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[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 943 Introduced in Senate (IS)]

<DOC>

115th CONGRESS
  1st Session
                                 S. 943

    To direct the Secretary of the Interior to conduct an accurate 
  comprehensive student count for the purposes of calculating formula 
allocations for programs under the Johnson-O'Malley Act, and for other 
                               purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             April 26, 2017

Ms. Heitkamp (for herself, Mr. Lankford, and Mr. Daines) introduced the 
 following bill; which was read twice and referred to the Committee on 
                             Indian Affairs

_______________________________________________________________________

                                 A BILL

 
    To direct the Secretary of the Interior to conduct an accurate 
  comprehensive student count for the purposes of calculating formula 
allocations for programs under the Johnson-O'Malley Act, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Johnson-O'Malley Supplemental Indian 
Education Program Modernization Act''.

SEC. 2. INDIAN EDUCATION PROGRAM STUDENT COUNT UPDATE.

    The Act of April 16, 1934 (25 U.S.C. 5342 et seq.) (commonly 
referred to as the Johnson-O'Malley Act), is amended by adding at the 
end the following:

``SEC. 7. COMPUTATION OF STUDENT COUNT.

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