[Senate Report 115-201]
[From the U.S. Government Publishing Office]
Calendar No. 295
115th Congress} { Report
SENATE
2d Session } { 115-201
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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
_______
January 24, 2018.--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 943]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (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, reports
favorably thereon with an amendment in the nature of a
substitute and recommends the bill, as amended, do pass.
Purpose
The bill, S. 943, would amend the Act of April 16, 1934,
commonly known as the Johnson-O'Malley Act, to direct the
Secretary of the Interior (Secretary), in coordination with the
Bureau of Indian Education (BIE) Director, to take steps to
ensure the full participation of all qualified and eligible
Indian students in the Johnson-O'Malley (JOM) program. The
bill, S. 943, is intended to clarify current contracting and
reporting practices and address the challenges in serving
eligible students and obtaining accurate student counts.
Background
The JOM program awards supplemental assistance through
contracts to eligible entities to address the unique cultural
and academic needs of Indian students in public schools, where
more than 90% of all Indian students attend.
Originally authorized by the Act of April 16 1934 to allow
``the Secretary of the Interior to arrange with States or
Territories for the education, medical attention, relief of
distress, and social welfare of Indians,''\1\ In 1985, Congress
modified the scope of the JOM program to its current form
(i.e., contracts for supplementary education) through passage
of the Act of December 19 1985.\2\ Ten years later and upon
further instruction from Congress to modify the JOM program,\3\
the Bureau of Indian Affairs (BIA) transferred allocations for
tribal contractors into the tribal priority allocations (TPA)
base funding category.
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\1\Act of April 6, 1934, Pub. L. No. 73-167, 25 U.S.C. 5342 (1934).
\2\Act of December 19, 1985, Pub. L. No. 99-190, Sec. 101(d), 99
Stat. 1185, 1235 (1985).
\3\S. Rep, No, 103-294 (1994).; H. Rep. No. 103-551 (1994).; H.
Rep. No. 103-740 (1994).
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Federal law prohibits changes to a tribe's base funding\4\
and the FY1995 TPA transfer caused BIA to suspend updating
student counts for the JOM program. At the time, the student
count was approximately 271,884 eligible Indian students.
According to the 2010 U.S. Census, there were 798,486 qualified
American Indian and Alaska Native students in the JOM-eligible
age group. This discrepancy between FY1995 and the 2010 U.S.
Census student counts indicates that a substantial number of
Indian students are not being served by the JOM program.
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\4\25 U.S.C. Sec. 450j-1(b)(2).
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Through the appropriations process, Congress directed BIE
to update the JOM student count in FY2012 and FY2014.\5\ BIE
attempted to conduct student counts to update the number of
eligible Indian students but the agency was unable to verify,
or make official, any of these counts.\6\ As a result, the
student count from FY1995 remains in place. Congress previously
noted concerns (in Appropriations Committee and Conference
reports) about the persistent inaccuracies of eligible Indian
student counts and continues to direct the BIE to update the
student count.\7\
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\5\S. 2417, the Tribal Veterans Health Care Enhancement Act, and
S.2842, the Johnson O'Malley Supplemental Indian Education Program
Modernization Act Before the S. Comm. on Indian Affairs, 114th Cong. 2
(2016) (statement of Michael S. Black, Director, Bureau of Indian
Affairs, U.S. Dep't of the Interior).
\6\S. 943, S. 1223, and S. 1285 Before the S. Comm. on Indian
Affairs, 114th Cong. 1 (2017) (statement of Tony Dearman, Director,
Bureau of Indian Education, U.S. Dep't of the Interior).
\7\H.R. Rep. No. 112-151 at 42-43 (2012); H.R. Rep. No. 113-551 at
45 (2014); H.R. Rep. No. 114-170 at 39 (2015).
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Need for Legislation
The JOM student count is important because it is used by
the BIA to provide its yearly funding distribution to eligible
entities in JOM programs. The President of the National
Johnson-O'Malley Association, Carla Mann, testified that the
FY1995 student count freeze detrimentally impacts the funding
level of the program and, in turn, limits the scope of services
available to the children participating in JOM-funded
projects.\8\ Despite Congressional instruction to the
Department of the Interior to update the JOM student count, BIE
has not conducted an accurate, verifiable, and current student
count nor have they produced a plan to assist the substantial
number of eligible Indian students who are not served by the
program. Stronger Congressional action appears necessary to
resolve this specific issue.
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\8\S. 943, S. 1223, and S. 1285 Before the S. Comm. on Indian
Affairs, 114th Cong. 1 (2017) (statement of Carla Mann, President,
National Johnson-O'Malley Association).
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Additionally, during the Committee hearing on July 12,
2017, BIE Director Tony Dearman testified that current law does
not require JOM contractors to submit student count data to the
BIE.\9\ Director Dearman cited the lack in data submission
requirement as a primary contributor to the BIE's failed
efforts to update and verify the JOM student count in FY2012
and FY2014.
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\9\Id supra 8.
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Legislative History
On April 26, 2017, Senator Heitkamp with Senators Daines
and Lankford, introduced S. 943, the Johnson-O'Malley
Supplemental Indian Education Program Modernization Act. The
Committee held a legislative hearing on S. 943 on July 12,
2017. BIE Director, Tony Dearman, testified at this legislative
hearing and expressed support for legislation that would
address the gap in contractor reporting requirements as a means
to improve BIE's ability to update the JOM student count. Ms.
Carla Mann, in her capacity as President of the National
Johnson O'Malley Association, testified in support of S. 943.
On October 4, 2017, the Committee held a duly called business
meeting to consider S. 943.
One amendment in the nature of a substitute was filed by
Senator Heitkamp. The amendment incorporates the following
changes:
Clarifies only one process for both new and
existing contractors to determine the number of eligible Indian
students. This modification is intended to establish a less
burdensome process for the agency and eligible entities. The
amendment makes conforming changes throughout the bill to
accommodate the shift to one process.
Authorizes the use of a ratable reductions in
appropriations exception to the hold harmless provision of the
bill to account for any potential reduction in funding during a
fiscal year. This provision will ensure that, if there is a
reduction in funding to JOM, all, not just some, existing
contracting parties receive funding at a ratably reduced
amount.
Changes the sunset of the Hold Harmless provision
from an undefined term to 4 years after the date of enactment
of the Act, and provides that no contracting party will receive
more than a 10% decrease in funding per eligible Indian student
within one fiscal year at a time at the conclusion of that four
year hold harmless period.
Changes the due date for the report from the
Comptroller General required under Section 2 from 2 years after
the date of enactment of the Act to 18 months after the final
report from the Secretary regarding the initial determination
of the number of eligible Indian students served or potentially
served by each contracting party. The Government Accountability
Office requested this change.
All other changes within the amendment were made
to be conforming and technical in nature.
The Committee passed S. 943, as amended, by voice vote and
ordered the bill, as amended, to be favorably reported. At this
time, there is no House companion bill to S. 943.
114th Congress. On April 21, 2016, Senator Heitkamp with
Senators Daines and Lankford, introduced S. 2842, the Johnson-
O'Malley Supplemental Indian Education Program Modernization
Act. On May 11, 2016, the Committee held a legislative hearing
on S. 2842. Michael Black, Director of the Bureau of Indian
Affairs, and Carla Mann, President of the National Johnson-
O'Malley Association testified at the legislative hearing. Ms.
Mann's testimony supported S. 2842. No further action was taken
on S. 2842.
Representative McCollum introduced H.R. 4390, the Johnson-
O'Malley Supplemental Indian Education Program Modernization
Act, with Representatives Cole, Huffman, and D. Young as
cosponsors on January 13, 2016. Representative Napolitano
joined as cosponsor on February 11, 2016. Representative
Ellison joined as cosponsor on February 23, 2016.
Representatives Moore and Grijalva joined as cosponsors on
February 29, 2016. The bill, H.R. 4390, was referred to the
Committee on Education and the Workforce of the House of
Representatives, where no further action was taken on H.R.
4390.
113th Congress. Representative Cole with Representatives
McCollum and D. Young, introduced H.R. 4328, the Johnson-
O'Malley Supplemental Indian Education Program Modernization
Act, on March 27, 2014. Representative Huffman was added as a
cosponsor on May 22, 2014. The bill, H.R. 4328, was referred to
the Committee on Education and the Workforce of the House of
Representatives where no further action was taken on the bill.
There was no Senate companion bill to H.R. 4328.
Section-by-Section Analysis
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
This section amends the Act of April 16, 1934 (25 U.S.C.
452 et seq.) (commonly known as the ``Johnson-O'Malley Act'')
by adding the following at the end:
``SEC. 7. COMPUTATION OF STUDENT COUNT.''
(a) Definitions
The term `contracting party' means an entity that has a
contract through a program authorized under this Act.
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.
The term `existing contracting party' means an eligible
entity with a contract under this Act that is in effect on the
date of enactment of the JOM Modernization Act.
The term `JOM Modernization Act' means the Johnson-O'Malley
Supplemental Indian Education Program Modernization Act.
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.
The term `Secretary' means the Secretary of the Interior.
(b) Determination of the number of eligible indian students
This subsection describes the process for the Secretary, in
consultation with eligible entities and current contracting
parties, to make an initial determination of the number of
eligible Indian students served or potentially served under the
JOM program. The Secretary will publish a preliminary report on
the initial determination and establish a 60-day comment period
to gain feedback from eligible entities. The final report will
be published not later than 120 days after concluding the
comment period.
(c) Contracting party student count reporting compliance
Contracting parties shall submit to the Secretary an annual
report describing the number of eligible Indian students served
or potentially served by a contracting party. If a contracting
party fails to submit a report, then it will not receive funds
for the next fiscal year. The Secretary shall provide technical
assistance and training on compliance with the reporting
requirements to contracting parties.
(d) Annual report
The Secretary shall provide to Congress an annual program
assessment 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 the JOM program.
(e) Hold harmless
Existing contractors shall be held harmless from funding
decreases until funding for new contractors is equal to or
greater than the amount that existing contracts received per
eligible Indian student in the fiscal year before enactment.
However, an existing contractor shall receive less funding if
it fails to submit its student count report, violates the terms
of the contract or has otherwise violated Federal law, or if
the number of students served decreases below the numbers
identified in the 1995 student count.
If the funds available under the JOM program for a fiscal
year are insufficient to pay the full amounts that all existing
contracting parties are eligible to receive for the fiscal
year, the Secretary shall ratably reduce those amounts for the
fiscal year.
This hold harmless provision will sunset four years after
the date of enactment of the JOM Modernization Act, at which
point 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
The Secretary shall propose, in consultation with Indian
tribes and contracting parties, a present day per student
funding allocation that shall serve as a funding baseline for
the JOM program.
This subsection allows the Secretary to make
recommendations to increase the amount of funding to equal to
or greater than the amount of funds that were available for
fiscal year 1995, which is when the most recent official and
verified student count was conducted by BIA.
This subsection provides for how funds should be allocated
in fiscal years with an increase in program funding.
(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 and local educational agencies that have not
previously entered into a JOM contract to determine the level
of interest and to share information on the application
process.
(h) Rulemaking
Not later than one year after enactment of the Act, the
Secretary shall complete a rulemaking process to determine how
the regulatory definition of `eligible Indian student' may be
revised to clarify eligibility requirements, determine how the
funding formula may be clarified and revised, and to otherwise
modernize the program. The Secretary will then submit a report
to Congress, not later than 30 days after the date the
rulemaking is completed, on the results of such rulemaking and
recommendations on implementation.
(i) Student privacy
The Secretary shall ensure that data is collected and each
report is prepared in a manner that protects the rights of
eligible Indian students under section 444 of the General
Education Provisions Act (20 U.S.C. 1232g).
(j) GAO report
Not later than 18 months after the final report describing
the initial determination of eligible Indian students is
published, the Comptroller General shall conduct a review of
the implementation of the amendment and submit the review to
Congress.
(l) Effect
This subsection ensures that the amendment does not create
a new program, duplicate programmatic activities, or replaces
or diminishes the effect of regulations to carry out this Act
unless expressly provided in the amendment.
Cost and Budgetary Considerations
The following cost estimate, as provided by the
Congressional Budget Office, dated November 13, 2017, was
prepared for S. 943:
U.S. Congress,
Congressional Budget Office,
Washington, DC, November 13, 2017.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 943, the Johnson-
O'Malley Supplemental Indian Education Program Modernization
Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Leah
Koestner.
Sincerely,
Keith Hall,
Director.
Enclosure.
S. 943--Johnson-O'Malley Supplemental Indian Education Program
Modernization Act
Summary: S. 943 would amend the Johnson-O'Malley Act to
require the Department of the Interior (DOI) to annually update
its count of students who are eligible to be served by the
Johnson-O'Malley (JOM) program. Under that program, DOI
contracts with tribal organizations, states, and school
districts to provide supplemental educational services for
Indian students. Assuming appropriation of the estimated
amounts, CBO estimates that implementing the bill would cost
$13 million over the 2018-2022 period.
Enacting S. 943 would not affect direct spending or
revenues; therefore, pay-as-you-go procedures do not apply.
CBO estimates that enacting S. 943 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2028.
S. 943 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Estimated cost to the Federal Government: The estimated
budgetary effect of S. 943 is shown in the following table. The
costs of this legislation fall within budget function 500
(education, training, employment, and social services).
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By fiscal year, in millions of dollars--
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2018 2019 2020 2021 2022 2018-2022
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INCREASES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level................................ 0 0 5 5 5 15
Estimated Outlays............................................ 0 0 3 5 5 13
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Basis of estimate: CBO assumes that S. 943 will be enacted
before October 1, 2018, that the new student count would be
implemented by 2020, and that the estimated amounts will be
appropriated each year. Estimated outlays are based on
historical spending patterns for the current program.
The JOM program is permanently authorized to be
appropriated such sums as are necessary; it received an
appropriation of $14.8 million in fiscal year 2017. The current
program's funding allocation is based on an official count from
1995 of 271,884 eligible Indian students.
S. 943 would direct the DOI to update the count of students
who could be served by the JOM program and to ensure that the
number of students is consistent with available data from the
Census Bureau, the National Center for Education Statistics,
and the Office of Indian Education. The bill would require JOM
program contractors to submit annual reports to DOI, and would
require DOI to update the student count annually on the basis
of that information. S. 943 also would require DOI to propose a
new per-pupil funding formula and allow the department to
recommend legislation to increase the amount of funds available
for each eligible student.
CBO expects that the count of eligible students would be
higher than the count from 1995; therefore, S. 943 would
effectively increase the amount authorized to be appropriated
for the JOM program. DOI conducted an unofficial count in 2014,
which showed a 26 percent increase in the number of eligible
students since the 1995 count. Because contractors were not
required to participate in the 2014 count, and many did not,
CBO believes that count underestimates the number of eligible
students. Adjusting for that undercount, CBO estimates that the
count conducted under this bill would be 30 percent higher than
in 1995--about 80,000 additional students. CBO calculated per-
pupil spending by dividing the 2017 grant amount by the number
of students in the 1995 count and then adjusting that amount,
$54 per student in 2017, for expected inflation each year. CBO
estimates that implementing the bill would cost $13 million
over the 2018-2022 period and around $5 million each year
thereafter (80,000 students times $56 per student in 2020).
Finally S. 943 would require the Government Accountability
Office to submit a report evaluating the bill's implementation.
Based on the cost of similar studies, CBO estimates that
completing that report would cost less than $500,000.
Pay-As-You-Go considerations: None.
Increase in long-term direct spending and deficits: CBO
estimates that enacting S. 943 would not increase net direct
spending or on-budget deficits in any of the four consecutive
10-year periods beginning in 2028.
Mandates: S. 943 contains no intergovernmental or private-
sector mandates as defined in UMRA.
Estimate prepared by: Federal costs: Leah Koestner;
Mandates: Rachel Austin.
Estimate approved by: H. Samuel Papenfuss, Deputy Assistant
Director for Budget Analysis.
Regulatory and Paperwork Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 943 will
have minimal impact on regulatory or paperwork requirements.
Executive Communications
The Committee has received no communications from the
Executive Branch regarding S. 943.
Changes in Existing Law
In accordance with Committee Rules, subsection 12 of rule
XXVI of the Standing Rules of the Senate is waived. In the
opinion of the Committee, it is necessary to dispense with
subsection 12 of rule XXVI of the Standing Rules of the Senate
to expedite the business of the Senate.
[all]