[Federal Register Volume 72, Number 233 (Wednesday, December 5, 2007)]
[Rules and Regulations]
[Pages 68491-68502]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23330]


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DEPARTMENT OF THE INTERIOR

Bureau of Indian Affairs

25 CFR Part 36

RIN 1076-AE51


Homeliving Programs

AGENCY: Bureau of Indian Education, BIA, Interior.

ACTION: Final Rule.

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SUMMARY: Under the No Child Left Behind Act of 2001, the Secretary of 
the Interior is publishing final regulations addressing homeliving 
programs administered under the Bureau of Indian Education-funded 
school system.

DATES: Effective Date: January 4, 2008.

FOR FURTHER INFORMATION CONTACT: Kevin Skenandore, Director, Bureau of 
Indian Education, 1849 C Street NW., MS-3609, Washington, DC 20240, 
phone (202) 208-6123.

SUPPLEMENTARY INFORMATION:

I. Background

A. What Information Does This Section Address?

    This section addresses:

--Requirements of the No Child Left Behind Act of 2001 (Pub. L. 107-
110; enacted January 8, 2002; ``NCLBA'' or ``the Act''), section 1122.

[[Page 68492]]

--Overview of the negotiated rulemaking process.
--How public comments were handled.

B. What Are the Negotiated Rulemaking Requirements of the Act?

    The Secretary of the Interior (``Secretary'') established a 
negotiated rulemaking committee (Committee) to develop proposed 
regulations to implement several sections of the Act related to the 
Bureau of Indian Education (Bureau)-funded school system. The Act 
required that the committee be comprised only of representatives of the 
Federal Government and representatives of tribes served by Bureau-
funded schools. The Act also required that, to the maximum extent 
possible, the tribal representative membership reflect the 
proportionate share of students from tribes served by the Bureau-funded 
school system. The Secretary chartered the committee under the Federal 
Advisory Committee Act (5 U.S.C. Appendix (FACA)) on May 1, 2003. The 
committee was comprised of Federal representatives and representatives 
of tribes served by Bureau-funded schools who met in February 2006 to 
negotiate recommendations for proposed regulations under Section 1122 
of the Act, 25 CFR part 36, Minimum Academic Standards for the Basic 
Education of Indian Children and National Criteria for Dormitory 
Situations. As a basis for negotiations and for consensus, the 
committee used draft regulations proposed by the Bureau school and 
residential administrators.

C. What Was the Negotiated Rulemaking Process?

    As required by the No Child Left Behind Act of 2001 (Pub. L. 107-
110; enacted January 8, 2002, referred to in this preamble as ``NCLB'' 
or ``the Act''), the Department of the Interior established a 
Negotiated Rulemaking Committee to develop proposed rules to implement 
several sections of the Act relating to the Bureau of Indian Education-
funded school system. Negotiated Rulemaking is a process sanctioned by 
Subchapter III, or Chapter 5, Title 5, United States Code and the 
Federal Advisory Committee Act, 5 U.S.C. Appendix (FACA), that employs 
Federal representatives and members of the public who will be affected 
by rules to jointly develop proposed rules.
    In this case, the Act required the Secretary of the Interior to 
select representatives of Indian tribes and Bureau-funded schools as 
well as Federal Government representatives to serve on the Committee. 
The Committee's task was to draft proposed rules to recommend to the 
Secretary. Upon the Secretary's approval, draft rules are published in 
the Federal Register for written public comments within a 120-day 
public comment period. After the close of the public comment period, 
the Committee will reconvene to review these comments and to recommend 
promulgation of final rules to the Secretary.
    The Secretary chartered the Committee under the FACA on May 1, 
2003. It is comprised of 19 members nominated by Indian tribes and 
tribally operated schools. The law required that, to the maximum extent 
possible, the tribal representative membership should reflect the 
proportionate share of students from tribes served by the Bureau-funded 
school system. The Secretary also appointed to the Committee six 
members from within the Department of the Interior. The Committee 
selected three tribal representatives and two Federal representatives 
as co-chairs. Six individuals were hired to facilitate all Committee 
meetings.
    The Committee initially met in the months of June through October 
2003 to develop regulations in six areas. Subsequently, the Department 
reconvened the Committee in February 2004 to develop regulations in the 
areas of closure and consolidation of schools and criteria for 
homeliving situations. The Committee met on several occasions and 
developed the proposed rules that were published on July 12, 2004 (69 
FR 41770).

D. How Were Public Comments Handled?

    The Secretary published proposed regulations on July 12, 2004, for 
public comment. The public comment period ended on November 9, 2004. We 
received comments on this proposed rule from nine commenters, including 
tribal leaders, educators, and administrators. We reviewed all 
comments. Summaries of individual public comments and our responses are 
noted below. The final regulations are organized, as were the proposed 
regulations, under three broad categories: homeliving staffing; 
homeliving programs; and homeliving privacy. The final regulations, 
published as 25 CFR part 36--Homeliving Situations, reflect the public 
comments that were accepted. The Department still has under 
consideration the regulations for school closure and consolidation. At 
this time, the Department has made no final decision on issuing these 
rules.

II. Public Comments

    In this section we discuss the main public comments received. 
General comments are discussed first, followed by comments on specific 
sections of the rule. Our responses follow each comment.

Section 36.70 What Terms do I Need to Know?

    Comment: Several commenters suggested that we clarify or define the 
term ``supplemental services'' in Sec.  36.70 and several others 
suggested that we clarify what ``actually receiving supplemental 
services'' means in Sec.  36.70(2)(ii).
    Response: We considered these comments and removed the obsolete 
reference to ``supplemental services.''
    Comment: Several commenters suggested we add definitions for the 
following terms: ``behavioral health programs,'' ``behavioral health 
services,'' and ``behavioral health staff.''
    Response: We accepted the comments and have added definitions for 
the terms.
    Comment: A commenter recommended clarifying the definitions of 
``homeliving manager'' and ``homeliving supervisor'' by switching the 
definitions to more accurately reflect what each position is 
responsible for. In the alternative, if the manager is to be 
responsible for physically supervising students, the commenter 
recommended changing the name of the ``homeliving supervisor'' to 
``homeliving administrator.''
    Response: We considered this comment and made no change.

Section 36.71 What Is the Purpose of This Part?

    Comment: A commenter recommended changing the definition for 
``homeliving situation'' to: ``Any program where education instruction 
and residential services are provided for students enrolled in Bureau-
funded schools, who are housed at a Bureau-funded school facility, and 
who receive care, before and after school hours, in a manner in which 
they do not have to depend on family or guardianship.''
    Response: We considered this comment, but, determined no change was 
necessary.
    Comment: A commenter suggested replacing the term ``homeliving 
situations'' with ``homeliving programs.''
    Response: We considered the comment and revised Sec.  36.71.

[[Page 68493]]

Section 36.75 What Qualifications Must Homeliving Staff Possess?

    Comment: A commenter suggested that the competency or professional 
standards of homeliving personnel should not be compromised in Sec.  
36.75. The commenter stated that agreements to operate a quality 
program with quality staff is between BIE and the tribal governing body 
and should not be discretionary at the school staff level. The 
commenter stated that it may be appropriate to waive such 
qualifications only where the employee is a trainee under the 
supervision of a fully qualified supervisor, and it is a tribal 
decision, not a Federal one.
    Response: We considered the comment, but determined that no change 
was necessary because a tribe can instruct the school supervisor if the 
school is a tribally operated school.
    Comment: A commenter stated that requirements for improved criteria 
for homeliving staff in Sec.  36.75 should not be unfunded mandates. 
The commenter supports a complete overhaul of the current funding 
formula in order to create a universal therapeutic model in all BIE-
funded schools.
    Response: While the Committee was aware of the funding needs for 
Indian education, the scope of the Committee was to draft regulations 
to implement the statute. Therefore, while the Committee notes the 
commenter's general comments about the need for additional funding and 
different funding priorities, these comments are outside of the scope 
of the rulemaking. Therefore, we made no change to the regulations.
    Comment: A commenter suggested that substance abuse education and 
prevention training should be added to required training in Sec.  
36.75.
    Response: This is already required in Sec.  36.86(c)(2).
    Comment: A commenter suggested: (1) that a determination of good 
cause in Sec.  36.75(b)(2) should be made at the Education Line Officer 
level, (2) that guidelines or standards be provided for determining 
what good cause means, and (3) that a timeframe for waivers be added.
    Response: We considered the comment and accepted it in part and 
rejected it in part. We rejected the part of the comment that raised 
issues the Committee considered in its deliberations. We accepted the 
part of the comment on adding a timeframe for waivers and revised Sec.  
36.75(b)(2).
    Comment: A commenter recommended that in Sec.  36.75 the delay of 
the effective date for higher standards for homeliving staff apply to 
current staff as a well as to new hires, and that the effective date 
depend on the Department's securing additional funding.
    Response: The Committee considered the effective date of the higher 
standards for homeliving staff. The comment does not raise new issues 
that the Committee did not consider. Therefore, we considered the 
comment, but we made no change to the regulations.
    Comment: A commenter suggested changing Sec.  36.75 to allow the 
homeliving supervisor rather than the ``school supervisor'' to grant a 
waiver for a showing of good cause.
    Response: We considered the comment, but we believed the proposed 
language provides for the entity with decision-making authority to 
decide whether to grant the waiver. Therefore, we made no change to the 
regulations.
    Comment: Several commenters suggested that some homeliving program 
staff may not need the same level of educational standards as others 
because they work at night when students are sleeping and recommended 
changing the required standards in Sec.  36.75(a).
    Response: In adopting these regulations, the Committee considered 
that there are different levels of homeliving program staff. The 
Committee considered and did not adopt different standards for night-
duty. Therefore, we considered the comment, but made no change to the 
regulations.
    Comment: A commenter recommended that Sec.  36.75 include a 
certificate program in lieu of the 32-hour post-secondary semester hour 
requirement since BIE-operated boarding schools are unique. Another 
commenter suggested that Sec.  36.75 provide for development of a 
residential certificate of training including at least 80 hours in 
topics such as child development, behavior management, working with 
students at risk, special education students, social interaction 
skills, etc., as an option to requiring 32/48 hours of college credit. 
The certificate would be updated every 3 years with at least 10 hours 
of training.
    A second commenter recommended that distance education and computer 
modules be available to staff.
    A third commenter recommended that Sec.  36.75 provide that each 
facility is responsible to set its own appropriate training 
requirements to fit its specific needs. This commenter further 
suggested that requiring 32 hours of post-secondary semester hours in a 
field related to child development and at least 1 year of relevant 
experience will cause a drop in the applicant pool and that a degree 
does not necessarily make an applicant competent for a position.
    Response: We considered these comments and made no changes to the 
rule.
    Comment: A commenter suggested that if the definitions for 
``homeliving manager'' and ``homeliving supervisor'' are switched, the 
qualifications for the two positions should also be switched in Sec.  
36.75.
    Response: We considered this comment and made no changes because 
the definitions were not switched.
    Comment: A commenter recommended deleting Sec.  36.75(b) ``when 
this part is published in final'' because it is unnecessary considering 
the 2009-2010 timeframe and could be interpreted to apply only to those 
persons employed at the time the rule becomes final.
    Response: We accepted this comment and changed the text to delete 
the reference to the rule's publication date.
    Comment: A commenter recommended that we clarify Sec.  36.75(b)(2) 
by stating whether the supervisor empowered to grant waivers from new 
qualifications has procedural guidance to follow.
    Response: We considered this comment and revised the paragraph to 
clarify the process. The paragraph now states that a person not meeting 
the qualifications, ``may, upon showing good cause, petition the school 
supervisor (or the homeliving supervisor for peripheral dorms) for a 
waiver from the new qualifications.''
    Comment: A commenter stated that: (1) 32 hours of post-secondary 
semester hours for basic homeliving staff would dramatically reduce the 
applicant supply pool for those positions at the local level; (2) We 
should clarify whether new hires before SY 2009-2010 must meet the new 
requirements; (3) Funding should be made available for dormitory 
programs, for training and post-secondary credit hours for meeting the 
recommended qualification requirements, and for meeting the needs of 
the students being served.
    Response: We considered the comment, but did not change the 
section. While the training requirement may reduce the number of 
applicants for these positions, dormitory staff must have more training 
because of new needs children are exhibiting in behavior, new 
diagnostic findings affecting learning skills, and changes in life 
styles affecting family concepts and step-parenting, among other 
issues.
    Comment: A commenter stated that if ``recreation staff'' is 
included in ``homeliving staff'' that fact should be

[[Page 68494]]

stated and clarified in the definition of ``homeliving staff.''
    Response: The committee considered this in its original 
deliberation and no new issues have been raised by this comment that 
were not already considered by the committee.

Section 36.76 Who Is in Charge of all Homeliving Operations?

    Comment: A commenter stated that the purpose of Sec.  36.76 is 
unclear. If the section means there will be clear lines of authority, 
the question should be revised to read: ``Must there exist clear lines 
of authority?'' and the answer should read: ``Yes, clear lines of 
authority must be established through the development of an 
organizational chart approved by the local board * * *'' Or, if this 
section means to make a point other than establishing the requirement 
that an organizational chart be developed; the section needs to be re-
written for clarity.
    Response: We accepted this comment and made corresponding changes 
to the rule.

Section 36.77 What Are the Homeliving Program Staffing Requirements?

    Comment: Several commenters recommended that the delayed 
implementation of the homeliving staff-to-student ratios to school year 
2009-10 in Sec.  36.77 depend on the Department's securing the 
necessary funding to make the new ratios affordable.
    Response: We considered this comment and revised the section title 
in response.
    Comment: A commenter suggested that adult-to-child staffing ratios 
in dormitories for Native American children should be lower than 1:20-
30 if other similar programs require lower adult-to-child staffing 
ratios.
    Response: The Committee considered adult-to-child staffing ratios 
in drafting the regulations. The Committee discussed the pros and cons 
of changing staffing ratios and chose to adopt credentialing rather 
than changing staffing ratios. The comments raise no new issues to 
consider. Therefore, we made no change to the regulations.
    Comment: A commenter recommended that Sec.  36.77 should state what 
ratios will be effective until SY 2009-2010.
    Response: We considered this comment, but made no changes to the 
regulation.
    Comment: A commenter suggested that since Sec.  36.75 requires 
higher quality staff, Sec.  36.77 should provide that this staff be 
compensated appropriately, but questioned how positions will be funded 
if IRG is cut.
    Response: The Committee in its original deliberations considered 
the impact of these requirements and balanced them with the needs of 
the students. No new issues are raised by the commenter that were not 
considered in the original deliberations. Therefore, we made no change 
to the rule.
    Comment: A commenter suggested that Sec.  36.77 state that existing 
staff-to-student ratios remain in effect until the new requirements are 
effective.
    Response: The Committee considered this issue at the time it 
negotiated the regulations and the comment raises no new issues. 
Therefore, we made no change to the regulations.
    Comment: A commenter questioned whether it is necessary in Sec.  
36.77(b) to have three different staff-to-student ratios on weekends 
because weekend staff is presumably supervising rather than conducting 
structured programs.
    Response: The Committee considered this issue at the time it 
negotiated the regulations and the comment raises no new issues. 
Therefore, we made no change to the regulations.
    Comment: A commenter recommended revising Sec.  36.77 by revising 
the question to: ``What is the minimum acceptable staffing supervisory 
requirements necessary to adequately supervise students and provide a 
safe environment?'' and eliminating the introductory sentence.
    Response: We considered this comment and changed the section title 
to read, ``What are the homeliving program staffing requirements?''

Section 36.79 What Are the Homeliving Behavioral Staff/Student Ratio 
Requirements?

    Comment: A commenter suggested that the regulations define the term 
``behavioral staff.'' Another commenter suggested clarifying whether a 
behavioral health professional is the same as a certified counselor, 
either school or MSW, in Sec.  36.79.
    Response: We accepted these comments and defined ``behavioral 
staff'' at Sec.  36.79.
    Comment: A commenter stated that the regulations at Sec.  36.79(b) 
change ``should'' to ``must'' for providing one full-time behavioral 
health professional for off-reservation boarding schools.
    Response: We considered the comment, but we did not accept it. This 
issue was raised during the original Committee deliberations. In order 
to reach consensus the Committee adopted the provision that the 
homeliving program ``should'' consider providing these services. This 
comment does not raise any new issues that were not considered by the 
committee when originally discussing this issue. Therefore, we made no 
change to the regulations.
    Comment: A commenter recommended that Sec.  36.79 be amended to 
delete a 20-hour minimum.
    Response: We accepted this comment and added new paragraph (d) in 
response.
    Comment: A commenter stated that funding increases are necessary to 
meet the criteria in Sec.  36.79 for the number of and the educational 
level of behavioral health professionals who are necessary in 
homeliving programs to address issues such as abuse, neglect, trauma, 
cultural conflict, and lack of school success.
    Response: Budget-related issues are fully addressed elsewhere in 
this preamble.
    Comment: A commenter recommended revising Sec.  36.79(b) to state 
``must,'' not ``should'' so that behavioral health may not be made 
optional and students who live off-reservation are not deprived of this 
requirement.
    Response: This issue was raised during the original deliberations 
and, to reach consensus, the Committee adopted the provision that the 
homeliving program ``should'' consider providing these services. This 
comment does not raise any new issues that were not considered by the 
Committee when originally discussing this issue. Therefore, the comment 
is not accepted.

Section 36.80 If a School Has Separated Boys' and Girls' Homeliving 
Programs, May the Same Behavioral Staff Be Used for Each Program?

    Comment: A commenter recommended clarifying the term ``homeliving 
count period'' in Sec.  36.80.
    Response: We considered the comment, but we are making no change to 
the regulations because the homeliving count period is defined in the 
funding formula regulations at 25 CFR 39.

Section 36.81 May a Homeliving Program Use Support Staff or Teachers to 
Meet Behavioral Health Staffing Requirements?

    Comment: A commenter recommended revising the second sentence in 
Sec.  36.81 to allow for flexibility in how a residential facility 
meets the behavioral health staffing requirements. The sentence is 
recommended to read: ``The only exception is if the individual support 
staff employee or teacher has the appropriate behavioral health license 
or

[[Page 68495]]

certification or other appropriate training and supervision.''
    Response: We accepted this comment in part and revised the second 
sentence to read as follows: ``The only exception is if the individual 
support staff employee or teacher has the appropriate behavioral health 
license or certification.''
    Comment: A commenter recommended eliminating the exception in Sec.  
36.81 or adding a requirement that the individual's contract provide 
that the teaching and behavioral health services are not to be provided 
simultaneously.
    Response: We considered this comment in conjunction with other 
comments on this issue. If teachers have the requisite training, then 
they may be able to provide the service as long as the provisions of 
Sec.  36.82 have been met. Therefore, we made no change to the rule.

Section 36.82 May Behavioral Health Staff Provide Services During the 
Academic School Day?

    Comment: A commenter recommended adding a provision for maximizing 
time the behavioral health staff is working with students during the 
time students are in the dorms, especially on weekends. Another 
commenter stated that we should amend Sec.  36.82 to require that 
behavioral health staff provide services outside the academic school 
day except in emergencies and provide that schools have the necessary 
staff to handle emergency situations. The commenter suggested that 
behavioral health staff may observe students in their academic 
environment.
    Response: In response to these comments, we revised Sec.  36.82.

Section 36.83 How Many Hours Can a Student be Taken Out of the Academic 
Setting to Receive Behavioral Health Services?

    Comment: A commenter suggested that Sec.  36.83 be clarified so 
that schools may not use behavioral health staff outside their intended 
services.
    Response: We considered the comment and addressed the suggested 
changes in Sec.  32.82.
    Comment: A commenter recommended that we amend Sec.  36.83 to 
provide that students not be taken out of the academic setting to 
receive behavioral health services unless it is an emergency and to 
provide that schools have their own behavioral health professionals. 
The commenter recommended that Licensed Practicing Counselors not have 
a caseload of students. Another commenter recommended revising Sec.  
36.83 to state: ``should not spend more than'' rather than ``may spend 
no more than'' in order to provide staff the needed flexibility to 
appropriately address each student's individual needs and provide 
necessary services.
    Response: We considered these comments and made changes consistent 
with the other comments on this section.

Section 36.84 Can a Program Hire or Contract or Acquire by Other Means 
Behavioral Health Professionals to Meet Staffing Requirements?

    Comment: A commenter recommended that Sec.  36.84 provide that 
instructional time be guarded. Each student should be able to go 
through an initial screening provided by the counselors.
    Response: We considered this comment, but no change to the rule is 
necessary.
    Comment: A commenter recommended delaying implementation of 
behavioral staff license requirement until additional appropriations 
are obtained and recommended revising Sec.  36.84, paragraph (b) by 
changing ``and'' to ``or.''
    Response: We accepted this comment and changed the rule.
    Comment: A commenter recommended that more instruction be provided 
so BIE-operated and grant/contract school programs can strategize with 
one another to maximize services to students and minimize the cost of 
services. In some locations distance is a factor and highly qualified 
people are in extreme demand and few agree to travel long distances 
and/or agree to provide services to a large number of identified 
students. Restrictions imposed by preferences of authority hinder 
meeting the needs of students. Schools must have strong working 
relationships.
    Response: We revised this section to allow tribes and schools to 
work together to provide these services to students.

Section 36.85 Is a Nurse Required To Be Available in the Evenings?

    Comment: A commenter recommended that we amend Sec.  36.85 to 
require that nursing staff be on campus not only during the academic 
hours, but also outside of academic hours because more accidents are 
going to happen outside of academic hours. Another commenter 
recommended making the requirement in Sec.  36.85 for having a RN or 
LPN available in the evenings when enrolment is over 300 mandatory.
    Response: The committee considered the response but rejected it.

Section 36.86 Are There Staff Training Requirements?

    Comment: A commenter agreed with the increase in educational 
requirements for new staff and homeliving managers and supervisors in 
Sec.  36.86.
    Response: We made no change to Sec.  36.86 because the comment 
required no change.
    Comment: A commenter stated that in Sec.  36.86 (a)(4) 
confidentiality should follow the Family Education Right to Privacy 
Act, not just the Health Information Privacy Act.
    Response: We considered the comment and revised Sec.  36.86(a)(4).
    Comment: A commenter recommended inserting ``surrogate'' before 
``parent training'' in Sec.  36.86(b)(4) because staff serves as 
surrogate parents in residential settings.
    Response: We accepted the idea behind the comment and changed Sec.  
36.86(b)(4) to read:
    (4) Parenting skills/child care.
    Comment: A commenter recommended revising the question in Sec.  
36.86 as follows: ``Are there homeliving staff training requirements?''
    Response: We considered this comment and revised the section text, 
but not the title. To be more inclusive, the section states that all 
homeliving program staff and employees that supervise students 
participating in homeliving services and activities must have 
appropriate certification or requirements and receive annual training 
in specified topics.
    Comment: A commenter suggested that the first paragraph in Sec.  
36.86, which applies to training that is ``appropriate to the 
certification and licensing requirements,'' is erroneous since none of 
the required training will result in licensing or certification, except 
in First Aid or CPR. Homeliving staff is not required to be licensed or 
certified (Sec.  36.75). The commenter recommended that this section be 
revised to provide flexibility so that residential programs may 
determine the frequency and timing of training as appropriate to their 
situations, including providing for refresher sessions for returning 
staff and training that may be completed over a 2- or 3-year period 
(lessening the financial impact) or more frequently as new developments 
occur (such as new or revised policy).
    Another commenter suggested correcting the cite to ``Health 
Information Patient Privacy Act'' to ``Health Insurance Portability and 
Accountability Act of 1996'' in Sec.  36.86(a)(4).
    A commenter suggested changing the title in Sec.  36.86(a)(7) to 
``Child Abuse

[[Page 68496]]

Reporting Requirements and Protection Procedures.''
    Another commenter recommended that in Sec.  36.86(b)(7) we clarify 
the term ``child development'' or make the terms applicable only to 
those residential programs with younger children in residence since 
some residential programs serve only high school age students. If 
paragraph (7) remains in this section, the commenter recommended adding 
``if appropriate to the student ages served.''
    Response: We considered these comments and made some changes based 
upon them. We did not change the section title because changes that we 
made in response to other comments made this unnecessary. Similarly, 
other changes we made regarding licensure eliminated the need to 
consider that suggestion. On the issue of training being only a 
refresher for returning staff, the committee considered this issue in 
its original deliberations and this comment raised no new issues.
    Comment: A commenter suggested that Sec.  36.86 include a 
recommendation that courses be provided on dealing with the tween, pre-
teen, and teenage adolescent years.
    Response: We considered this comment, but these various 
developmental stages are covered under the broader title of child 
development. We revised this section to clarify this.

Section 36.90 What Recreation, Academic Tutoring, Student Safety and 
Health Care Services Must Homeliving Programs Provide?

    Comment: A commenter suggested clarifying in Sec.  36.90 what a 
``homeliving program board'' is and whether it applies to schools with 
peripheral dorms.
    Response: We accepted the comment and changed Sec.  36.90 to read: 
`` * * * as deemed necessary by the local school board or homeliving 
program board.''
    Comment: A commenter suggested that if staff are required to 
provide these services in Sec.  36.90, it should be required that 
students be assigned to participate in the service schedule.
    Response: We considered this comment, but it is not something that 
should be addressed in regulations.
    Comment: A commenter recommended that in Sec.  36.90 we require 
that library and computer program requirements must be met in the 
dormitory facility because of the staff-to-student ratio, individual 
student needs, and academic needs in all subject areas and age/grade 
levels.
    Response: These issues are addressed in Sec.  36.102.

Section 36.91 What Are the Program Requirements for Behavioral Health 
Services?

    Comment: A commenter suggested that requirements that a reiteration 
of the Intensive Residential Guidance program elements in Sec.  36.91 
is unnecessary because the IRG program was eliminated. Also, costs 
associated with some of the required services are prohibitive and not 
all students will require each of the enumerated services. The 
commenter recommended that this section be revised as follows: `` * * * 
behavioral health program must include the following services as 
needed:''
    Response: We considered this comment and clarified the rule to 
provide that the homeliving program should have the capacity to provide 
these services.

Section 36.92 Are There Any Activities That Must be Offered by a 
Homeliving Program?

    Comment: A commenter recommended that we clarify Sec.  36.92(a) by 
providing a requirement for one hour of scheduled, structured physical 
activity Monday through Thursday instead of through Friday since many 
residential programs dismiss students on Friday through Sunday. The 
commenter recommended requiring two hours total of physical or 
recreational activities for those present in the dorm on the weekend. 
Another commenter suggested revising Sec.  36.92(b) to allow each 
tribe/school to decide whether to offer and to decide the content of 
any of these topics to ensure consistency with local community values.
    Response: We accepted the comment regarding Monday through Thursday 
physical activity and changed the rule to reflect this. We partially 
accepted the suggestion regarding personal wellness, excluding the idea 
of consistency with tribal mores, since it is implicit in the ability 
to design a wellness program and some schools, such as off-reservation 
boarding schools, may not have local tribal mores.
    Comment: A commenter recommended changing Sec.  36.92(e) to refer 
to activities as ``personal wellness,'' since mandating ``character'' 
and ``sex education'' may not be congruent with the local values or 
belief systems of the community.
    Response: We accepted the comment and modified Sec.  36.92(e).
    Comment: A commenter recommended deleting the term ``structures'' 
in Sec.  36.92 since it is not clear whether a lesson plan is required 
or students may pick from a choice of activities.
    Response: We considered this comment, but did not modify the rule. 
The goal of the committee was to have a structured organized physical 
activity without a program goal or plan. We believe that the term 
``structure'' adequately connotes this.

Section 36.93 Is a Homeliving Handbook Required?

    Comment: A commenter suggested that in Sec.  36.93 we add the terms 
``school board approval.''
    Response: We considered the comment and found the comment 
unpersuasive. Therefore, we made no change to the regulations.
    Comment: A commenter recommended revising Sec.  36.93 by requiring 
that the home living handbook be provided rather than referring to 
student rights and responsibilities and requiring that the handbook be 
provided during the first week the students are in residence rather 
than before the first day of school.
    Response: We accepted this comment and revised the section 
accordingly.
    Comment: A commenter recommended changing ``school staff'' to 
``homeliving staff'' or ``residential staff'' in Sec.  36.93(d).
    Response: We considered limiting circulation of the handbook only 
to homeliving staff. However, we believe that all staff should receive 
a copy of the handbook.

Section 36.94 What Must a Homeliving Handbook Contain?

    Comment: Commenters recommended the following changes to Sec.  
36.94: revise (i) to read ``Personnel and position listing or a copy of 
the residential staff organizational chart''; revise
    (l) to ``Transportation Policy and Procedures''; revise (o) to read 
``Drug, Alcohol and Tobacco Products Policy'' and revise (q) to read: 
``Medication Administration Policy.''
    Response: We made several of the suggested changes, but did not 
require an organizational chart or transportation procedures. We do not 
see the need for requiring an organizational chart. The rule requires 
transportation policies, not procedures.
    Comment: A commenter suggested that we add drug/alcohol policy and 
consequences and move up its priority in Sec.  36.94.
    Response: We accepted part of the comment and revised Sec.  
36.94(o) to read ``drug/alcohol policy.'' We rejected the rest of the 
comment because the list is a list of all items that must be included 
in the handbook and is not a priority list. Therefore, we did not make 
the change to the regulations.

[[Page 68497]]

Section 36.95 What Sanitary Standards Must Homeliving Programs Meet?

    Comment: A commenter recommended changing the term ``rooms'' to 
``dorm rooms'' for clarification in Sec.  36.95, and adding ``unless 
need arises sooner'' at the end of paragraph (c). A commenter 
recommended that Sec.  36.95(d) and (e) be revised to read that linens 
and toiletries ``may be provided as needed.''
    Response: We considered this change, but did not revise the rule 
because the existing is adequate.
    Comment: A commenter recommended that Sec.  36.95 require that 
dorms pass inspection by some entity, and that each site be visited at 
least once in five years to verify that health, safety and standards 
are met.
    Response: We considered this comment and made no change because 
health and safety inspection requirements vary by locality.

Section 36.96 May Students Be Required to Assist With Daily or Weekly 
Cleaning?

    Comment: A commenter noted that in Sec.  36.96 students should be 
required to assist in cleaning the dorm.
    Response: We considered the comment, but made no change because 
that rule already provides for students to assist with cleaning.
    Comment: A commenter suggested we add a provision to Sec.  36.96 
for cleaning and maintaining a healthy environment by dorm staff as 
role models for students.
    Response: We considered the comment and rejected it including any 
additional provisions on cleaning in Sec.  36.96.

Section 36.97 What Basic Requirements Must a Program's Health Services 
Meet?

    Comment: A commenter recommended revising Sec.  36.97(a) to also 
allow for agreements between a tribe or tribal school board and IHS.
    Response: We accepted this comment and changed the rule 
accordingly.

Section 36.98 Must the Homeliving Program Have an Isolation Room for 
Ill Children?

    Comment: A commenter recommended modifying Sec.  36.98 to require 
that a sickroom be available, but space does not have to be dedicated 
to this use only. Another commenter recommended rewriting the question 
in Sec.  36.98 to read: ``Must the homeliving program provide special 
accommodations for ill children?'' Using the singular reference to ``an 
isolation room,'' coupled with the first sentence and the second 
sentence could cause confusion as to whether one or two rooms are 
required.
    Response: We considered these comments and made appropriate changes 
to the rule.

Section 36.100 Are There Minimum Requirements for Student Attendance 
Checks?

    Comment: A commenter recommended revising Sec.  36.100(d) to state 
that night time physical checks will be made once every hour, except 
high school student rooms which will be checked every two hours.
    Response: We considered the comment, but did not change the rule. 
High school students are just as likely, or even more likely, to be out 
of their rooms at night.
    Comment: A commenter recommended revising Sec.  36.100(f) to make 
it applicable only when residential staff knows that a student will be 
absent from school.
    Response: We accepted this comment and changed the rule 
accordingly.
    Comment: A commenter suggested that Sec.  36.100 provide that each 
child accepted into the dorm should agree to undergo drug and alcohol 
screening if needed.
    Response: We considered the comment and made no change to the rule. 
Schools should develop their own drug and alcohol policies.

Section 36.102 What Student Resources Must be Provided by A Homeliving 
Program?

    Comment: A commenter recommended that we clarify the terms 
``library resources'' and ``reasonable access'' in Sec.  36.102.
    Response: We considered the comment, but found no change to the 
rule necessary.
    Comment: A commenter recommended adding at the beginning of Sec.  
36.102(b): ``To the extent the student does have their own * * *''
    Response: We considered the comment, but made no change, as the 
committee believes it is in the best interest of students to have 
textbooks available after hours.

Section 36.110 Must Programs Provide Space for Storing Personal 
Effects?

    Comment: A commenter recommended adding the following after the 
first sentence in Sec.  36.110: ``This requirement is met if a 
residential room door can be locked'' because some residential 
facilities will have difficulty meeting the lockable storage space 
requirement due to space limitations and/or age of the facility.
    Response: We considered this comment, but made no change. The 
committee wanted the students to have one lockable space, such as a 
drawer, closet, or storage bin.

Section 36.111 Can a Tribe, Tribal Governing Body, or Local School 
Board Waive the Homeliving Standards?

    Comment: A commenter suggested that in Sec.  36.111 we clarify how 
60 days are calculated and recommended that a school board or tribal 
body submit a proposed waiver by January 1 of the year preceding 
implementation in order to provide time for revisions and for starting 
the year with alternative standards in place.
    Response: We considered the comment and rejected it in part because 
the regulatory section is based on statutory language. We accepted some 
of the comment and made the following changes:
    A tribal governing body or local school board may waive some or all 
of the standards established in this part by adopting a written 
resolution that determines that the standards are inappropriate for the 
needs of the tribe's students. The approved alternative standards are 
effective on the first day of the following school year.

Section 36.112 What Are the Consequences for Failing to Meet the 
Requirements of This Part?

    Comment: A commenter suggested adding a new question after Sec.  
36.112: ``What happens to a school that does not meet these 
standards?''
    Response: We considered the comment, but made no changes because 
this question is limited to whether the school can be closed or 
consolidated for failing to meet these standards and not for other 
reasons that are addressed in other regulations.

Section 36.120 What Type of Reporting Is Required to Ensure 
Accountability?

    Comment: A commenter recommended that we identify a specific time 
for reporting enrolment figures in Sec.  36.120.
    Response: We accepted the comment and revised Sec.  36.120(c) and 
(d).
    Comment: A commenter recommended adding a requirement in Sec.  
36.120 that the report be filed 45 days after the end of the school 
year and a statement that the accountability report is the only report 
a residential program is required to file.
    Response: We accepted the suggestions to add a 45-day filing 
period.

[[Page 68498]]

    Comment: A commenter recommended adding a provision in Sec.  36.120 
to require that the report also be submitted to the Division of 
Residential Life in BIE.
    Response: We did not accept this comment. The BIE already receives 
the report, and there is no reason to require in the rule that the 
report go to a particular division within the office.

III. Procedural Matters

A. Regulatory Planning and Review (E.O. 12866)

    This document is a significant rule and the Office of Management 
and Budget (OMB) has reviewed the rule under Executive Order 12866.
    (1) This rule will not have an effect of $100 million or more on 
the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities. The rule deals exclusively with homeliving programs and is 
not expected to have a significant effect on budgets.
    (2) This rule will not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency. This rule 
has been prepared in consultation with the U.S. Department of 
Education.
    (3) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, or loan programs or the rights or obligations of 
their recipients. This rule spells out student rights, the procedures 
for their dissemination, and the procedures for implementing them. The 
rule is not expected to have a significant effect on budgets.
    (4) Office of Management and Budget has determined that this rule 
raises novel legal or policy issues. For this reason review is required 
under E.O. 12866.

B. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

C. Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. Nothing in the rule proposes rules of 
private property rights, constitutional or otherwise, or invokes the 
Federal condemnation power or alters any use of Federal land held in 
trust. The focus of this rule is homeliving programs. A takings 
implication assessment is not required.

D. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, the rule does not have 
sufficient federalism implications to warrant the preparation of a 
Federalism Assessment. Nothing in this rule has substantial direct 
effect on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government. This rule does 
not implicate State government. A Federalism Assessment is not 
required.

E. Consultation With Indian Tribes (E.O. 13175)

    In accordance with Executive Order 13175, we have identified 
potential effects on federally recognized Indian tribes that will 
result from this rule. Accordingly: (1) We have consulted with the 
affected tribe(s) on a government-to-government basis. The 
consultations have been open and candid to allow the affected tribe(s) 
to fully evaluate the potential effect of the rule on trust resources. 
(2) We have fully considered tribal views in drafting this final rule. 
(3) We have consulted with the appropriate bureaus and offices of the 
Department about the political effects of this rule on Indian tribes. 
The BIE and the Office of the Assistant Secretary--Indian Affairs have 
been consulted.

F. Paperwork Reduction Act

    This rulemaking requires information collection from 10 or more 
parties and a submission under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.) is required. Accordingly, the Department prepared 
submissions on these collections for review and approval by OMB. Having 
reviewed the Department's submissions, along with any comments that 
were submitted by the reviewing public, OMB has approved the 
information collection requirements in this rulemaking and has assigned 
the OMB control number 1076-0164. In addition to this number, the 
information collections in part 39 are also covered by OMB control 
numbers 1076-0134 and 1076-0122.
    The information collected will be used to enable the Bureau to 
better administer Bureau-funded schools subject to this rulemaking. In 
all instances, the Department has striven to lessen the burden on the 
public and ask for only information essential to administering the 
responsibility to federally recognized tribes. The public may make 
additional comments on the accuracy of our burden estimates (which are 
explained in detail in the preamble to the proposed rule published on 
February 25, 2004, at 69 FR 8752) and any suggestions for reducing this 
burden to the OMB Interior Desk Officer, Docket Number 1076-AE49, 
Office of Information and Regulatory Affairs, 202/395-6566 (facsimile); 
email: [email protected].

G. National Environmental Policy Act

    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 is not required.

H. Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Department has 
determined that this rule does not unduly burden the judicial system 
and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

List of Subjects in 25 CFR Part 36

    Indians--Education, Schools, Elementary and secondary education 
programs, grant programs--Indians, Government programs--education.

    Dated: October 19, 2007.
Carl J. Artman,
Assistant Secretary--Indian Affairs.

0
For the reasons given in the preamble, part 36 of Title 25 of the Code 
of Federal Regulations is amended by revising subpart G to read as 
follows:

PART 36--MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF 
INDIAN CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS

Subpart G--Homeliving Programs
Sec.
Sec.  36.70 What terms do I need to know?
Sec.  36.71 What is the purpose of this part?

Staffing

Sec.  36.75 What qualifications must homeliving staff possess?
Sec.  36.76 Who is in charge of all homeliving operations?
Sec.  36.77 What are the homeliving staffing requirements?
Sec.  36.78 What are the staffing requirements for homeliving 
programs offering less than 5 nights service?
Sec.  36.79 What are the homeliving behavioral staff/student ratio 
requirements?
Sec.  36.80 If a school has separated boys' and girls' homeliving 
programs, may the same behavioral staff be used for each program?
Sec.  36.81 May a homeliving program use support staff or teachers 
to meet behavioral health staffing requirements?
Sec.  36.82 May behavioral health staff provide services during the 
academic school day?

[[Page 68499]]

Sec.  36.83 How many hours can a student be taken out of the 
academic setting to receive behavioral health services?
Sec.  36.84 Can a program hire or contract or acquire by other means 
behavioral health professionals to meet staffing requirements?
Sec.  36.85 Is a nurse required to be available in the evenings?
Sec.  36.86 Are there staff training requirements?

Program Requirements

Sec.  36.90 What recreation, academic tutoring, student safety and 
health care services must homeliving programs provide?
Sec.  36.91 What are the program requirements for behavioral health 
services?
Sec.  36.92 Are there any activities that must be offered by a 
homeliving program?
Sec.  36.93 Is a homeliving handbook required?
Sec.  36.94 What must a homeliving handbook contain?
Sec.  36.95 What sanitary standards must homeliving programs meet?
Sec.  36.96 May students be required to assist with daily or weekly 
cleaning?
Sec.  36.97 What basic requirements must a program's health services 
meet?
Sec.  36.98 Must the homeliving program have an isolation room for 
ill children?
Sec.  36.99 Are immunizations required for residential program 
students?
Sec.  36.100 Are there minimum requirements for student attendance 
checks?
Sec.  36.101 How often must students who have been separated for 
emergency health or behavioral reasons be supervised?
Sec.  36.102 What student resources must be provided by a homeliving 
program?
Sec.  36.103 Are there requirements for multipurpose spaces in 
homeliving programs?

Privacy

Sec.  36.110 Must programs provide space for storing personal 
effects?

Waivers and Accountability

Sec.  36.111 Can a tribe, tribal governing body or local school 
board waive the homeliving standards?
Sec.  36.112 Can a homeliving program be closed, transferred, 
consolidated, or substantially curtailed for failure to meet these 
standards?
Sec.  36.120 What type of reporting is required to ensure 
accountability?

Subpart G--Homeliving Programs

    Authority: 25 U.S.C. 13; 25 U.S.C. 2008; Pub. L. 107-110 (115 
Stat. 1425).


Sec.  36.70  What terms do I need to know?

    The following definitions apply to this subpart:
    Behavioral health professional means a State licensed or State 
certified Social Worker, School Counselor, Drug and Alcohol Counselor, 
School Psychologist, or School Psychometrist responsible for 
coordinating a broad range of needs including:
    (1) Support groups;
    (2) Individual counseling;
    (3) Crisis intervention;
    (4) Preventive activities; and
    (5) Coordination of referrals and outside services with appropriate 
providers.
    Behavioral Health Program means a homeliving based service designed 
to decrease barriers to learning or increase positive, personal well-
being by:
    (1) Providing early intervention services, coordinating crisis 
intervention and prevention services;
    (2) Promoting a positive social and emotional environment;
    (3) Reducing the incidence of problems; and
    (4) Referring students with behavioral needs that require 
professional medical care to an appropriate residential care facility.
    Behavioral health services means the services provided by a school 
behavioral health program as defined in this section.
    Homeliving Manager means the employee responsible for direct 
supervision of the homeliving program staff and students.
    Homeliving Program means a program that provides room and board in 
a boarding school or dormitory to residents who are either:
    (1) Enrolled in and are current members of a public school in the 
community in which they reside; or
    (2) Members of the instructional program in the same boarding 
school in which they are counted as residents and:
    (i) Are officially enrolled in the residential program of a Bureau-
operated or funded school; and
    (ii) Are actually receiving a homeliving program provided to all 
students who are provided room and board in a boarding school or 
dormitory.
    Homeliving Program Staff means the employee(s) responsible for 
direct supervision of students in the homeliving area.
    Homeliving Supervisor means the employee with overall 
administrative responsibility for supervising students, programs, and 
personnel in the homeliving area.


Sec.  36.71  What is the purpose of this part?

    The purpose of this part is to establish standards for homeliving 
programs.

Staffing


Sec.  36.75  What qualifications must homeliving staff possess?

    (a) Homeliving staff must possess the qualifications shown in the 
following table:

------------------------------------------------------------------------
           Position                        Required training
------------------------------------------------------------------------
(1) Homeliving Supervisor....  Must be qualified based on size and
                                complexity of the school, but at minimum
                                possess a bachelor's degree.
(2) Homeliving Manager.......  Must be qualified based on the size and
                                complexity of the student body but must
                                at a minimum have an associate's degree
                                no later than 2008.
(3) Homeliving Program Staff.  Must have at least 32 post-secondary
                                semester hours (or 48 quarter hours) in
                                an applicable academic discipline,
                                including fields related to working with
                                children, such as, child development,
                                education, behavioral sciences and
                                cultural studies.
------------------------------------------------------------------------

    (b) A person employed as a homeliving program staff:
    (1) Should meet the requirements of paragraph (a) of this section 
by the 2009-2010 school year; and
    (2) May, upon showing good cause, petition the school supervisor 
(or the homeliving supervisor for peripheral dorms) for a waiver from 
the new qualifications.


Sec.  36.76  Who is in charge of all homeliving operations?

    One staff member who has the authority to ensure the successful 
functioning of all phases of the homeliving program should be 
designated as in charge of all homeliving operations. All staff should 
be advised of the lines of authority through an organizational chart 
approved by the local board responsible for operations of the 
homeliving program.


Sec.  36.77  What are the homeliving staffing requirements?

    Homeliving programs must meet the staffing requirements of this 
section.
    (a) Effective with the 2009-2010 school year, each homeliving 
program must maintain the following student minimum supervisory 
requirements on weekdays:

[[Page 68500]]



------------------------------------------------------------------------
           Grade level                Time of day            Ratio
------------------------------------------------------------------------
Elementary (Grade 1-6)..........  Morning...........  1:20.
                                  During school.....  As school needs.
                                  Evening...........  1:20.
                                  Night.............  1:40.
 
High School (Gr. 7-12)..........  Morning...........  1:20.
                                  During school       As school needs.
                                  Evening...........  1:30.
                                  Night.............  1:50.
------------------------------------------------------------------------

    (b) The following staffing ratios apply on weekends:

------------------------------------------------------------------------
         Grade level               Time of day              Ratio
------------------------------------------------------------------------
Elementary (Grade 1-6)......  Morning/day.........  1:20.
                              Evening.............  1:20.
                              Night...............  1:40.
 
High School (Gr. 7-12)......  Morning/day.........  1:40.
                              Evening.............  1:40.
                              Night...............  1:50.
------------------------------------------------------------------------

Sec.  36.78  What are the staffing requirements for homeliving programs 
offering less than 5 nights service?

    For homeliving programs providing less than 5 nights service, the 
staffing levels from Sec.  36.77 apply. To fill this requirement, the 
program must use only employees who work a minimum of 20 hours per 
week.


Sec.  36.79  What are the homeliving behavioral professional staff/
student ratio requirements?

    Behavioral health professional(s) is necessary in homeliving 
programs to address issues, such as abuse, neglect, trauma, cultural 
conflict, and lack of school success. Each homeliving program must 
provide a minimum of one half-time behavioral health professional for 
every 50 students.
    (a) The program may fill the staffing requirements of this section 
by using contract services, other agencies (including the Indian Health 
Service) or private/nonprofit volunteer service organizations.
    (b) Off-reservation homeliving programs should consider providing 
one full-time behavioral health professional for every 50 students.
    (c) For purposes of this section, a one half-time behavioral health 
professional is one that works for the homeliving program a minimum of 
20 hours per week.
    (d) For purposes of this section, in instances where the behavioral 
health services are obtained through other programs, the behavioral 
health professional must be available at the request of the homeliving 
program.


Sec.  36.80  If a school or dormitory has separated boys' and girls' 
homeliving programs, may the same behavioral professional be used for 
each program?

    Yes, a program may use the same behavioral professional for both 
boys' and girls' programs. However, behavioral health staffing 
requirements are based on the combined enrollment during the homeliving 
count period.


Sec.  36.81  May a homeliving program use support staff or teachers to 
meet behavioral health staffing requirements?

    No, a homeliving program must not use support staff or teachers to 
meet behavioral health staffing requirements. The only exception is if 
the individual support staff employee or teacher has the appropriate 
behavioral health license or certification.


Sec.  36.82  May behavioral health professional(s) provide services 
during the academic school day?

    Behavioral health professional(s) must average at least 75 percent 
of their work hours with students in their dormitories. These work 
hours must occur outside of the academic school day, except in 
emergency situations as deemed by the administrative head of the 
homeliving program or designee. The purpose of this requirement is to 
maximize contact time with students in their homeliving setting.


Sec.  36.83  How many hours can a student be taken out of the academic 
setting to receive behavioral health services?

    A student may spend no more than 5 hours per week out of the 
academic setting to receive behavioral health services from the 
homeliving behavioral health professional(s), except for emergency 
situations.


Sec.  36.84  Can a program hire or contract or acquire by other means 
behavioral health professionals to meet staffing requirements?

    A program may hire or contract behavioral health professionals to 
meet staffing requirements or acquire such services by other means such 
as through a Memorandum of Understanding with other programs.
    (a) At least one individual must be a licensed or certified school 
counselor or a social worker who is licensed/certified to practice at 
the location where the services are provided.
    (b) For additional staffing, other individuals with appropriate 
certifications or licenses are acceptable to meet staffing 
requirements.


Sec.  36.85  Is a nurse required to be available in the evenings?

    No, a program is not required to make a nurse (LPN or RN) available 
in the evenings. However, this is encouraged for homeliving programs 
with an enrollment greater than 300 or for programs that are more than 
50 miles from available services.


Sec.  36.86  Are there staff training requirements?

    (a) All homeliving program staff as well as all employees that 
supervise students participating in homeliving services and activities 
must have the appropriate certification or licensing requirements up to 
date and on file. Programs must provide annual and continuous 
professional training and development appropriate to the certification 
and licensing requirements.
    (b) All homeliving program staff as well as all employees who 
supervise students participating in homeliving services and activities 
must receive annual training in the topics set out in this section 
before the first day of student occupancy for the year.
    (1) First Aid/Safety/Emergency & Crisis Preparedness;
    (2) CPR--Automated External Defibrillator;
    (3) Student Checkout Policy;
    (4) Confidentiality (Health Information Privacy Act and the Family 
Education Right to Privacy Act.);
    (5) Medication Administration;
    (6) Student Rights;
    (7) Child Abuse Reporting Requirements and Protection Procedures; 
and
    (8) Suicide Prevention.

[[Page 68501]]

    (c) Homeliving staff as well as all employees that supervise 
students participating in homeliving services and activities must be 
given the following training annually:
    (1) De-escalation/Conflict Resolution;
    (2) Substance Abuse Issues;
    (3) Ethics;
    (4) Parenting skills/Child Care;
    (5) Special Education and Working with Students with Disabilities;
    (6) Student Supervision Skills;
    (7) Child Development (recognizes various stages of development in 
the student population);
    (8) Basic Counseling Skills; and
    (9) Continuity of Operations Plan (COOP).

Program Requirements


Sec.  36.90  What recreation, academic tutoring, student safety, and 
health care services must homeliving programs provide?

    All homeliving programs must provide for appropriate student 
safety, academic tutoring, recreation, and health care services for 
their students, as deemed necessary by the local school board or 
homeliving board.


Sec.  36.91  What are the program requirements for behavioral health 
services?

    (a) The homeliving behavioral health program must make available 
the following services:
    (1) Behavioral Health Screening/Assessment;
    (2) Diagnosis;
    (3) Treatment Plan;
    (4) Treatment and Placement;
    (5) Evaluation; and
    (6) Record of Services (if applicable, in coordination with the 
student's Individual Education Plan).
    (b) Each homeliving behavioral health program must have written 
procedures for dealing with emergency behavioral health care issues.
    (c) Parents or guardians may opt out of any non-emergency 
behavioral health services by submitting a written request.
    (d) Parents or guardians must be consulted before a child is 
prescribed behavioral health.
    (e) Medication in a non-emergency situation.


Sec.  36.92  Are there any activities that must be offered by a 
homeliving program?

    Yes, a homeliving program must make available the following 
activities:
    (a) One hour per day of scheduled, structured physical activity 
Monday through Thursday, and two hours of scheduled physical activities 
on the weekends for any students who are in residence on the weekends;
    (b) One hour per day of scheduled, structured study at least four 
days per week for all students, and additional study time for students 
who are failing any classes;
    (c) Tutoring during study time;
    (d) Native language or cultural activities; and
    (e) Wellness program that may include character, health, wellness, 
and sex education.


Sec.  36.93  Is a homeliving handbook required?

    Yes, each program must publish a homeliving handbook, which may be 
incorporated into a general student handbook. During the first week the 
students and staff are in the dormitory, the homeliving program must:
    (a) Provide each student with a copy of the handbook that contains 
all the provisions in Sec.  36.94;
    (b) Provide all staff, students, and parents or guardians with a 
current and updated copy of student rights and responsibilities;
    (c) Conduct an orientation for all students on the handbook and 
student rights and responsibilities; and
    (d) Ensure that all students, school staff, and to the extent 
possible, parents and guardians confirm in writing that they have 
received a copy of and understand the homeliving handbook.


Sec.  36.94  What must a homeliving handbook contain?

    A homeliving handbook must contain all of the following, and may 
include additional information:
    (a) Mission/Vision Statement;
    (b) Discipline Policy;
    (c) Parent/Student Rights and Responsibilities;
    (d) Confidentiality;
    (e) Sexual Harassment Policy;
    (f) Violence/Bullying Policy;
    (g) Homeliving Policies and Procedures;
    (h) Services Available;
    (i) Personnel and Position Listing;
    (j) Emergency Procedures and Contact Numbers;
    (k) Bank Procedures;
    (l) Transportation Policy;
    (m) Check-Out Procedures;
    (n) Dress Code;
    (o) Drug/Alcohol Policy;
    (p) Computer Usage Policy;
    (q) Medication Administration Policy and Procedure; and
    (r) Isolation/Separation Policy.


Sec.  36.95  What sanitary standards must homeliving programs meet?

    Each homeliving program must meet all of the following standards:
    (a) Restrooms, showers, and common areas must be cleaned daily;
    (b) Rooms must be cleaned daily;
    (c) Linens must be changed and cleaned weekly;
    (d) Linens are to be provided;
    (e) Basic Toiletries must be provided; and
    (f) Functional washing machines and dryers must be provided.


Sec.  36.96  May students be required to assist with daily or weekly 
cleaning?

    Yes, students can be required to assist with daily or weekly 
cleaning. However, the ultimate responsibility of cleanliness rests 
with the homeliving supervisor and local law or rules regarding 
chemical use must be followed.


Sec.  36.97  What basic requirements must a program's health services 
meet?

    (a) A homeliving program must make available basic medical, dental, 
vision, and other necessary health services for all students residing 
in the homeliving program, subject to agreements between the BIE and 
the Indian Health Service or between a tribally-operated homeliving 
program and the Indian Health Service or tribal health program.
    (b) A homeliving program must have written procedures for dealing 
with emergency health care issues.
    (c) Parents or guardians may opt out of any non-emergency services 
by submitting a written request.
    (d) The homeliving supervisor or designee must act in loco parentis 
when the parent or guardian cannot be found.


Sec.  36.98  Must the homeliving program have an isolation room for ill 
children?

    Yes, the homeliving program must have an isolation room(s) 
available for ill students. The isolation room (or rooms, if needed) 
must be made available for use by students with contagious conditions. 
Contagious boys and girls should have separate rooms. The isolation 
room(s) should have a separate access to shower and restroom 
facilities. Students isolated for contagious illness must be supervised 
as frequently and as closely as the circumstances and protocols 
require, but at least every 30 minutes.


Sec.  36.99  Are immunizations required for residential program 
students?

    Each student must have all immunizations required by State, local, 
or tribal governments before being admitted to a homeliving program. 
Annual flu shots are not required, but are encouraged.


Sec.  36.100  Are there minimum requirements for student attendance 
checks?

    Yes, there are minimum requirements for student attendance checks 
as follows:

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    (a) All students must be physically accounted for four times daily;
    (b) Each count must be at least two hours apart;
    (c) If students are on an off-campus activity, physical accounts of 
students must be made at least once every two hours or at other 
reasonable times depending on the activity;
    (d) At night all student rooms should be physically checked at 
least once every hour;
    (e) If a student is unaccounted for, the homeliving program must 
follow its established search procedures; and
    (f) When homeliving staff is aware of a student who is going to be 
absent from school, the homeliving program is required to notify the 
school.


Sec.  36.101  How often must students who have been separated for 
emergency health or behavioral reasons be supervised?

    Students who have been separated for emergency behavioral or health 
reasons must be supervised as frequently and as closely as the 
circumstances and protocols require. No student will be left 
unsupervised for any period until such factors as the student's health 
based on a medical assessment, the safety of the student, and any other 
applicable guidance for dealing with behavior or health emergencies are 
considered.


Sec.  36.102  What student resources must be provided by a homeliving 
program?

    The following minimum resources must be available at all homeliving 
programs:
    (a) Library resources such as access to books and resource 
materials, including school libraries and public libraries which are 
conveniently available;
    (b) A copy of each textbook used by the academic program or the 
equivalent for peripheral dorms; and
    (c) Reasonable access to a computer with Internet access to 
facilitate homework and study.


Sec.  36.103  What are the requirements for multi-purpose spaces in 
homeliving programs?

    Homeliving programs must provide adequate areas for sleeping, 
study, recreation, and related activities.

Privacy


Sec.  36.110  Must programs provide space for storing personal effects?

    Yes, students are entitled to private personal spaces for storing 
their own personal effects, including at least one lockable closet, 
dresser drawer, or storage space. However, all drawers, dressers, 
storage space, or lockable space are the property of the homeliving 
program and are subject to random search.

Waivers and Accountability


Sec.  36.111  Can a tribe, tribal governing body, or local school board 
waive the homeliving standards?

    A tribal governing body or local school board may waive some or all 
of the standards established by this part if the body or board 
determines that the standards are inappropriate for the needs of the 
tribe's students.
    (a) If a tribal governing body or school board waives standards 
under this section, it must, within 60 days, submit proposed 
alternative standards to the Director, BIE.
    (b) Within 90 days of receiving a waiver and proposal under 
paragraph (a) of this section, the Director must either:
    (1) Approve the submission; or
    (2) Deliver to the governing body or school board a written 
explanation of the good cause for rejecting the submission.
    (c) If the Director rejects a submission under paragraph (c) of 
this section, the governing body or school board may submit another 
waiver and proposal for approval. The standards in this part remain in 
effect until the Director approves alternative standards.


Sec.  36.112  Can a homeliving program be closed, transferred, 
consolidated, or substantially curtailed for failure to meet these 
standards?

    No, a homeliving program cannot be closed, transferred to any other 
authority, consolidated, or its programs substantially curtailed for 
failure to meet these standards.


Sec.  36.120  What type of reporting is required to ensure 
accountability?

    The homeliving program must provide to the appropriate local school 
board or alternative board such as a homeliving board, the tribal 
governing body, BIE, and the Secretary of the Interior, an annual 
accountability report within 45 days following the end of the school 
year consisting of:
    (a) Enrollment figures identified by the homeliving count period;
    (b) A brief description of programs offered;
    (c) A statement of compliance with the requirements of this part 
and, if the program is not in compliance, recommendations for achieving 
compliance; and
    (d) Recommendations to improve the homeliving program including 
identification of issues and needs.

[FR Doc. E7-23330 Filed 12-4-07; 8:45 am]
BILLING CODE 4310-6W-P