[Title 25 CFR 39]
[Code of Federal Regulations (annual edition) - April 1, 2002 Edition]
[Title 25 - INDIANS]
[Chapter I - BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR]
[Subchapter E - EDUCATION]
[Part 39 - THE INDIAN SCHOOL EQUALIZATION PROGRAM]
[From the U.S. Government Printing Office]
25INDIANS12002-04-012002-04-01falseTHE INDIAN SCHOOL EQUALIZATION PROGRAM39PART 39INDIANSBUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOREDUCATION
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 Entitlement for instructional purposes.
39.13 Entitlement for residential purposes.
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.
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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
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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.
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(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
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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.
(v) No student shall be classified under Intense residential
guidance who is eligible for services at a full-time or part-time
service level because of a handicapping condition as defined under
Exceptional Child programs in paragraph (i) of this section.
(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.
---------------------------------------------------------------------------
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(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.
(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;
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(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.
(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%.
(16) Full-time--High Service Level means a program of special
education and related services provided to an exceptional student which
consists of fifteen or more hours per week (or 60% or more of the total
instructional time) of instruction and/or required related services (as
described in the students individualized education program), provided
outside of the regular classroom. In geographically isolated, smaller
schools where facilities are limited, a full time program may consist of
fifteen or more hours per week (or 60% or more of the total
instructional time) of specialized individual or small group instruction
or required related services regardless of where the services are
actually provided (including the regular classroom).
(17) Part-time--Moderate Service Level means any program of regular
education modified to provide specialized instruction and/or required
related services (as described in the student's individualized education
program) which does not provide at least the number of hours in the
definition of Full-time--High Service Level Exceptional Child Program
set forth in paragraph (i)(14) of this section.
(18) Classification of a student in full or part-time service levels
in residential care programs shall be based upon prior classification of
the student in an instructional program serving his/her handicapping
condition.
(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.
Sec. 39.12 Entitlement for instructional purposes.
BIA educational funds for the instruction of elementary and
secondary Indian children shall be computed according to the following
weighted student unit factors:
------------------------------------------------------------------------
Basic programs Base weights
------------------------------------------------------------------------
Kindergarten........................................ 1.00
Grades 1 to 3....................................... 1.20
Grades 4 to 8....................................... 1.00
Grades 9 to 12...................................... 1.30
------------------------------------------------------------------------
------------------------------------------------------------------------
Add-on
Supplemental program weight
------------------------------------------------------------------------
Intense bilingual............................................. .20
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Exceptional Child Programs
Full time--high service level:
Deaf........................................................ 3.00
Blind....................................................... 3.00
Severely multihandicapped................................... 3.00
Severely and profoundly retarded............................ 3.00
Students requiring hospital/homebound instruction........... 3.00
Severely emotionally disturbed.............................. 3.00
Severely emotionally disturbed (nonsevere).................. 1.00
Specific learning disabled.................................. 1.00
Mentally retarded........................................... 1.00
Part time--moderate service level:
Emotionally disturbed....................................... .50
Specific learning disabled.................................. .50
Mentally retarded........................................... .50
Multihandicapped............................................ .50
Hard of hearing............................................. .25
Visually handicapped........................................ .25
Orthopedically impaired..................................... .25
Other health impaired....................................... .25
Speech impaired............................................. .25
------------------------------------------------------------------------
Sec. 39.13 Entitlement for residential purposes.
Basic funds for student residential purposes shall be computed
according to the following weighted student unit factors:
------------------------------------------------------------------------
Add-on
Base programs weight
------------------------------------------------------------------------
Kindergarten (For FY 80 only, 0 factor thereafter)............ 1.40
Grades 1 to 3................................................. 1.40
Grades 4 to 8................................................. 1.25
Grades 9 to 12................................................ 1.25
Exceptional Child Programs
All full-time handicapped students............................ .50
Part time:
Orthopedically impaired..................................... .25
Other health impaired....................................... .25
Emotionally disturbed....................................... .25
Mentally retarded........................................... .25
Multihandicapped............................................ .25
Intense Residential Guidance.................................. .50
------------------------------------------------------------------------
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 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
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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.
(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
[[Page 180]]
(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 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:
[[Page 181]]
(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 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.
[[Page 182]]
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.
(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]
[[Page 183]]
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
Secs. 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 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
[[Page 184]]
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 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.
[[Page 185]]
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.
(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
[[Page 186]]
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:
(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.
[[Page 187]]
(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 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.
[[Page 188]]
(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.
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.
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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.
Sec. 39.96 Provision for annual adjustment.
The allocation of $5,000 per school may be annually adjusted by the
Director.
Sec. 39.97 Training for agency school board.
Provisions for training agency school board members, except as they
may also be members of local school boards, are not included in these
local school board training funds. If required, such provision shall be
incorporated in agency or area office educational administration
training plans and budgets.
Subpart H--Student Transportation
Sec. 39.100 Definitions.
As used in this subpart, the term:
(a) Basic transportation miles means the daily average of all bus
miles
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logged for round trip home-to-school transportation of day students.
(b) Transported student means the average number of students
transported to school on a daily basis.
(c) School bus means a passenger vehicle, operated by an operator in
the employ of, or under contract to, a Bureau operated or funded school,
who is qualified to operate such a vehicle under State or Federal
regulations governing the transportation of students; which vehicle is
used to transport day students to and/or from home and the school.
Sec. 39.101 Purpose and scope.
The purpose of this section is to provide funds to each school for
the round trip transportation of students between home and the school
site.
Sec. 39.102 Allocation of transportation funds.
Transportation funds for FY 1980 shall be allocated to each school
as follows:
(a) Day students. Funds shall be allocated to each school which
provides daily transportation of students between the student's
residence and the school site by the following formula:
(1) 180 x ($.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 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.
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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.
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
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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 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.
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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.