.
Basic education means those components of education emphasizing
literacy in language arts, mathematics, natural and physical sciences,
history, and related social sciences.
Bureau means the Bureau of Indian Affairs of the Department of the
Interior.
Certification means the general process by which the State or Agency
authorized by the State adjudges and stipulates that an individual meets
the established standards which are prerequisite to employment for a
teacher or administrator in education.
Competency means having the requisite abilities, skills, or a
specified level of mastery.
Computer literacy used here means the general range of skills and
understanding needed to function effectively in a society increasingly
dependent on computer and information technology.
Content area means the usual school subjects of instruction, such
as: Language arts, mathematics, science, social studies, fine arts,
practical arts, health, and physical education.
Counselor means a staff member, including those in both academic and
dormitory situations, who helps the students to understand educational,
personal, and occupational strengths and limitations; to relate
abilities, emotions, and aptitudes to educational and career
opportunities; to utilize abilities in formulating realistic plans; and
to achieve satisfying personal and social development.
Course of study means a written guide prepared by administrators,
supervisors, consultants, and teachers of a school system or school, as
an aid to teaching a given course or an aspect of subject-matter content
to a given category of pupil.
Criterion-referenced test means an achievement test designed to
measure specific skills within a subject area. Test results indicate
which skills a student has or has not learned.
Days means calendar days.
Director means the Director of the Office of Indian Education
Programs in the Bureau.
Dormitory means a facility which provides students boarding and
lodging on a temporary residential basis for the purpose of attending a
Bureau-operated or Indian-controlled contract or public school.
Dormitory manager means a staff member who manages the day-to-day,
24-hour operation of one or more dormitories.
Elementary school is defined as any combination of grades K-8 except
when any of these grades are included in the junior high or middle
school level.
Exceptional child program means a program for students who are
eligible to receive education and related services as defined by 25 CFR
39.11(i).
Feeder school means a school whose exiting students are absorbed by
a school offering instruction on the next higher grade level.
Formative evaluation is an evaluation of progress during the
implementation of a program. Its purpose is to provide
[[Page 139]]
immediate feedback on results to enable modifying the processes used in
order to enhance success and prevent failure.
Goals means a statement of what the school system is attempting to
do to meet the comprehensive educational needs and interests of its
pupils, in accordance with its statement of philosophy.
Grade means the portion of a school program which represents the
work of one regular school year; identified by a designation such as
kindergarten, grade 1 or grade 10.
Grade level is a designation applied to that portion of the
curriculum which represents the work of one regular school year.
High school is defined as grades nine through twelve, except when
grade nine is included in the junior high or middle school
organizational unit.
Higher order thinking skills (or advanced skills) means skills such
as reading comprehension, written composition, and mathematical
reasoning. They differ from basic or discrete skills such as phonetic
decoding and arithmetic operations.
Indian-controlled contract school means a school that is operated by
a tribal organization and funded under a contract with the Bureau.
Indian student means a student who is a member of an Indian tribe
and is one-quarter (\1/4\) or more degree of Indian blood quantum.
Indian tribe or tribe means any Indian tribe, band, nation,
rancheria, pueblo, colony or community, including any Alaska Native
village or regional or village corporation as defined in or established
pursuant to the Alaska Native Claims Settlement Act (85 Stat. 688),
which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as
Indians.
Intense residential guidance means the program for residential
students who need special residential services due to one or more of the
problems as stated in 25 CFR 39.11(h).
Junior high or middle school is defined as grades seven and eight,
but may include grade six when it is not included in the elementary
school level and/or grade nine when it is not included in the high
school level.
Kindergarten means a group of students or a class that is organized
to provide educational experiences for children for the year immediately
preceding the first grade.
Librarian means a certificated school employee whose principal
responsibilities include selection, acquisition, preparation,
cataloging, and circulation of books and other printed materials;
planning the use of the library by teachers and students; and
instructing students in the use of library books and materials, whether
the library is maintained separately or as a part of an instructional
materials center.
Local school board when used with respect to a Bureau-operated
school means a body chosen in accordance with the laws of the tribe to
be served or, in the absence of such laws, the body elected by the
parents of the Indian children attending a Bureau-operated school. In
schools serving a substantial number of students from different tribes,
the members shall be appointed by the governing bodies of the tribes
affected and the number of such members shall be determined by the
Director in consultation with the affected tribes.
Objectives means a statement of the general, long-range aims and the
specific, short-range aims which indicate what the school is attempting
to do to meet the needs of the students in accordance with the
philosophy, goals, and policies of the school system.
Paraprofessional means a staff member who works with and is under
the supervision of a professional staff member but who does not have
full professional status, e.g., teacher aide. The term denotes a level
of knowledge and skills possessed by an individual or required of an
individual to perform an assignment. The level of skills is usually at a
predetermined minimum level.
Parent means a natural parent or guardian or a person legally acting
as parent.
Peripheral dormitory is a facility which provides students boarding
and lodging during the school year for the purpose of attending a public
school.
[[Page 140]]
Regular program student means all students including those
determined to be eligible for services as defined under the Exceptional
Child Program, 25 CFR 39.11(i).
Residential school means an educational institution in which
students are boarded and lodged as well as taught.
Residential Services under Exceptional Child Program means a program
providing specialized residential care as determined by 25 CFR 39.11(i).
School means an educational institution, including elementary,
junior high or middle, high school, peripheral, cooperative, and
contract schools serving students in grades Kindergarten through 12 and
as further defined under 25 CFR 39.2(q).
School board means an Agency or local school board.
School day, instructional day, or teaching day is a day on which the
school is open and students are under the guidance and direction of
teachers in instructional activities where the minimum number of
instructional hours are met.
School Supervisor means the official in charge of a school and/or
peripheral dormitory who reports to an Agency School Superintendent or
an Area Education Programs Administrator, as appropriate.
Secretary means the Secretary of the Interior.
Self-contained class means a class having the same teacher or team
of teachers for all or most of the daily session.
Standard means the established criterion and/or specified
requirement which must be met and maintained.
Summative evaluation means a systematic analysis of the results or
products of a program after it is completed. Its purpose is to determine
the extent to which the objectives of the program have or have not been
achieved. One form of summative evaluation compares results with those
of another ``control'' program using different procedures. Other forms
compare results with past results or predetermined target outcomes.
Teacher means a certified staff member performing assigned
professional activities in guiding and directing the learning
experiences of pupils in an instructional situation.
Unit/Unit of instruction means a major subdivision of instruction
generally composed of several topics including content and learning
experiences developed around a central focus such as a limited scope of
subject matter, a central program, one or more related concepts, one or
more related skills, or a combination of these. One unit equals one full
year of instruction in a subdividion thereof. Unit and credit shall be
used interchangeably.
[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]
Subpart B_Educational Management
Sec. 36.10 Standard I--Philosophy and goals.
(a) Each school shall develop a written mission statement and
philosophy of education that addresses the accumulation of knowledge and
development of skills, interests, appreciations, ideals, and attitudes
within the school's total educational program. A statement of expected
outcomes shall outline what the school is attempting to do to meet the
needs and interests of its students and community in accordance with the
school's mission statement and philosophy.
(b) The statement of philosophy and goals shall be developed with
the involvement of students, parents, lay citizens, school staff, and
tribe(s) and shall be formally adopted by the local school board.
(c) The philosophy and goals shall be reviewed annually and revised
as necessary by each school.
(d) A copy of the philosophy and goals shall be submitted to the
Agency Superintendent for Education or Area Education Programs
Administrator, as appropriate.
(e) Informational provisions shall be developed in the form of a
manual, handbook, brochure, or other written document(s) of the minimum
academic standards of the school's programs and the basic rules and
procedures of the school. The staff, students, and parents shall receive
the written document or documents and have same explained to all who
request explanation. The topics
[[Page 141]]
covered in the document(s) shall include but not be limited to the
following:
(1) Statement of philosophy and goals;
(2) Description of how policies are developed and administered;
(3) A brief explanation of curricular offerings;
(4) A copy of student rights handbook;
(5) Basic practices related to:
(i) Grading system;
(ii) Graduation requirements, if applicable;
(iii) Attendance policies;
(iv) Special programs at the school; and
(v) Student activities available for students.
[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]
Sec. 36.11 Standard II--Administrative requirements.
(a) Staffing. Each school shall, at a minimum, meet the following
requirements:
(1) The overall school ratio of regular program students to regular
program teachers in self-contained classrooms shall not exceed the
following except under the conditions set forth in paragraphs (a)(4) (i)
and (ii) of this section. Average daily membership (ADM) shall be used
in meeting the following ratios.
------------------------------------------------------------------------
Level Ratio
------------------------------------------------------------------------
Kindergarten............................................... 20:1
1st grade--3rd grade....................................... 22:1
4th grade--high school..................................... 25:1
------------------------------------------------------------------------
(2) Multi-grade classrooms that cross grade-level boundaries (e.g.,
K-1, 3-4, etc.) shall use the maximum of the lower grade. In grades K-8,
grades shall be consolidated to meet the teacher ratios listed above.
(3) The daily teaching load per teacher in departmentalized classes
shall not exceed 150 students (ADM) except in activity type classes such
as music and physical education.
(4) Schools exceeding these specific staffing ratios for over 30
consecutive days during one school year shall submit a justification for
a request for a waiver to the Director, through the Agency
Superintendent for Education or Area Education Programs Administrator,
as appropriate, which may be approved for a period not to exceed one
school year and for the following reasons:
(i) Additional classroom space is not available for establishing
another class; or
(ii) The school, Agency, Area and Office of Indian Education
Programs Applicant Supply File has been exhausted and the required
teacher position cannot be filled. However, efforts to fill the vacancy
shall be continued.
(5) Each school shall provide, in the absence of a regular teacher,
a certified substitute teacher who meets the State substitute teacher
qualifications. In the event that such a substitute is not available,
coverage will be provided by a school employee designated by the school
supervisor. A class cannot have as a teacher an employee without
teaching credentials for more than 20 school days during any one school
year.
(b) Written school enrollment and attendance policies. Each school
shall have written school enrollment and attendance policies in
compliance with and/or consistent with 25 CFR 31, Federal Schools for
Indians, the statutes of the State, and tribal education ordinances.
(c) Geographic attendance boundaries. Each Agency Superintendent for
Education shall establish and implement non-overlapping geographic
attendance boundaries within that Agency for each school within the
administrative jurisdiction of that Agency. The establishment of such
geographic boundaries shall require coordination with contiguous
Agencies within the Area and consultation with the Agency or other
relevant school boards and/or tribes and shall be reviewed each year to
appropriately adjust for geographic changes in enrollment, changes in
school capacities, and improvement of day school opportunities for
students. The Director shall establish and implement geographic
attendance boundaries for each off-reservation boarding school under
his/her administrative jurisdiction. The establishment of geographics
boundaries shall require coordination with other Area Education Programs
Administrators similarly affected by the
[[Page 142]]
requirement of this part, the affected tribes, and the Director.
(d) Immunization. School children shall be immunized in accordance
with the regulations and requirements of the state in which they attend
school or standards of the Indian Health Service.
[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]
Sec. 36.12 Standard III--Program needs assessment.
The policy and procedures of each school and its curricula shall be
developed and revised based on an assessment of educational needs. This
needs assessment shall be conducted at least every seven (7) years at
the same frequency as required in Sec. 36.50, School Program
Evaluation. This assessment shall include at least the following:
(a) A clear statement of student educational goals and objectives. A
student educational goal is defined as a statement of the knowledge,
skills, attitudes, or concepts students are expected to exhibit upon
completion of a grade level. Student educational objectives are defined
as statements of more specific knowledge, skills, attitudes, or concepts
students must exhibit in order to achieve the goal.
(b) The collection of appropriate data from which valid
determinations, judgments, and decisions can be made with respect to the
status of the educational program, e.g.,
(1) Perceptions of the parents, tribes, educators, and the students
with regard to the relevance and importance of the goals.
(2) The extent to which educational goals and objectives have been
achieved.
(3) The data developed as a result of the evaluation outlined in
Sec. 36.50 School Program Evaluation.
(c) A statement of educational needs which identifies the difference
between the current status of students and the desired goals for the
students.
(d) A plan of action to remediate assessed needs.
Sec. 36.13 Standard IV--Curriculum development.
(a) Each school shall implement an organized program of curriculum
development involving certified and non-certified staff and shall
provide the opportunity for involvement by members of the local
community.
(b) Curriculum development program activities shall be based on an
analysis of school programs and shall be related to needs assessment and
evaluation.
(c) Each school shall involve staff and provide the opportunity for
involvement by the tribal community in planning programs, objectives,
and activities which meet student/teacher needs.
Subpart C_Minimum Program of Instruction
Sec. 36.20 Standard V--Minimum academic programs/school calendar.
(a) Each school shall meet the applicable minimum program of
instruction provided in this subpart and, where applicable, the
graduation requirements under Sec. 36.32. A school that has difficulty
in meeting these minimum academic program requirements may seek
alternative ways of meeting some portions of the minimum program. For
example, courses may be taught in alternate years. Should a school wish
to adopt alternative measures, the school shall submit a request for
approval to the Agency Superintendent for Education or Area Education
Programs Administrator, as appropriate, for the adoption of alternative
measures with a written justification as to how this action will meet
the applicable minimum program of instruction.
(b) Length of school term and day. All schools shall provide an
educational program of studies which is conducted for not less that 180
instructional days per school term. Regular program students shall be in
instructional activities, exclusive of lunch (which must be at least 30
minutes a day), in accordance with the following minimums:
Kindergarten--2.5 instructional hours/day; grades 1-3--4.5 instructional
hours/day; grades 4-6--5.0 instructional hours/day; grades 7-12--5.5
instructional hours/day.
(c) If an emergency arises from an uncontrollable circumstance
during the school day which results in the dismissal of students by the
school administration, the day may be counted as a
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school day provided that three-fourths of the instructional hours are
met.
(d) The educational program shall include multi-culture and multi-
ethnic dimensions designed to enable students to function effectively in
a pluralistic society.
(1) The school's language arts program shall assess the English and
native language abilities of its students and provide instruction that
teaches and/or maintains both the English and the primary native
language of the school population. Programs shall meet local tribal
approval.
(2) The school program shall include aspects of the native culture
in all curriculum areas. Content shall meet local tribal approval.
(3) The school program shall assess the learning styles of its
students and provide instruction based upon that assessment. The method
for assessing learning styles shall be determined at the local level.
(4) The school program shall provide for at least one field trip per
child per year to broaden social and academic experiences.
(e) All intraschool programs (e.g., library, instructional labs,
physical education, music, etc.) which are directly related to or affect
student instruction shall provide services from the beginning of the
school term through the final class period at the close of the school
term.
[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]
Sec. 36.21 Standard VI--Kindergarten instructional program.
(a) The curriculum for kindergarten shall provide children with
experiences which emphasize language development, native language where
necessary as determined by 25 CFR 39.11(g), and performance of the
requirements in paragraph (b) of this section. Such programs shall
assist children in developing positive feelings toward themselves and
others.
(b) A kindergarten instructional program shall include but not be
limited to:
(1) Language (observing, listening, speaking).
(2) Exploration of the environment (number, space and time
relationships, natural science).
(3) Psychomotor and socialization development.
(4) Development of imaginative and creative tendencies.
(5) Health education inclusive of the requirements contained in the
Act of May 20, 1886, 24 Stat. 69.
Sec. 36.22 Standard VII--Elementary instructional program.
(a) The elementary instruction programs, grades one through six,
shall include but need not be limited to:
(1) Language arts.
(2) Mathematics.
(3) Social studies.
(4) Sciences.
(5) Fine arts.
(6) Physical education.
(b) Each school shall integrate the following content areas into its
curriculum:
(1) Career awareness,
(2) Environmental and safety education,
(3) Health education (includes requirements contained in 24 Stat.
69),
(4) Metric education, and
(5) Computer literacy.
Sec. 36.23 Standard VIII--Junior high/middle school instructional program.
(a) The instructional program shall reflect the school's philosophy
and the needs of the students and the community. It shall be part of a
progressive development that begins in the elementary program which
precedes it and continues to the secondary program which follows.
(b) The curriculum shall include the following required
instructional content areas at each grade level but need not be limited
to:
(1) Language arts. One unit shall be required of each student every
year.
(2) Social studies. One unit shall be required of each student every
year.
(3) Mathematics. One unit shall be required of each student every
year.
(4) Science. One unit shall be required of each student every year.
(5) Fine arts and practical arts. One unit each shall be required of
each student in the junior high/middle school instructional program.
[[Page 144]]
(6) Computer literacy. One unit shall be required of each student in
the junior high/middle school instructional program.
(7) Physical education. One unit shall be required of each student
in the junior high/middle school instructional program.
(c) The following content areas shall be integrated into the
curriculum.
(1) Career exploration and orientation.
(2) Environmental and safety education.
(3) Metric education.
(4) Consumer economics (including personal finances).
(5) Health education (includes meeting the requirements contained in
24 Stat. 69).
(d) Languages other than English are encouraged to be offered as a
content area beginning at junior high/middle school level.
(e) Student enrollment in any laboratory or vocational exploration
class shall be consistent with applicable health and safety standards.
Sec. 36.24 Standard IX--Secondary instructional program.
(a) The secondary instructional program shall reflect the philosophy
of the student, tribe, community, and school, and an awareness of the
changing world.
(b) The secondary instructional curriculum shall include the
following content areas:
(1) Language arts (communication skills).
(2) Sciences.
(3) Mathematics.
(4) Social studies.
(5) Fine arts and practical arts.
(6) Physical education.
(7) Languages other than English.
(8) Driver education. (See guidelines available from the applicable
State Department of Education.)
(9) Vocational education. Curriculum shall be designed and directly
related to actual occupational trends (national, regional, and local)
and to introduce and familiarize students with various occupations in
technology, industry and business, as well as required special skills
and the training requisites. Programs shall be directed toward assisting
students in making career choices and developing consumer skills and may
include the following:
(i) Vocational exploration,
(ii) Vocational skill development, and
(iii) School/on-the-job cooperative education programs.
(c) The following shall be integrated into the curriculum:
(1) Consumer economics (including personal finances),
(2) Metric education,
(3) Safety education, and
(4) Health education. (In addition, the program shall meet the
requirements contained in 24 Stat. 69.)
(d) The high school program shall provide program coordination with
feeder schools, career direction, and preparation for the student
entering independent living through employment, post-secondary
education, and/or marriage.
(e) Yearly class schedules shall take into account the graduation
requirements of each student.
(f) Student enrollment in any laboratory or vocational class shall
be consistent with applicable health and safety standards.
(g) Schools are encouraged to provide alternative programs that lead
to high school completion for secondary students who do not function
successfully in the regular academic setting.
[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61765, Dec. 1, 1994]
Subpart D_Student Instructional Evaluation
Sec. 36.30 Standard X--Grading requirements.
(a) Each school shall implement a uniform grading system which
assesses a student's mastery of the prescribed objectives of the courses
of study undertaken. The mastery of prescribed course objectives shall
be the primary measure of academic attainment for reporting student
grades on report cards.
(b) The information derived from student instructional evaluations
shall be shared with the student and with the parents and shall be used
to give teachers and students direction for subsequent learning
activities.
[[Page 145]]
(c) Parent/teacher and parent/teacher/student conferences focused on
the student's instructional progress and development shall be held,
where feasible and practical, to provide an additional means of
communication between home and school. Residential schools may meet this
standard by documenting the communication of student grades on report
cards to parents.
(d) Each school shall issue a report card to parents of students who
are under the age of eighteen (18) and to students eighteen (18) years
of age and older on a regular basis, but not less than four (4) times
yearly. The report card shall include, but not be limited to, the
following sections:
(1) Recommendations and probable promotion status;
(2) Appropriate signatures and request for return of report cards;
and
(3) Student attendance record.
(e) A summary of each year's final card shall become part of the
student's permanent school record.
Sec. 36.31 Standard XI--Student promotion requirements.
Each school shall establish and implement a promotion policy which
shall be submitted to and approved by the local school board and Agency
Superintendent for Education or Area Education Programs Administrator,
as appropriate. The requirements shall include, but not be limited to,
the following:
(a) Each grade level or equivalent shall have a minimum criteria for
student promotion based primarily on measurable mastery of the
instructional objectives.
(b) Criterion-referenced tests that evaluate student skills shall be
utilized for measuring the mastery of instructional objectives. The
evaluation results shall form the basis for the promotion of each
student.
(c) A student who has not participated, either directly or through
approved alternative instructional methods or programs, in a minimum of
160 instructional days per academic term or 80 instructional days per
semester without a written excused absence shall not be promoted. A
school board or a school committee may review a promotion decision and,
if warranted due to compelling and/or extenuating circumstances, rescind
in writing such action on a case-by-case basis. Alternative
instructional methods shall be submitted in writing for approval by the
Agency Superintendent for Education or Area Education Programs
Administrator, as appropriate.
Sec. 36.32 Standard XII--Graduation requirements for a high school diploma.
Graduation requirements contained under this section shall be
applied beginning with the graduating class of the 1987-88 school year.
(a) Satisfactory completion of a minimum number of units shall be
the measure for the issuance of a high school diploma.
(b) To graduate, a student shall earn 20 units in a four year high
school program unless the state in which the school is located exceeds
these requirements, in which case the state's requirements shall apply;
fifteen (15) units shall be required as follows:
(1) Language arts--four (4) units.
(2) Mathematics--three (3) units.
(3) Social studies--three (3) units.
(i) One (1) unit in United States history;
(ii) One-half (\1/2\) unit in civics/government;
(iii) One-half (\1/2\) unit in tribal history/government;
(iv) One-half (\1/2\) unit in Indian studies; and
(v) One-half (\1/2\) unit in any other social studies;
(4) Science--two (2) units.
(i) One (1) unit in the general science area.
(ii) One (1) unit in laboratory science areas, i.e., chemistry,
physics, biology, zoology, laboratory anatomy.
(5) Physical education--one (1) unit.
(6) Practical arts--one (1) unit. Credit in any vocational course
may also be used to satisfy this required unit.
(7) Fine arts--one (1) unit. Music, art, dance, drama, theatre, and
other fine arts courses may be used to satisfy this required unit. These
are minimum requirements; local schools may establish academic or
vocational requirements beyond those prescribed by these standards.
[[Page 146]]
(c) A school with an average enrollment of fewer than 75 students
may offer subjects in alternate years. If schools use this pattern,
alternating pairs of subjects shall be listed and approved by the Agency
Superintendent for Education or Area Education Programs Administrator,
as appropriate.
(d) Credits earned through approved correspondence or extension
study may be accepted if such credits are from schools approved or
accredited by the state in which they are located or by a college or
university which is regionally accredited for such purposes.
(e) Students who successfully complete the requirements of the High
School Proficiency Examination in the State in which the school is
located shall receive an endorsement so stating on their diplomas.
Subpart E_Instructional Support
Sec. 36.40 Standard XIII--Library/media program.
(a) Each school shall provide a library/media program which shall,
as a minimum, meet the applicable state and/or regional standards, but
shall not be limited to these, and shall include the following:
(1) A written set of instructional and service objectives shall be
established that is intergrated and consistent with the school's
educational goals and philosophy. The librarian or educational media
specialist, with students and staff, shall set objectives based on
assessed academic and residential needs. The program and services will
be evaluated yearly by the principal and the librarian or educational
media specialist to determine the degree to which all objectives have
been met.
(2) A written policy for the selection of materials and equipment
shall be developed by a library committee in collaboration with the
librarian and be approved by the school board. The colleciton of
materials shall include as a minimum the following:
(i) A collection of books suitable for the range of student
abilities and interests being served in the following ADM ratios.
(A) Elementary K-6, 15 books per student
(B) Middle 7-8, 12 books per student
(C) Secondary 9-12, 10 books per student
It is required that materials pertaining to Indian Tribes and/or Alaskan
Natives be integrated within this basic collection.
(ii) Eight (8) to 12 percent of the basic collection must be
composed of reference books, currently relevant and in a state of good
physical condition, for practical use. Single copies of the principal
textbooks used to complement instruction shall be in the collection, but
textbooks cannot be counted toward this standard.
(iii) A periodical collection, suitable for the range of student
abilities and interests being served, consisting of one (1) periodical
for every ten (10) students, shall be maintained. Schools of over 200
will have a base collection of 20 periodicals.
(iv) A professional collection for the school staff shall be
developed and maintained by the librarian in cooperation with a faculty
committee.
(v) A variety of audio-visual materials, suitable for the range of
instruction being provided, of at least 750 items or five (5) items for
each student, whichever is larger, and inclusive of materials located in
the classrooms shall be maintained. This category includes some of each
of the following: Tactile objects, globes, models, maps, films, film-
strips, microforms, slides, audio and video tapes, recordings,
transparencies and graphics, and the equipment to use all of these.
Multiple items within a specific set of materials will be counted as
separate items.
(3) There shall be a library media center serviced by a librarian.
Schools with fewer than 200 students are encouraged, wherever feasible,
to cooperate in sharing librarian resources. Schools within an Agency
and/or Area may cooperatively share the costs and services of a
librarian who shall facilitate sharing of the combined available
resources among the cooperating schools in accordance with the following
ratios:
School Enrollment (ADM)
Up to 100--\1/5\ time librarian
101-200--\1/5\ time librarian and \1/2\ time library aide or 20 hours of
library activity
[[Page 147]]
201-400--1 full-time librarian or \2/5\ time librarian provided the
school has a full-time library aide
401+--1 full-time librarian and a full-time library aide
(4) All libraries must conduct an annual inventory of available
books, materials, and equipment in accordance with the acquisitions and
selection policies.
Sec. 36.41 Standard XIV--Textbooks.
(a) Each school shall establish a textbook review committee composed
of teachers, parents, and students, and school board members.
Appointment to the textbook review committee shall be subject to school
board approval.
(b) The textbook review committee shall establish a procedure and
criteria for the annual review of textbooks and other materials used to
complement instruction. The criteria shall include, but not be limited
to, the following:
(1) The textbook content shall meet the course objectives which are
within the adopted school curriculum.
(2) The textbooks shall, as much as possible, reflect cultures
accurately.
(3) The textbooks shall be current, in good physical condition, and
varied in reading levels.
(c) Each school shall equitably distribute instructional materials
to all classrooms. Each school shall inventory all property and
equipment annually prior to requisitioning additional materials. Copies
of the inventory shall be kept on file by the school staff.
Sec. 36.42 Standard XV--Counseling services.
Each school shall offer student counseling services concerned with
physical, social, emotional, intellectual, and vocational growth for
each individual. Counseling services shall be included in a school-wide
assessment program.
(a) Each Agency and Area, as appropriate, shall institute and
supervise an assessment program for its schools in order to provide for
the objective assessment of student academic performance. Required
formal tests shall be administered annually to all regular program
students in grades 4, 8, and 12. (The testing of special education and
gifted/talented students shall be in accordance with respective
regulations.) If required by state certification standards, schools may
use the state mandated academic achievement tests and accompanying
requirements. These formal tests and their subtest contents, as well as
the test-related procedures, shall include, but not be limited to, the
following:
(1) Each Spring, schools shall conduct testing for grades 4, 8, and
12 using a current version of a standardized academic achievement test
based upon the national assessment standards designed to assess higher
order thinking skills. All schools shall keep a current record, with the
Office of Indian Education Programs, of the test the school administers
each Spring and the testing dates.
(2) Schools shall use some form of performance-based or authentic
assessment in addition to standardized achievement testing.
(3) Each school shall report the summative results of its assessment
program to its respective Agency or Area, as appropriate, and its school
board.
(4) Parents/guardians shall be informed of their children's
assessment results and provided with an explanation and interpretation
to ensure adequate understanding of the results.
(5) Each school's instructional program shall establish an ongoing
student academic assessment program to ensure that defined assessment
procedures are in place. The program shall include regular training in
basic assessment procedures and routines for all teachers and other
staff involved in student assessment.
(6) Each Agency and Area, as appropriate, shall report the results
of each school's formal Spring tests to the Office of Indian Education
Programs by August 1 of each year. Summative information from
performance-based and authentic assessments shall be reported at the
same time.
(b) Each counseling program shall provide the following:
(1) Each school having a minimum school ADM of 200 students shall
make provisions for the full-time professional services of a counselor,
and each
[[Page 148]]
school enrolling fewer than 200 students shall make provisions for a
part-time professional counselor.
(2) The counselors shall be familiar with the unique tribal, social,
and economic characteristics of students.
(3) The counseling program shall contain the following:
(i) A written referral procedure;
(ii) Counseling techniques and documentation procedures to provide
for the career, academic, social, and personal needs of the students
which are based on the cultural beliefs and values of the students being
served;
(iii) Preventative and crisis counseling on both individual and
group bases;
(iv) Confidentiality and security of counseling records for each
student; and
(v) Design and implementation of orientation programs to facilitate
the pupil's transition from elementary to junior high/middle school and
from junior high/middle school to high school.
(vi) Each junior or middle school and high school student shall
receive academic counseling a minimum of twice yearly during which time
the counselor shall assist the student in developing a written academic
and career plan based on ability, aptitude, and interests. Additionally,
counselors will assist high school students in selecting courses which
satisfy the school's and the state's graduation requirements and the
student's academic and career plan. Further, seniors will be given aid
in completing registration and/or financial assistance applications for
either vocational or academic post-secondary institutions.
(vii) Each high school counseling program shall be required to have
on file for each student a planned academic program of studies which is
available from the regular course offerings of the school to meet the
student's career objectives and which will show that the student has
received counseling.
[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61766, Dec. 1, 1994]
Sec. 36.43 Standard XVI--Student activities.
All schools shall provide and maintain a well-balanced student
activities program based on assessment of both student and program
needs. Each activity program shall help develop leadership abilities and
provide opportunities for student participation but not be limited to
activities that include special interest clubs, physical activities,
student government, and cultural affairs. The activity program shall be
an integral part of the overall educational program.
(a) All student activities shall be required to have qualified
sponsors and be approved by the school supervisor, and the school board
shall approve the overall activity plan. A qualified sponsor is a
professional staff member of the school that is given responsibility to
provide guidance or supervision for student activities.
(b) A plan of student activity operations shall be submitted, by
each activity at the beginning of each school year, to the school
supervisor. The plan will include the purpose, structure, coordination,
and planned types of fund-raising activities.
(c) School may participate in interscholastic sports and activities
on an informal or formal basis. On an informal basis, the Bureau-
operated schools will coordinate with other schools in setting up a
schedule of sports and games. Schools that participate in state-
recognized leagues will abide by those state rules regulating inter-
school competition.
(d) Until comparable competitive opportunities are provided to all
students, regardless of sex, no student shall be barred from
participation in interscholastic competition in noncontact sports except
on the basis of individual merit.
(e) Residential schools shall plan and provide an intramural program
for all students. The program shall include a variety of scholastic and
sport activities.
(f) Students shall be involved only in activities which are
sanctioned by the school.
(g) All student activities involved only in fund raising are
required to establish a school/student activity bank account following
school/student banking procedures outlined under 25 CFR 31.7. All
student activity accounts shall be audited annually.
[[Page 149]]
(h) The school shall provide for the safety and welfare of students
participating in school-sponsored activities.
(i) Each sponsor of a student activity will be given orientation and
training covering the responsibilities of a sponsor by the school
supervisor.
Subpart F_Evaluation of Educational Standards
Sec. 36.50 Standard XVII--School program evaluation and needs assessment.
Each school shall complete a formal, formative evaluation at least
once every seven (7) years beginning no later than the second complete
school year following the effective date of this part. Schools shall
follow state and/or regional accreditation, or accreditation
requirements equal to the state in which a school is located. Each
school shall follow the prescribed evaluation cycle. The primary purpose
of this evaluation will be to determine the effects and quality of
school programs and to improve the operations and services of the school
programs.
(a) Each school's evaluation design or model will provide objective
and quantitative analysis of each area to be evaluated. The analysis
shall include product and process evaluation methods. The areas to be
reviewed will include, but not be limited to, the following:
(1) School philosophy and objectives.
(2) Administrative and organizational requirements.
(3) Program planning and implementation.
(4) Curriculum development and instruction.
(5) Primary education.
(6) Program of studies for elementary, junior high/middle, and high
schools.
(7) Grading requirements.
(8) Promotion requirements.
(9) High school graduation requirements.
(10) Library/media.
(11) Textbooks and other instructional materials.
(12) Counseling services.
(13) Medical and health services.
(14) Student activities.
(15) Transportation services.
(16) Staff certification and performance.
(17) Facilities (school plant).
(18) Parent and community concerns.
(19) School procedures and policies.
(20) School board operations.
(b) The Director, within six (6) months from the effective date of
this part, shall distribute to each school, Agency or Area, as
appropriate, a standardized needs assessment and evaluation instrument
with guidelines for developing and applying a locally appropriate
evaluation model for carrying out the requirements of this standard.
Sec. 36.51 Standard XVIII--Office of Indian Education Programs and Agency
monitoring and evaluation responsibilities.
(a) The Office of Indian Education Programs shall monitor and
evaluate the conformance of each Agency or Area, as appropriate, and its
schools with the requirements of this part. In addition, it shall
annually conduct onsite monitoring at one-third of the Agencies and
Areas, thereby monitoring onsite each Agency and/or Area at least once
every three (3) years. Within 45 days of the onsite visit, the Director
shall issue to each Agency Superintendent for Educaton or Area Education
Programs Administrator, as appropriate, a written report summarizing the
monitoring findings and ordering, as necessary, required actions to
correct noted deficiencies.
(b) Each Agency or Area, as appropriate, in conjunction with its
school board shall monitor and evaluate the conformance of its school
with the requirements of this part through an annual onsite evaluation
involving one-third of the schools annually, thereby monitoring onsite
each school at least once every three (3) years. Within 30 days of the
onsite visit, the Agency Superintendent for Education or Area Education
Programs Administrator, as appropriate, shall issue to the local school
supervisor and local school board a written report summarizing the
findings and ordering, as necessary, required actions to correct noted
deficiencies.
[[Page 150]]
(c) Schools, Agencies, and Areas shall keep such records and submit
to the responsible official or designee accurate reports at such times,
in such form, and containing such information as determined by that
official to be necessary to ascertain conformance with the requirements
of this part.
(d) Schools, Agencies, and Areas shall permit access for examination
purposes by the responsible official, or any duly authorized designee,
to any school records and other sources of information which are related
or pertinent to the requirements of this part.
(e) The Office of Indian Education Programs, Agency Superintendent
for Education, or Area Education Programs Administrator, as appropriate,
shall annually conduct a summative evaluation to assess the degree to
which each Bureau educational policy and administrative procedure
assists or hinders schools in complying with the requirements of this
part. This will include, but not be limited to, the following actions:
(1) Evaluate current policies and practices not related to this part
and the effects thereof on the amount of time and resources required
which otherwise would be available for these standards;
(2) Modify any policies and practices which interfere with or
compromise a school's capability to achieve and maintain these
standards;
(3) Invite non-Federal agencies to evaluate the effects current
policies and procedures have had on complying with the requirements of
this part; and
(4) Submit annually to the Director a copy of the summative
evaluation.
Subpart G_Compliance and Waivers
Sec. 36.60 Compliance for minimum academic standards.
Implementation of these standards shall begin immediately on the
effective date of this part.
(a) A school is in compliance when it has met and satisfied all the
requirements of these standards.
(b) Each school supervisor shall, within 45 days after the start of
each school term, submit a compliance report to the local school board;
within 15 days thereafter, the compliance report shall be submitted to
the Agency Superintendent for Education or the Area Education Programs
Administrator, as appropriate, which attests to whether a school is in
compliance or noncompliance.
(c) In those instances where a school does not meet the requirements
of these standards, the school supervisor shall inform the parents or
legal guardians by letter no later than 60 days after the start of each
school term.
(d) The compliance report shall contain the following:
(1) A written statement attesting to the fact that the school has or
has not met all of the requirements.
(2) A specific listing of the requirements which have not been met.
(3) A summary of an action plan designed to correct deficiencies.
(4) A statement signed by the local school board attesting to the
fact that it has been apprised of the school's compliance status and
concurs or does not concur with the action plan to reach compliance.
(e) The Agency Superintendent for Education or the Area Education
Programs Administrator, as appropriate, shall review each school's
compliance report and shall provide the Director with a summative report
by November 15 of each year which includes:
(1) A listing of those schools not in compliance.
(2) A detailed statement as to why each school is not in compliance
and how it proposes to reach compliance.
(3) A plan of action outlining what actions the Agency
Superintendent for Education or Area Education Programs Administrator
will take to assist the school(s) to reach compliance.
(f) In the event a school is not in compliance for two consecutive
years due to conditions which can be corrected locally, appropriate
personnel actions shall be initiated at all applicable levels of school
administration. Noncompliance may be acceptable grounds for dismissal.
(g) The Secretary shall submit to the appropriate committees of
Congress at the time of the annual budget request a detailed plan to
bring all Bureau and
[[Page 151]]
contract schools up to the level required by the applicable standards
established under section 1121 of Pub. L. 95-561, 25 U.S.C. 2001.
Sec. 36.61 Waivers and revisions.
(a) The tribal governing body, or the local school board if so
designated by the tribal governing body, shall have the local authority
to waive, in part or in whole, the standard(s) established in this part,
where the standard(s) is deemed by such body to be inappropriate and
shall also have the authority to revise such standard(s) to take into
account the specific needs of the tribe's children. This includes
Bureau-operated schools. When the tribal governing body, or local school
board if so designated by the tribal governing body, waives the
standard(s) or part thereof, it shall within 60 days submit revised
standard(s) to the Assistant Secretary for approval. In the interim
between the waiver of the standard(s) and the approval of the revised
standard(s), the standards of this part or minimum state standards shall
apply to the affected school(s). In the notice of the waiver, the tribal
governing body or its designee shall state whether the standards in this
part or the minimum state standards apply to the affected school(s) for
such interim period. The Assistant Secretary shall respond to the
revised standard(s) within 45 days of receipt. Revised standard(s) shall
be established by the Assistant Secretary unless specifically rejected
by the Assistant Secretary for good cause and in writing. The written
notice of rejection shall be sent to the affected tribe(s) and local
school board. Such rejection shall be final. All revised standards shall
be submitted to the Assistant Secretary in writing and will adhere to
the following procedure:
(1) Waivers and revisions shall be submitted by November 15 each
school year to accompany the school's annual standards compliance report
as required by Sec. 36.60(b).
(2) The section or part of the standard to be waived must be
specified, and the extent to which it is to be deviated from shall be
described.
(3) A justification shall be included with a revised standard, which
explains why the alternative standard is considered necessary.
(4) Measurable objectives of the alternative standard(s), the method
of achieving the alternative standard(s), and the estimated cost of
implementation must be stated.
(b) The Assistant Secretary shall assist the school board of an
Indian-controlled contract school in the implementation of the standards
established under this part if the school board requests that these
standards, in part or in whole, be implemented. At the request of an
Indian-controlled contract school board, the Assistant Secretary shall
provide alternative or modified standards to those established in this
part to take into account the needs of the Indian children and the
Indian-controlled contract school.
[50 FR 36816, Sept. 9, 1985, as amended at 59 FR 61766, Dec. 1, 1994]
Subpart H_National Dormitory Criteria
Sec. 36.70 Scope of subpart.
This subpart contains the criteria and mandatory requirements for
all dormitories. The individual employee responsibilities, based on the
terminology used to designate specific employee positions and their
assigned responsibilities, may vary depending upon whether the dormitory
is a direct Bureau operation or contract operation.
Sec. 36.71 General provisions.
(a) The Homeliving Specialist is the administrative head of the
dormitory who shall have sufficient autonomy and authority to ensure the
successful functioning of all phases of the dormitory program, and, in
dormitories attached to a school, shall report to the school supervisor.
(b) In situations where a Bureau-funded dormitory is maintained,
operated, and administered separately from the academic program, this
dormitory will ensure access to or provide a guidance program equal to
the standards as those under Sec. 36.42 of this part.
(c) Students who qualify for residential services under the
Exceptional
[[Page 152]]
Child Program must have, in their individualized education plan,
objectives that are to be met in the homeliving program. Documentation
to support completion of these objectives is required.
(d) Dormitories with intense residential guidance programs shall
have updated written descriptions of the programs with stated purposes,
objectives, activities, staffing, and evaluation system. Each student
diagnosed as being in need of intense guidance services shall have a
file which contains the following:
(1) Documentation of eligibility according to the definition
contained under 25 CFR 39.11(h);
(2) Documentation of a diagnosis of the student's needs;
(3) A placement decision signed by a minimum of three (3) staff
members;
(4) An individualized treatment plan which includes:
(i) Referral date and referral sources;
(ii) Diagnosis identifying specific needs;
(iii) Specific goals and objectives to be met;
(iv) Record of specific services including beginning and ending
dates;
(v) Designation of responsible staff person(s); and
(vi) A means by which the student's progress and the effectiveness
of the individualized treatment plan can be periodically reviewed and
reevaluated.
(e) Each dormitory program that does not have an academic program
under subpart C shall make available career counseling information on
educational and occupational opportunities and help students assess
their aptitudes and interests. This shall be done on a continuing basis,
beginning at the elementary level.
(f) Counseling services shall be made available for students during
non-academic hours.
(g) Provisions shall be made to interpret to staff, students, and
parents the administrative policies and practices of the dormitory. This
provision shall be made in the form of a manual, handbook, brochure, or
other written document that will be made available and explained to all
who are interested. The topics shall include, but not be limited to, the
following:
(1) Statement of philosophy and goals;
(2) Description of how policies are developed and administered; and
(3) A copy of the student rights handbook.
(h) Program will be designed and orientation programs implemented to
facilitate the pupils' transition from elementary to middle school and
from middle to high school, where appropriate.
(i) All dormitories shall provide and maintain a well-balanced
student activities program based on assessment of both student and
program needs. Programs shall provide opportunities for student
participation in, but not limited to, activities that include special
interest clubs, physical activities, student government, and cultural
affairs. In addition, the following provisions shall be adhered to:
(1) Dormitories shall plan and provide for an intramural program
that includes a variety of scholastic and sport activities.
(2) A plan of operation shall be submitted by each activity at the
beginning of each school year to the school supervisor and approved by
the school board. The plan shall include the purpose, structure, and
coordination of all activities.
(3) All dormitories conducting fund-raising activities are required
to established a school/student activity bank account following school/
student banking procedures outlined under 25 CFR Sec. 31.7. All
accounts shall be audited annually.
Sec. 36.72 Elementary level dormitories.
(a) Each dormitory program shall provide or have access to the
services of a qualified counselor who holds a valid counselor
certificate and has training and experience in dealing with elementary
students.
(b) Counselors may be assigned minimal or temporary school
supervisory duties. A school supervisor shall not serve in the capacity
of counselor while holding the position of school supervisor.
(c) The dormitory program shall have the following ratios (ADM) for
counselors:
Less than 75 students: \1/2\ time counselor
[[Page 153]]
75-150 students: 1 full-time counselor
151-225 students: 1 full-time and \1/2\ time counselor
226-300 students: 2 full-time counselors
For dormitories that exceed 300 students (ADM), additional counselor
time shall be provided according to the above ratio. Dormitories within
an Agency are encouraged to try a variety of approaches to guidance
service. In this arrangement, the counselor's time may be shared between
dormitories. As long as one half-time, professionally-trained counselor
is provided, the dormitory program may use supportive personnel and
teachers to meet the ratio.
(d) Dormitory counselors' work hours shall be arranged to provide
maximum availability of services to students when they are not in
academic session.
Sec. 36.73 Secondary level dormitories.
(a) Each dormitory program shall provide or have access to the
services of a qualified counselor who holds a valid counselor
certificate and has training and experience dealing with secondary
students.
(b) Counselors may be assigned minimal or temporary school
supervisory duties. A school supervisor shall not serve in the capacity
of a counselor while holding a position as a school supervisor.
(c) The dormitory program shall have the following ratios (ADM) for
counselor:
Less than 100 students: \1/2\ time counselor
100-199 students: 1 full-time counselor
200-300 students: 1 full-time and \1/2\ time counselor
For dormitories that exceed 300 students (ADM), counselor time will be
provided according to the above radio. As long as one half-time,
professionally trained counselor is provided, the dormitory program may
use supportive personnel and teachers to meet the ratio.
(d) Counselors' work hours shall be arranged to provide maximum
availability of service to students when they are not in academic
session.
Sec. 36.74 Homeliving (dormitory operations).
Staff shall be provided so that at least one adult is on duty at all
times when students are in the dormitory. Each dormitory program shall
include, but not be limited to, the following:
(a) Every dormitory facility shall be under the direct supervision
of a dormitory manager. A building composed of separate wings or several
floors shall be counted as one facility.
(b) Each dormitory operation shall provide the following minimum on-
duty paraprofessional staff to student ratio (ADM):
Ratio
Grades 1 to 6
Weekdays:
Mornings................................................. 1:30
During school hours...................................... 1:40
Evenings................................................. 1:30
Nights................................................... 1:40
Weekends:
Mornings................................................. 1:30
Evenings................................................. 1:30
Nights................................................... 1:40
Grades 7 to 12
Weekdays:
Mornings................................................. 1:50
During school hours...................................... 1:80
Evenings................................................. 1:50
Nights................................................... 1:80
Weekends:
Mornings................................................. 1:50
Evenings................................................. 1:50
Nights................................................... 1:80
Dormitory operations for grades one through eight are encouraged to
provide additional staff aides during the time children in the primary
grades are dressing and preparing for breakfast and school. Staff ratios
on weekends shall be reduced at boarding schools to adjust for those
students who go home, according to the above ratio.
(c) Group instruction and discussion session shall be held on
various topics at least on a monthly basis, but preferably on a weekly
basis. Topics to be presented may be determined by a committee comprised
of students, staff, administrators, and parents. These topics shall
include discussions of problems or needs that exist at the location and/
or community.
[[Page 154]]
(d) Each dormitory facility shall be cleaned daily when in operation
to provide a safe and sanitary environment. Student assistance may be
utilized; however, the responsibility for the cleanliness, safety, and
sanitation of the facility shall rest with the dormitory administrator.
Bed and bath linen shall be changed a minimum of once per week.
Necessary toiletry items shall be made available to those students who
are economically unable to provide them.
(e) Dormitory operations shall have access to clothes washers and
dryers. Equipment shall be utilized only for students' clothing. In
grades one through six, residential paraprofessionals shall be
responsible for the upkeep of clothing. Students in grades seven through
12 shall be responsible for the upkeeping of their own clothing. In
grades seven through 12, students shall be allowed to wash and dry their
clothing after training is given in using the machines. Contracting for
student clothing care may also be utilized under this part.
(f) A system of student accountability shall be established at each
residential facility. Minimum requirements of the system shall include
an attendance procedure at least four (4) times per normal waking day
for grades one through eight and two (2) times for grades nine through
12. However, students in grades seven through 12 may be allowed to have
a self check-in system provided that an employee reviews the roster
within an hour of each designated check-in time. During sleeping hours,
students in grades one through eight shall be checked on an hourly
basis; students in grades nine through 12 shall be checked every two (2)
hours. At the start of each school day, residential facilities
supervisors shall report to the school office which students will not be
in attendance. An intra-school pass system shall be developed and
implemented.
(g) Students shall be permitted to be released from the dormitory
overnight, on weekends, or during vacation periods only when prior
written approval is granted by the parent or guardian and only if the
local school board adopts a policy governing the conditions of release.
Such policy must adhere to the concept that the dormitory/school is
acting in ``loco parentis.''
(h) Dormitory facilities shall have a designated room or rooms which
shall be utilized as an isolation room(s) for student health care needs.
Students isolated in such room(s) shall be checked on a minimum of an
hourly basis.
(i) Each dormitory operation shall develop a written procedure for
handling emergency situations. Such a procedure shall include names and
telephone numbers of the responsible parties to contact in case of
emergencies. Situations that shall be considered emergencies include
life-threatening medical/health problems, power failures, walkaways,
etc.
(j) A tutoring program shall be developed and implemented to assist
those students having academic difficulties. Each dormitory operation
shall provide a time and place where tutoring, homework, reading, and/or
studying can be done for at least one hour daily.
(k) The responsible dormitory supervisor shall be accountable for
reporting any hazardous or defective items in the dormitory to the
appropriate supervisor and plant manager.
(l) Leisure-time activities shall be provided to dormitory students.
These activities may include recreational activities, clubs, arts/
crafts, and reading of newspapers and periodicals. Television viewing
shall not be considered as structured leisure time unless a scheduled
program provides educational benefit.
(m) Lines of communication shall be established with other local
social service agencies to assist in the resolution of problems that may
extend beyond the confines of the dormitory. These agencies may be
State, tribal, or Federal.
(n) Dormitory personnel will receive training in emergency first aid
procedures.
Sec. 36.75 Space and privacy.
The configuration of sleeping space and other living areas will vary
according to the grade levels of the occupants; however, sleeping rooms
shall provide sufficient space and privacy for the resident students.
The following space and privacy requirements shall
[[Page 155]]
be required for dormitories. A dormitory shall be considered at capacity
when the addition of one more student would put the school out of
compliance with the space standard; and additional students shall not be
admitted for residential purposes.
(a) Dormitory facilities for grades one through eight shall have
space footage averaging from 40 to 60 square feet per student for
sleeping rooms, exclusive of furniture (wardrobe, desks, beds, etc.).
(b) Dormitories housing students who are in grades nine through 12
shall provide sleeping rooms with a per student square footage averaging
from 50 to 70 square feet, exclusive of furniture (wardrobe, desks,
beds, etc.).
(c) When new dormitories are constructed or existing dormitories are
remodeled, sleeping rooms shall be constructed not to exceed a maximum
of four students per room for grades one through 12.
(d) Each peripheral dormitory shall have a set of encyclopedias, one
dictionary for every ten students (ADM), and ten other general reference
materials such as an atlas or periodical subscription.
Sec. 36.76 Compliance for the National Criteria for Dormitory Situations.
Implementation of the National Criteria for Dormitory Situations
shall begin immediately on the effective date of this part. A dormitory
is in compliance when it has met and satisfied all the requirements
under subpart H.
(a) The education supervisor(s) or peripheral dormitory supervisor
shall report to their supervisor(s) within 45 days after the start of
each school term with a compliance report to the local school board that
attests to whether a dormitory is in compliance or noncompliance; within
15 days, the compliance report shall be submitted to the Agency
Superintendent for Education or Area Education Programs Administrator,
as appropriate.
(b) The school supervisor or the peripheral dormitory supervisor
shall notify in writing each parent or legal guardian of the dormitory
noncompliance status within 60 days after the beginning of the school
term.
(c) The compliance report shall contain the following:
(1) A written statement attesting to the fact that the dormitory has
or has not met all of the requirements.
(2) A specific listing of the requirements that have not been met.
(3) A detailed action plan designed to correct deficiencies.
(4) A statement signed by the local school board attesting to the
fact that it has been apprised of the school's compliance status and
concurs or does not concur with the action plan to reach compliance.
(d) The Agency Superintendent for Education or the Area Education
Programs Administrator, as appropriate, shall review each dormitory
compliance report and shall provide the Director with a detailed report
by November 15 each year which shall include:
(1) A list of dormitories indicating those not in compliance.
(2) A detailed statement as to why each school indicated is not in
compliance and how it is proposed to reach compliance.
(3) A plan of action outlining what actions the Agency or Area
education line officers, as appropriate, will take to assist the
dormitories to reach compliance.
(e) In the event a dormitory is not in compliance for two
consecutive years due to conditions which can be corrected locally,
appropriate personnel actions shall be initiated at all appropriate
levels of school/dormitory administration. Noncompliance may be grounds
for dismissal.
(f) The Secretary shall submit to the appropriate committees of
Congress at the time of the annual budget request a detailed plan to
bring all Bureau and contract boarding schools up to the criteria
established under section 1122 of Pub. L. 95-561, and 25 U.S.C. 2002.
Such plan shall include, but not be limited to, predictions for the
relative need for each boarding school in relation to the criteria
established under this section and specific cost estimates for meeting
such criteria at each school up to the level required by such criteria.
[[Page 156]]
Sec. 36.77 Waivers and revisions.
(a) The tribal governing body (tribe), or the local school board
(LSB), if so designated by the tribe, shall have the local authority to
waive or revise in part or in whole, the standard(s) established in this
part if the standard(s) are determined to be inappropriate or if they
fail to take into account specific needs of the tribe's children. This
provision includes both tribal and Bureau-operated schools. When the
tribe or LSB, if designated by the tribe, waives or revises a standard,
it shall submit the waiver or revision to the Assistant Secretary for
approval within 60 days. Until this approval is obtained, the standard
of this part or minimum state standards shall apply to the affected
school(s).
(b) All revised standards shall be submitted to the Assistant
Secretary in writing in accordance with the following procedure:
(1) Waivers and revisions shall be submitted by November 15 each
school year to accompany the dormitory's annual standards compliance
report.
(2) The section or part to be waived shall be specified, and the
extent to which it is to be deviated from shall be described.
(3) A justification explaining why the alternative standard is
determined necessary shall be included with the revised standard.
(4) Measurable objectives and the method of achieving the
alternative standard along with the estimated cost of implementation
shall be stated.
(c) The Assistant Secretary shall respond in writing within 45 days
of receipt of the waiver or revision. The waiver shall be granted or the
revision shall be accepted by the Assistant Secretary unless
specifically rejected for good cause and in writing. The written
rejection shall be sent to the affected tribe(s) and LSB. This rejection
shall be final. The waiver is granted or revision is established
automatically on the 46th day of receipt if no written response is
provided by the Assistant Secretary.
(d) The Assistant Secretary shall assist the school board of an
Indian-controlled contract school in the implementation of the standards
established in this part if the school board requests that these
standards, in part or in whole, be implemented. At the request of an
Indian-controlled contract school board, the Assistant Secretary shall
provide alternative or modified standards to those established in this
part to take into account the needs of the Indian children and Indian-
controlled contract school.
[59 FR 61766, Dec. 1, 1994]
PART 38_EDUCATION PERSONNEL--Table of Contents
Sec.
38.1 Scope.
38.2 Information collection.
38.3 Definitions.
38.4 Education positions.
38.5 Qualifications for educators.
38.6 Basic compensation for educators and education positions.
38.7 Appointment of educators.
38.8 Nonrenewal of contract.
38.9 Discharge of educators.
38.10 Conditions of employment of educators.
38.11 Length of the regular school term.
38.12 Leave system for education personnel.
38.13 Status quo employees in education positions.
38.14 Voluntary services.
38.15 Southwestern Indian Polytechnic Institute.
Authority: 25 U.S.C. 2011 and 2015, Secs. 1131 and 1135 of the Act
of November 1, 1978, 92 Stat. 2322 and 2327; Secs. 511 and 512, Pub. L.
98-511; Secs. 8 and 9, Pub. L. 99-89; Title V of Pub. L. 100-297; Pub.
L. 105-337.
Source: 53 FR 37678, Sept. 27, 1988, unless otherwise noted.
Sec. 38.1 Scope.
(a) Primary scope. This part applies to all individuals appointed or
converted to contract education positions as defined in Sec. 38.3 in
the Bureau of Indian Affairs after November 1, 1979. This part applies
to elementary and secondary school positions and agency education
positions.
(b) Secondary scope. Section 38.13 applies to employees with
continuing tenure in both the competitive and excepted service who
encumber education positions.
(c) Other. Where 25 CFR part 38 and a negotiated labor relations
agreement conflict, the negotiated agreement will govern.
[[Page 157]]
Sec. 38.2 Information collection.
(a) The information collection requirements contained in Sec. 38.5
use Standard Form 171 for collection, and have been approved by OMB
under 25 U.S.C. 2011 and 2015 and assigned approval number 3206-0012.
The sponsoring agency for the Standard Form 171, is the Office of
Personnel Management. The information is being collected to determine
eligibility for employment. The information will be used to rate the
qualifications of applicants for employment. Response is mandatory for
employment.
(b) The information collection requirement for Sec. 38.14,
Voluntary Services has been approved by the Office of Management and
Budget under 44 U.S.C. 3501 et seq. and assigned clearance number 1076-
0116. The information is being collected to determine an applicants
eligibility and selection for appropriate volunteer assignments.
Response is voluntary.
Sec. 38.3 Definitions.
As used in this part, the term:
Agency means the current organizational unit of the Bureau, which
provides direct services to the governing body or bodies and members of
one or more specified Indian Tribes.
Agency school board as defined in section 1139(1), of Pub. L. 95-
561, means a body, the members of which are appointed by the school
boards of the schools located within such Agency. The number of such
members shall be determined by the Director in consultation with the
affected tribes. In Agencies serving a single school, the school board
of that school shall function as the Agency School Board.
Agency Superintendent for Education (ASE) means the Bureau official
in charge of education functions at an Agency Office and to whom the
school supervisor(s) and other educators under the Agency's
jurisdiction, report.
Area Education Programs Administrator (AEPA) means the Bureau
official in charge of an Area Education Office that provides services to
off-reservation residential schools, peripheral dormitories or on-
reservation BIA funded schools that are not served by an Agency
Superintendent for Education. The AEPA may also provide education
program services to tribes not having an Agency Superintendent for
Education at their agency. The AEPA has no line authority over agency
education programs that are under the jurisdiction of an Agency
Superintendent for Education.
Assistant Secretary means the Assistant Secretary for Indian Affairs
of the Department of the Interior.
Bureau means the Bureau of Indian Affairs of the Department of the
Interior.
Consult, as used in this part and provided in section 1131(d)(1) (B)
and (C) of Pub. L. 95-561, means providing pertinent information to and
being available for discussion with the school board, giving the school
board the opportunity to reply and giving due consideration to the
school board's response, subject to appeal rights provided in Sec. 38.7
(a), (b) and (c), and Sec. 38.9(e)(3).
Director means the Deputy to the Assistant Secretary/Director--
Indian Affairs (Indian Education Programs) in the Bureau.
Discharge means the separation of an employee during the term of the
contract.
Education function means the administration and implementation of
the Bureau's education programs and activities (including school
operations).
Education position, means a position in the Bureau the duties and
responsibilities of which:
(a) Are performed on a school term basis principally in a Bureau
elementary and secondary school which involve:
(1) Classroom or other instruction or the supervision or direction
of classroom or other instruction;
(2) Any activity (other than teaching) that requires academic
credits in educational theory and practice equal to the academic credits
in educational theory and practice required for a bachelor's degree in
education from an accredited institution of higher education; or
(3) Any activity in or related to the field of education
notwithstanding that academic credits in educational theory and practice
are not a formal requirement for the conduct of such activity; or
[[Page 158]]
(4) Support services at or associated with the site of the school;
or
(b) Are performed at the Agency level of the Bureau and involve the
implementation of education-related Bureau programs. The position of
Agency Superintendent for Education is excluded.
Educator, as defined in section 1131(n)(2) of Pub. L. 95-561 means
an individual whose services are required, or who is employed, in an
education position as defined in Sec. 38.3.
Employment contract means a signed agreement executed by and between
the Bureau and the individual employee hired or converted under this
part, that specifies the position title, period of employment, and
compensation attached thereto.
Involuntary change in position means the release of an employee from
his/her position instigated by a change in program or other occurrence
beyond the control of the employee.
Local school board, as used in this part and defined in section
1139(7) of Pub. L. 95-561, means a body chosen in accordance with the
laws of the tribe to be served or, in the absence of such laws, the body
elected by the parents of the Indian children attending a Bureau-
operated school. In schools serving a substantial number of students
from different tribes, the members shall be appointed by the governing
bodies of the tribes affected and the number of such members shall be
determined by the Director in consultation with the affected tribes.
Probationary period means the extension of the appointed process
during which a person's character and ability to satisfactorily meet the
requirements of the position are reviewed.
School board means an Agency school board or a local school board.
School supervisor means the Bureau official in charge of a Bureau
school who reports to an Agency Superintendent for Education. In the
case of an off-reservation residential school(s), and, in some cases,
peripheral dormitories and on-reservation day schools, the school
supervisor shall report to the Area Education Programs Administrator.
School term is that term which begins usually in the last summer or
fall and ends in the Spring. It may be interrupted by one or more
vacations.
Sec. 38.4 Education positions.
(a) The Director shall establish the kinds of positions required to
carry out the Bureau's education function. No position will be
established or continued for which:
(1) Funds are not available; or
(2) There is not a clearly demonstrable need and intent for it to
carry out an education function.
(b) Positions established for regular school operations will be
restricted to school term or program duration. Particular care shall be
taken to insure that year-long positions are not established unless they
are clearly required and involve essential 12-month assignments.
Sec. 38.5 Qualifications for educators.
(a) Qualifications related to positions. Job qualification
requirements shall be at least equivalent to those established by the
appropriate licensing and certification authorities of the State in
which the position is located.
(b) Qualifications related to individuals. An applicant for an
education position must establish that he/she meets the requirements of
the position by submitting an application and a college transcript, as
appropriate, to the local school supervisor, Agency Superintendent for
Education (ASE), Area Education Programs Administrator (AEPA), or
Director and appearing for an interview if requested by the official
involved. The applicant's education and experience will be subject to
verification by the ASE or the AEPA. Employees who falsify experience
and employment history may be subject to disciplinary action or
discharge from the position to which he/she is appointed.
(1) School boards may waive formal education and State certification
requirements for tribal members who are hired to teach tribal culture
and language.
(2) Tribal members appointed under this waiver may not have their
basic pay rate set higher than the rate paid to qualified educators in
teaching positions at that school.
[[Page 159]]
(c) Identification of qualified individuals. The Director shall
require each ASE, AEPA, and other appropriate local official in the
education program organization to maintain lists of qualified and
interviewed applicants for each of the kinds of established positions.
Applications on file shall be purged annually. Applicants whose
qualifications are established and who indicate an interest in working
in specified locations will be included on those local applicant lists.
The Director shall maintain a national list of qualified applicants for
each of the kinds of positions established. Applicants whose
qualifications are established and who either do not indicate an
interest in a specific location or indicate an interest in working in
any location will be entered on the national list. The national list is
a secondary source of applicants.
(d) Special recruitment and training for Indian educators. The
Director shall review annually the Bureau's ``Recruitment of Indian
Educators Program'' and update as necessary. The Director will define
individual training plans for trainees and subsequent promotional
opportunities for advancement based upon satisfactory job performance in
this program.
Sec. 38.6 Basic compensation for educators and education positions.
(a) Schedule of basic compensation rates. The Director shall
establish a schedule for each pay level specified in part 62 of the
Bureau of Indian Affairs Manual (BIAM). The schedule will be revised at
the same time as and be consistent with rates in effect under the
General Schedule or Federal Wage System for individuals with comparable
qualifications, and holding comparable positions.
(b) Range of pay rates for positions within pay levels. The range of
basic compensation rates for positions assigned to each pay level will
be consistent with the General Schedule or Federal Wage System rates
that would otherwise be applicable if the position were classified under
chapter 51 or subchapter IV of chapter 53 of title 5 of the United
States Code (U.S.C.). The maximum pay shall not exceed step 10 of the
comparable General Schedule position by more than ten percent.
(c) Schedule of compensation rates for teachers and counselors. The
basic compensation for teachers and counselors, including dormitory
counselors and homeliving counselors, shall be determined in accordance
with rates set by the Defense Department Overseas Teachers Pay and
Personnel Practices Act. The schedule used shall be the current
published schedule for the school year beginning on or after July 1 of
each year.
(d) Adjusting employee basic compensation rates. (1) Except for
employees occupying positions of teachers and counselors, including
dormitory counselors and homeliving counselors, adjustments in an
employee's basic compensation made in connection with each contract
renewal will be based on the following:
(i) Contract renewal incentive--one pay increment for each renewal,
not to exceed four increments, unless the educator is covered by a
negotiated labor union agreement.
(ii) Performance--employees whose performance is rated ``above
satisfactory''; one pay increment; employees whose performance is rated
``outstanding''; two pay increments.
(2) Pay increments based on education may be awarded as outlined in
62 BIAM.
(e) Special additions to basic compensation. The Director is
authorized to established the following special additions to rates of
basic compensation:
(1) The Director may authorize payment of a staffing differential
not exceeding 25 per centum of the rate of basic compensation based on a
formally-documented request by an ASE or AEPA. Such a staffing
differential shall only be authorized in writing when the Director
determines that:
(i) It is warranted by the geographic isolation of the work site or
other unusually difficult environmental working or living conditions
and/or,
(ii) It is necessary as a recruitment or retention incentive. This
staffing differential is to be computed on the basic schedule rate
before any other additions are computed.
[[Page 160]]
(2) Special rates may be established for recruitment and retention
applicable only to a specific position or to specific types of positions
in specific locations based on a formally documented request by an ASE
or AEPA and submitted to the Director for approval.
(f) Payment of compensation to educators. This section applies to
those individuals employed under the provisions of section 1131(m) of
Pub. L. 95-561 or title 5 U.S.C.
(1) Pay periods. Educators shall be paid on the basis of a biweekly
pay period during the term of the contract. Chapter 55 of title 5 U.S.C.
applies to the administration of pay for educators, except that section
1131(m) of Pub. L. 95-561 provides that 5 U.S.C. 5533 does not apply
with respect to the receipt of pay by educators during summer recess
under certain circumstances.
(2) Pay for contract educators. When an educator is appointed,
payment under the contract is to begin as of the effective date of the
contract. If an educator resigns or is discharged before the expiration
of the term of the contract, pay ceases as of the date of resignation or
discharge.
(3) Prorating of pay. Within 30 days prior to the beginning of the
academic school term, each educator must elect whether to have the
annual contractual rate or basic pay prorated over the contractual
academic school term, or to have the basic pay prorated over a 12-month
period.
(i) Each educator may change such election once during the academic
school term, provided notice is given two weeks prior to the end of the
fifth month after the beginning of the academic school term.
(ii) An educator who elects a 12-month basis of prorated pay may
further elect to be paid in one lump sum at the end of the academic
school term for the then remaining amount of rate of basic pay otherwise
due, provided notice is given four weeks prior to the end of the
academic school term.
(iii) No educator shall suffer a loss of pay or benefits because of
elections made under this section.
(4) Stipends for extracurricular activities. An employee, if
assigned to sponsor an approved extracurricular activity, may elect
annually at the beginning of the contract to be paid a stipend in lieu
of overtime premium pay or compensatory time when the employee performs
additional activities to provide services to students or otherwise
support the school's academic and social programs.
(i) The Director is authorized to establish a schedule of stipends
for each Bureau Area, taking into consideration types of activities to
be compensated and payments provided by public school districts in or
near the Area.
(ii) The stipend shall be a supplement to the employee's base pay
and is not a part of salary for retirement computation purposes.
(iii) The employee shall be paid the stipend in equal payments over
the period of the extracurricular activity.
[53 FR 37678, Sept. 27, 1988, as amended at 54 FR 46374, Nov. 3, 1989]
Sec. 38.7 Appointment of educators.
(a) Local school employees. Local Bureau school employees shall be
appointed only by the school supervisor. Before the local school
employee is employed, the school board shall be consulted. An
individual's appointment may be finalized only upon receipt of a formal
written determination certified by the local school board under such
uniform procedures as it may adopt. Written determination by the school
board should be received within a reasonable period, but not to exceed
30 days. Failure of the school board to act within this period shall
have the effect of approving the proposed appointment. The local school
board shall use the same written procedure to disapprove an appointment.
The school supervisor may appeal to the ASE, or, where appropriate, to
the AEPA, any determination by the local school board concerning an
individual's appointment. A written statement of appeal describing the
action and the reasons the supervisor believes such action should be
overturned must be filed within 10 days of receipt of the action from
the local school board. A copy of such statement shall be submitted to
the school board and the board shall be afforded an opportunity to
respond, not to exceed 10 calendar days, in writing, to the appeal.
After reviewing such
[[Page 161]]
written appeal and response, the ASE or AEPA may, for cause, overturn
the action of the local school board. The ASE or AEPA must transmit the
determination of the appeal (in the form of a written opinion) to the
board and to the supervisor identifying the reasons for overturning the
action within 10 calender days. Failure to act within the 10 calendar
day period shall have the effect of approving the local school board's
determination.
(b) School supervisors. School supervisors may be appointed only by
the ASE, except the AEPA shall appoint school supervisors for off-
reservation boarding schools and those few other schools supervised by
the AEPA. The school board shall be consulted before the school
supervisor is employed. The appointment may be finalized upon receipt of
a formal written determination certified by the school board under any
uniform procedures as it may adopt. Written determination by the school
board shall be received within a reasonable period, but not to exceed 30
days. Failure of the school board to act within this period shall have
the effect of approving the proposed appointment. The school board shall
use the same procedure to disapprove an appontment. Within 20 calendar
days of receipt of any determination by the school board concerning an
individual's appointment, the ASE or AEPA, as appropriate, may appeal to
the Director by filing a written statement describing the determination
and the reasons the supervisor believes the determination should be
overturned. A copy of the statement shall be submitted to the local
school board and the board shall be afforded an opportunity to respond,
within 10 calendar days, in writing, to such an appeal. The Director may
reverse the determination for cause set out in writing to the school
board. Within 20 calendar days of the school board's response, the
Director shall transmit the determination of the appeal (in the form of
a written opinion) to the board and to the ASE or AEPA identifying the
reasons for overturning the determination. Failure by the Director to
act within the 20 calendar day period shall have the effect of approving
the school board's determination.
(c) Agency office education program employees. Appointments to
Agency office education positions may be made only by the ASE. The
Agency school board shall be consulted before the agency education
employee is employed, and the appointment may be finalized upon receipt
of a formal, written determination certified by the Agency school board
under any uniform procedures as it may adopt. Written determination by
the school board shall be received within a reasonable period, but not
to exceed 30 days. Failure of the school board to act within this period
shall have the effect of approving the proposed appointment. The Agency
school board shall use the same written procedure to disapprove an
appointment. Within 20 calendar days of receipt of any determination by
the school board concerning an individual's appointment, the ASE may
appeal to the Director by filing a written statement describing the
determination and the reasons the supervisor believes the determination
should be overturned. A copy of the statement shall be submitted to the
Agency school board and the board shall be afforded an opportunity to
respond, within 10 calendar days, in writing, to such appeal. After
reviewing the written appeal and response, the Director may, for cause,
overturn the determination of the Agency school board. Within 20 days of
the board's response, the Director shall transmit the determination of
the appeal (in the form of a written opinion) to the board and to the
ASE identifying the reasons for overturning the determination. Failure
of the Director to act within the 20 calendar day period shall have the
effect of approving the school's board's determination.
(d) Employment contracts. The Bureau shall issue employment
contracts each year for individuals employed in contract education
positions at the Agency or school levels.
(e) Absence of local school boards. Where a local school board has
not been established in accordance with section 1139(7) Pub. L. 95-561
with respect to a Bureau school, or where a school board is not
operational, and the local school board is required to be given a notice
or required to be consulted by statute or these regulations,
[[Page 162]]
the official involved shall notify or consult with the Agency school
board serving the tribe(s) to which the parents of the Indian children
atending that school belong, or, in that absence, the tribal
organization(s) of the tribe(s) involved.
(f) Provisional contracts. Provisional certification or other
limited certificates from the State are not considered full
certification and only a provisional contract may be issued. There may
be circumstances when no individual who has met the full certification
or experience requirements is available for a professional position or
when a status quo employee who does not meet full certification or
experience requirements desires to convert to contract. When this
situation exists, a provisional contract may be issued in accordance
with the following:
(1) The contract will be made only:
(i) After it is determined that an individual already meeting
certification or experience requirements is not available; or
(ii) For conversion of a status quo employee who does not yet meet
all established position requirements.
(2) Consultation with the appropriate school board is required prior
to the contract.
(3) The contract may be of 12-month or school-term duration.
(4) The employee will be required to make satisfactory progress
toward meeting full qualification requirements.
(5) If the employee fails to meet the requirements established under
Sec. 38.7(f)(4), the contract will be terminated. Such termination
cannot be grieved or appealed.
(g) Conditional appointment. As provided in section 1131(d)(4), Pub.
L. 95-561, if an individual who has applied at both the national and
local levels is appointed from a local list of applicants, the
appointment shall be conditional for 90 days. During that period, the
individual's application and background shall be examined to determine
if there is a more qualified individual for the position. Removal during
this period is not subject to discharge, hearing or grievance
procedures.
(h) Short-term contracts. (1) There may be circumstances where
immediate action is necessary and it is impossible to consult with the
local school board. When this situation exists short-term contracts may
be made by the school supervisor in accordance with the following:
(i) The length of the contract will not exceed 60 days, or the next
regularly scheduled school board meeting, whichever comes first.
(ii) If the board meets and does not take action on the individual
in question, the short-term contract may be extended for the duration of
the school year.
(iii) It shall be the responsibility of the school supervisor to
fully inform the local school board of all such short-term contracts.
Failure to do so may be cited as reason to discharge the school
supervisor if so requested by the board.
(2) The local school board may authorize the school supervisor to
make an emergency short-term contract to classroom, dormitory and other
positions directly related to the health and safety of students. When
this situation exists, short-term contracts may be made in accordance
with the following:
(i) If local and agency lists of qualified applicants are exhausted,
short-term contracts may be made without regard to qualifications for
the position;
(ii) The pay level will be based on the qualifications of the
individual employed rather than the requirements of the position, if the
qualifications of the individual are lower than required;
(iii) The short-term contract may not exceed the school term and may
not be renewed or extended;
(iv) Every 60 days the school supervisor will determine if qualified
individuals have been placed on the local or agency lists. If a
qualified individual on the list accepts employment, the school
supervisor must terminate the emergency appointment at the time the
qualified individual is appointed.
(i) Temporary contracts. There may be circumstances where a specific
position is needed for a period of one year or less. Under these
conditions a position may be advertised as a temporary position and be
filled under a temporary contract. Such contract requires the same
school board approval as a school
[[Page 163]]
year contract. If required for the completion of the activities
specified in the original announcement, the position, may with school
board approval be extended for up to one additional year. Temporary
contracts may be terminated at any time and this action is not subject
to approval or grievance procedures.
(j) Waiver of Indian preference. Notwithstanding any provision of
the Indian preference laws, such laws shall not apply in the case of any
personnel action within the purview of this section respecting an
application or employee not entitled to Indian preference if each tribal
organization concerned grants, in writing, a waiver of the application
of such laws with respect to such personnel action, where such a waiver
is in writing deemed to be a necessity by the tribal organization,
except that this shall in no way relieve the Bureau of its
responsibility to issue timely and adequate announcements and
advertisements concerning any such personnel action if it is intended to
fill a vacancy (no matter how such vacancy is created). When a waiver is
granted, it shall apply only to that particular position and as long as
the employee remains in that position.
(k) Prohibited reappointment. An educator who voluntarily terminates
employment before the end of the school term may not be appointed to
another Bureau education position before the beginning of the following
school term. An educator will not be deemed to have voluntarily
terminated employment if transferred elsewhere with the consent of the
local school or Agency boards.
(l) Contract renewals. The appropriate school board shall be
notified in writing by the school supervisor and/or ASE or AEPA not less
than 90 days before the end of the school term whether or not an
individual's contract is recommended for renewal.
(1) If the school board disagrees with the school supervisor's or
ASE's or AEPA's recommendations, the board will submit a formal, written
certification of its determinations to the school supervisor or ASE or
AEPA within 25 days. If the board's determinations are not received
within the 25 days, the school supervisor or ASE or AEPA shall issue the
60 day notification of renewal or nonrenawal to the individual as
required under Sec. 38.8.
(2) When the school board submits its determination within the 25
days and determines that a contract will be renewed, or nonrenewed, the
appropriate official shall issue the required renewal notice, or
nonrenawal, or appeal the determination of the school board to the
appropriate official who will make a determination in accordance with
the appeal procedure is Sec. 38.7(a) of this part. After the
probationary period, if the determination is that the contract will not
be renewed, the procedures specified in Sec. 38.8 shall apply.
Sec. 38.8 Nonrenewal of contract.
Where the determination is made that an employee's contract shall
not be renewed for the following year, the following procedure will
apply to those employees who have completed three full continuous school
terms of service under consecutive contract appointments and
satisfactory performance in the same or comparable education positions.
(a) The employee will be given a written notice of the action and
the reasons thereof not less than 60 days before the end of the school
term.
(b) The employee will be given 10 calendar days to request an
informal hearing before the appropriate official or body. Upon request,
the employee may be given official time, not to exceed eight hours, to
prepare a written response to the reason(s).
(c) If so requested, an informal hearing shall be held within 30
calendar days of receipt of the request.
(d) The appropriate official or body will render a written
determination within seven calendar days after the informal hearing.
(e) The employee has a right to request an administrative review by
the ASE or AEPA of the determination within 10 calendar days of that
determination. The ASE or AEPA then has 20 calendar days to render a
final decision. Where the employee is the supervisor of the school or an
agency education employee, any appeal of the ASE or AEPA would be
addressed to the Director for a decision. If the Director or ASE's or
AEPA's decision overturns the appropriate official or
[[Page 164]]
bodies determination, the appropriate official or body will be notified
of the reasons in writing. Failure by the Director or ASE or AEPA to act
within the 20 days will sustain the determination. This completes the
administrative appeal process.
(f) Failure of any of the parties to meet the requirements of the
above procedures will serve to negate the particular action sought by
the negligent party.
(g) Those employees with less than three full continuous school
terms of consecutive contract appointments are serving a probationary
period. Nonrenewal of his/her contract will be considered a continuation
of the examining process. This action cannot be appealed or grieved.
(h) Independent of the procedures outlined in this section, the
school supervisor or ASE or AEPA, for applicable positions, shall be
required to submit to the ASE or AEPA or appropriate higher authority
all nonrenewal actions. Within 60 days, the ASE or AEPA shall review the
nonrenewal actions and may overturn the determination of nonrenewal. In
the event that the ASE or AEPA makes a decision to overturn the school
board determination, the ASE or AEPA shall notify the school board in
writing of his/her reasons for doing so.
(i) No more than the substantial standard of evidence shall be
required to sustain the nonrenewal.
(j) A procedural error shall not be grounds for overturning a
determination of nonrenewal unless the employee shows harmful error in
the application of the Agency's procedures in arriving at such a
decision. For purposes of this section, ``harmful error'' means error by
the Agency in the application of its procedures which, in the absence or
cure of the error, might have caused the Agency to reach a conclusion
different than the one reached. The burden is upon the appellant to show
that based upon the record as a whole, the error was harmful. i.e.,
caused substantial harm or prejudice to his/her rights.
(k) Nonrenewal of a contract is not discharge and will not follow
the discharge procedures.
Sec. 38.9 Discharge of educators.
(a) Discharge for cause. Educators covered under the provision of
this section are excluded from coverage under 5 U.S.C. 7511 and 4303. In
order to provide due process for educators, the Director shall publish
in 62 BIAM representative conditions that could result in the discharge
of educators for cause and procedures to be followed in discharge cases.
(b) Discharge for inadequate performance. Action to remove educators
for inadequate performance will be taken for failure to meet performance
standards established under 5 U.S.C. 4302. Performance standards for all
educators will include, among others, lack of student achievement.
Willful failure to exercise properly assigned supervisory
responsibilities by supervisors shall also be cause for discharge.
(c) Other discharge. The Director shall publish in 62 BIAM a
description of the budgetary and programmatic conditions that may result
in the discharge of educators for other than cause during the school
term. The individual's personnel record will clearly reflect that the
action taken is based upon budgetary or programmatic restraints and is
not a reflection on the employee's performance.
(d) Procedures for discharge for cause. The Director shall publish
in 62 BIAM the procedural steps to be followed by school supervisors,
ASE's, and AEPA's in discharge for cause cases. These procedures shall
provide (among other things) for the following:
(1) The educator to be discharged shall receive a written notice of
the proposal, specifying the causes or complaints upon which the
proposal is based, not less than 30 calendar days before the discharge.
However, this shall not prohibit the exclusion of the individual from
the education facility in cases where exclusion is required for the
safety of the students or the orderly operation of the facility.
(2) A reasonable time, but not less than 10 calendar days, will be
allotted for the individual to make written and/or oral responses to the
charge.
(3) An opportunity will be afforded the individual to review the
material relied upon to support the charge.
[[Page 165]]
(4) Official time, not to exceed eight hours, will be provided to
the individual to prepare a response to the charge.
(5) The educator may elect to have a representative and shall
furnish the identity of any representative to the ASE or AEPA. The ASE
or AEPA may disallow, as an employee representative, any individual
whose activities as a representative would cause a conflict of interest
or position, or an employee whose release from his or her official
position would give rise to unreasonable costs to the Government, or
when priority work assignment precludes his or her release from official
duties. The terms of any applicable collective bargaining agreement and
5 U.S.C. 7114(a)(5) shall govern representation of employees in an
exclusive bargaining unit.
(6) The individual has a right to a final decision made by the
appropriate level of supervision.
(7) The individual has a right to appeal the final decision and have
the merits of the case reviewed by a Departmental official not
previously involved in the case. This right includes entitlement to a
hearing upon request under procedures in accordance with the
requirements of due process under section 1131(e)(1)(B) of Pub. L. 95-
561.
(e) School board action. (1) The appropriate school board shall be
notified as soon as possible, but in no case later than 10 calendar days
from the date of issue of the notice of intent to discharge.
(2) The appropriate school board, under any uniform procedure as it
may adopt, may issue a formal written certification to the school
supervisor, ASE, or AEPA either approving or disapproving the discharge
before the expiration of the notice period and before actual discharge.
Failure to respond before the expiration of the notice period will have
the effect of approving the discharge.
(3) The school supervisor initiating a discharge action may appeal
the board's determination to the ASE or AEPA within 10 calendar days of
receipt of the board's notice. The ASE or AEPA initiating a discharge
may appeal the board's determination to the Director within 10 calendar
days of receipt of the board's notice. Within 20 calendar days following
the receipt of an appeal, the reviewing official may, for good cause,
reverse the school board's determination by a notice in writing to the
board. Failure to act within 20 calendar days shall have the effect of
approving the board's determination.
(f) School board recommendations for discharge. School boards may
recommend in writing to school supervisors, ASE's, or AEPA's, and the
Director that individuals in the education program be discharged. These
written recommendations may follow any procedures formally established
internally by the school board or tribal government. However, the
written recommendations must contain specific causes or complaints that
may be verified or established by investigation of factual situations.
The official receiving a board recommendation for discharge of an
individual shall acknowledge the recommendation in writing within 10
calendar days of receipt and proceed with a fact finding investigation.
The official who finally disposes of the recommendation shall notify the
school board of the disposition in writing within 60 calendar days of
initiation of the fact finding investigation.
Sec. 38.10 Conditions of employment of educators.
(a) Supervision not delegated to school boards. School boards may
not direct, control, or interrupt the day-to-day activities of BIA
employees carrying out Bureau-operated education programs.
(b) Employee handbook. Employee handbook and recruiting guides shall
be developed by each local school or agency to provide specific
information regarding:
(1) The working and hiring conditions for various tribal
jurisdictions and Bureau locations;
(2) The need for all education personnel to adapt to local
situations; and
(3) The requirement of all education personnel to comply with and
support duly adopted school board policies, including those relating to
tribal culture or language.
(c) Contract renewal notification. Employees will be notified 60
calendar
[[Page 166]]
days before the end of the school term of the intent to renew or not
renew their contract. If an individual's contract is to be renewed, the
individual must agree in writing to serve for the next school term. This
agreement must be received within 14 calendar days of the date of the
notice in order to complete the contract renewal. If this agreement is
not received by the fourteenth day, the employee has voluntarily
forfeited his or her right to continuing employment. If an individual
agrees to serve for the next school term and fails to report for duty at
the beginning of the next school term, the contract will be terminated
and the individual's future appointment will be subject to the
restriction in Sec. 38.7(k) of this part.
(d) Dual compensation. An employee accepting a renewal of a school
term contract may be appointed to another Federal position during the
school recess period without regard to the dual compensation regulations
in 5 U.S.C. 5533.
(e) Discrimination complaints. Equal Employment Opportunity (EEO)
procedures established under 29 CFR part 1613 are applicable to contract
employees under this part. It is the policy of the BIA that all
employees and applicants for employment shall be treated equally when
considered for employment or benefits of employment, regardless of race,
color, sex, religion, national origin, age, or mental or physical health
(handicap), within the parameters of Indian preference.
(f) Grievance procedures. The Director shall publish in 62 BIAM
procedures for the rapid and equitable resolution of grievances. In
locations and for positions covered by an exclusive bargaining
agreement, the negotiated grievance procedure is the exclusive avenue of
redress for all matters within the scope of the negotiated grievance
procedure.
(g) Performance evaluation. The minimum number of times a supervisor
shall meet with an employee to discuss performance and suggest
improvements shall be once every three months for the educator's first
year at a school or Agency, and twice annually thereafter during the
school term.
Sec. 38.11 Length of the regular school term.
The length of the regular school term shall be at least 180 student
instructional days, unless a waiver has been granted under the
provisions of 25 CFR 36.61.
Sec. 38.12 Leave system for education personnel.
(a) Full-time school-term employees. Employees on a full-time
school-term contract are authorized the following types of leave:
(1) Personal leave. A school-term employee will receive 28 hours of
personal leave to be used for personal reasons and 12 hours of emergency
leave. This leave only accrues provided the length of the contract
exceeds 24 weeks.
(i) The school-term employee will request the use of this leave in
advance when it is for personal use or personal business (e.g., going to
the bank, etc.). When this leave is requested for emergency purposes
(e.g., death in immediate family), it will be requested immediately
after the emergency is known, if possible, by the employee and before
leave is taken or as soon as the supervisor reports to work on the
official work day.
(ii) Final approval rests with the supervisor. This leave shall be
taken only during the school term. No compensation for or carryover of
unused leave is authorized.
(2) Sick leave. Sick leave is an absence approved by the supervisor
for incapacity from duty due to injury or illness, not related to or
incurred on-the-job and not covered by the Federal Employee's
Compensation Act Regulations. Medical and dental appointments may be
included under this part. However, whenever possible, medical and dental
appointments should be scheduled after instructional time.
(i) Sick leave shall accrue at the rate of four hours each biweekly
pay period in pay status during the term of the contract; and no
precredit or advance of sick leave is authorized.
(ii) Accumulated sick leave at the time of separation will be
recredited to an educator who is reemployed within three years of
separation.
(3) School vacation. School term employees may receive up to 136
hours of
[[Page 167]]
school vacation time for use when school is not in session. School
vacations are scheduled on the annual school calendar during the
instructional year and may not be scheduled before the first day of
student instruction or after the last day of student instruction. School
vacations are not a right of the employee and cannot be paid for or
carried over if the employee is required to work during the school
vacation time or if the program will not permit school term employees to
take such vacation time.
(b) Leave for full-time, year-long employees. Employees who are on a
full-time, year-long contract are authorized the following types of
leave:
(1) Vacation leave. Absence approved in advance by the supervisor
for rest and relaxation or other personal reasons is authorized on a per
year basis of Federal Government service as follows: years 1 and 2 of
employment--120 hours; years 3-5 of employment--160 hours; 6 or more
years--200 hours. The supervisor will determine when vacation leave may
be used. Vacation leave is to be scheduled and used to the greatest
extent possible during periods when school is not in session and the
students are not in the dormitories. Vacation leave is credited to an
employee on the day following his or her date of employment, provided
the length of the contract exceeds 24 weeks. An employee may carry into
succeeding years up to 200 hours of vacation leave. Leave unused at the
time of separation is forfeited.
(2) Sick leave. Sick leave accumulation and use is authorized on the
same basis as for school term employees under Sec. 38.12(a)(2) of this
part.
(c) Leave for part-time year-long employees. Employees who are on
part-time year-long contracts exceeding 20 hours per week are authorized
the following types of leave:
(1) Vacation leave. Absence approved in advance by the supervisor
for rest and relaxation or other personal reasons is authorized on a per
year basis of Federal Government service as follows: years 1 and 2 of
employment--64 hours; years 3-5 of employment--80 hours; 6 or more
years--104 hours. The supervisor shall determine when vacation leave may
be used. Vacation leave is to be scheduled and used to the greatest
extent possible during periods when school is not in session and the
students are not in the dormitories. Vacation leave is credited to an
employee on the day following his or her date of employment provided the
length of the contract exceeds 24 weeks and may not be accumulated in
excess of 104 hours from year to year. An employee may carry over up to
104 hours from one contract year to the next. Leave unused at the time
of separation is forfeited.
(2) Sick leave. Sick leave is accumulated on the basis of three
hours each biweekly pay period in pay status; no precredit or advance of
sick leave is authorized. Accumulated sick leave at the time of
separation will be recredited to an educator who is reemployed within
three years of separation.
(d) Leave for school term employees on a part-time work schedule in
excess of 20 hours per week. (1) Employees on a part-time work schedule
in excess of 20 hours per week may receive a maximum of 102 hours of
school vacation time; 20 hours of personal/emergency leave; and 63 hours
of sick leave accrued at three hours per pay period for the first 21 pay
periods of their contracts. Personal/emergency leave only accrues
provided the length of the contract exceeds 24 weeks.
(2) The part-time employee will request the use of this leave in
writing in advance when it is for personal use or personal business
(e.g., going to the bank, etc.). When this leave is requested for
emergency purposes (e.g., death in immediate family), it will be
requested immediately after the emergency is known, if possible, by the
employee and before leave is taken or as soon as the supervisor reports
to work on the official work day.
(3) Final approval rests with the supervisor. This leave shall be
taken only during the school year. No compensation for or carryover of
unused leave is authorized.
(4) Sick leave. Sick leave is an absence approved by the supervisor
for incapacity from duty due to injury or illness, not related to or
incurred on-the-job and not covered by the Federal Employee's
Compensation Act Regulations. Medical and dental appointments
[[Page 168]]
may be included under this part. However, whenever possible, medical and
dental appointments should be scheduled after instructional time.
(i) Sick leave shall accrue at the rate of three hours each biweekly
pay period in pay status for the first 21 pay periods of their contract;
no precredit or advance for sick leave is authorized.
(ii) Accumulated sick leave at the time of separation will be
recredited to an educator who is reemployed within three years of
separation.
(5) School vacation time. Part-time employees may receive up to 102
hours of school vacation time for use when school is not in session.
Approval for the use of this time will be administratively determined by
the school supervisor, ASE or AEPA, and this time may not be scheduled
before the start of school or after the end of school.
(i) All school vacation time for part-time employees will be
approved at the convenience of the program and not as a right of the
employee.
(ii) Vacation time cannot be paid for or carried over for a part-
time employee if the employee is required to work during the school
vacation time or if the program will not permit part-time employees to
take such vacation time.
(e) Accountable absences for all contract employees. The following
are considered accountable absences:
(1) Approved absence. If prescheduled and approved by the school
supervisor, ASE or AEPA, as appropriate, an employee may be on leave
without pay.
(2) Absence without leave. Any absence is not prescheduled or
approved in advance or excused by the supervisor is considered absence
without leave.
(3) Court and military leave. Employees are entitled to paid absence
for jury or witness service and military duty as a member of the
National Guard or Reserve under the same terms or conditions as outlined
in sections 6322 and 6323 of title 5 U.S.C., and corresponding
provisions of the Federal Personnel Manual, when the absence occurs
during the regular contract period. Employees may be requested to
schedule their military leave at times other than when school is in
session.
(4) Administrative leave. Administrative leave is an excused absence
from duty administratively authorized without loss of pay or without
charge to leave. This leave is not a substitute for other paid or unpaid
leave categories. Administrative leave usually is authorized on an
individual basis except when a school is closed or a group of employees
are excused from work for a particular purpose. The school supervisor,
ASE or AEPA will grant administrative leave. A school closing must be
approved by the ASE or AEPA.
(f) Educators serving with contracts with work weeks of 20 hours a
week or less are not eligible for any type of paid leave.
(g) For school term educators, no paid leave is earned nor may
accumulated leave be used during any period of employment with the
Bureau between school terms.
(h) Employees issued contracts for intermittent work are not
eligible for any type of paid leave.
(i) Leave transferred in. Annual leave credited to an employee's
accrued leave balance immediately before conversion to a contract
education position or appointment under this part will be carried over
and made available to the employee. Sick leave credited to an employee's
accrued sick leave balance immediately before conversion to a contract
education position or appointment under this part shall be credited to
the employee's sick leave account under the system in Sec. 38.12(a)(2)
and (b)(2).
Sec. 38.13 Status quo employees in education positions.
(a) Status quo employees. Individuals who were Bureau employees on
October 31, 1979, with an appointment in either the competitive or
excepted service without time limitation, and who are serving in an
education position, shall be continued in their positions under the
terms and conditions of that appointment with no change in their status
or positions. Such employees are entitled to receive any changes in
compensation attached to the position. Although such employees occupy
``education positions'' as defined in this part, the terms and
conditions of their appointment, status, and entitlements are determined
by competitive service
[[Page 169]]
regulations and procedures. Under applicable procedures, these employees
are eligible for consideration for movement to other positions that are
defined as ``contract education'' positions. Such movement shall change
the terms and conditions of their appointment to the terms and
conditions of employment established under this part.
(b) If the tribe or school board waives the Indian preference law,
the employee loses the early-out retirement eligibility under Pub. L.
96-135, ``early-out for non-Indians,'' if they are entitled to the
early-out retirement. A memorandum for the record on BIA letterhead
shall be signed by the employee and placed on the permanent side of his/
her Official Personnel Folder, along with the tribal resolution, if the
tribe/school board has waived the Indian preference law to employ the
non-Indian.''
(c) Conversion of status quo employees to contract positions. Status
quo employees may request in writing to the school supervisor, ASE or
AEPA, as applicable, that their position be converted to contract. The
appropriate school board will be consulted and a determination made by
such school board whether such individual should be converted to a
contract employee.
(1) Written determination by the school board should be received
within a reasonable period, but not to exceed 30 days from receipt of
the request. Failure of the school board to act within this period shall
have the effect of disapproving the proposed conversion.
(2) With school board approval, an involuntary change in position
shall not affect the current status of status quo education employees.
Sec. 38.14 Voluntary services.
(a) Scope. An ASE or AEPA may, subject to the approval of the local
school board concerned, accept voluntary services on behalf of Bureau
schools from the private sector, including individuals, groups, or
students. Voluntary service shall be for all non-hazardous activities
where public services, special projects, or school operations are
improved and enhanced. Volunteer service is limited to personal services
received without compensation (salary or wages) by the Bureau from
individuals, groups, and students. Nothing in this section shall be
construed to require Federal employees to work without compensation or
to allow the use of volunteer services to displace or replace Federal
employees.
(b) Volunteer service agreement. An agreement is a written document,
jointly completed by the volunteer, the Bureau school supervisor, and
the school board, that outlines the responsibilities of each. In the
case of students receiving credit for their work (i.e., student
teaching) from an education institution, the agreement will be jointly
completed by the student, a representative of the institution, and the
Bureau school supervisor. In the case of volunteer groups, the agreement
shall be signed by an official of the volunteering organization, the
Bureau school supervisor, and the school board and a list of signatures
and emergency telephone numbers of all participants shall be attached.
(c) Eligibility. Although no minimum age requirement exists for
volunteers, schools shall comply with appropriate Federal and State laws
and standards on using the services of minors. All volunteers under the
age of 18 must obtain written permission from their parents or guardians
to perform volunteer activities.
(d) Status. Volunteers participating under this part are not
considered Federal employees for any purpose other than:
(1) Title 5 U.S.C. chapter 81, dealing with compensation for
injuries sustained during the performance of work assignments.
(2) Federal tort claims provisions published in 28 U.S.C. chapter
171.
(3) Department of the Interior Regulations Governing
Responsibilities and Conduct.
(e) Travel and other expenses. The decision to reimburse travel and
other incidental expenses, as well as the amount of reimbursement, shall
be made by the school supervisor, ASE, AEPA, and the respective school
board. Payment is made in the same manner as for regular employees.
Payment of travel and per diem expenses to a volunteer on a particular
assignment must be supported by a specific travel
[[Page 170]]
authorization and cannot exceed the cost of employing a temporary
employee of comparable qualification at the school for which a travel
authorization is considered.
(f) Annual report. School supervisors shall submit reports on
volunteers to the ASE or AEPA by October 31 of each year for the
preceding year.
Sec. 38.15 Southwestern Indian Polytechnic Institute.
(a) The Southwestern Indian Polytechnic Institute has an independent
personnel system established under Public Law 105-337, the
Administrative Systems Act of 1998, 112 Stat. 3171. The details of this
system are in the Indian Affairs Manual (IAM) at Part 20. This manual
system may be found in Bureau of Indian Affairs Regional and Agency
Offices, Education Line Offices, and the Central Office in Washington,
DC.
(b) The personnel system is in the excepted service and addresses
the areas of classification, staffing, pay, performance, discipline, and
separation. Other areas of personnel such as leave, retirement, life
insurance, health benefits, thrift savings, etc., remain under the
jurisdiction of the Office of Personnel Management.
[65 FR 58183, Sept. 27, 2000]
PART 39_THE INDIAN SCHOOL EQUALIZATION PROGRAM--Table of Contents
Subpart A_General
Sec.
39.1 Purpose and scope.
39.2 Definitions.
39.3 General provisions.
Subpart B_The Indian School Equalization Formula
39.10 Establishment of the formula.
39.11 Definitions.
39.12 Instructional funding.
39.13 Residential funding.
39.14 Entitlement for small schools.
39.15 Alaskan school cost supplements.
39.16 Computation of school entitlements.
39.17 Comparability with public schools.
39.18 Recomputations of current year entitlements.
39.19 Phase-in provisions.
39.20 Development of uniform, objective and auditable student weighted
area placement criteria and guidelines.
39.21 Future considerations for weighted programs.
39.22 Authorization of new program development, and termination of
programs.
39.23 Review of contract schools supplemental funds.
Subpart C_Formula Funding Administrative Procedures
39.30 Definitions.
39.31 Conditions of eligibility for funding.
39.32 Annual computation of average daily membership.
39.33 Special education unduplicated count provision.
39.34 Substitution of a count week.
39.35 Computation of average daily membership (ADM) for tentative
allotments.
39.36 Declining enrollment provision.
39.37 Auditing of student counts.
39.38 Failure to provide timely and accurate student counts.
39.39 Delays in submission of ADM counts.
Subpart D_Direct Allotment of Formula Entitlements
39.50 Definitions.
39.51 Notice of allotments.
39.52 Initial allotments.
39.53 Obligation of funds.
39.54 Apportionment of entitlements to schools.
39.55 Responsible local fiscal agent.
39.56 Financial records.
39.57 Access to and retention of local educational financial records.
39.58 Expenditure limitations for Bureau operated schools.
Subpart E_Local Educational Financial Plan
39.60 Definitions.
39.61 Development of local educational financial plans.
39.62 Minimum requirements.
39.63 Procedures for development of the plan.
39.64 Procedures for financial plan appeals.
Subpart F_Contingency Funds
39.70 Definitions.
39.71 Establishment of the School Disaster Contingency Fund.
39.72 Continuing and cumulative provisions.
39.73 Purposes.
39.74 Application procedures.
39.75 Disbursement procedures.
39.76 Prohibitions of expenditures.
39.77 Transfer of funds from Facilities Engineering for other
contingencies.
39.78 Establishment of a formula implementation set-aside fund.
39.79 Prohibition.
[[Page 171]]
Subpart G_School Board Training
39.90 Establishment of a school board training fund.
39.91 Other technical assistance and training.
39.92 Training activities.
39.93 Allowable expenditures.
39.94 Limitations on expenditures.
39.95 Reporting of expenditures.
39.96 Provision for annual adjustment.
39.97 Training for agency school board.
Subpart H_Student Transportation
39.100 Definitions.
39.101 Purpose and scope.
39.102 Allocation of transportation funds.
39.103 Annual transportation formula adjustment.
Subpart I_Interim Maintenance and Minor Repair Fund
39.110 Establishment and funding of an Interim Maintenance and Minor
Repair Fund.
39.111 Conditions for distribution.
39.112 Allocation.
39.113 Use of funds.
39.114 Limitations.
Subpart J_Administrative Cost Formula
39.120 Purpose and scope.
39.121 Definitions.
39.122 Allotment of education administrative funds.
39.123 Allotment exception for FY 1991.
Subpart K_Pre-kindergarten Programs
39.130 Interim fiscal year 1980 and fiscal year 1981 funding for pre-
kindergarten programs previously funded by the Bureau.
39.131 Addition of pre-kindergarten as a weight factor to the Indian
School Equalization Formula in fiscal year 1982.
Subpart L_Contract School Operation and Maintenance Fund
39.140 Definitions.
39.141 Establishment of an interim fiscal year 1980 operation and
maintenance fund for contract schools.
39.142 Distribution of funds.
39.143 Future consideration of contract school operation and maintenance
funding.
Authority: 25 U.S.C. 13; 25 U.S.C. 2008.
Source: 44 FR 61864, Oct. 26, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Subpart A_General
Sec. 39.1 Purpose and scope.
The purpose of this rule is to provide for the uniform direct
funding of BIA operated and tribally operated day schools, boarding
schools, and dormitories. These rules apply to all schools and
dormitories and administrative units which are funded through the Indian
School Equalization Program of the Bureau of Indian Affairs.
Sec. 39.2 Definitions.
Assistance under this rule is subject to the following definitions
and requirements relating to fiscal and administrative matters.
Definitions of terms that are used throughout the part are included in
this subpart. As used in this part, the term:
(a) Agency means an organizational unit of the Bureau which provides
direct services to the governing body or bodies and members of one or
more specified Indian Tribes. The term includes Bureau Area Offices only
with respect to off-reservation boarding schools administered directly
by such Offices.
(b) Agency school board means a body, the members of which are
appointed by the school boards of the schools located within such
agency, and the number of such members shall be determined by the
Director in consultation with the affected tribes, except that, in
Agencies serving a single school, the school board of such school shall
fulfill these duties.
(c) Agency Superintendent of Education or Superintendent means the
Bureau official in charge of Bureau education programs and functions in
an Agency who reports to the Director.
(d) Area Director for Education means the Bureau official in charge
of Bureau Education programs and functions in a Bureau Area Office and
who reports to the Director.
(e) Assistant Secretary means the Assistant Secretary of Indian
Affairs, Department of the Interior, or his or her designee.
(f) Average daily membership or ADM means the average of the actual
membership in the school, for each student classification given separate
weightings in the formula. Only those
[[Page 172]]
eligible students shall be counted as members who are:
(1) Listed on the current roll of the school counting them during
the count week;
(2) Not listed as enrolled in any other school during the same
period; and
(3) In actual attendance at the school counting them at least one
full day during the count week in which they are counted.
(g) Bureau means the Bureau of Indian Affairs of the Department of
the Interior.
(h) Decision of record means a formal written confirmation of a
voted action by a school board during a formally constituted school
board meeting.
(i) Director means the Director of the Office of Indian Education
Programs for the Bureau of Indian Affairs, or his or her designee.
(j) Eligible student means an Indian student properly enrolled in a
Bureau school or dormitory, or a tribally operated school or dormitory
funded by the Bureau, who meets the applicable entry criteria for the
program(s) in which he or she is enrolled.
(k) Entitlement means that amount of funds generated by the Indian
School Equalization Formula for the operational support of each school.
(l) Advice of allotment means the formula written document advising
a school or an administrative office of its entitlement under the
formula. The advice of allotment conveys legal authority to obligate and
expend funds in a given fiscal year.
(m) Allotment means the amount of the obligational authority
conveyed to a given school or Bureau administrative office by its advice
of allotment in a given fiscal year.
(n) Indian means a person who is a member of an Indian tribe.
(o) Indian Tribe means any Indian tribe, band, nation, rancheria,
pueblo, colony or community, including any Alaska Native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act (85 Stat. 688) which is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.
(p) Program means each or any subset of the Indian School
Equalization Program (ISEP), but not the ISEP itself, for which a
separately computable dollar amount may be generated by a school. Each
program classification is a cost account in an accounting system. The
following accounting programs are those established by this part:
(1) Instructional costs;
(2) Boarding costs;
(3) Dormitory costs;
(4) Bilingual instruction costs;
(5) Exceptional child education costs;
(6) Intense residential guidance costs;
(7) Student transportation fund costs;
(8) School maintenance and repair fund costs;
(9) School board training fund costs;
(10) Pre-kindergarten costs; and
(11) Previously private contract school operation and maintenance
costs.
(q) School means an educational or residential center operated by or
under contract with the Bureau of Indian Affairs offering services to
Indian students under the authority of a local school board and the
direction of a local school supervisor. A school may be located on more
than one physical site. The term school, unless otherwise specified, is
meant to encompass day schools, boarding schools, previously private
schools, cooperative schools, contract schools and dormitories as those
terms are commonly used.
(r) Local School Board, (usually referred to as school board)
including off-reservation boarding school boards and dormitory school
boards, when used with respect to a Bureau school, means a body chosen
to exercise the functions of a school board with respect to a particular
Bureau operated or funded school, in accordance with the laws of the
tribe to be served or, in the absence of such laws, elected for similar
purpose by the parents of the Indian children attending the school,
except that in schools serving a substantial number of students from
different tribes, the members shall be appointed by the governing bodies
of the tribes affected; and the number of such members shall be
determined by the Director in consultation with the affected tribes.
[[Page 173]]
(s) Supervisor or local school supervisor means the individual in
the position of ultimate authority at any Bureau administered or
tribally operated contract school.
(t) Tribally operated contract school or contract school means a
school (other than a public school) which is financially assisted under
a contract with the Bureau.
(u) Weighted student unit (WSU) means the measure of student
membership adjusted by the weights or ratios used as factors in the
Indian School Equalization Formula established in Sec. 39.10 below. The
term weighted student unit also describes the measure by which
supplements to the weighted student count at any school are augmented as
the result of the application of small school supplements or Alaskan
school supplements.
Sec. 39.3 General provisions.
(a) All funds appropriated by the Congress for the support and
administration of Bureau operated or contracted elementary and secondary
educational purposes and programs shall be allocated in accordance with,
and be distributed through, the Indian School Equalization Program,
unless a specific amount of funds are added or reduced for a particular
class of schools through the budget and appropriations process.
(b) Each expenditure of funds authorized in part 39 is without
exception subject to the availability of funds.
Subpart B_The Indian School Equalization Formula
Sec. 39.10 Establishment of the formula.
There is hereby established the Indian School Equalization Formula
(ISEF). Funds for the instruction and residential care of Indian
children shall be earned as an entitlement by each local school
according to a weighted student unit formula. The funds allocated
through the formula shall be computed as follows:
(a) The basic instructional average daily membership (ADM) shall be
counted at each school location as provided for in subpart C of this
part. From the application of ratios or weights as provided in these
rules a weighted student unit (WSU) value for each school location is
derived by multiplying the student count for each program area by the
weights.
(b) If the school is a boarding school or a dormitory, the
residential students will produce program units which will, by the
application of weights, produce additional WSU's.
(c) The ADM count of eligible small schools or dormitories may
generate additional unit supplements.
(d) All Alaskan schools are eligible under the formula to generate
supplemental units.
(e) The total weighted student unit count for each school location
is then multiplied by a base unit value to derive the estimated dollar
entitlement to each school(s).
The total amount is made available to each school(s), under the rules
related to administrative provisions provided in subparts C and D of
this part.
Sec. 39.11 Definitions.
Assistance to approved school(s) under this subpart is subject to
the definitions established in Sec. 39.2 and to the following
definitions for determining student counts in the various weighted
areas. As used in the subpart, the term:
(a) Base or base unit means both the weight or ratio of 1.0 and the
dollar value annually established for that weight or ratio which
represents students in grades 4 through 8 in a typical instructional
program.
(b) Basic program means the instructional program provided all
students at any age level exclusive of any supplemental programs which
are not provided to all students in day or boarding schools.
(c) Grade or Grade Level, followed in most cases by K or a number,
means a classroom grouping ordinarily determined by student age and
successful completion of a criterion number of years of previous
schoolwork. The use of this term does not preclude ISEP funding of
programs in which instruction is non-graded or individualized, or which
otherwise depart from grade-level school structure. For purposes of
funding under the ISEP, students in such programs shall be counted as in
[[Page 174]]
the grade level to which they would ordinarily be assigned based on
their chronological age and number of years of schooling completed.
(d) Grades 1-3 means a weighted program for a student who is present
during the count week (see Sec. 39.30(b)) in grades 1 through 3 who is
at least 6 years old by December 31 of the fall of the school year
during which the count occurs and is a member of an educational program
approved by the board which is conducted at least six gross hours daily
during at least 180 days per school year. Gross hours means from the
start of the school day to the end of the school day including all
activities.
(e) Grades 4-8 and grades 9-12 means a weighted program for a
student who is present during the count week (see Sec. 39.30(b)) in
either of the programs encompassing grades 4 through 12 who is a member
of an educational program approved by the school(s) at least six gross
hours daily during at least 180 days per school year and shall not have
achieved the age of 21 nor have received a high school diploma or its
equivalent.
(f) Kindergarten means a weighted program for a student who is
present during the count week (see Sec. 39.30(b)) who is at least 5
years old by December 31 of the fall of the school year during which the
count occurs and a member of an educational program approved by the
school(s) conducted at least four gross hours daily during at least 180
days per school year. Otherwise eligible students who are in a program
conducted less than four hours daily, but at least two gross hours daily
are eligible as half-time kindergarten students.
(g) Intense Bilingual means a weighted program for a student who is
present during the count week, whose primary language is not English,
and who is receiving academic instruction daily through oral and/or
written forms of an Indian or Alaskan Native language, as well as
specialized instruction in English for non native speakers of English,
under resources of the ISEP.
(h) Intensive residential guidance means the weighted program for a
resident student that needs special residential services due to one or
more of the problems identified below, and that appropriate
documentation is in that student's file as follows:
(1) Presenting problem:
(i) Court of juvenile authority request for placement resulting from
a pattern of infractions of the law.
(ii) Explusion from previous school under due process.
(iii) Referral by a licensed psychologist, psychiatrist or certified
psychiatric social worker as an emotionally disturbed student.
(iv) History of truancy more than 50 days in the last school year or
a pattern of extreme disruptive behavior.
(2) Documentation required:
(i) Written request signed by officer of court or juvenile
authority;
(ii) Certification by expelling school;
(iii) Psychologist, certified psychiatric social worker, or
psychiatrist report; or
(iv) Attendance and behavior data from records of prior school,
court records, or from social agency records and a written documentation
summarizing such data. For all students placed in intensive residential
guidance programs, there shall be further documentation of a diagnostic
workup, a placement decision by a minimum of three staff members, and a
record of an individualized treatment plan for each student that
specifies service objectives.
(i) Exceptional Child Program means weighted programs for students
who are receiving special education and related services, consistent
with the identification, evaluation and provisions of a free appropriate
public education required by part B of the Education of the Handicapped
Act (20 U.S.C. 1401 et seq.; 45 CFR part 121a \1\) and section 504 of
the Rehabilitation Act of 1973 (29 U.S.C. 794; 45 CFR part 84) and who
have the following diagnosed impairments:
---------------------------------------------------------------------------
\1\ 45 CFR 121a was redesignated as 34 CFR 300 at 45 FR 77368, Nov.
21, 1980.
---------------------------------------------------------------------------
(1) Deaf means a hearing impairment which is so severe that the
child is impaired in processing linguistic information through hearing,
with or without amplification, which adversely affects educational
performance.
[[Page 175]]
(2) Hard of hearing means a hearing impairment, whether permanent or
fluctuating, which adversely affects a child's educational performance
but which is not included under the definition of deaf in this section.
(3) Mentally retarded means significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the developmental period, which adversely
affects a child's educational performance.
(4) Severely multi-handicapped means concomitant impairments (such
as mentally retarded-blind; mentally retarded-deaf) the combination of
which causes such severe educational problems that they cannot be
accommodated in regular educational programs or in special education
programs solely for one of the impairments. The term includes deaf-blind
children.
(5) Orthopedically impaired means a severe orthopedic impairment
which adversely affects a child's educational performance. The term
includes impairments caused by congenital anomaly (e.g., clubfoot,
absence of some member, etc.), impairments caused by disease (e.g.,
poliomyelitis, bone tuberculosis, etc.), and impairments from other
causes (e.g., cerebral palsy, amputations, and fractures or burns which
cause contractures).
(6) Other health impaired means limited strength, vitality or
alertness, due to chronic or acute health problems such as a heart
condition, tuberculosis, rheumatic fever, nephritis, asthma, hemophelia,
epilepsy, lead poisoning, leukemia, or diabetes or the existence of a
physical or mental impairment which substantially limits one or more
major life activities, but which is not covered in paragraphs (i) (1)
through (12) of this section.
(7) Emotionally disturbed means a condition exhibiting one or more
of the following characteristics over a long period of time and to a
significant degree, which adversely affects educational performance and
requires small group instruction, supervision, and group counseling:
(i) An inability to learn which cannot be explained by intellectual,
sensory, or health factors;
(ii) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers:
(iii) Inappropriate types of behavior or feelings under normal
circumstances;
(iv) A general pervasive mood of unhappiness or depression; or
(v) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(8) Specific learning disability means a disorder in one or more of
the basic psychological processes involved in understanding or in using
language, spoken or written, which may manifest itself in an inability
to listen, think, speak, read, write, spell, or to do mathematical
calculations. The term includes such conditions as perceptual handicaps,
brain injury, minimal brain dysfunction, dyslexia, and developmental
aphasia. The term does not include children who have learning problems
which are primarily the result of vision, hearing, or motor handicaps,
or mental retardation, or of environmental, cultural, or economic
disadvantage.
(9) Speech impaired means a communication disorder, such as
stuttering, impaired articulation, or a voice impairment, which
adversely affects a child's educational performance.
(10) Visually handicapped means a visual impairment which, even with
correction, adversely affects a child's educational performance. The
term includes partially seeing, but not fully blind, children.
(11) Severely emotionally disturbed means a condition such as
schizophrenia, autism or the presence of the following characteristics
over a prolonged period of time and to a marked degree, which seriously
affects educational performance and requires intensive individual
therapy (which may be conducted either in or out of the school setting),
individual instruction, and supervision:
(i) An inability to learn which cannot be explained by intellectual,
sensory, or health factors;
(ii) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers:
[[Page 176]]
(iii) Inappropriate types of behavior or feelings under normal
circumstances;
(iv) A general pervasive mood of unhappiness or depression; or
(v) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(12) Severely and profoundly retarded means a degree of mental
retardation (as defined in paragraph (i)(3) of this section) which
severely restricts and delays major aspects of intellectual functioning
so as to require intensive small group instruction and supervision.
(13) Students requiring home/hospital based instruction means
students provided a program of instruction in a home or hospital setting
because in the judgement of a physician a student cannot receive
instruction in a regular public school facility without endangering the
health or safety of the student or of other students.
(14) Multihandicapped means concomitant impairments (such as
mentally retarded with a minor additional handicap such as speech
impaired) the combination of which causes educational problems that can
not be accommodated in regular education programs or in part-time
special education programs.
(15) Blind means the possession of a central vision acuity of 20/200
or less in the better eye with correcting glasses or a peripheral field
of vision so contracted that its widest diameter is less than 20%.
(j) Resident means a student officially enrolled in the residential
care program of a Bureau operated or funded school and actually
receiving supplemental services provided to all students who are
provided room and board in a boarding school or a dormitory during those
weeks when student membership counts are conducted. Such students must
be members of the instructional program in the same boarding school in
which they are counted as residents. To be counted as dormitory
residents, students must be enrolled in and be current members of a
public school in the community in which they reside.
[44 FR 61864, Oct. 26, 1979, as amended at 67 FR 52830, Aug. 13, 2002]
Sec. 39.12 Instructional funding.
(a) Schools are to use the following sources to fund their special
Education programs:
(1) 15 percent of the Indian Student Equalization Program (ISEP)
funds generated by their ADM; and
(2) Funds under Part B of the Individuals with Disabilities
Education Act (IDEA), if the 15 percent of ISEP funds is inadequate to
fund the services needed by all eligible ISEP students with
disabilities.
(b) All ISEP special education funds must be spent before the need
for Part B of IDEA funds can be demonstrated. Part B funds are designed
to provide for special education needs not funded by ISEP. By
demonstrating that 15 percent of the ISEP base instructional funds were
spent on special education, there is support for the need for Part B
funds.
(c) To receive ISEP special education funding a student must be:
(1) At least 5 years old by December 31 to be counted as a
kindergarten student;
(2) At least 6 years old by December 31 to be counted as a first
grade student; and
(3) Under 22 years of age and not have received a high school
diploma or its equivalent on the first day of full attendance during the
ISEP student count week.
(d) A school may spend ISEP funds on school-wide programs to benefit
all students (including those without disabilities) only if all of the
following conditions are met:
(1) The school sets aside 15 percent of the basic instructional
allotment to meet the needs of students with disabilities;
(2) The school can document that it has met all needs of students
with disabilities and addressed all components of IDEA; and
(3) There are unspent funds after the conditions in paragraphs
(d)(1) and (d)(2) of this section are met.
(e) Public Law 100-297 establishes a weighted unit for each ISEP-
eligible full-time student that is gifted and talented. The weighted
unit for gifted and talented is 2.0 weighted student units minus the
basic instructional program weight by grade level. The weights for
[[Page 177]]
eligible gifted and talented students must be computed according to the
following revised weighted student unit factors:
------------------------------------------------------------------------
Add-on
Grade level weight
------------------------------------------------------------------------
Kindergarten................................................. 0.85
Grades 1 to 3................................................ 0.62
Grades 4 to 6................................................ 0.85
Grades 7 to 8................................................ 0.62
Grades 9 to 12............................................... 0.50
------------------------------------------------------------------------
(f) This paragraph applies to disabled students who are eligible for
ISEP and were not counted during the ISEP Student Count Week. Schools
must fund services for these students using the 15 percent of the ISEP
funds based upon the school ADM for those students counted during the
ISEP Student Count Week. See paragraph (a)(2) of this section for
further guidance.
(g) To compute the funding for individual elementary and secondary
children, schools must use the weighted student unit factors in
paragraphs (g)(1) and (g)(2) of this section.
(1) The factors for basic programs are contained in the following
table:
------------------------------------------------------------------------
Base
Basic programs weights
------------------------------------------------------------------------
Kindergarten................................................. 1.15
Grades 1 to 3................................................ 1.38
Grades 4 to 6................................................ 1.15
Grades 7 to 8................................................ 1.38
Grades 9 to 12............................................... 1.50
------------------------------------------------------------------------
(2) For each student in the intense bilingual supplemental program,
the school must add to the base weight an add-on weight of .20.
[67 FR 52830, Aug. 13, 2002]
Sec. 39.13 Residential funding.
Basic funds for student residential purposes must be computed
according to the following weighted student unit factors:
------------------------------------------------------------------------
Add-on
Basic programs weights
------------------------------------------------------------------------
Grades 1 to 3................................................ 1.40
Grades 4 to 8................................................ 1.25
Grades 9 to 12............................................... 1.25
Intensive Residential Guidance............................... .50
------------------------------------------------------------------------
[67 FR 52830, Aug. 13, 2002]
Sec. 39.14 Entitlement for small schools.
To compensate for the additional costs of operating small schools,
qualified schools shall receive the following adjustments:
(a) Instructional programs in day and boarding schools. For each
separate small school having an instructional average daily membership
count (called x) of less than 100 students, the formula [(100-x) divided
by 200] times x shall be used to generate add-on weighted pupil units
for each such school.
(b) Boarding school residential programs. For each separate small
boarding school having a resident average daily membership count (called
y) of less than 100 students, the formula [(100-y) divided by 200] times
y shall be used to generate add-on weighted pupil units for each such
boarding school.
(c) Dormitory residential programs serving public schools. For each
small dormitory program having an average daily membership count (called
z) of less than 100 students, the formula [(100-z) divided by 200] times
z shall be used to generate add-on weighted pupil units for each
dormitory.
Sec. 39.15 Alaskan school cost supplements.
To meet the statutory requirements for a salary supplement for
Alaskan educational staff, and add-on weight of .25 will be used as a
factor by which all pupil program-generated weighted students shall be
supplemented. Such generated Alaskan cost supplements will be added to
the weighted pupil units generated by each school in the same manner as
small school units.
Sec. 39.16 Computation of school entitlements.
The sum of all weighted student units, including any small school
and any Alaskan school cost supplements shall be computed for each
school under the management of the Director. The total number of units
generated by each approved school shall be multiplied by a base dollar
value which is equivalent to a base weight of 1.0 in the
[[Page 178]]
formula. This base value shall be computed annually by the Director by
dividing the total of all weighted students (WSU) generated by all
approved schools into the total amount appropriated for distribution
through the Indian School Equalization Formula.
Sec. 39.17 Comparability with public schools.
(a) In no case shall a Bureau or contract school attended by an
Indian student receive less under these regulations than the average
payment from the Federal funds received per Indian student, under other
provisions of law, by the public school district in which the student
resides. Any school which is funded at a lower level per student under
the ISEP than either the average daily expenditure per student for
instructional costs in the public schools in the State in which it is
located, or the amount per Indian student which the local public school
district in which it is located receives from all Federal funding
sources, shall present documentation of this fact to the Director of the
Office of Indian Education Programs.
(b) Upon verification that comparisons in the documentation received
cover comparative expenditures, and that the inequity indeed exists, the
Director shall adjust the school's allocation to equal the payment per-
Indian student of the public school district or State involved.
(c) Funds for such adjustment shall be taken from the Formula
Implementation Set Aside established under Sec. 39.78 of these
regulations.
Sec. 39.18 Recomputations of current year entitlements.
The Director shall continuously monitor the processes by which the
final allocation of each school's entitlement is made. When changes
occur either in the total amount of funds available for the operations
of schools or in the total number of weighted student units for all
schools due to a change in the number of weighted student units reported
or altered by auditing, the Director shall consider whether adjustments
are necessary in order that the full available appropriations are fairly
allocated to the schools, and that all funds are fully allotted to
schools.
Sec. 39.19 Phase-in provisions.
(a) Limits on excess gains. No school shall receive a percentage
increase in its total fund entitlement, over the comparable budget
amount per school in the FY 79 Bureau Education budget, which is greater
than the following percentage ratios:
(1) In FY 80--20%
(2) In FY 81--70%
(b) Limits on excess losses. No school shall receive a percentage
decrease in its total fund entitlement, below the comparable budget
amount in the FY 79 Bureau Education budget, which is greater than the
following percentage ratios:
(1) In FY 80--10%
(2) In FY 81--30%
(c) Effects of limits on losses and gains. Local school gains in
excess of the above percentage limits for each of the limited years
shall be returned to the common base for all schools and distributed
through the formula. Funds to limit losses in excess of the above limits
shall be withdrawn from the common base for all schools and distributed
to the schools subject to such excess losses.
(d) Transfer of fiscal accountability. To allow time for developing
fiscal accountability, knowledge, skill and responsibility at the local
school level and in order to support accountability by responsible
Fiscal Agents under section 3679 of the Revised Statutes (the Anti-
Deficiency Act), a period of one year (FY 1980) shall be used during
which the legal allottee for each Bureau-operated school shall be the
Education Superintendent of the Agency within which the school is
located. In the case of off-reservation boarding schools and other
Bureau-operated schools not served by an Agency Education Office, the
Area Education Director shall be the legal allottee. Further allocation
of funds under this rule shall be fully in accordance with the Indian
School Equalization Program and Formula, and expenditures shall be made
in accordance with the financial planning provisions of section E of
this rule.
[[Page 179]]
(e) Beginning in FY 1981, the allottee shall be as otherwise
determined in this rule.
Sec. 39.20 Development of uniform, objective and auditable student weighted
area placement criteria and guidelines.
The Director shall develop:
(a) Uniform, objective and auditable placement criteria and
guidelines for placement of students in dormitories and residential care
programs of boarding schools and in special weighted program areas which
expand upon the definitions in this part; and
(b) A uniform and auditable system of enrollment criteria and
attendance boundaries for each school in the Bureau educational program.
The Director shall publish these criteria and guidelines in the Bureau
Manual (BIAM) and widely disseminate them to each school prior to
September 1, 1980, so that appropriate student placements can occur
before the FY 1981 October student count.
Sec. 39.21 Future considerations for weighted programs.
(a) Within twelve months of the final publication of this rule, the
Director shall review the following factors in depth, and determine
whether to incorporate each into the weighted pupil formula:
(1) A rural isolation adjustment.
(2) A staff cost adjustment.
(3) A gifted and talented student program.
(4) A vocational education program.
(5) A facilities operation and maintenance program.
(6) Additional institutional size factors.
(b) The Director may also recommend incorporation of other factors,
based upon the Bureau's experience in the first year's operation of the
ISEP, and upon the Standards to be developed under section 1121 of the
Act.
(c) The Director shall also review the adequacy of the weighted
factors, procedures, criteria and definitions now in this rule,
throughout part 39. On the basis of this review, the Director shall
present a comprehensive report of findings, with recommendations for
amendment of this rule, to the Secretary, who shall incorporate them in
a Notice of Proposed Rulemaking to include a minimum of sixty (60) days
for public comment.
Sec. 39.22 Authorization of new program development, and termination of
programs.
(a) Within one year of the final publication of this rule, the
Secretary shall develop uniform procedures and criteria for the
authorization of new schools where no Bureau funded or operated school
program has previously existed, and for authorization of expansions of
existing Bureau funded or operated school programs to serve additional
age groups not previously served. These procedures and criteria shall be
published as amendments to this rule under a new Notice of Proposed
Rulemaking, which shall contain provisions for a minimum of sixty (60)
days of public review and comment prior to final publication.
(b) Procedures and criteria developed under this section shall be
integrated with existing procedures under 25 CFR part 900 for
determining contractable functions of the Bureau, in order to produce a
coherent system for authorization of Tribally initiated program
development under contracting procedures of Pub. L. 93-638, which is
compatible with Bureau initiated program development.
(c) Procedures and criteria developed under this rule shall also
contain provisions for making decisions regarding closing schools and
terminating Bureau programs of education. These shall provide for full
consultation with the Indian persons and Tribes served by the programs
and schools involved in any such decisions.
[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982,
as amended at 64 FR 13895, Mar. 23, 1999]
Sec. 39.23 Review of contract schools supplemental funds.
Before the end of formula phase-in, the Director shall consider the
impact on equalization of supplemental funds appropriated for aid to
schools under the Johnson O'Malley Act and under title IV of the Indian
Education Act, which are available to contract schools
[[Page 180]]
but not to Bureau schools, and determine appropriate adjustments, if
any. Any adjustments in the ISEP which results from this review shall be
effected by formal revision of this rule, under a Notice of Intended
Rulemaking published in the Federal Register, and shall be subject to
public comment for a minimum of sixty (60) days prior to final
rulemaking.
Subpart C_Formula Funding Administrative Procedures
Sec. 39.30 Definitions.
As used in this subpart, the term:
(a) Certifying the validity of student counts means that counts of
student ADM have been accurately recorded in compliance with
specifications of these rules, and that the Agency Superintendent of
Schools, the local school supervisor, and local school board
chairperson, where a school board exists, testify to and confirm the
correctness of this count.
(b) Count week means the last full week in September for the
purposes of calculating allotments.
(c) Student classification means any special student need area that
receives a separate weighting through the Indian School Equalization
Formula.
[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982,
as amended at 49 FR 36368, Sept. 17, 1984]
Sec. 39.31 Conditions of eligibility for funding.
(a) To be eligible for direct formula funding as established in
subpart B of this part, a day school, boarding school, or dormitory must
meet minimum standards, or, failing to do so, must include in its
financial plan steps acceptable to the Director for taking corrective
action to meet the standards to be prescribed pursuant to section 1121
of the Education Amendments of 1978 (Pub. L. 95-561; 25 U.S.C. 2001).
Until such standards are prescribed, the Director shall determine
eligibility for funding in accordance with established procedures for
authorizing Bureau operated schools.
(b) To be eligible for direct formula funding, a tribally operated
day or boarding school or dormitory must meet the requirements of part
900 of this chapter (25 CFR part 900) for receipt of Bureau Education
funds under contracts for school operation.
[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982,
as amended at 64 FR 13895, Mar. 23, 1999]
Sec. 39.32 Annual computation of average daily membership.
(a) Average daily membership (ADM) as defined in Sec. 39.2(f) shall
be determined during the last full school week in September during which
all students eligible under the definition shall be counted by student
program classification.
(b) The Director shall direct the receipt and management of
information necessary to obtain timely ADM reports from schools. Agency
education offices and, in the case of off-reservation boarding schools,
Area education offices together with each school's supervisor and school
board chairperson where a board exists shall be responsible for
certifying the validity of each school's student counts. The September
ADM will be used to determine final allotments for the school year.
[49 FR 36368, Sept. 17, 1984]
Sec. 39.33 Special education unduplicated count provision.
In counting special education ADM with the exception of speech
therapy, no child shall be counted or funded twice for participation in
more than one special education program.
Sec. 39.34 Substitution of a count week.
A school may petition the Director to substitute another week in the
same month for the specified count week if it can be established that to
use the specified count week would result in grossly inaccurate student
counts. Where tribal ceremonial days are known in advance, such a
petition shall be submitted in advance of the determined count week.
Sec. 39.35 Computation of average daily membership (ADM) for tentative
allotments.
Tentative allotments for each future year's funding shall be based
on the
[[Page 181]]
ADM for the September count week of the current year.
[49 FR 36368, Sept. 17, 1984]
Sec. 39.36 Declining enrollment provision.
If the decline of a school's average daily membership exceeds ten
percent in any given school year, the school may elect to request
funding based on the average of the current and previous years'
September ADM count.
[49 FR 36368, Sept. 17, 1984]
Sec. 39.37 Auditing of student counts.
The Secretary shall provide for auditors as required to assure
timeliness and validity in reporting student counts for formula funding.
Sec. 39.38 Failure to provide timely and accurate student counts.
(a) Responsible Bureau school, Agency, Area, and Central Office
administrators may be dismissed for cause, or otherwise penalized, for
submission of invalid or fraudulent annual student ADM counts or
willfully inaccurate counts of student participation in weighed program
areas. A person who knowingly submits or causes to be submitted to a
Federal official or employee false information upon which the
expenditure of Federal funds is based, may be subject to criminal
prosecution under provisions such as sections 286, 287, 371, or 1001 of
title 18, U.S. Code.
(b) Failure of responsible Federal officials to perform
administrative operations which are essential to the ISEP, on a timely
basis, shall result in swift disciplinary action by Bureau supervisory
personnel, under existing procedures. Failure or refusal of Bureau
supervisory personnel to take disciplinary action shall result in
disciplinary action against them by higher level supervisors.
Sec. 39.39 Delays in submission of ADM counts.
(a) If a Bureau operated or funded school delays submission of an
ADM count, by more than (2) weeks beyond the final count week in
November, for that school, the Director shall set aside an amount equal
to the tentative allotment for that school out of the funds available
for allotment, and shall proceed to compute the initial allotments for
all other schools in the Bureau school system, based upon remaining
funds available for allotment. The allotment for the school which has
failed to submit a timely ADM count shall be computed when the ADM count
is received, but shall not exceed the amount set aside therefore. Any
amount remaining in the set-aside fund, after computation of the
allotment, shall be transferred into the Formula Implementation Set-
Aside Fund, and distributed in accordance with provisions of Sec. 39.78
in subpart F.
(b) In no case shall the Director delay the computation of initial
allotments for schools which have submitted timely ADM counts while
waiting for those schools which have failed to submit.
Subpart D_Direct Allotment of Formula Entitlements
Sec. 39.50 Definitions.
As used in this subpart, the term:
(a) Apportionment means that part of a school's allotment received
each quarter as an authorization to obligate funds.
(b) Approved apportionment schedules means that approval given for
the quarterly obligation of funds for a given appropriation of funds for
the Bureau.
(c) Authorization to obligate means that approval given to a school
to incur obligations of funds against a given appropriation.
(d) Final allotment means that notice of funds available to schools,
based on the September student count as computed through the Indian
School Equalization Formula (ISEF) based on full distribution of Indian
School Equalization Program (ISEP) funds available for the fiscal year.
(e) Initial allotment means that notice of funds available to
schools based on the September student count as computed through the
Indian School Equalization Formula prior to any adjustments due to
fluctuating student counts.
[[Page 182]]
(f) Responsible fiscal agent means the local school supervisor of a
Bureau operated school except where such authority is designated to the
Agency Superintendent of Education by a school board decision of record
or by a written agreement signed by both parties. For contract schools,
the responsible fiscal agent shall be designated in an action of record
by the contractor.
(g) Tentative allotment means that notice of funds available to
schools based on the September student count as computed through the
Indian School Equalization Formula based on a proposed appropriation in
the President's budget for the next fiscal year.
[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982,
as amended at 49 FR 36368, Sept. 17, 1984]
Sec. 39.51 Notice of allotments.
The Director shall notify school administrators and boards of
allotments of funds based on the September ADM count established under
subpart B of this part according to the following schedule:
(a) Tentative allotments shall be made by March 15 of the prior
fiscal year;
(b) Initial allotments shall be made not later than November 15 of
the fiscal year; and
(c) Final allotments shall be made not later than January 15 of the
fiscal year.
[49 FR 36368, Sept. 17, 1984]
Sec. 39.52 Initial allotments.
The Assistant Secretary--Indian Affairs, as requested by the
Director, shall make initial allotments to Bureau operated schools,
Agency Education Offices, and Central and Area Offices. The Assistant
Secretary--Indian Affairs shall make initial allotments for tribally
operated schools to appropriate Agency Superintendents of Education, or
as otherwise provided by the Director.
Sec. 39.53 Obligation of funds.
(a) Authority to obligate funds in the Bureau operated schools shall
be governed by provisions of the Bureau Manual (42 BIAM).
(b) Authority to obligate funds in tribally operated contract
schools shall be governed by contracting procedures of 25 CFR part 900.
(c) Authority to obligate funds in all Bureau funded and operated
schools shall be based upon the tentative allotment (Sec. 39.51) for
the period beginning October 1 of any fiscal year. The tentative
allotment as restricted by a continuing resolution, if applicable, would
govern until computation and notification of initial allotments as
described in this sub-part, as adjusted by the Director in accordance
with Sec. Sec. 39.75, 39.78, 39.90, 39.102 and 39.111.
[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982,
as amended at 64 FR 13895, Mar. 23, 1999]
Sec. 39.54 Apportionment of entitlements to schools.
(a) Bureau operated schools. The Director shall make quarterly
apportionments directly to the local school supervisor or to the
school's responsible fiscal agent as specifically delegated in
accordance with Sec. 39.55 of this part. Such quarterly apportionments
will be made as determined in Sec. 39.53 of this part.
(b) Contract schools. The Agency Superintendent of Education, or
another agent as designated by the Director, shall be responsible
through the contracting officer in accordance with 25 CFR part 900 for
effecting and adjusting contracts with tribally operated schools.
[44 FR 61864, Oct. 26, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982,
as amended at 64 FR 13895, Mar. 23, 1999]
Sec. 39.55 Responsible local fiscal agent.
The responsible fiscal agent shall:
(a) Expend funds solely in accordance with the local educational
financial plan, as ratified or amended by the local school board, unless
in the case of Bureau operated schools, this plan has been overturned
under the appeal process prescribed in these rules, in which case
expenditures shall be made in accordance with the local educational
financial plan as determined by the Agency Superintendent of Education.
(b) Sign all documents required for the obligation and or payment of
funds
[[Page 183]]
and documentation of receipt of goods and services.
(c) Report at least quarterly to the local school board on the
amounts expended, amounts obligated and amounts currently remaining in
funds budgeted for each program of services in the local financial plan.
(d) Recommend changes in budget amounts, as required for effective
management of resources to carry out the local financial plan, and
incorporate such changes in the budget as are ratified by the local
school board, subject to provisions for appeal and overturn.
Sec. 39.56 Financial records.
Each responsible fiscal agent receiving funds under the ISEP shall
maintain expenditure records in accordance with financial planning
system procedures as required herein.
Sec. 39.57 Access to and retention of local educational financial records.
The Comptroller General, the Assistant Secretary, the Director, or
any of their duly authorized representatives shall have access for audit
and examination purposes to any of the local schools' accounts,
documents, papers and records which are related or pertinent to the
school's operation. The provisions of 25 CFR 271.47 will be applicable
in the case of tribally contracted schools.
Sec. 39.58 Expenditure limitations for Bureau operated schools.
(a) Expenditure of allotments shall be made in accordance with
applicable federal regulations and local education financial plans, as
defined in Sec. 39.60(b) of subpart E.
(b) Where there is disagreement between the Area or Agency support
service staff and the responsible fiscal agent regarding the propriety
of the obligation or disbursement of funds, appeal shall be made to the
Director.
Subpart E_Local Educational Financial Plan
Sec. 39.60 Definitions.
As used in this subpart, the term:
(a) Consultation means soliciting and recording the opinions of
school boards regarding each element in the local financial plan, as set
forth below, and incorporating those opinions to the greatest degree
feasible in the development of the local educational financial plan at
each stage thereof.
(b) Local educational financial plan means that plan which programs
dollars for educational services for a particular Bureau operated or
funded school which has been ratified in an action of record by the
local school board, or determined by the superintendent under the appeal
process set forth in this subpart.
(c) Budget means that element in the local educational financial
plan which shows all costs of the plan by discrete programs and sub-cost
categories thereunder.
Sec. 39.61 Development of local educational financial plans.
A local educational financial plan shall be developed by the local
school supervisor, in active consultation with the local school board,
based on the tentative allotment received as provided in Sec. 39.51.
Sec. 39.62 Minimum requirements.
The local financial plan shall include, at a minimum, each of the
following elements:
(a) Separate programing of funds for each group of Indian students
for whom a discrete program of services is to be provided. This must
include at a minimum each program for which funds are allotted to the
school through the Indian School Equalization Program;
(b) A brief description, or outline, of the program of student
services to be provided for each group identified;
(c) A budget showing the costs projected for each program, as
determined by the Director through the development of a uniform cost
accounting system related to the Indian School Equalization Program;
(d) A statement of the percentage relationship between the total of
the anticipated costs for each program and the amount the students
served by that program will generate under the Indian School
Equalization Formula. Beginning in FY 1981, there shall also be included
a statement of the cost incurred for each program in the preceding
fiscal year and the amount received for
[[Page 184]]
each such program as the result of the Indian School Equalization
Formula. For exceptional child programs the plan must provide that at
least 80% of the funds generated by students served by the program be
spent on those students;
(e) A provision for certification by the chairman of the school
board that the plan as shown, or as amended, has been ratified in an
action of record by the school board; or
(f) Except in the case of contract schools, a provision for
certification by the Agency Superintendent of Education that he or she
has approved the plan as shown, or as amended, in an action overturning
the rejection or amendment of the plan by the school board.
Sec. 39.63 Procedures for development of the plan.
(a)(1) Within thirty (30) days after receipt of the tentative
allotment for the coming school year, the school supervisor shall meet
and consult with the local school board on the local financial plan.
(2) The school supervisor shall discuss at this meeting the present
program of the school and any proposed changes he or she wishes to
recommend. The school board members shall be given every opportunity to
express their own ideas as well as their views on the supervisor's
recommendations. Subsequently the school supervisor shall present a
draft plan to the school board with recommendations concerning each of
the elements outlined in this subpart.
(b) Within sixty (60) days of receipt of the tentative allotment,
the school board shall review the local financial plan as prepared by
the school supervisor and, by a quorum vote, shall have the authority to
ratify, reject or amend such financial plan.
(c) The school board shall have the authority, at any time following
the ratification of the financial plan on its own determination or in
response to the supervisor, to revise such plan to meet needs not
foreseen at the time of preparation of the plan.
(d) If the supervisor does not wish to file an appeal, he or she
shall transmit a copy of the approved local financial plan within two
weeks of the school board action, along with the official documentation
of the school board action, to the office of the Agency Superintendent
of Education. Later revisions to the financial plan must be transmitted
in the same manner.
(e) In the event that the school board does not act within the
prescribed deadline, the financial plan shall be referred to the Agency
Superintendent of Education for ratification, subject to subsequent
amendment by the school board in accordance with paragraph (c) of this
section.
(f) The Agency Superintendent of Education will review the local
financial plan for compliance with prescribed laws and regulations or
may refer the plan to the Solicitor's Office for legal review. If the
Superintendent notes any problem with the plan, he or she shall notify
the local board and local supervisor of the problem within two weeks of
receipt of the local financial plan and shall make arrangements to
assist the local school supervisor and board to correct the problem. If
the Superintendent is not able to correct the problem, it shall be
referred to the Director of the Office of Indian Education.
Sec. 39.64 Procedures for financial plan appeals.
(a) If the supervisor of a school finds an action of the local
school board, in rejecting or amending the local financial plan, to be
unacceptable in his or her judgment as a professional educator, the
supervisor may appeal to the Agency Superintendent of Education under
the following procedures and conditions:
(1) The appeal must be presented in writing, within ten (10)
consecutive days of the supervisor's receipt of the school board
decision which is appealed.
(2) The written appeal shall contain, at a minimum, the following
information and documentation:
(i) All descriptive information concerning the element(s) in the
local financial plan being appealed, substantially as presented to the
school board prior to its decision.
[[Page 185]]
(ii) Official documentation of the school board's decision amending
or rejecting the element(s) being appealed.
(iii) A statement of the school supervisor's reasons for appealing
the board's actions.
(iv) Signed certification by the supervisor that his/her reason for
appeal has been presented to the chairperson of the school board, and
that the school board has been offered full opportunity to submit a
counter statement to the Superintendent.
(3) If the supervisor of the school is also the Superintendent, the
appeal shall be made following the above procedures to the Director, who
shall follow procedures set forth below, as acting Superintendent for
the appeal.
(b) Within ten (10) consecutive days of receiving the appeal, the
Agency Superintendent of Education shall review the appeal documents to
determine if they are complete according to the criteria established in
this subpart, and if so shall notify both the school supervisor and the
school board of a date for an informal conference.
(c) Within twenty-five (25) consecutive days of receiving the
referral for approval, the Superintendent shall:
(1) Hear any arguments on either or both sides of the appeal
issue(s) at the option of either the supervisor of the school board
involved.
(2) Following the informal conference, either sustain or reject the
appeal for good cause, which the Superintendent shall set out in writing
to both the supervisor and school board.
(d) Nothing in this subsection shall be construed as enabling the
supervisor of a tribally operated school to appeal decisions of a
contract school board to the Agency Superintendent for Education, nor as
empowering the Agency Superintendent for Education to overturn any
action of a contract school board under this appeal process as
established in Pub. L. 93-638.
(e) Within 180 days after the effective date of this subpart, the
Assistant Secretary shall develop and publish in the Federal Register
procedures for a formal hearing process which shall be available to
school boards who believe their decisions regarding the financial plan
have been overturned for other than good cause.
Subpart F_Contingency Funds
Sec. 39.70 Definitions.
As used in this subpart, the term:
(a) Cumulative total means the sum of all funds carried over from
the previous fiscal year(s) as unobligated and the amount for the
current year.
(b) Temporary replacement means the substitution of a structure on a
temporary basis in lieu of the original permanent structure that has
been lost to use. The temporary use will expire at the time that
arrangements are completed for the availability of a structure similar
to the original.
Sec. 39.71 Establishment of the School Disaster Contingency Fund.
The Bureau's annual budget justifications shall identify an amount
for a separate budget account entitled the School Disaster Contingency
Fund (SDCF). All schools and dormitories receiving support under the
provisions of subparts B and C of this part are eligible for disaster
aid from this contingency fund.
Sec. 39.72 Continuing and cumulative provisions.
Unobligated funds from the School Disaster Contingency Fund shall be
continued over at the end of a fiscal year in the same account for the
next year, except when otherwise provided in appropriations acts. New
funds shall be added when appropriated but the Fund should not exceed a
$1.5 million cumulative total unless otherwise determined by the
Assistant Secretary.
Sec. 39.73 Purposes.
Disbursements from the School Disaster Contingency Fund shall be for
the following purposes:
(a) Costs of replacement of items in the following categories
including shipment and installation, in the event of their destruction
by earthquake, fire, flood, storm, or other ``acts of God,'' and acts of
massive and catastrophic vandalism where such costs are not already
covered in an insurance policy in force at the time of destruction and
where such destruction could not have been prevented by prudent action
by the officials responsible for the care of such items:
[[Page 186]]
(1) Educational materials and supplies.
(2) Equipment and furnishings.
(3) Dormitory materials and supplies, for student use, and dormitory
equipment and furnishings, including those necessary for staff living
space, if integral to the dormitory operation.
(4) Food services supplies, furnishings and equipment not a fixed
part of structures.
(5) Office supplies and equipment for minimum essential
administrative operations.
(6) Janitorial supplies and cleaning equipment.
(7) Student clothing and personal supplies if destroyed along with a
school facility.
(8) Fuel supplies, tanks, lines, connections, meters, etc.
(9) Transportation equipment not otherwise provided for through the
General Services Administration.
(10) Costs of repair of utility systems or components thereof, as
necessary to restore utility services.
(b) Costs of temporary replacement of school facilities in the event
of their destruction by earthquake, fire, flood, storm or other ``acts
of God,'' until they can be reconstructed. These costs may include
purchase of or movement of portable structures, including costs of
delivery, installation, and connection to utility systems. They may also
include costs of any fixed equipment which is integral to such
structures. Structure types for which such temporary replacement costs
may be paid or reimbursed are as follows:
(1) Employee quarters, if required for employee housing due to the
isolation of the duty station, and on other housing is available within
a reasonable commuting distance. Reasonable commuting distance will be
determined under existing policies or by the Director.
(2) Dormitories, including employee apartment space if integral to
the operation of the dormitory.
(3) Offices required for minimum essential administrative operations
at the local school level.
(4) Academic facilities, including classrooms, kindergartens,
libraries and special instructional spaces such as vocational shops and
home economics rooms.
(5) Kitchens and dining facilities, including laundry and
multipurpose spaces.
(6) Infirmaries, clinics and health service spaces, in school
locations in which such services are not otherwise available.
(7) Separate restroom facilities, if none are otherwise available
for operation of instructional and dormitory programs.
Sec. 39.74 Application procedures.
Application for disbursement from the School Disaster Contingency
Fund shall be made to the Director of the Office of Indian Education
Programs, through the Agency Superintendent of Education for the school
affected. Applications shall be subject to review and comment by the
Superintendent, and the Area Director for Education of the Area in which
the school is located, but shall not require the approval of these
officers. Such review and comment activities shall be carried out
concurrently with the Director's processing of the application so that
there are no delays in the transmission of the application to the
Director. The Director shall develop such application forms and requests
for information and documentation as are necessary to prove both loss
and the fact that replacement costs are outside the normal budgetary
capacity of the school operation at either the local school, Agency or
Area levels.
Sec. 39.75 Disbursement procedures.
Disbursements from the SDCF shall be made only on the direct
authorization of the Director, on the merits of each such application
received, on a first come, first served basis and in amounts determined
at the Director's discretion in accordance with the purposes and
expenditure prohibitions set forth in this section.
Sec. 39.76 Prohibitions of expenditures.
(a) The following costs shall not be reimbursed or paid under the
SDCF:
(1) Capital expenditures for construction of permanent facilities.
(2) Capital expenditures for reconstruction or refurbishment of
facilities
[[Page 187]]
no longer in use except where such expenditure is the most cost
effective way of temporarily replacing other destroyed facilities.
(3) Temporary replacement of facilities or replacement of equipment
which has simply become outmoded and obsolete, or which has been
``condemned'' or declared unserviceable by administrative procedures,
which is either still in existence or has been razed or destroyed as the
result of an administrative decision.
(4) Costs of continued normal program operations which are not
increased by a disaster.
(5) Personnel costs, except for temporary personnel hired to meet an
emergency situation.
(6) Start-up costs for new or expanding school programs.
(7) Costs of repairs necessitated by neglect, or failure to provide
routine scheduled maintenance and minor repair.
(8) Replacement costs of personal property of school employees,
regardless of value or circumstances of destruction.
(9) General budgetary shortfalls due to improper fiscal management.
(10) Budgetary shortfalls from a past fiscal period, after funds
have been carried forward in the SDCF to a new fiscal period.
(11) Costs of replacement of items stolen or destroyed by deliberate
vandalism, neglect, or abandonment.
(12) Costs of items, services or activities for which budgetary
provisions are made in other budget categories of the Bureau not subject
to distribution under the Indian School Equalization Program.
(b) Temporary replacement costs for the following structure types
shall not be paid or reimbursed from the SDCF:
(1) Recreational structures, such as auditoriums, field houses,
clubs, canteens, chapels, student centers, grandstands, gymnasiums, etc.
(2) Auxiliary buildings not used in student instructional or
dormitory programs, such as warehouses, storage sheds, garages,
firehouses, maintenance shops, law enforcement centers, instructional
materials and audio-visual centers, and employees' clubs.
(3) Temporary replacement costs shall be paid or reimbursed only to
the extent necessary to permit expeditious continued operation of the
school dormitory care programs affected by the destruction of
facilities.
Sec. 39.77 Transfer of funds from Facilities Engineering for other
contingencies.
In order to reimburse schools for the costs of unforeseen and
extraordinary procurement costs and for major repairs of reconstruction
resulting from the disaster, the Director may request a transfer of
funds from funds appropriated for Bureau Facilities Engineering to the
School Disaster Contingency Fund for such purposes. When a separate
formula is established by regulation for school maintenance and
operations, an appropriate separate contingency fund shall be
established to cover such costs.
Sec. 39.78 Establishment of a formula implementation set-aside fund.
There shall be set aside an amount not to exceed $2 million dollars
to be used during fiscal year 1980 by the Director to facilitate the
implementation of formula funding under this part. The fund is to
provide the means of adjusting particular local school entitlements
which are allocated in error due to underprojections, data error,
misclassification of students, and similar reporting errors, or to
provide for the initial funding of new schools under the formula, which
have been started after the spring ADM counts, without reducing
allotments made for other schools. Balances in this set-aside fund shall
be apportioned through the formula during the first week in April by the
Director or at such earlier time as he or she deems that significant ADM
reporting fluctuations have ceased.
Sec. 39.79 Prohibition.
The formula implementation set-aside fund shall not be used as a
discretionary fund by the Director for any purpose, and it shall be
allocated solely through the Indian School Equalization Formula.
[[Page 188]]
Subpart G_School Board Training
Sec. 39.90 Establishment of a school board training fund.
An amount shall be set aside annually for the purpose of providing
training for school board members as authorized by Pub. L. 95-561,
section 1129(d). Each school board shall receive a flat sum, initially
for FY 1980 to be set at $5,000, with Alaska and off-reservation
boarding schools to receive an additional 25 percent of this flat sum
amount per annum.
Sec. 39.91 Other technical assistance and training.
The provision of funds under Sec. 39.90 of this subpart does not
relieve the Director of the responsibility for assuring that adequate
technical assistance and training services are provided to school boards
to the greatest extent possible. The provision of assistance under this
subpart does not preclude a school board or its trial governing body
from receiving financial or other assistance from the Bureau under the
Indian Self-Determination and Education Assistance Act (88 Stat. 2203;
Pub. L. 93-638; 25 U.S.C. 450 et seq.).
Sec. 39.92 Training activities.
Training funds provided under this part may be used for training in
the following subject areas:
(a) Educational philosophy;
(b) Community school programs;
(c) Legal aspects of being a school board member;
(d) School board operations and procedures;
(e) Fiscal management;
(f) Formula funding;
(g) Personnel matters;
(h) Union negotiations;
(i) Contracting procedures and obligations;
(j) Special curriculum areas;
(k) Students' rights and responsibilities;
(l) Education agency relations;
(m) Alternative sources of Federal grants;
(n) Juvenile justice;
(o) Teachers training and inservice options;
(p) Needs assessment, program development, proposal writing; and
(q) Other training activities school boards deem appropriate and
applicable to their situation and which are approved by the Director.
Sec. 39.93 Allowable expenditures.
Allowable expenditures under this subpart are limited to:
(a) Contracting with individuals and organizations for training
services,
(b) Membership fees in school boards' associations and purchase of
their materials and publications,
(c) Membership reimbursement for subsistence and travel expenses
incurred while participating in training activities; and
(d) Cooperative contracts with other school boards for joint
training or technical assistance activities.
Sec. 39.94 Limitations on expenditures.
(a) No expenditure may be authorized except in accordance with a
decision of record by the school board and each payment shall be made
under written authorization of the board chairperson.
(b) Expenditures under this subpart may not be made for school board
members' stipends or honorariums associated with participation in
training activities. Payments for such may, however, come from the
school's operational budget, if so designated and approved in the
school's operational budget, if so designated and approved in the
school's local educational finance plan. The maximum amounts of such
payments shall be determined in accordance with the laws or regulations
of the tribe involved and shall be subject to approval by the Director.
In the absence of such tribal laws or regulations, such maximums shall
be determined by the Director in consultation with the school board.
Payments under this subpart may not be made to any employee of a school
served by the school board being trained or assisted.
Sec. 39.95 Reporting of expenditures.
An accounting of all expenditures of school board training funds
shall be maintained as a supplement to each school's public accounting
records.
[[Page 189]]
Sec. 39.96 Provision for annual adjustment.
The allocation of $5,000 per school may be annually adjusted by the
Director.
Sec. 39.97 Training for agency school board.
Provisions for training agency school board members, except as they
may also be members of local school boards, are not included in these
local school board training funds. If required, such provision shall be
incorporated in agency or area office educational administration
training plans and budgets.
Subpart H_Student Transportation
Sec. 39.100 Definitions.
As used in this subpart, the term:
(a) Basic transportation miles means the daily average of all bus
miles logged for round trip home-to-school transportation of day
students.
(b) Transported student means the average number of students
transported to school on a daily basis.
(c) School bus means a passenger vehicle, operated by an operator in
the employ of, or under contract to, a Bureau operated or funded school,
who is qualified to operate such a vehicle under State or Federal
regulations governing the transportation of students; which vehicle is
used to transport day students to and/or from home and the school.
Sec. 39.101 Purpose and scope.
The purpose of this section is to provide funds to each school for
the round trip transportation of students between home and the school
site.
Sec. 39.102 Allocation of transportation funds.
Transportation funds for FY 1980 shall be allocated to each school
as follows:
(a) Day students. Funds shall be allocated to each school which
provides daily transportation of students between the student's
residence and the school site by the following formula:
(1) 180 x ($.85 per basic transportation mile + $.61 per transported
student).
(2) The allocation shall be based on the daily average of
transported students and basic transportation miles computed during the
October and November count periods.
(3) This formula shall not apply to any dormitory which provides
daily transportation between dormitory and the public school which the
dormitory student attends.
(b) Boarding school and dormitory students. Funds shall be allocated
to each boarding school and dormitory for the transportation of resident
students according to the following criteria:
(1) For each student whose home is more than 1 mile and no more than
100 miles from the boarding school or dormitory, the school shall
receive $3.20 per mile per student per year. The miles per student shall
be the shortest driving distance one way from the student's home to the
school site. This provision applies only to those students for whom
ground transportation is provided and for whom it is not necessary to
provide air transportation.
(2) For each student whose home is more than 100 and no more than
350 miles from the boarding school or dormitory, the school shall
receive $1.60 per mile per student per year. The miles per student shall
be the shortest driving distance one way from the student's home to the
school site. This provision applies only to those students for whom
ground transportation is provided and for whom it is not necessary to
provide air transportation.
(3) For each student whose home is more than 350 miles from the
boarding school or dormitory, the school shall receive $.48 per mile per
student per year. The miles per student shall be the shortest driving
distance one way from the student's home agency to the school site. This
provision applies only to those students for whom ground transportation
is provided and for whom it is not necessary to provide air
transportation.
(4) For each student whose home is more than 350 miles from the
boarding school or dormitory and for whom it is necessary to provide
airplane transportation, the school shall receive $.60 per mile per
student flown per year. The miles per student shall be the actual one
way air miles between the airport
[[Page 190]]
closest to the school site and the closest to the student's home.
Airplane transportation shall be provided only when ground
transportation is unavailable or not cost-effective.
(5) For each student attending Mt. Edgecumbe Boarding School, Sitka,
Alaska, who requires airplane transportation, the school shall receive
$1.05 per mile per student flown per year. The miles per student shall
be the one way air miles between the Sitka, Alaska airport and the
airport nearest the student's home.
(6) At least 80% of the funds received by the school under (3), (4),
and (5) above must be used for student travel between home and school.
Sec. 39.103 Annual transportation formula adjustment.
The Director will review transportation allotment factors each year
and make changes in factors based on changes in transportation costs.
Subpart I_Interim Maintenance and Minor Repair Fund
Sec. 39.110 Establishment and funding of an Interim Maintenance and
Minor Repair Fund.
There is established in the Division of Facilities Management a
separate temporary fund entitled the Interim Maintenance and Minor
Repair Fund. The Assistant Secretary shall cause the distribution of an
amount of $1 million, under the FY 1980 Appropriation for the Bureau,
from budget activity 3500, ``General Management and Facilities
Operation'', to the direct use of schools, and shall create an
appropriate account or subaccount for the Interim Maintenance and Minor
Repair Fund and credit these funds thereto.
Sec. 39.111 Conditions for distribution.
Funds from the Interim Maintenance and Minor Repair Fund shall be
distributed to Bureau operated and funded schools and shall be
separately earmarked in local school financial plans solely for
expenditure at the discretion of the school supervisor for cost of
school facility maintenance and minor repair. These funds shall be used
to meet immediate minor repair and maintenance needs.
Sec. 39.112 Allocation.
(a) Interim Maintenance and Minor Repair funds shall be allocated to
all Bureau operated and contract schools based on the number of square
feet of floor space used for that school's educational program, for
student residence and for support facilities. Staff quarters shall be
specifically excluded from the computation.
(b) Square footage figures used in determining school allocations
shall be taken from the facilities inventory maintained by the Division
of Facilities Engineering.
(c) In those cases, such as contract schools, where square footage
figures are not now available, it shall be the responsibility of the
Bureau's Division of Facilities Engineering to correct the information.
(d) Schools in Alaska shall receive a 25% cost adjustment increase
in the computation of their allocation.
Sec. 39.113 Use of funds.
Funds allocated under this provision for maintenance and minor
repair shall be used for no other purpose.
Sec. 39.114 Limitations.
Nothing in this provision shall be interpreted as relieving the
Bureau branch of Facilities Management or its field offices of any
responsibility for continuing to provide maintenance and repair service
to schools through existing procedures.
Subpart J_Administrative Cost Formula
Source: 56 FR 35795, July 26, 1991, unless otherwise noted.
Sec. 39.120 Purpose and scope.
The purpose of this subpart is to provide funds at the agency and
area education offices for FY 1991 and future years for administration
of all Bureau of Indian Affairs education functions, including but not
limited to school operations, continuing education, early childhood
education, post-secondary education and Johnson-O'Malley Programs.
[[Page 191]]
Sec. 39.121 Definitions.
(a) Agency Education Office means a field office of the Office of
Indian Education Programs providing administrative direction and
supervision to one or more Bureau-operated schools as well as being
responsible for all other education functions serving tribes within that
agency's jurisdiction.
(b) Area Education Office means a field office of the Office of
Indian Education Programs responsible for all education functions
serving tribes not serviced by an agency education office an in some
cases providing administrative direction to one or more off-reservation
boarding schools not under an agency education office.
Sec. 39.122 Allotment of education administrative funds.
The total annual budget for agencies/areas shall be allotted to the
Director and through him/her to agency and area education offices. This
total budget shall be distributed to the various agency and area
education offices as follows:
(a) Each agency or area education office as defined above shall
receive a base amount of $50,000 for basic administrative costs; and
(b) Each agency or area education office as defined above shall
receive an amount under these funds equal to two percent of the total
higher education, Johnson-O'Malley and adult education funds
administered by each office, except that the Navajo Agencies are
restricted to a maximum of $50,000 for administering the Johnson-
O'Malley and higher education programs; and
(c) Eighty percent of the remaining funds shall be distributed
proportionately based on the number of schools operated under the
jurisdiction of each agency or area education office, with Bureau-
operated schools counting as 1 and contract/grant schools counting as
0.6; and
(d) The remaining twenty percent shall be distributed
proportionately based on the total weighted student units generated by
all schools under the jurisdiction of each agency or area education
office.
Sec. 39.123 Allotment exception for FY 1991.
For FY 1991 only, the Director may reserve an amount equal to no
more than one half of the funds received in FY 1990 by those offices to
be closed in FY 1991 to cover severance pay costs, lump sum leave
payments and relocation costs for those individuals affected by the
closures. Any balance uncommitted by March 31, 1991, shall be
distributed in accordance with the formula in Sec. 39.122.
Subpart K_Pre-kindergarten Programs
Sec. 39.130 Interim fiscal year 1980 and fiscal year 1981 funding for
pre-kindergarten programs previously funded by the Bureau.
Those schools having pre-kindergarten programs funded fully or in
part from Bureau education funds in fiscal year 1979 shall be funded
from Bureau education funds by the Director in fiscal year 1980 and
fiscal year 1981 at their fiscal year 1979 Bureau education funding
levels. The fiscal year 1979 pre-kindergarten Bureau funding amount for
each Bureau funded school shall be deducted from the school's fiscal
year 1979 Bureau Education Budget amount prior to application of the
phase-in provision detailed in Sec. 39.19.
Sec. 39.131 Addition of pre-kindergarten as a weight factor to the
Indian School Equalization Formula in fiscal year 1982.
The Director, in consultation with the tribes and school boards,
shall determine appropriate weight factors needed to include pre-
kindergarten programs in the Indian School Equalization Formula in
fiscal year 1982. Based on a needs assessment, to be completed by
January 1, 1980, pre-kindergarten programs shall be included in the
Bureau's education request for fiscal year 1982.
Subpart L_Contract School Operation and Maintenance Fund
Sec. 39.140 Definitions.
Contract school operation and maintenance costs for fiscal year 1979
means the sum of costs for custodial salaries
[[Page 192]]
and fringe benefits, related supplies and equipment and equipment
repair, insurance, and school operation utilities costs, where such
costs are not paid by the Division of Facilities Management or other
noneducation Bureau sources.
Sec. 39.141 Establishment of an interim fiscal year 1980 operation and
maintenance fund for contract schools.
There is established in the Division of Facilities Management a
separate fund entitled the Contract School Operation and Maintenance
Fund. The Secretary shall cause the distribution of an amount of $2.5
million, under the fiscal year 1980 appropriation for the Bureau, from
budget activity 3500. ``General Management and Facilities Operations'',
to the schools through this fund and shall create an appropriate account
or subaccount for the Contract School Operation and Maintenance Fund.
Sec. 39.142 Distribution of funds.
(a) Each contract school shall receive in fiscal year 1980 a portion
of the Contract School Operation and Maintenance Fund determined by the
percentage share which that school's fiscal year 1979 operation and
maintenance cost represents in the total fiscal year 1979 operation and
maintenance cost for all such schools.
(b) To be eligible for these funds, a contract school shall submit a
detailed report of actual operation and maintenance costs for fiscal
year 1979 to the Director by November 23, 1979. These cost figures will
be subject to verification by the Director to assure their accuracy
prior to the allotment of any funds under this subpart.
(c) Any funds generated under this subpart shall be included in the
computation of the phase-in amount as set forth in Sec. 39.19 if
supplemental operation and maintenance funds were included in a school's
fiscal year 1979 3100 contract funds.
Sec. 39.143 Future consideration of contract school operation and
maintenance funding.
The Assistant Secretary shall arrange for full funding for operation
and maintenance of contract schools by fiscal year 1981.
PART 40_ADMINISTRATION OF EDUCATIONAL LOANS, GRANTS AND OTHER ASSISTANCE FOR
HIGHER EDUCATION--Table of Contents
Sec.
40.1 Appropriations for loans or grants.
40.2 Working scholarships.
40.3 Applications.
40.4 Security.
40.5 Repayments.
Authority: Sec. 11, 48 Stat. 986; 25 U.S.C. 471.
Source: 22 FR 10533, Dec. 24, 1957, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 40.1 Appropriations for loans or grants.
Funds appropriated by Congress for the education of Indians may be
used for making educational loans and grants to aid students of one-
fourth or more degree of Indian blood attending accredited institutions
of higher education or other accredited schools offering vocational and
technical training who reside within the exterior boundaries of Indian
reservations under the jurisdiction of the Bureau of Indian Affairs or
on trust or restricted lands under the jurisdiction of the Bureau of
Indian Affairs. Such educational loans and grants may be made also to
students of one-fourth or more degree of Indian blood who reside near
the reservation when a denial of such loans or grants would have a
direct effect upon Bureau programs within the reservation. After
students meeting these eligibility requirements are taken care of,
Indian students who do not meet the residency requirements but are
otherwise eligible may be considered.
[33 FR 9708, July 4, 1968. Redesignated at 47 FR 13327, Mar. 30, 1982]
Sec. 40.2 Working scholarships.
Working scholarships may be granted to Indians who wish to earn
their board and room by part-time work at Federal boarding schools that
are located near a college, trade, or vocational school.
[[Page 193]]
Sec. 40.3 Applications.
Applications for educational loans, grants, and working scholarships
shall be submitted through the superintendent or officer in charge of
the agency at which the applicant is enrolled in the manner prescribed
by the Commissioner.
Sec. 40.4 Security.
If a borrower or cosigner has security to offer for an educational
loan it must be given in an amount adequate to protect the loan.
Sec. 40.5 Repayments.
Repayment schedules for educational loans may provide not to exceed
two years for repayment for each year in school.
PART 41_GRANTS TO TRIBALLY CONTROLLED COMMUNITY COLLEGES AND NAVAJO
COMMUNITY COLLEGE--Table of Contents
Subpart A_Tribally Controlled Community Colleges
Sec.
41.1 Purpose.
41.2 Scope.
41.3 Definitions.
41.4 Eligible recipients.
41.5 Eligible activities.
41.6 HHS participation.
41.7 Feasibility studies.
41.8 Grants.
41.9 Reports.
41.10 Technical assistance.
41.11 General provisions.
41.12 Annual budget.
41.13 Criminal penalities.
Subpart B_Navajo Community College
41.20 Policy.
41.21 Scope.
41.22 Definitions.
41.23 Eligible activities.
41.24 Grants.
41.25 Reports.
41.26 Technical assistance.
41.27 General provisions.
41.28 Criminal penalties.
Authority: Secs. 114 and 203(a), Pub. L. 95-471, 25 U.S.C. 1815, 25
U.S.C. 640c-1(c).
Source: 44 FR 67042, Nov. 21, 1979, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Subpart A_Tribally Controlled Community Colleges
Sec. 41.1 Purpose.
The policy of the Department of the Interior is to support and
encourage the establishment, operation, and improvement of tribally
controlled community colleges to ensure continued and expanded
educational opportunities for Indian students. The regulations in this
subpart prescribe procedures for providing financial and technical
assistance to this end under the Tribally Controlled Community College
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et
seq.).
Sec. 41.2 Scope.
The regulations in this subpart are applicable to the provision of
financial and technical assistance to Community Colleges under title I
of the Act. They do not apply to the provision of assistance to Navajo
Community College. Subpart B of this part applies to assistance to
Navajo Community College under title II of the Act.
Sec. 41.3 Definitions.
As used in this subpart A:
(a) Academic term means a semester, trimester, or other such period
(not less than six (6) weeks in duration) into which a community college
normally subdivides its academic year, but does not include a summer
term.
(b) Academic year means a twelve month period established by a
community college and approved by the Director of Education as the
annual period for the operation of the college's education programs.
(c) The Act means the Tribally Controlled Community College
Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325, 25 U.S.C. 1801 et
seq.).
(d) Assistant Secretary means the Assistant Secretary for Indian
Affairs of the Department of the Interior, or his/her duly authorized
representative.
(e) Community College means an institution of higher education which
(1) is formally controlled or operated and managed by the governing body
of an Indian Tribe or by the governing bodies of two or more Indian
Tribes, or (2) is established or is otherwise sanctioned or chartered by
resolution, ordinance,
[[Page 194]]
or other official action (which is still in full force and effect) of
such governing body or bodies. However, for purposes of this definition,
only one such institution shall be recognized with respect to any one
Tribe. A Community College that meets the requirements of this
definition with respect to more than one Tribe must meet such
requirements with respect to at least one Tribe that has no other
currently formally controlled, operated and managed, established,
sanctioned, or chartered Community College.
(f) Director of Education means the Director of the Office of Indian
Education Programs of the Bureau of Indian Affairs, or his/her duly
authorized representative.
(g) Full time equivalent or FTE, means the number of Indian students
(1) enrolled full-time for an entire academic term at a community
college, calculated on the basis of registrations as in effect at the
conclusion of the sixth week of an academic term, plus (2) the full-time
equivalent of the number of other Indian students who are enrolled part-
time for an entire academic term at a community college (determined on
the basis of the quotient of the sum of credit hours for which all such
part-time students are registered during such academic term, divided by
twelve (12)), calculated on the basis of registrations as in effect at
the conclusion of the sixth week of an academic term. The formula for
calculating the Indian FTE for an academic term is expressed
mathematically as FTE=FT+PTCR/12 where FT is the number of full time
Indian students (those carrying 12 or more credit hours at the end of
the sixth week of the academic term) and PTCR is the number of credit
hours for which part-time Indian students are registered at the end of
the sixth week of an academic term.
(h) Indian means a person who is a member of an Indian Tribe and is
eligible to receive services from the Secretary of the Interior because
of his/her status as an Indian.
(i) Indian Tribe means an Indian tribe, band, nation, pueblo,
rancheria, or other organized group or community, including any Alaskan
Native Village or regional or village corporation as defined in or
established under the Alaska Native Claims Settlement Act, which is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.
(j) Institution of higher education as defined in Pub. L. 95-471
(incorporating in part 1201 of the Higher Education Act of 1965), means
an educational institution in any State which
(1) Admits as regular students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such a certificate,
(2) Provides an educational program for which it awards a bachelor's
degree or provides not less than a two-year program which is acceptable
for full credit toward such a degree,
(3) Is a public or other nonprofit institution, and
(4) Is accredited by a nationally recognized accrediting agency or
association or, if not so accredited,
(A) Is an institution with respect to which the Commissioner of
Education has determined that there is satisfactory assurance,
considering the resources available to the institution, the period of
time, if any, during which it has operated, the effort it is making to
meet accreditation standards and the purpose for which this
determination is being made, that the institution will meet the
accreditation standards of such an agency or association within a
reasonable time, or
(B) Is an institution whose credits are accepted, on transfer, by
not less than three institutions which are so accredited, for credit on
the same basis as if transferred from an institution so accredited.
Such term also includes any school which provides not less than a one-
year program of training to prepare students for gainful employment in a
recognized occupation and which meets the provisions of clauses (1),
(2), (3), and (4). Such term also includes a public or nonprofit private
educational institution in any State which, in lieu of the requirement
in clause (1), admits as regular students persons who are beyond the age
of compulsory school attendance in the State in which the institution is
located and who have the
[[Page 195]]
ability to benefit from the training offered by the institution.
(k) National Indian Organization means any organization of Indians,
found by the Director of Education to be nationally based, representing
a substantial Indian constituency, and expert in the field of Indian
education. Notice of such findings shall be published in the Federal
Register with an opportunity for comment from the public and no such
finding shall be effective earlier than 30 days after publication.
(l) Operating expenses of education programs means the obligations
and expenditures of a community college for post-secondary activities,
including administration, instruction, attendance, health and other
student services, operation, maintenance and repair of plant, fixed
charges, and other related expenses, but not including expenditures for
the acquisition or construction of academic facilities. (The term
academic facilities means structures suitable for use as classrooms,
laboratories, libraries, and related facilities necessary or appropriate
for instruction of students, or for research, or for administration of
the educational or research programs of an institution of higher
education or as dormitories or student services buildings, and
maintenance, storage, support, or utility facilities essential to
operation of the foregoing facilities.)
(m) Part-time means registered for less than twelve (12) credit
hours for an academic term; full-time means registered for twelve (12)
or more credit hours for an academic term.
(n) Unused portion of received funds means the amount of financial
assistance provided under this subpart to a Community College for an
academic year which has not been obligated or expended by the Community
College by July 1 of that academic year.
Sec. 41.4 Eligible recipients.
Financial assistance under this subpart shall be available only to a
Community College which:
(a) Is governed by a board of directors, regents, or trustees, a
majority of whom are Indians;
(b) Demonstrates its adherence to stated goals, a philosophy, or a
plan of operation which is directed to meet the needs of Indians, and
has formally adopted, in writing, such goals, philosophy, or plan of
operation, which may be in the form of a constitution, by-laws, or
policy statement of the Community College;
(c) If in operation for more than one year, has students a majority
of whom are Indian; and
(d) Upon completion of a feasibility study, receives a positive
determination, and;
(e) Is not in violation of Sec. 41.11 of this subpart.
Sec. 41.5 Eligible activities.
Financial assistance under this subpart shall be available to defray
only the operating expenses of education programs of Community Colleges.
Financial assistance under this subpart shall not be used for religious
worship or sectarian instruction, but nothing in this subpart shall be
construed as barring instruction in comparative religions or cultures or
in languages of Indian tribes.
Sec. 41.6 HHS participation.
The Assistant Secretary for Indian Affairs is authorized to enter
into an agreement with the Assistant Secretary for Education, Department
of Health and Human Services, and to revise such agreement as necessary,
to assist the Director of Education in the development of plans,
procedures, and criteria for feasibility studies under this subpart, and
to provide the Director with technical assistance in conducting such
feasibility studies, including determinations as to the reasonable
number of students required to support a Community College.
[44 FR 67042, Nov. 21, 1979. Redesignated at 47 FR 13327, Mar. 30, 1982;
48 FR 13414, Mar. 31, 1983]
Sec. 41.7 Feasibility studies.
(a) Grants under Sec. 41.8 of this subpart may be made to a
Community College only after a positive determination of feasibility as
provided in this section.
(b) Within thirty (30) days of receiving a resolution or other duly
authorized request from the governing body of one or more Indian Tribes,
the Director of Education shall initiate a feasibility
[[Page 196]]
study to determine whether there is justification to encourage and
maintain a Community College for such tribe or tribes. The feasibility
study shall give consideration to the following factors:
(1) Financial feasibility based upon potential enrollment;
(2) Evidence of low tribal levels of tribal matriculation in and
graduation from postsecondary educational institutions;
(3) Tribal, linguistics, or cultural differences;
(4) Isolation;
(5) Presence of alternate education sources;
(6) Proposed curriculum;
(7) The benefits of continued and expanded educational opportunities
for Indian students.
(c) The Director of Education will issue detailed guidelines for
conducting and analyzing the feasibility studies.
(d) Feasibility studies under this section shall be conducted in
consultation with the tribal governing body or bodies involved or their
designated representatives. Each feasibility study shall be completed
and filed by the Director of Education within sixty (60) days after the
feasibility study has been initiated. The study shall be filed with (1)
the Assistant Secretary, (2) the tribal governing body or bodies
requesting the studies, and (3) with the board of directors, regents, or
trustees of the Community College, if already established.
(e) In the case of any feasibility study which results in a negative
determination by the Director of Education, a Tribe requesting the study
may within thirty (30) days of receipt of the study or of notice of such
determination file a notice of appeal with the Assistant Secretary.
Following the timely filing of a Tribe's notice of appeal, the Tribe and
Community College shall have a right to a formal review of the
feasibility study, including a hearing upon reasonable notice within
sixty (60) days before the Assistant Secretary (or his/her designee,
other than the Director of Education or any federal employee under the
Director's supervision). At the hearing, the appealing Tribe or the
Community College (or both) may present additional evidence or arguments
to justify feasibility. Within thirty (30) days of the hearing, the
Assistant Secretary shall issue a written ruling either confirming,
modifying, or reversing the original determination. The ruling, which
shall be final for the Department, shall be mailed or otherwise
delivered to the appealing Tribe and the Community College within one
week of its issuance. In any case where the original negative
determination is not reversed, the Assistant Secretary's ruling shall
specify the grounds for the decision and state the manner in which the
determination related to each of the factors specified.
(f) A negative determination shall not prevent a Tribe from
requesting another feasibility study, but no more than one feasibility
study shall be requested for any given Community College per year.
Sec. 41.8 Grants.
(a) Each Community College which has received a positive feasibility
study determination under Sec. 41.7 of this subpart shall be entitled
to apply for financial assistance under this subpart.
(b) Except with respect to applications for grants for the 1979-1980
academic year, each Community College shall make an application to the
Director of Education before January 31, of the year preceding the
academic year for which financial assistance is requested. Each
application must contain the following information:
(1) The name and address of the Community College and the names of
the members of the governing board and the number of its members who are
Indian;
(2) A statement that the Community College has received a positive
feasibility determination and the date thereof;
(3) A written statement of the goals, philosophy, or proposed plan
of operation sufficient to demonstrate that its education program or
proposed program is designed to meet the needs of Indians;
(4) In the case of a Community College which has been in operation
for more than one year, a statement of the total number of FTE Indian
students
[[Page 197]]
and the total number of all FTE students;
(5) If the Community College has not yet begun operations, a
statement of expected enrollment, including the total number of FTE
students and the number of FTE Indian students;
(6) The name and address of the Indian Tribe or Tribes which control
or operate and manage, or have established, sanctioned, or chartered the
Community College, and a statement as to which of those Tribes have not
done so with respect to any other Community College;
(7) A curriculum, which may be in the form of a college catalog or
like publication;
(8) A proposed budget, showing total expected operating expenses of
education programs and expected revenues from all sources for the
academic year to which the information applies;
(9) An assurance that the Community College will not deny admission
to any Indian student because that student is not a member of a specific
tribe or because such student is a member of a specific tribe, and will
comply with the requirements set forth in Sec. 41.11 of this subpart
together with any request and justification for a specific waiver of any
requirement of 25 CFR part 276 which the Community College believes to
be inappropriate;
(10) Certification by the chief executive officer of the Community
College that the information on the application is complete and correct
and that the application has been filed with the governing body or
bodies of the Tribe or Tribes which control or have sanctioned or
chartered it.
(c)(1) Within thirty (30) days of receiving an application required
under paragraph (b) of this section, the Director of Education shall
review the application submitted by the Community College and any
comments with respect thereto filed by the Tribe(s) or by any national
Indian organization(s) whose assistance has been requested by the
Community College, and make a grant award in an amount determined under
paragraph (d) of this section to the Community College if the
application qualifies the Community College to receive a grant.
(2) In the case of any Community College whose application is not
approved, the Director shall promptly send a notice of such action to
the Community College. Such notice shall include a statement of the
specific reasons for not approving the application and a statement
advising the College of its right within thirty (30) days to amend or
supplement the application on file to rectify the defect.
(3) Final disapproval of a grant application by the Director after
the thirty day period referred to in paragraph (c)(2) of this section,
or a failure of the Director of Education to approve an application
within thirty (30) days of its receipt may be appealed by a Community
College in the same manner as provided in paragraphs (d) and (f) of
Sec. 41.7.
(4) A Grant award under an approved application shall be evidenced
by a grant agreement, signed by the Director of Education, incorporating
the application and the provisions required by Sec. 41.11.
(d)(1) In fiscal year 1980, each Community College which qualifies
for a grant will receive a grant for academic year 1979-80; thereafter
each Community College which qualifies for a grant shall receive a grant
for the academic year commencing after the date of approval of its
application. Except as provided in paragraph (d)(3) of this section
grants shall be in an amount equal to $4,000 multiplied by the number of
FTE Indian students in attendance at such college during each academic
term divided by the number of academic terms in the academic year,
except that no such grant shall exceed the annual operating expenses of
the education programs provided by the Community College. The
mathematical formula for calculating the base grant is BG (Base Grant)=
[GRAPHIC] [TIFF OMITTED] TC14NO91.120
[[Page 198]]
where FTE is the Indian FTE for each of the academic terms during the
academic year calculated in conformity with Sec. 41.3(g) of this
subpart and N is the number of academic terms in the academic year.
(2) For the first Federal fiscal year for which funds are
appropriated for grants under this subpart, not less than eight (8) nor
more than fifteen (15) grants shall be approved; priority in awarding
such grants shall be given to Community Colleges which are operating on
October 17, 1978, and which have a history of service to the Indian
people. (If more than fifteen (15) Community Colleges meeting these two
(2) conditions submit applications for the first fiscal year, a further
priority for awarding grants among them shall be given to those who
appear to be in the best position to fulfill the purpose of the Act and
to those whose continued existence would be threatened if they did not
receive such a grant).
(3) All grants under this section shall be subject to the
availability of appropriations and the amount thereof shall be ratably
reduced for all Community Colleges if the sums appropriated for any
fiscal year for financial assistance under this subpart are not
sufficient to pay the full amounts to which the eligible Community
Colleges are otherwise entitled under paragraph (d)(1) of this section.
(e) The Director of Education shall authorize payments to each such
Community College in advance installments by letter of credit or
Treasury check in an amount equal to fifty percent (50%) of the grant
amount available for allotment to such Community College for such
academic year under paragraph (d) of this section on or before October
1st of such College's academic year (except for 1979-80) or the first
day on which appropriations for the fiscal year beginning on such date
are available for obligation by BIA whichever occurs later, based on the
number of FTE Indian students calculated on the basis of registrations
as in effect at the conclusion of the sixth week of the final academic
term of the preceding academic year. On or before January 1st (or such
other date that is the first day of the fifth month) of such College's
academic year, payments shall be made in the form of advance
installments to each Community College in an amount equal to seventy-
five percent (75%) of the grant amount available for allotment to such
Community College for such academic year under paragraph (d) of this
section, calculated on the basis of registrations at the conclusion of
sixth week of the academic year, less the amount previously advanced for
such academic year. On or before July 1st (or such other date that is
the first day of the eleventh month) of each such academic year the
balance of the grant amount to which each College is entitled under
paragraph (d) of this section shall be paid to such College. In the
event that additional sums are appropriated to which such Community
Colleges are entitled under section 110(a) of the Act and paragraph (d)
of this section, these amounts shall be included in such final payments.
(f) If with respect to any academic year the amounts of financial
assistance hereunder have been ratably reduced as provided in paragraph
(d)(3) of this section and additional funds have not been appropriated
to pay the full amount of such reductions on or before June 1st of such
year, the Director of Education shall notify each Community College of
such fact in writing, and each Community College shall report in writing
to the Director of Education on or before July 1st of such year the
amount of unused portion of received funds. The total of such reported
unused portions of received funds shall be reallocated by the Director
of Education in proportion to the amount of financial assistance to
which each Community College is entitled under paragraph (d) but which
has not been provided due to the ratable reductions provided for
therein, (except that no Community College shall receive more than the
total annual cost of the education programs provided by such College)
and payments shall be made reflecting such reallocations on or before
August 1st of such academic year.
(g) If the Director of Education determines that a Community College
has received, through mistake or fraud, payments of financial assistance
under this subpart to which it was not entitled, the Director shall
promptly notify
[[Page 199]]
the college, which may appeal the Director's determination under the
procedures set forth in Sec. 41.7, and adjust the amount of payments to
the college under this subpart for the same or subsequent academic years
to compensate for such overpayments or otherwise attempt to recover such
overpayments.
(h) Eligibility for grants under this subpart shall not, by itself,
bar a Community College from qualifying for or receiving financial
assistance under any other Federal program for which it may qualify.
Sec. 41.9 Reports.
Each Community College receiving financial assistance under this
subpart shall provide to the Director of Education on or before December
1st of each year a report which shall include an accounting of the
amounts and purposes for which such financial assistance was expended
during the preceding academic year; the annual cost of education
programs of the Community College from all sources for such academic
year; and a final report of the performance based upon the criteria set
forth in the Community College's stated goals, philosophy or plan of
operation. Upon reasonable cause, the Director of Education may extend
the period for submitting the annual report. Each Community College
shall in addition report to the Director of Education its FTE Indian
student enrollment for each academic term of the academic year within
three weeks of the date such FTE calculation is made.
Sec. 41.10 Technical assistance.
The Director of Education shall furnish technical assistance either
directly or through contract to any Community College requesting it.
Such assistance shall be initiated within thirty (30) days of a
Community College's request in writing. In any case, where the type and
source of technical assistance is specified in the request, the
Director, to the extent possible or feasible, shall provide the type of
technical assistance through the source so specified. Technical
assistance may include, but is not limited to, consulting services for
the development of programs, plans, and feasibility studies and
accounting, and other technical advice. In awarding of contracts for
technical assistance, preference shall be given to an organization
designated by the Community College to be assisted. Denials of requests
for technical assistance under this section shall be made in writing and
sent to the applicant within thirty (30) days of the request, together
with a statement of the reason for denial. An appeal under this section
may be undertaken in the same manner as in the case of negative
determinations of feasibility under Sec. 41.7 of his subpart.
Sec. 41.11 General provisions.
The general requirements for grant administration in this section
are applicable to all grants provided under this subpart to Community
Colleges:
(a) Services or assistance provided to Indians by Community Colleges
aided under this subpart shall be provided in a fair and uniform manner,
and admission to any such Community College shall not be denied to any
Indian student because such individual is not a member of a specific
Indian tribe or because such individual is a member of a specific Indian
tribe.
(b) Except as may be otherwise provided in this subpart, any
Community College receiving financial assistance under this subpart
shall comply with part 276 of this title, subject to any express waiver
of specific inappropriate provisions of part 276 that may be granted by
the Assistant Secretary after request and justification by the Community
College.
(c) A Community College shall have the right to appeal any adverse
decision of the Director of Education under a grant agreement to the
Assistant Secretary by filing written notice of appeal with the
Assistant Secretary within thirty (30) days after the adverse decision.
Within thirty (30) days after receiving notice of appeal, the Assistant
Secretary shall conduct a formal hearing at which time the College may
present evidence and argument to support its appeal. Within thirty (30)
days of the hearing, the Assistant Secretary shall issue a written
ruling on the appeal confirming, modifying, or reversing the Director of
Education's decision, the Assistant Secretary shall
[[Page 200]]
state in detail the basis for his/her ruling. The ruling of the
Assistant Secretary on an appeal shall be final for the Department of
the Interior.
Sec. 41.12 Annual budget.
Appropriations under title I of the Tribally Controlled Community
College Assistance Act of 1978 shall be separately identified in the
Bureau of Indian Affairs Budget Justification. Funds appropriated for
grants under this subpart shall not be commingled with other funds
expended by the Bureau of Indian Affairs.
Sec. 41.13 Criminal penalties.
Persons submitting or causing to be submitted to the Bureau any
false information in connection with any application, report, or other
document, upon which the provision of Federal financial assistance or
any other payment of Federal funds is based, may be subject to criminal
prosecution under provisions such as sections 287, 371, or 1001 of title
18, U.S. Code.
Subpart B_Navajo Community College
Sec. 41.20 Policy.
It is the policy of this Department to support and encourage the
establishment, operation, and improvement of tribally controlled
community colleges in order to ensure continued and expanded educational
opportunities for Indian students. The regulations in this subpart
prescribe procedures for providing financial and technical assistance to
this end for the Navajo Community College under the Navajo Community
College Act, as amended (25 U.S.C. 640a-c).
Sec. 41.21 Scope.
The regulations in this subpart are applicable to the provision of
financial and technical assistance to Navajo Community College pursuant
to the Navajo Community College Act of December 15, 1971 (Pub. L. 92-
189, 85 Stat. 646, 25 U.S.C. 640a-c) as amended by the Navajo Community
College Assistance Act of 1978, title II of the Tribally Controlled
Community College Assistance Act of 1978 (Pub. L. 95-471, 92 Stat. 1325,
1329, 25 U.S.C. 640c). Regulations applicable to Tribally Controlled
Community Colleges other than Navajo Community College are found in
subpart A of this part 41.
Sec. 41.22 Definitions.
As used in this subpart:
(a) Academic term means a semester, trimester, or other such period
(not less than six (6) weeks in duration) into which the college
normally subdivides its academic year, but does not include a summer
term.
(b) Academic year means a twelve month period established by the
college and approved by the Director of Education as the annual period
for the operation of the college's education programs.
(c) The Act means the Navajo Community College Act of December 15,
1971 (Pub. L. 92-189, 85 Stat. 646) as amended by the Navajo Community
College Assistance Act of 1978, (Pub. L. 95-471, title II, 92 Stat.
1329, 25 U.S.C. 640a et seq.).
(d) Assistant Secretary means the Assistant Secretary for Indian
Affairs of the Department of the Interior or his/her duly authorized
representative.
(e) College means the institution known as Navajo Community College
established by the Navajo Tribe.
(f) Director of Education means the Director of the Office of Indian
Education Programs of the Bureau of Indian Affairs, or his/her duly
authorized representative.
(g) Full time equivalent or FTE means the number of Indian students
(1) enrolled full-time for an entire academic term at the College,
calculated on the basis of registrations as in effect at the conclusion
of the sixth week of an academic term, plus (2) the full-time equivalent
of the number of other Indian students who are enrolled part-time for an
entire academic term at the College (determined on the basis of the
quotient of the sum of credit hours for which all such part-time
students are registered during such academic term divided by (12)),
calculated on the basis of registrations as in effect at the conclusion
of the sixth week of an academic term. The formula for calculating the
Indian FTE for an academic term is expressed mathematically as
[[Page 201]]
FTE=FT+PTCR/12 where FT is the number of full time Indian students
(those carrying 12 or more credit hours at the end of the sixth week of
the academic term) and PTCR is the number of credit hours for which
part-time Indian students are registered at the end of the sixth week of
an academic term.
(h) Indian means a person who is a member of an Indian tribe and is
eligible to receive services from the Secretary of the Interior because
of his/her status as an Indian.
(i) Indian Tribe means an Indian tribe, band, nation, pueblo,
rancheria, or other organized group or community, including any Alaskan
Native Village or Regional or Village Corporation as defined in or
established under the Alaska Native Claims Settlement Act, which is
recognized as eligible for the special programs and services provided by
the United States to Indians because of their status as Indians.
(j) Operating and Maintenance Expenses of Education Programs means
the obligation and expenditures by the College for post-secondary
education activities including administration, instruction, attendance,
health and other student services, operation, maintenance and repair of
plant, and fixed charges, and other related expenses, but not including
obligations or expenditures for the acquisition or construction of
academic facilities (as defined in Sec. 41.3(l) of subpart A).
Sec. 41.23 Eligible activities.
Financial assistance under this subpart shall be available to defray
only the operating and maintenance expenses of education programs of the
College. Financial assistance under this subpart shall not be used for
religious worship or sectarian instruction, but nothing in this subpart
shall be construed as barring instruction in comparative religions or
cultures or in languages of Indian tribes.
Sec. 41.24 Grants.
(a) Navajo Community College is entitled to annual grants for
operation and maintenance of the College in amounts based upon the
number of Full-Time Equivalent Indian students in attendance.
(b) Annually, in the manner and within the deadline established by
the Director of Education, the Navajo Community College shall submit an
application in the form of a statement of its FTE enrollment (total and
Indian) for the next academic year. The statement shall include a
description of the College's curriculum, which may be in the form of a
College catalog or like publication, and a proposed budget showing total
expected operating expenses of educational programs and expected revenue
from all sources for the academic year for which the information
applies. The statement shall be certified by the chief executive officer
of the College and shall certify that a copy of that statement has been
submitted to the Navajo Tribe.
(c) Annual budget request for the College shall be sparately
identified in the Bureau of Indian Affairs Budget Justifications. Funds
appropriated for grants under this subpart shall not be commingled with
other funds appropriations historically expended by the Bureau of Indian
Affairs for programs and projects normally provided on the Navajo
Reservation for Navajo beneficiaries.
(d) Within thirty (30) days of submission of the statement required
under paragraph (b) of this section, the Director of Education shall
make a grant award to the College in an amount determined under
paragraph (e) of this section. The grant award shall be evidenced by a
grant agreement signed by the Director of Education, incorporating the
grant application and including the provisions required by Sec. 41.27
of this subpart.
(e) The College shall be eligible to receive a grant for the fiscal
year beginning October 1, 1979, and for each succeeding year, in an
amount equal to $4,000 multiplied by the number of FTE Indian students
in attendance at the College during each academic term divided by the
number of academic terms in the academic year, except that no such grant
shall exceed the annual operating expenses of the education programs
provided by the College. The mathematical formula for calculating the
base grant is BG (Base Grant)=
[[Page 202]]
[GRAPHIC] [TIFF OMITTED] TC14NO91.121
where FTE is the Indian FTE for each of the academic terms during the
academic year calculated in conformity with Sec. 41.22(g) of this
subpart and N is the number of academic terms in the academic year. The
amount and payment of such grants shall be subject to the availability
of annual appropriations.
(f) The Director of Education shall authorize payments to the
College in advance installments by letter of credit or Treasury check in
an amount equal to fifty percent (50%) of the grant amount available for
allotment to the College for such academic year under paragraph (e) of
this section on or before October 1st of such academic year (except
1979-80) or the first day on which appropriations for the fiscal year
beginning on such date are available for obligation by BIA, whichever
occurs later, based on the number of FTE Indian students calculated on
the basis of registrations as in effect at the conclusion of the sixth
week of the final academic term of the preceding year. On or before
January 1st (or such other date that is the first day of the fifth
month) of such academic year, payment shall be made in the form of such
advance installments to the College in an amount equal to seventy-five
percent (75%) of the grant amount available for allotment to the College
for such academic year under paragraph (e) of this section, calculated
on the basis of registrations as in effect at the conclusion of the
sixth week of the academic year, less the amount previously advanced for
such academic year. On or before July 1st (or such other date that is
the first day of the eleventh month) of such academic year, the balance
of the grant amount to which the College is entitled under paragraph (e)
of this section shall be paid to the College. In the event that
additional sums are appropriated for the benefit of the College, these
sums shall be included in the final payment.
(g) Overpayments of grants under this subpart may be recovered in
the manner provided by Sec. 41.8(g) of subpart A.
(h) Payments to the Navajo Community College under this subpart
shall not disqualify the College from applying for or receiving grants
or contracts under any other Federal programs for which it may qualify.
Sec. 41.25 Reports.
The Navajo Community College shall provide the Director of Education
on or before September 1st of each year a report which shall include an
accounting of the amounts and purposes for which financial assistance
under this subpart was expended during the preceding academic year, the
annual cost of the education programs of the College from all sources
for such academic year, and a final report of the performance based upon
the criteria set forth in the College's stated goals, philosophy or plan
of operation. Upon reasonable cause, the Director of Education may
extend the period for submitting the annual report. The college shall in
addition report to the Director of Education its FTE Indian Student
enrollment for each academic term of the academic year within three
weeks of the date such FTE calculation is made.
Sec. 41.26 Technical assistance.
The Director of Education shall furnish technical assistance, either
directly or through contract, to the College when requested in writing.
Such assistance shall be initiated within thirty (30) days of the
College's request. In any case in which the form and source of technical
assistance is specified in the request, the Director of Education shall
to the extent possible or feasible provide technical assistance in the
form requested and through the source so specified. Technical assistance
may include, but is not limited to, consulting services in the
development of annual statements and reports required under this subpart
and accounting, and other technical advice and assistance.
[[Page 203]]
Sec. 41.27 General provisions.
The general requirements for grant administration in this section
are applicable to all grants provided under this subpart to the Navajo
Community College.
(a) Services or assistance provided to Indians by the College with
the financial assistance provided under this subpart shall be provided
in a fair and uniform manner, and admission to the College shall not be
denied any Indian student because such individual is not a member of a
specific Indian tribe or because such individual is a member of a
specific Indian tribe.
(b) Except as may be otherwise provided in this subpart, the College
shall comply with part 276 of this title, subject to express waiver of
specific inappropriate provisions of part 276 that may be granted, after
request and justification by the College by the Assistant Secretary.
(c) In addition to any other right the college may have under this
subpart, the College shall have the right to appeal any adverse decision
of the Director of Education under a grant agreement to the Assistant
Secretary by filing written notice of appeal with the Assistant
Secretary within thirty (30) days of the adverse decision. Within thirty
(30) days after receiving notice of appeal, the Assistant Secretary
shall conduct a formal hearing at which time the College may present
evidence and argument to support its appeal. Within thirty (30) days of
the hearing, the Assistant Secretary shall issue a written ruling on the
appeal confirming, modifying or reversing the decision of the Director
of Education. In the case of a ruling not reversing the Director of
Education's decision, the Assistant Secretary shall state in detail the
basis for his/her ruling. The ruling of the Assistant Secretary on an
appeal shall be final for the Department of the Interior.
Sec. 41.28 Criminal penalties.
Persons submitting or causing to be submitted to the Bureau any
false information in connection with any application, report, or other
document, upon which the provision of the Federal financial assistance,
or any other payment of Federal funds, is based, may be subject to
criminal prosecution under provisions such as sections 287, 371, or 1001
of title 18, U.S. Code.
PART 42_STUDENT RIGHTS AND DUE PROCESS PROCEDURES--Table of Contents
Sec.
42.1 Purpose.
42.2 Application to Bureau schools.
42.3 Rights of the individual student.
42.4 Due process.
42.5 Application to schools under Bureau contract.
Authority: 5 U.S.C. 301.
Source: 39 FR 32741, Sept. 11, 1974, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
Sec. 42.1 Purpose.
The regulations in this part govern establishing programs of student
rights and due process procedures in Bureau of Indian Affairs schools
and in schools that are operating under contract with the Bureau of
Indian Affairs.
Sec. 42.2 Application to Bureau schools.
All Bureau of Indian Affairs schools shall be governed by the
regulations set forth in this part and said regulations shall be
expressly included as a part of the local school regulations of each
Bureau of Indian Affairs school. Upon admission, all students of Bureau
of Indian Affairs schools shall be given a copy of the school
regulations governing the conduct of students and shall be notified of
any amendments thereto.
Sec. 42.3 Rights of the individual student.
Individual students at Bureau of Indian Affairs schools have, and
shall be accorded, the following rights:
(a) The right to an education.
(b) The right to be free from unreasonable search and seizure of
their person and property, to a reasonable degree of privacy, and to a
safe and secure environment.
(c) The right to make his or her own decisions where applicable.
(d) The right to freedom of religion and culture.
(e) The right to freedom of speech and expression, including
symbolic expression, such as display of buttons, posters, choice of
dress, and length of
[[Page 204]]
hair, so long as the symbolic expression does not unreasonably and in
fact disrupt the educational process or endanger the health and safety
of the student or others.
(f) The right to freedom of the press, except where material in
student publications is libelous, slanderous, or obscene.
(g) The right to peaceably assemble and to petition the redress of
grievances.
(h) The right to freedom from discrimination.
(i) The right to due process. Every student is entitled to due
process in every instance of disciplinary action for alleged violation
of school regulations for which the student may be subjected to
penalties of suspension, expulsion, or transfer.
Sec. 42.4 Due process.
Due process shall include:
(a) Written notice of charges within a reasonable time prior to a
hearing. Notice of the charges shall include reference to the regulation
allegedly violated, the facts alleged to constitute the violation, and
notice of access to all statements of persons relating to the charge and
to those parts of the student's school record which will be considered
in rendering a disciplinary decision.
(b) A fair and impartial hearing prior to the imposition of
disciplinary action absent the actual existence of an emergency
situation seriously and immediately endangering the health or safety of
the student or others. In an emergency situation the official may impose
disciplinary action not to exceed a temporary suspension, but shall
immediately thereafter report in writing the facts (not conclusions)
giving rise to the emergency and shall afford the student a hearing
which fully comports with due process, as set forth herein, as soon as
practicable thereafter.
(c) The right to have present at the hearing the student's parent(s)
or guardian(s) (or their designee) and to be represented by lay or legal
counsel of the student's choice. Private attorney's fees are to be borne
by the student.
(d) The right to produce, and have produced, witnesses on the
student's behalf and to confront and examine all witnesses.
(e) The right to a record of hearings of disciplinary actions,
including written findings of fact and conclusions in all cases of
disciplinary action.
(f) The right to administrative review and appeal.
(g) The student shall not be compelled to testify against himself.
(h) The right to have allegations of misconduct and information
pertaining thereto expunged from the student's school record in the
event the student is found not guilty of the charges.
Sec. 42.5 Application to schools under Bureau contract.
Non-Bureau of Indian Affairs schools which are funded under contract
with the Bureau of Indian Affairs must also recognize these student
rights.
PART 43_MAINTENANCE AND CONTROL OF STUDENT RECORDS IN BUREAU SCHOOLS
--Table of Contents
Sec.
43.1 Purpose and scope.
43.2 Definitions.
43.3 Student rights.
43.4 Annual notification of rights.
43.5 Access to records.
43.6 Limitations on access.
43.7 Access rights.
43.8 Destruction of records.
43.9 Procedures for granting access.
43.10 Right to challenge.
43.11 Informal proceedings.
43.12 Right to a hearing.
43.13 Right of appeal.
43.14 Consent.
43.15 Content of consent.
43.16 Copy to be provided to parents or eligible students.
43.17 Release of information for health or safety emergencies.
43.18 Record of access.
43.19 Transfer of information by third parties.
43.20 Directory information.
43.21 Standards for collection and maintenance of student records.
43.22 Assuring integrity of records.
43.23 Conduct of employees.
Authority: 35 Stat. 72 (25 U.S.C. 295); Pub. L. 93-579, 88 Stat.
1896; Sec. 438, Pub. L. 93-380, as amended; Pub. L. 94-142.
Source: 43 FR 52024, Nov. 8, 1978, unless otherwise noted.
Redesignated at 47 FR 13327, Mar. 30, 1982.
[[Page 205]]
Sec. 43.1 Purpose and scope.
This part contains the regulations of the Bureau of Indian Affairs,
U.S. Department of the Interior, governing the maintenance, control, and
accessibility of student records. This part will apply to all
educational institutions under the jurisdiction of the Bureau of Indian
Affairs, whether operated under contract or otherwise.
Sec. 43.2 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary--Indian
Affairs, Department of the Interior.
(b) Educational institution means any institution operated under the
jurisdiction of the Bureau of Indian Affairs either directly or by
contract, including, but not limited to, schools or dormitories from
which Indian students attend public schools.
(c) Eligible student means a student who has become 18 years of age
or is attending an institution of post-secondary education. When a
student becomes an eligible student, the permission required of and the
rights given to the parents of the student shall thereafter only be
required of and given to the student.
(d) Parent means a natural parent, an adoptive parent, the legal
guardian, or a legal custodian of a student. (Where the natural parents
are unavailable, a required written parental consent may be obtained
from the person who has assumed custody of the student.) For purposes of
the Education of All Handicapped Children Act, the term parent also
includes a surrogate as referred to in 20 U.S.C. 1415(b)(1)(B).
(e) Student records means those records, files, documents, and other
materials which contain information directly related to a student and
which are maintained by an educational institution, or by a person
acting for that institution. The term does not include:
(1) Records of any educational personnel which are in the sole
possession of the maker and which are not accessible or revealed to any
other person except a substitute.
(2) Records made and maintained in the normal course of business
which relate exclusively to persons who are employed in an educational
institution but do not attend that institution.
(3) Directory information as given in Sec. 43.20.
(4) Records on a student who is 18 years of age or older, or is
attending an institution of post-secondary education, which are made or
maintained by a physician, psychiatrist, psychologist, or other
recognized professional or paraprofessional acting in his professional
or paraprofessional capacity, or assisting in that capacity, and which
are made, maintained, or used only in connection with the provision of
treatment to the student, and are not available to anyone other than
persons providing such treatment, except that such records can be
personally reviewed by a physician or other appropriate professional of
the student's choice.
Sec. 43.3 Student rights.
The regulations in this part do not prevent educational institutions
from giving noneligible students rights similar to those given to
parents and eligible students. Educational institutions may do so at
their discretion.
Sec. 43.4 Annual notification of rights.
(a) Each educational institution to which this part applies and
which maintains records on students shall inform parents or eligible
students of the rights given them by this part.
(b) In meeting the requirement in paragraph (a) of this section the
educational institution shall give notice to parents and eligible
students at least annually of the following:
(1) The types of education records and information contained in them
which are directly related to students and maintained by the
institution.
(2) The name and position of the official responsible for
maintaining each type of record, the persons who have access to those
records, and the purpose for which they have access.
(3) The policies of the institution for reviewing and expunging
those records.
(4) The procedures established by the institution under Sec. 43.5.
(5) The procedures for challenging the content of education records
including those in Sec. 43.10.
[[Page 206]]
(6) The cost, if any, which will be charged to the parent or
eligible student for reproducing copies of records under Sec. 43.5.
(7) The categories of information which the institution has
designated as ``directory information'' under Sec. 43.20.
(c) The notice given to a parent or eligible student under this
section shall be in a language considered by the institution to be
understandable by the parent or eligible student.
Sec. 43.5 Access to records.
Educational institutions shall give parents of students or eligible
students, who are or have been in attendance at the institutions, access
to student records, except as stated in Sec. 43.6.
Sec. 43.6 Limitations on access.
Educational institutions are not required to make available to
students the following materials:
(a) Financial records of the parents of the student or any
information contained in those records.
(b) Confidential letters and statements of recommendations, which
were placed in any student's record prior to January 1, 1975, and which
are not used for purposes other than those for which they were
specifically intended.
(c) Those records listed in Sec. 43.2(e) which are exempt from the
definition of student records.
Sec. 43.7 Access rights.
The right of access specified in Sec. 43.5 shall include:
(a) The right to obtain a list of the types of student records which
are maintained by the institution.
(b) The right to inspect and review the content of those records.
(c) The right to obtain copies of those records, the cost, if any,
not to exceed the actual cost to the educational institution of
reproducing the copies.
(d) The right to a response from the institution to reasonable
requests for explanations and interpretations of those records.
(e) The right to an opportunity for a hearing to challenge the
content of records.
(f) If any material or document in the record of a student includes
information on more than one student, the right to inspect and review
only that portion of such material or document as relates to that
particular student or to be informed of the specific information
contained in such part of such materials.
Sec. 43.8 Destruction of records.
This part does not prevent educational institutions from destroying
any records, if not otherwise prevented by law. However, access shall be
granted under Sec. 43.5 before destroying student records where the
parent or eligible student has requested access. Only rec ords which are
no longer relevant or necessary may be destroyed, subject to Sec.
43.23(c).
Sec. 43.9 Procedures for granting access.
Each educational institution shall establish appropriate procedures
for granting a request by parents for access to the records of their
children, or by eligible students for access to their own records within
a reasonable period of time. In no case shall access be withheld more
than forty-five (45) days after the request has been made.
Sec. 43.10 Right to challenge.
Each educational institution shall give parents of students and
eligible students, who are or have been in attendance at the
institution, an opportunity to challenge the content of the student's
records to:
(a) Insure that the records are not inaccurate, misleading, or
otherwise violating the privacy or other rights of students.
(b) Provide an opportunity for correcting or deleting any
inaccurate, misleading, or otherwise inappropriate data in the record.
(c) Insert into such records a written comment by the parents or
eligible students pertaining to the content of such records.
Sec. 43.11 Informal proceedings.
Educational institutions may attempt to resolve differences with the
parent of a student or the eligible student regarding the content of the
student's records through informal meetings and discussions with the
parent or eligible student.
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Sec. 43.12 Right to a hearing.
Upon the request of the educational institution, the parent, or
eligible student, a hearing shall be conducted under the procedures
adopted and published by the institution. Such procedures shall include
at least the following elements:
(a) The hearing shall be conducted and decided within a reasonable
period of time following the request for the hearing.
(b) The hearing shall be informal and a verbatim record of
proceedings will not be required. Interpreters will be utilized when
necessary.
(c) The hearing shall be conducted by an institutional official or
other party who does not have a direct interest in the outcome of the
hearing.
(d) The parents or eligible student shall be given a full and fair
opportunity to present evidence relevant to the issues raised under
Sec. 43.10.
(e) Within a reasonable period of time after the hearing ends, the
hearing official shall make his recommendation in writing to the head of
the educational institution. Within 20 days after receipt of the
recommendation, the head of the institution shall issue his decision in
writing to the parent or eligible student.
Sec. 43.13 Right of appeal.
If any parent or eligible student is adversely affected by the
decision of the head of the institution, that party shall have appeal
rights as given in 25 CFR part 2. However, each official decision shall
be issued within 30 days from receipt of the appeal.
Sec. 43.14 Consent.
Educational institutions shall not permit access to or the release
of student records or personally identifiable information contained in
them, other than directory information of students, without the written
consent of the parents or of an eligible student, to any party other
than the following:
(a) Local school officials, including teachers within the
educational institution, who have been determined by the institution to
have legitimate educational interests in the records.
(b) Officials of other schools or school systems at which a student
is interested in enrolling. The student or parent must be notified of
such release except in cases involving Bureau of Indian Affairs schools.
All Bureau of Indian Affairs schools are considered to be components of
one school system whether operated under contract or otherwise.
(c) Persons having official involvement with a student's application
for or grant of financial aid.
(d) Parents of a dependent student as defined in section 152 of the
Internal Revenue Code of 1954, as amended.
(e) Accreditation agencies in order to carry out their accrediting
functions.
(f) U.S. Office of Education officials and other governmental
education officials when deemed necessary by the institution to carry
out their official functions.
(g) An education testing center or similar institution as a part of
its validation research which has been authorized by the school.
(h) In an emergency, any person to whom the information is necessary
in the discretion of the school's administration in order to protect the
student's health and safety, subject to Sec. 43.17.
(i) Indian groups, contractors, grantees, professional social
service organizations and personnel performing professional services,
when necessary to carry out an official function authorized by the
Bureau of Indian Affairs.
(j) Pursuant to the order of a court of competent jurisdiction;
however, the parent or eligible student must be notified of such order
in advance of compliance therewith by the educational institution.
Sec. 43.15 Content of consent.
The consent of a parent or eligible student requested under this
part for the release of student records shall be in writing, signed and
dated by the person giving the consent. The consent shall include:
(a) A specification of the records to be released.
(b) The reasons for release.
(c) The names of the parties to whom the records will be released.
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Sec. 43.16 Copy to be provided to parents or eligible students.
Where the consent of a parent or eligible student is required under
this part for the release of student records, a copy of the records to
be released shall be provided on request to:
(a) The student's parents or the eligible student.
(b) The student who is not an eligible student, if desired by the
parents.
Sec. 43.17 Release of information for health or safety emergencies.
(a) Educational institutions may release information from student
records to appropriate persons in an emergency if the information is
necessary to protect the health or safety of a student or other person.
The factors to be used in determining whether records may be released
under this section include the following:
(1) The seriousness of the threat to the health or safety of the
student or other persons.
(2) The need for those records to meet the emergency.
(3) Whether the persons to whom the records are released are in a
position to deal with the emergency.
(4) The extent to which time is of the essence in dealing with the
emergency.
Sec. 43.18 Record of access.
(a) Each educational institution shall maintain a record kept with
the student records of each student, which will indicate all parties
other than those specified in Sec. 43.14 which have requested or
obtained access to those records and which will indicate specifically
the legitimate interest that each party had in obtaining this
information.
(b) A record of access shall be available only to:
(1) Parents or eligible students.
(2) The school official and his or her assistants who are
responsible for the custody of such records.
(3) Persons or organizations authorized in and under the conditions
of Sec. 43.14.
Sec. 43.19 Transfer of information by third parties.
(a) Educational institutions shall not release personal information
on a student except on the condition that the party to which the
information is being transferred will not permit any other party to have
access to the information without the written consent of the parents or
of the eligible students.
(b) With any information released to a party under paragraph (a) of
this section, educational institutions shall include a written statement
which informs the party of the requirement in paragraph (a) of this
section.
Sec. 43.20 Directory information.
(a) Any educational institution making public directory information
shall make a reasonable effort to individually notify the parent or
eligible student of the categories of information which it has
designated as directory information. The institution shall allow a
reasonable period of time after notice has been given for a parent or
eligible student to inform the institution that any or all of the
information designated should not be released without the prior consent
of the parent or eligible student.
(b) Directory information may include the following: A student's
name, address, telephone listing, date and place of birth, major field
of study, participation in officially recognized activities and sports,
weight and height of members of athletic teams, dates of attendance,
degrees and awards received, and the most recent previous educational
agency or institution attended by the student, tribe, agency, area, name
of parent, sex, and classification (grade). No other information may be
included. Educational institutions have the right to limit the content
of directory information.
Sec. 43.21 Standards for collection and maintenance of student records.
(a) Records shall contain only information about an individual which
is relevant and necessary to accomplish a purpose of the Bureau required
to be accomplished by statute or Executive order of the President.
(b) Student records which are used in making any determination about
any student shall be maintained with such accuracy, relevance,
timeliness, and
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completeness as is reasonably necessary to assure fairness to the
student in making the determination.
(c) Information which may be used in determining a student's rights,
benefits, and privileges under Federal programs shall be collected
directly from the student or his parents, to the greatest extent
practicable. In deciding whether collection of information from a parent
or eligible student, as opposed to a third-party source is practicable,
the following factors among others may be considered:
(1) Whether the nature of the information sought is such that it can
only be obtained from a third party.
(2) Whether the cost of collecting the information from the parent
or student is unreasonable, when compared with the cost of collecting it
from a third party.
(3) Whether there is a risk that information collected from third
parties, if inaccurate, could result in an adverse determination to the
student concerned.
(4) Whether the information, if supplied by the parent or student,
would have to be verified by a third party.
(5) Whether provisions can be made for verification by the parent of
student of information collected from third parties.
(d) Each individual parent or eligible student who is asked to
supply information about himself which will be added to a system of
student records shall be notified of the basis for requesting the
information, how it may be used, and what the consequences, if any, are
of not supplying the information. At a minimum, the notice to the parent
or eligible student must state:
(1) The authority (whether granted by statute or Executive Order of
the President) which authorizes requesting the information and whether
disclosure of such information is mandatory or voluntary.
(2) The principle purpose or purposes for which the information is
intended to be used.
(3) The routine uses which may be made of the information.
(4) The effects, if any, of not providing all or any part of the
requested information.
(e) When information is collected on a standard form, the notice to
the parent or eligible student shall be on the form or on a tear-off
sheet attached to the form or on a separate sheet, whichever, is most
practical.
(f) When information is collected by an interviewer, the interviewer
shall provide the parent or eligible student with a written notice which
the individual may retain. If the interview is conducted by telephone,
however, the interviewer may summarize the notice for the individual and
need not provide a copy to the individual unless the individual requests
that a copy be mailed to him.
(g) A parent or eligible student may be asked to acknowledge, in
writing, that he has been given the notice required by this section.
(h) No student records may be maintained describing how any
individual exercises rights guaranteed by the first amendment to the
Constitution unless:
(1) Expressly authorized by statute or by the individual about whom
the student record is maintained; or
(2) Pertinent to and within the scope of an authorized law
enforcement activity.
Sec. 43.22 Assuring integrity of records.
(a) Student records shall be maintained with appropriate
administrative, technical and physical safeguards to insure the security
and confidentiality of records and to protect against any anticipated
threats or hazards to their security or integrity which could result in
substantial harm, embarrassment, inconvenience, or unfairness to any
individual on whom information is maintained.
(b) When maintained in manual form, student records shall be
maintained, at a minimum, subject to the following safeguards, or
safeguards giving comparable protection:
(1) Areas in which the student rec ords are maintained or regularly
used shall be posted with an appropriate warning, stating that access to
the records is limited to authorized persons. The warning shall also
summarize the requirements of Sec. 43.23 and state that employees may
be subject to a criminal penalty for the unauthorized disclosure of
student records.
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(2) During working hours, the area in which the student records are
maintained or regularly used shall be occupied by authorized personnel,
or access to the student records shall be restricted by their storage in
locked metal file cabinets or a locked room.
(3) During nonworking hours, access to the student records shall be
restricted by their storage in locked metal file cabinets or a locked
room.
(4) Where a locked room is the method of security provided for a
system, the educational institution responsible for the system shall, no
later than December 31, 1978, supplement that security by:
(i) Providing lockable file cabinets or containers for the student
records, or
(ii) Changing the lock or locks for the room so that they may not be
opened with a master key. For the purpose of this paragraph, a master is
a key which may be used to open rooms other than the room containing
student records, unless those rooms are used by officials or employees
authorized to have access to the student records.
(c) When maintained in computerized form, student records shall be
maintained, at a minimum, subject to safeguards based on those
recommended in the National Bureau of Standards' booklet, ``Computer
Security Guidelines for Implementing the Privacy Act of 1974'' (May 30,
1975), and any supplements to it, which are adequate and appropriate to
assure the integrity of records in the system.
(d) The education institution responsible for a system of student
records shall be responsible for assuring that specific procedures are
developed to assure that the student records in the system for which it
is responsible are maintained with security meeting the regulations in
this section. These procedures shall be in writing and shall be posted
or otherwise periodically brought to the attention of employees working
with the student records contained in the system.
Sec. 43.23 Conduct of employees.
(a) Employees whose duties require handling of student records
shall, at all times, take care to protect the integrity, security, and
confidentiality of these records.
(b) No employee of the educational institution may disclose student
records unless disclosure is permitted under Sec. 43.14 or made to the
parent of the student or eligible student to whom the record pertains.
(c) No employee of the educational institution may alter or destroy
a student record, unless:
(1) Alteration or destruction is properly undertaken in the course
of the employee's regular duties, or
(2) Alteration or destruction is required by an authorized
administrative decision or the decision of a court of competent
jurisdiction.
(d) The educational institution responsible for a system of student
rec ords shall be responsible for assuring that employees with access to
the system are made aware of the requirements of this section.
PART 46_ADULT EDUCATION PROGRAM--Table of Contents
Subpart A_General Provisions
Sec.
46.1 Purpose and scope.
46.2 Definitions.
46.3 Information collection.
46.10 Eligible activities.
46.20 Program requirements.
46.30 Records and reporting requirements.
Subpart B [Reserved]
Authority: 43 U.S.C. 1457; 25 U.S.C. 2, 9, 13.
Source: 62 FR 44081, Aug. 19, 1997, unless otherwise noted.
Subpart A_General Provisions
Sec. 46.1 Purpose and scope.
The purpose of the Adult Education Program is to:
(a) Improve educational opportunities for Indian adults who lack the
level of literacy skills necessary for effective citizenship and
productive employment;
(b) Expand and improve existing programs for delivering adult
education services, including delivery of these services to
educationally disadvantaged Indian adults; and
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(c) Encourage the establishment of adult education programs that
will:
(1) Enable Indian adults to acquire adult basic educational skills
necessary for literate functioning;
(2) Provide Indian adults with sufficient basic education to enable
them to benefit from job training and retraining programs and to obtain
and retain productive employment so that they might more fully enjoy the
benefits and responsibilities of citizenship; and
(3) Enable Indian adults, who so desire, to continue their education
to at least the level of completion of adult secondary education.
Sec. 46.2 Definitions.
As used in this part:
Adult means an individual who has attained the age of sixteen or is
beyond the age of compulsory school attendance under State or tribal law
and not currently enrolled in a formal secondary or post-secondary
educational program.
Adult Basic Education (ABE) means instruction designed for an adult
who:
(1) Has minimal competence in reading, writing, and computation;
(2) Cannot speak, read, or write the English language sufficiently
to allow employment commensurate with the adult's real ability;
(3) Is not sufficiently competent to meet the educational
requirements of an adult consumer; or
(4) In grade level measurements that would be designated as grades 0
through 8.
Adult Education means services or instruction below the college
level for adults who:
(1) Lack sufficient mastery of basic educational skills to enable
them to function effectively in society, or
(2) Do not have a certificate of graduation from a school providing
secondary education and have not achieved a GED.
Adult Education Office means the BIA or tribal office administering
funds appropriated to the BIA, under the TPA, for Adult Education
programs.
Adult Secondary Education means instruction designed for an adult
who:
(1) Is literate and can function in everyday life, but is not
proficient as a competitive consumer or employee; or
(2) Does not have a certificate of graduation (or its equivalent)
from a school providing secondary education and in grade level
measurements that would be designated as grades 9 through 12.
Assistant Secretary means the Assistant Secretary--Indian Affairs,
Department of the Interior, or his/her designee.
Bureau means the Bureau of Indian Affairs.
Department of Education (ED) means the U.S. Department of Education.
Director means the Director, Office of Indian Education Programs,
Bureau of Indian Affairs.
Indian means a person who is a member of, or is at least a one-
fourth degree Indian blood descendent of a member of, an Indian tribe,
and is eligible for the special programs and services provided by the
United States through the Bureau of Indian Affairs to Indians because of
their status as Indians;
Indian tribe means any Indian tribe, band, nation, rancheria,
pueblo, colony or community, including any Alaska native village or
regional or village corporation as defined in, or established pursuant
to, the Alaska Native Claims Settlement Act (85 Stat. 668) that is
Federally recognized by the United States Government through the
Secretary of the Interior for the special programs and services provided
by the Secretary to Indians because of their status as Indians.
Tribal Priority Allocation (TPA) means the BIA's budget formulation
process that allows direct tribal government involvement in the setting
of relative priorities for local operating programs.
Secretary means the Secretary of the Department of the Interior.
Service area means the geographic area served by the local Adult
Education Program.
Sec. 46.3 Information collection.
Information collection requirements contained in this part have been
approved by the Office of Management and Budget under 44 U.S.C. 3501 et
seq. and assigned control number 1076-0120. This information is being
collected to assess the need for adult education programs. The
information collection is used to manage program resources and
[[Page 212]]
for fiscal accountability and appropriate direct services documentation.
Response to this request is necessary to obtain or retain a benefit.
Public reporting burden for this form is estimated to average 4 hours
per response including time for reviewing instructions, gathering,
maintaining data, completing and reviewing the form. Direct comments
regarding the burden estimate or any other aspect of this form to the
BIA Information Collection Clearance Officer, 1849 C Street NW.,
Washington, DC 20240.
[67 FR 13570, Mar. 25, 2002]
Sec. 46.10 Eligible activities.
(a) Subject to availability of funds, funds appropriated for the
BIA's Adult Education Program may be used to support local projects or
programs designed to:
(1) Enable Indian adults to acquire basic educational skills,
including literacy;
(2) Enable Indian adults to continue their education through the
secondary school level;
(3) Establish career education projects intended to improve
employment opportunities;
(4) Provide educational services or instruction for elderly,
disabled, or incarcerated Indian adults;
(5) Prepare individuals to benefit from occupational training; and
(6) Teach employment-related skills.
(b) Funds should not be used to support programs designed solely to
prepare Indian adults to enter a specific occupation or cluster of
closely related occupations.
(c) The Adult Education Program must be implemented in accordance
with a plan established by the tribe(s) affected by the program. The
tribe(s) may determine to set standards in addition to those established
in this part.
Sec. 46.20 Program requirements.
(a) The Adult Education Office will implement the program or project
that is designed to address the needs of the Indian adults in the
service area. To determine the needs of Indian adults in the area, the
Adult Education Office must consider:
(1) Elementary/secondary school dropout or absentee rates;
(2) Average grade level completed;
(3) Unemployment rates; and
(4) Other appropriate measures.
(b) The Adult Education Office, to ensure efforts that no
duplication of services exists, will identify other services in the
area, including those offered by Federal, State and Tribal entities,
that are designed to meet the same needs as those to be addressed by the
project, and the number of Indian adults who receive those services.
(c) The Adult Education Office must establish and maintain an
evaluation plan.
(1) The plan must be designed to measure the project's effectiveness
in meeting each objective and the impact of the project on the adults
involved; and
(2) The plan must provide procedures for periodic assessment of the
progress of the project and, if necessary, modification of the project
as a result of that assessment.
(d) Subject to the availability of funds, the project is to be
supported under the funding level established for Adult Education in the
formulation of the budget under the TPA process.
Sec. 46.30 Records and reporting requirements.
(a) The Adult Education Office will annually submit a report on the
previous project year's activities to the Director, Office of Indian
Education Programs. The report must include the following information:
(1) The type of eligible activity, under Sec. 46.10, conducted
under the project(s);
(2) The number of participants acquiring the GED, high school
diploma, and other certificates of performance; and
(3) A narrative summary of the activities conducted under the
project.
(b) Each Adult Education Office must:
(1) Submit any records and information that the Director requires in
connection with the administration of the program; and
(2) Comply with any requirements that the Director may impose to
ensure the accuracy of the reports required by this part.
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Subpart B [Reserved]
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