S. 943 

One Hundred Fifteenth Congress 

of the 

United States of America 

AT THE SECOND SESSION 

Begun and held at the City of Washington on Wednesday, 

the third day of January, two thousand and eighteen 

An Act 

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) ELIGIBLE ENTITY.—The term ‘eligible entity’ means an 

entity that is eligible to apply for a contract for a supplemental 

or operational support program under this Act, as outlined 

in section 1. 

‘‘(3) 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. 

‘‘(4) JOM MODERNIZATION ACT.—The term ‘JOM Modernization Act’ means the Johnson-O’Malley Supplemental Indian 

Education Program Modernization Act. 

‘‘(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) DETERMINATION OF THE NUMBER OF ELIGIBLE INDIAN STUDENTS.— 

‘‘(1) INITIAL DETERMINATIONS.— 

‘‘(A) IN GENERAL.—The Secretary shall make an initial 

determination of the number of eligible Indian students 
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served or potentially served by each eligible entity 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 or potentially served by each eligible entity, 

using the most applicable and accurate data (as determined by the Secretary in consultation with eligible 

entities) 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 RECONCILIATION.—To improve the 

accuracy of the preliminary report described in clause 

(i) prior to publishing, the Secretary shall reconcile 

the data described in the preliminary report with— 

‘‘(I) each existing contracting party’s data 

regarding the number of eligible Indian students 

served by the existing contracting party for the 

fiscal year preceding the fiscal year for which the 

initial determination is made; and 

‘‘(II) identifiable tribal enrollment information. 

‘‘(iii) COMMENT PERIOD.—After publishing the 

preliminary report under clause (i) in accordance with 

clause (ii), the Secretary shall establish a 60-day comment period to gain feedback about the preliminary 

report from eligible entities, which the Secretary shall 

take into consideration in preparing the final report 

described in clause (iv). 

‘‘(iv) FINAL REPORT.—Not later than 120 days after 

concluding the consultation described in clause (iii), 

the Secretary shall publish a final report on the initial 

determination of the number of eligible Indian students 

served or potentially served by each eligible entity, 

including justification for not including any feedback 

gained during such consultation, if applicable. 

‘‘(2) SUBSEQUENT ACADEMIC YEARS.—For each academic 

year following the fiscal year for which an initial determination 

is made under paragraph (1) to determine the number of eligible 

Indian students served or potentially served by a contracting 

party, 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 (c). 

‘‘(c) 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 (b) to determine the number of eligible Indian students served or potentially served by a contracting party, the 
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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. The report shall also include 

an accounting of the amounts and purposes for which the 

contract funds were expended. 

‘‘(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. 

‘‘(d) 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, 

recommendations on appropriate funding levels for the program 

based on such determination, 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; 

‘‘(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 Education and the 

Workforce 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; and 

‘‘(C) shall make publicly available. 

‘‘(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. 

‘‘(e) HOLD HARMLESS.— 

‘‘(1) INITIAL HOLD HARMLESS.— 

‘‘(A) IN GENERAL.—Except as provided under subparagraph (B) and subject to subparagraphs (C) and (D), 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. 

‘‘(B) EXCEPTIONS.— 

‘‘(i) 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 
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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 a complete report 

described in subsection (c) 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 

(c) has decreased below the number of eligible 

Indian students served by the existing contracting 

party in the fiscal year preceding the date of enactment of the JOM Modernization Act. 

‘‘(ii) AMOUNT OF FUNDING REDUCTION FOR EXISTING

CONTRACTING PARTIES REPORTING DECREASED STUDENT

COUNTS.—A reduction in an amount pursuant to clause 

(i)(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. 

‘‘(C) RATABLE REDUCTIONS IN APPROPRIATIONS.—If the 

funds available under this Act for a fiscal year are insufficient to pay the full amounts that all existing contracting 

parties are eligible to receive under subparagraph (A) for 

the fiscal year, the Secretary shall ratably reduce those 

amounts for the fiscal year. 

‘‘(D) SUNSET.—This paragraph shall cease to be effective 4 years after the date of enactment of the JOM Modernization Act. 

‘‘(2) MAXIMUM DECREASE AFTER 4 YEARS.—Beginning 4 

years after the date of enactment of the JOM Modernization 

Act, no contracting party shall receive for a fiscal year more 

than a 10 percent decrease in funding per eligible Indian student from the previous fiscal year. 

‘‘(f) FUNDING ALLOCATION AND REFORM.— 

‘‘(1) 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.). 

‘‘(2) INCREASES IN PROGRAM FUNDING.— 
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‘‘(A) IN GENERAL.—Subject to subsection (e) and 

subparagraph (B), 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 did not receive their full per student funding 

allocation for the previous fiscal year; and 

‘‘(ii) be allocated first to new contracting parties 

that did not receive their full per student funding 

allocation for the previous fiscal year. 

‘‘(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. 

‘‘(g) 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, local 

educational agencies, and Alaska Native organizations that have 

not previously entered into a contract under this Act— 

‘‘(1) to determine the interest of the Indian tribes, State 

educational agencies, local educational agencies, and Alaska 

Native organizations, in entering into such contracts; and 

‘‘(2) to share information relating to the process for entering 

into a contract under this Act. 

‘‘(h) RULEMAKING.— 

‘‘(1) IN GENERAL.—Not later than 1 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— 

‘‘(A) determine how the regulatory definition of ‘eligible 

Indian student’ may be revised to clarify eligibility requirements for contracting parties under this Act; 

‘‘(B) 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 

‘‘(C) 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. 

‘‘(2) REPORT.—Not later than 30 days after the date the 

rulemaking under paragraph (1) is complete, the Secretary 

shall submit a report to Congress describing the results of 

such rulemaking and necessary recommendations to ensure 

the full implementation of such rulemaking. 

‘‘(i) 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 
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(commonly referred to as the Family Educational Rights and Privacy 

Act of 1974) (20 U.S.C. 1232g). 

‘‘(j) GAO REPORT.—Not later than 18 months after the final 

report described in subsection (b)(1)(B)(iv) is published, the Comptroller General shall— 

‘‘(1) conduct a review of the implementation of this section 

during the preceding 2-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. 

‘‘(k) 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.’’. 

Speaker of the House of Representatives. 

Vice President of the United States and

President of the Senate.