[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 943 Introduced in Senate (IS)]
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115th CONGRESS
1st Session
S. 943
To direct the Secretary of the Interior to conduct an accurate
comprehensive student count for the purposes of calculating formula
allocations for programs under the Johnson-O'Malley Act, and for other
purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
April 26, 2017
Ms. Heitkamp (for herself, Mr. Lankford, and Mr. Daines) introduced the
following bill; which was read twice and referred to the Committee on
Indian Affairs
_______________________________________________________________________
A BILL
To direct the Secretary of the Interior to conduct an accurate
comprehensive student count for the purposes of calculating formula
allocations for programs under the Johnson-O'Malley Act, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Johnson-O'Malley Supplemental Indian
Education Program Modernization Act''.
SEC. 2. INDIAN EDUCATION PROGRAM STUDENT COUNT UPDATE.
The Act of April 16, 1934 (25 U.S.C. 5342 et seq.) (commonly
referred to as the Johnson-O'Malley Act), is amended by adding at the
end the following:
``SEC. 7. COMPUTATION OF STUDENT COUNT.
``(a) Definitions.--For the purposes of this Act, the following
definitions apply:
``(1) Contracting party.--The term `contracting party'
means an entity that has a contract through a program
authorized under this Act.
``(2) Existing contracting party.--The term `existing
contracting party' means a contracting party that has a
contract under this Act that is in effect on the date of
enactment of the JOM Modernization Act.
``(3) JOM modernization act.--The term `JOM Modernization
Act' means the Johnson-O'Malley Supplemental Indian Education
Program Modernization Act.
``(4) New applicant.--The term `new applicant' means an
entity that applies to participate in a contract under this Act
after the date of enactment of the JOM Modernization Act but
not later than 240 days after such date of enactment.
``(5) New contracting party.--The term `new contracting
party' means an entity that enters into a contract under this
Act after the date of enactment of the JOM Modernization Act.
``(6) Secretary.--The term `Secretary' means the Secretary
of the Interior.
``(b) In General.--Except as provided in subsection (f) and
pursuant to subsection (g), the Secretary shall determine the amount
that a contracting party receives under such contract for any fiscal
year in accordance with--
``(1) the distribution formula described in section 273.31
of title 25, Code of Federal Regulations (as in effect on the
day before the date of enactment of the JOM Modernization Act)
and future iterations of the formula as determined by the
Bureau of Indian Education in consultation with Indian tribes
and contracting parties; and
``(2) the number of eligible Indian students served or
potentially served by the contracting party, as determined by
the Secretary in accordance with subsection (c).
``(c) Determination of the Number of Eligible Indian Students.--
``(1) Initial determinations for existing contracting
parties.--
``(A) In general.--The Secretary shall make an
initial determination of the number of eligible Indian
students served by each existing contracting party in
accordance with subparagraph (B).
``(B) Process for making the initial
determination.--
``(i) Preliminary report.--Not later than
180 days after the date of enactment of the JOM
Modernization Act, the Secretary shall publish
a preliminary report describing the number of
eligible Indian students served by each
existing contracting party, using the most
applicable and accurate data (as determined by
the Secretary in consultation with existing
contracting parties) from the fiscal year
preceding the fiscal year for which the initial
determination is to be made from--
``(I) the Bureau of the Census;
``(II) the National Center for
Education Statistics; or
``(III) the Office of Indian
Education of the Department of
Education.
``(ii) Data evaluation.--
``(I) In general.--After publishing
the preliminary report under clause
(i), the Secretary shall evaluate the
accuracy of the findings contained in
such report.
``(II) Consultation.--To inform the
evaluation described in subclause (I),
the Secretary shall establish a 60-day
comment period to gain feedback about
the preliminary report from existing
contracting parties.
``(III) Data reconciliation.--To
evaluate the accuracy of the
preliminary report and through the
consultation process required under
subclause (II), the Secretary shall
reconcile the data described in the
preliminary report with--
``(aa) the existing
contracting party's data
regarding the number of
eligible Indian students served
by that existing contracting
party for the fiscal year
preceding the fiscal year for
which the initial determination
is made; and
``(bb) identifiable tribal
enrollment information.
``(iii) Final report.--Not later than 120
days after concluding the consultation
described in clause (ii)(II), the Secretary
shall publish a final report on the initial
determination of the number of eligible Indian
students served by each existing contracting
party.
``(C) Technical assistance.--The Secretary, acting
through the Director of the Bureau of Indian Education,
shall provide existing contracting parties with
technical assistance relating to the receipt and
provision of information on the number of eligible
Indian students served by the existing contracting
party.
``(2) Initial determinations for new applicants.--
``(A) In general.--For the purposes of making an
initial determination of the number of potentially
eligible Indian students to be served by each new
applicant, the Secretary shall publish a report in
accordance with subparagraph (B).
``(B) Process for making the initial
determination.--To determine the number of potentially
eligible Indian students to be served by new
applicants, the Secretary shall--
``(i) include in the report the respective
total eligible Indian student counts for each
new applicant, as reported by the applicant
during the application process, and other
pertinent information, as determined by the
Secretary; and
``(ii) publish the report described in
clause (i) on the same date the final report
described in paragraph (1)(B)(iii) is
published.
``(3) Subsequent academic years.--For each academic year
following the fiscal year for which an initial determination is
made under paragraphs (1) and (2), the Secretary shall
determine the number of eligible Indian students served by the
contracting party based on the reported eligible Indian student
count numbers identified through the reporting process
described in subsection (d).
``(d) Contracting Party Student Count Reporting Compliance.--
``(1) In general.--For each academic year following the
fiscal year for which an initial determination is made under
subsection (c), each contracting party shall submit to the
Secretary a report describing the number of eligible Indian
students who were served using amounts allocated to such party
under this Act during the previous fiscal year.
``(2) Failure to comply.--A contracting party that fails to
submit a report under paragraph (1) shall receive no amounts
under this Act for the fiscal year following the academic year
for which the report should have been submitted.
``(3) Notice.--The Secretary shall provide contracting
parties with timely information relating to--
``(A) initial and final reporting deadlines; and
``(B) the consequences of failure to comply
outlined in paragraph (2).
``(4) Technical assistance.--The Secretary, acting through
the Director of the Bureau of Indian Education, shall provide
technical assistance and training on compliance with the
reporting requirements of this subsection to contracting
parties.
``(e) Annual Report.--
``(1) In general.--The Secretary shall prepare an annual
report, including the most recent determination of the number
of eligible Indian students served by each contracting party,
and an assessment of the contracts under this Act that the
Secretary--
``(A) may include in the budget request of the
Department of the Interior for each fiscal year; and
``(B) shall submit to--
``(i) the Committee on Indian Affairs of
the Senate;
``(ii) the Subcommittee on Interior,
Environment, and Related Agencies of the
Committee on Appropriations of the Senate;
``(iii) the Committee on Natural Resources
of the House of Representatives; and
``(iv) the Subcommittee on Interior,
Environment, and Related Agencies of the
Committee on Appropriations of the House of
Representatives.
``(2) Manner of preparation.--The Secretary shall prepare
the report under paragraph (1) in a manner so as to prevent or
minimize new administrative burdens on contracting parties
receiving funds under this Act.
``(f) Hold Harmless.--
``(1) In general.--Except as provided under paragraph (2)
and subject to paragraph (3), for a fiscal year, an existing
contracting party shall not receive an amount under this Act
that is less than the amount that such existing contracting
party received under this Act for the fiscal year preceding the
date of enactment of the JOM Modernization Act.
``(2) Exceptions.--
``(A) In general.--An existing contracting party
shall receive an amount under this Act for a fiscal
year that is less than the amount that the existing
contracting party received under this Act for the
fiscal year preceding the date of enactment of the JOM
Modernization Act, if one or more of the following
conditions is met:
``(i) Failure to report.--The existing
contracting party failed to submit the report
described in subsection (d) that was most
recently due from the date of the
determination.
``(ii) Violations of contract or law.--The
Secretary has found that the existing
contracting party has violated the terms of a
contract entered into under this Act or has
otherwise violated Federal law.
``(iii) Student count decrease.--The number
of eligible Indian students reported by such
existing contracting party under subsection (d)
has decreased below the number of eligible
Indian students identified in the initial
determination with respect to the existing
contracting party under subsection (c)(1).
``(B) Amount of funding reduction for existing
contracting parties reporting decreased student
counts.--A reduction in an amount pursuant to
subparagraph (A)(iii) shall not be done in such a
manner that the existing contracting party receives an
amount of funding per eligible Indian student that is
less than the amount of funding per eligible Indian
student such party received for the fiscal year
preceding the date of enactment of the JOM
Modernization Act.
``(3) Sunset.--This subsection shall cease to be effective
at the beginning of the fiscal year after the first fiscal year
for which new contracting parties receive an amount of funding
per eligible Indian student that is equal to or greater than
the amount of funding per eligible Indian student received by
existing contracting parties for the fiscal year preceding the
date of enactment of the JOM Modernization Act.
``(g) Funding Allocation and Reform.--
``(1) Present day per student funding allocation.--Not
later than 60 days after an initial determination is made under
subsection (c), the Secretary shall establish, in consultation
with contracting parties, a present day per student funding
allocation that shall serve as a funding baseline under this
Act.
``(2) Funding reform.--The Secretary may make
recommendations for legislation to increase the amount of funds
available per eligible Indian student through contracts under
this Act to equal to or greater than the amount of funds that
were available per eligible Indian student through contracts
under this Act for fiscal year 1995, and attempt to identify
additional sources of funding that do not reallocate existing
funds otherwise utilized by Indian students served--
``(A) by the Bureau of Indian Education; or
``(B) under title VI of the Elementary and
Secondary Education Act of 1965 (20 U.S.C. 7401 et
seq.).
``(3) Increases in program funding.--
``(A) In general.--Subject to subsection (f) and
subparagraphs (B) and (C), for any fiscal year for
which the amount appropriated to carry out this Act
exceeds the amount appropriated to carry out this Act
for the preceding fiscal year, the excess amounts
shall--
``(i) be allocated only to those
contracting parties that have not received
their full per student funding allocation as
determined pursuant to paragraph (1); and
``(ii) be allocated first to new
contracting parties that have not received
their full per student funding allocation as
determined pursuant to paragraph (1).
``(B) Parity in funding.--Subparagraph (A) shall
have no effect after the first fiscal year for which
each contracting party receives their full per student
funding allocation as determined pursuant to paragraph
(1).
``(C) Future allocations.--Allocations of
appropriations for fiscal years after the first fiscal
year for which each contracting party receives their
full per student funding allocation as determined
pursuant to paragraph (1) shall be made at the
discretion of the Secretary, in consultation with
Indian tribes and contracting parties.
``(h) Increased Geographical and Tribal Participation in the
Johnson-O'Malley Supplementary Education Program.--To the maximum
extent practicable, the Secretary shall consult with Indian tribes and
contact State educational agencies and local educational agencies that
have not previously entered into a contract under this Act--
``(1) to determine the interest of the Indian tribes and
State educational agencies and local educational agencies in
entering into such contracts; and
``(2) to share information relating to the process for
entering into a contract under this Act.
``(i) Rulemaking.--Not later than one year after the date of
enactment of the JOM Modernization Act, the Secretary, acting through
the Director of the Bureau of Indian Education, shall undertake and
complete a rulemaking process, following the provisions of subchapter
II of chapter 5 of title 5, United States Code, to--
``(1) determine how the regulatory definition of `eligible
Indian student' may be revised to clarify eligibility
requirements for contracting parties under this Act;
``(2) determine, as necessary, how the funding formula
described in section 273.31 of title 25, Code of Federal
Regulations (as in effect on the day before the date of
enactment of the JOM Modernization Act) may be clarified and
revised to ensure full participation of contracting parties and
provide clarity on the funding process under this Act; and
``(3) otherwise reconcile and modernize the rules to
comport with the activities of the contracting parties under
this Act as of the date of enactment of the JOM Modernization
Act.
``(j) Student Privacy.--The Secretary shall ensure that data is
collected and each report is prepared under this section in a manner
that protects the rights of eligible Indian students in accordance with
section 444 of the General Education Provisions Act (commonly referred
to as the Family Educational Rights and Privacy Act of 1974) (20 U.S.C.
1232g).
``(k) GAO Report.--Not later than 2 years after the date of
enactment of the JOM Modernization Act, the Comptroller General shall--
``(1) conduct a review of the implementation of this
section during the preceding two-year period, including any
factors impacting--
``(A) the accuracy of the determinations of the
number of eligible Indian students under this section;
``(B) the communication between the Bureau of
Indian Education and contracting parties; and
``(C) the efforts by the Bureau of Indian Education
to ensure accurate and sufficient distribution of
funding for Indian students;
``(2) submit a report describing the results of the review
under paragraph (1) to--
``(A) the Committee on Indian Affairs of the
Senate;
``(B) the Subcommittee on Interior, Environment,
and Related Agencies of the Committee on Appropriations
of the Senate;
``(C) the Subcommittee on Indian, Insular and
Alaska Native Affairs of the Committee on Natural
Resources of the House of Representatives; and
``(D) the Subcommittee on Interior, Environment,
and Related Agencies of the Committee on Appropriations
of the House of Representatives; and
``(3) make such report publicly available.
``(l) Effect.--Nothing in this section--
``(1) creates a new program or duplicates program
activities under this Act; or
``(2) replaces or diminishes the effect of regulations to
carry out this Act existing on the day before the date of
enactment of the JOM Modernization Act, unless expressly
provided in this section.''.
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