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This part provides for the uniform direct funding of Bureau-operated and tribally operated day schools, boarding schools, and dormitories. This part applies to all schools, dormitories, and administrative units that are funded through the Indian School Equalization Program of the Bureau of Indian Affairs.
Act means the No Child Left Behind Act, Public Law 107-110, enacted January 8, 2002. The No Child Left Behind Act reauthorizes and amends the Elementary and Secondary Education Act (ESEA) and the amended Education Amendments of 1978.
Agency means an organizational unit of the Bureau which provides direct services to the governing body or bodies and members of one or more specified Indian Tribes. The term includes Bureau Area Offices only with respect to off-reservation boarding schools administered directly by such Offices.
Agency school board means a body, the members of which are appointed by the school boards of the schools located within such agency, and the number of such members shall be determined by the Director in consultation with the affected tribes, except that, in agencies serving a single school, the school board of such school shall fulfill these duties.
Assistant Secretary means the Assistant Secretary of Indian Affairs, Department of the Interior, or his or her designee.
At no cost means provided without charge, but does not preclude incidental fees normally charged to non-disabled students or their parents as a part of the regular education program.
Average Daily Membership (ADM) means the aggregated ISEP-eligible membership of a school for a school year, divided by the number of school days in the school's submitted calendar.
Basic program means the instructional program provided to all students at any age level exclusive of any supplemental programs that are not provided to all students in day or boarding schools.
Basic transportation miles means the daily average of all bus miles logged for round trip home-to-school transportation of day students.
Bureau means the Bureau of Indian Affairs in the Department of the Interior.
Bureau-funded school means
(1) Bureau school;
(2) A contract or grant school; or
(3) A school for which assistance is provided under the Tribally Controlled Schools Act of 1988.
Bureau school means a Bureau-operated elementary or secondary day or boarding school or a Bureau-operated dormitory for students attending a school other than a Bureau school.
Count Week means the last full week in September during which schools count their student enrollment for ISEP purposes.
Director means the Director of the Office of Indian Education Programs in the Bureau of Indian Affairs or a designee.
Education Line Officer means the Bureau official in charge of Bureau education programs and functions in an Agency who reports to the Director.
Eligible Indian student means a student who:
(1) Is a member of, or is at least one-fourth degree Indian blood descendant of a member of, a tribe that is eligible for the special programs and services provided by the United States through the Bureau of Indian Affairs to Indians because of their status as Indians;
(2) Resides on or near a reservation or meets the criteria for attendance at a Bureau off-reservation home-living school; and
(3) Is enrolled in a Bureau-funded school.
Home schooled means a student who is not enrolled in a school and is receiving educational services at home at the parent's or guardian's initiative.
Homebound means a student who is educated outside the classroom.
Individual supplemental services means non-base academic services provided to eligible students. Individual supplemental services that are funded by additional WSUs are gifted and talented or language development services.
ISEP means the Indian School Equalization Program.
Limited English Proficient (LEP) means a child from a language background other than English who needs language assistance in his/her own language or in English in the schools. This child has sufficient difficulty speaking, writing, or understanding English to deny him/her the opportunity to learn successfully in English-only classrooms and meets one or more of the following conditions:
(1) The child was born outside of the United States or the child's Native language is not English;
(2) The child comes from an environment where a language other than English is dominant; or
(3) The child is an American Indian or Alaska Native and comes from an environment where a language other than English has had a significant impact on the child's level of English language proficiency.
Local School Board means a body chosen in accordance with the laws of the tribe to be served or, in the absence of such laws, elected by the parents of the Indian children attending the school. For a school serving a substantial number of students from different tribes:
(1) The members of the local school board shall be appointed by the tribal governing bodies affected; and
(2) The Secretary shall determine number of members in consultation with the affected tribes.
OIEP means the Office of Indian Education Programs in the Bureau of Indian Affairs.
Physical education means the development of physical and motor fitness, fundamental motor skills and patterns, and skills in aquatics, dance, and individual and group games and sports (including intramural and lifetime sports). The term includes special physical education, adapted physical education, movement education, and motor development.
Resident means a student who is residing at a boarding school or dormitory during the weeks when student membership counts are conducted and is either:
(1) A member of the instructional program in the same boarding school in which the student is counted as a resident; or
(2) Enrolled in and a current member of a public school or another Bureau-funded school.
Residential 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 or Bureau-funded school; 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 supplemental services provided to all students who are provided room and board in a boarding school or a dormitory.
Secretary means the Secretary of the Interior or a designated representative.
School means a school funded by the Bureau of Indian Affairs. The term “school” does not include public, charter, or private schools.
School bus means a passenger vehicle that is:
(1) Used to transport day students to and/or from home and the school; and
(2) Operated by an operator in the employ of, or under contract to, a Bureau-funded school, who is qualified to operate such a vehicle under Tribal, State or Federal regulations governing the transportation of students.
School day means a day as defined by the submitted school calendar, as long as annual instructional hours are as they are reflected in § 39.213, excluding passing time, lunch, recess, and breaks.
Special education means:
(1) Specially designed instruction, at no cost to the parents, to meet the unique needs of a child with a disability, including:
(i) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and
(ii) Instruction in physical education.
(2) The term includes each of the following, if it meets the requirements of paragraph (1) of this definition:
(i) Speech-language pathology services, or any other related service, if the service is considered special education rather than a related service under State standards;
(1) Travel training; and
(2) Vocational education.
Specially designed instruction means adapting, as appropriate, to the needs of an eligible child under this part, the content, methodology, or delivery or instruction:
(1) To address the unique needs of the child that result from the child's disability; and
(2) To ensure access of the child to the general curriculum, so that he or she can meet the educational standards within the jurisdiction of the public agency that apply to all children
Three-year average means:
(1) For academic programs, the average daily membership of the 3 years before the current year of operation; and
(2) For the residential programs, the count period membership of the 3 years before the current year of operation.
Travel training means providing instruction, as appropriate, to children with significant cognitive disabilities, and any other children with disabilities who require this instruction, to enable them to:
(1) Develop an awareness of the environment in which they live; and
(2) Learn the skills necessary to move efficiently and safely from place to place within that environment ( e.g., in school, in the home, at work, and in the community).
Tribally operated school means an elementary school, secondary school, or dormitory that receives financial assistance for its operation under a contract, grant, or agreement with the Bureau under section 102, 103(a), or 208 of 25 U.S.C. 450 et seq., or under the Tribally Controlled Schools Act of 1988.
Vocational education means organized educational programs that are directly related to the preparation of individuals for paid or unpaid employment, or for additional preparation for a career requiring other than a baccalaureate or advanced degree.
Unimproved roads means unengineered earth roads that do not have adequate gravel or other aggregate surface materials applied and do not have drainage ditches or shoulders.
Weighted Student Unit means:
(1) The measure of student membership adjusted by the weights or ratios used as factors in the Indian School Equalization Formula; and
(2) The factor used to adjust the weighted student count at any school as the result of other adjustments made under this part.
Notwithstanding any other provision of law, no person is required to respond to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This part contains in §§ 39.410 and 39.502 collections of information subject to the PRA. These collections have been approved by OMB under control number 1076-0163.
The Indian School Equalization Formula (ISEF) was established to allocate Indian School Equalization Program (ISEP) funds. OIEP applies ISEF to determine funding allocation for Bureau-funded schools as described in §§ 39.204 through 39.206.
No. ISEF does not attempt to assess the actual cost of school operations either at the local level or in the aggregate at the national level. ISEF provides a method of distribution of funds appropriated by Congress for all schools.
Academic base funding is the ADM times the weighted student unit.
To determine base funding, schools must use the factors shown in the following table. The school must apply the appropriate factor to each student for funding purposes.
Grade level
Base academic funding factor
Base residential funding factor
Kindergarten
1.15
NA
Grades 1-3
1.38
1.75
Grades 4-6
1.15
1.6
Grades 7-8
1.38
1.6
Grades 9-12
1.5
1.6
(a) Each school must provide for students with disabilities by:
(1) Reserving 15 percent of academic base funding to support special education programs; and
(2) Providing resources through residential base funding to meet the needs of students with disabilities under the National Criteria for Home-Living Situations.
(b) A school may spend all or part of the 15 percent academic base funding reserved under paragraph (a)(1) of this section on school-wide programs to benefit all students (including those without disabilities) only if the school can document that it has met all needs of students with disabilities with such funds, and after having done so, there are unspent funds remaining from such funds.
(a) Schools may supplement the 15 percent base academic funding reserved under § 39.104 for special education with funds available under part B of the Individuals with Disabilities Education Act (IDEA). To obtain part B funds, the school must submit an application to OIEP. IDEA funds are available only if the school demonstrates that funds reserved under § 39.104(a) are inadequate to pay for services needed by all eligible ISEP students with disabilities.
(b) The Bureau will facilitate the delivery of IDEA part B funding by:
(1) Providing technical assistance to schools in completing the application for the funds; and
(2) Providing training to Bureau staff to improve the delivery of part B funds.
To receive ISEP special education funding, a student must be under 22 years old and must not have received a high school diploma or its equivalent on the first day of eligible attendance. The following minimum age requirements also apply:
(a) To be counted as a kindergarten student, a child must be at least 5 years old by December 31; and
(b) To be counted as a first grade student; a child must be at least 6 years old by December 31.
Yes, schools are allotted supplemental funds for special student and/or school costs. ISEF provides additional funds to schools through add-on weights (called special cost factors). ISEF adds special cost factors as shown in the following table.
Cost Factor
For more information see
Gifted and talented students
§§ 39.110 through 39.121
Students with language development needs
§§ 39.130 through 39.137
Small school size
§§ 39.140 through 39.156
Geographic isolation of the school
§ 39.160
Yes, ISEF funds can be distributed for the provision of services for gifted and talented students.
The term gifted and talented means students, children, or youth who:
(a) Give evidence of high achievement capability in areas such as intellectual, creative, artistic, or leadership capacity, or in specific academic fields; and
(b) Need services or activities not ordinarily provided by the school in order to fully develop those capabilities.
There is no limit on the number of students that a school can classify as gifted and talented.
If a school identifies more than 13 percent of its student population as gifted and talented the Bureau will immediately audit the school's gifted and talented program to ensure that all identified students:
(a) Meet the gifted and talented requirement in the regulations; and
(b) Are receiving gifted and talented services.
To be funded as gifted and talented under this part, a student must be identified as gifted and talented in at least one of the following areas.
(a) Intellectual Ability means scoring in the top 5 percent on a statistically valid and reliable measurement tool of intellectual ability.
(b) Creativity/Divergent Thinking means scoring in the top 5 percent of performance on a statistically valid and reliable measurement tool of creativity/divergent thinking.
(c) Academic Aptitude/Achievement means scoring in the top 15 percent of academic performance in a total subject area score on a statistically valid and reliable measurement tool of academic achievement/aptitude, or a standardized assessment, such as an NRT or CRT.
(d) Leadership means the student is recognized as possessing the ability to lead, guide, or influence the actions of others as measured by objective standards that a reasonable person of the community would believe demonstrates that the student possess leadership skills. These standards include evidence from surveys, supportive documentation portfolios, elected or appointed positions in school, community, clubs and organization, awards documenting leadership capabilities. No school can identify more than 15 percent of its student population as gifted and talented through the leadership category.
(e) Visual and Performing Arts means outstanding ability to excel in any imaginative art form; including, but not limited to, drawing, printing, sculpture, jewelry making, music, dance, speech, debate, or drama as documented from surveys, supportive documentation portfolios, awards from judged or juried competitions. No school can identify more than 15 percent of its student population as gifted and talented through the visual and performing arts category.
(a) Screening can be completed annually to identify potentially eligible students. A student may be nominated for gifted and talented designation using the criteria in § 39.114 by any of the following:
(1) A teacher or other school staff;
(2) Another student;
(3) A community member;
(4) A parent or legal guardian; or
(5) The student himself or herself.
(b) Students can be nominated based on information regarding the student's abilities from any of the following sources:
(1) Collections of work;
(2) Audio/visual tapes;
(3) School grades;
(4) Judgment of work by qualified individuals knowledgeable about the student's performances ( e.g. , artists, musicians, poets, historians, etc.);
(5) Interviews or observations; or
(6) Information from other sources.
(c) The school must have written parental consent to collect documentation of gifts and talents under paragraph (b) of this section.
(a) To determine who receives gifted and talented funding, the school must use qualified professionals to perform a multi-disciplinary assessment. The assessment may include the examination of work samples or performance appropriate to the area under consideration. The school must have the parent or guardian's written permission to conduct individual assessments or evaluations. Assessments under this section must meet the following standards:
(1) The assessment must use assessment instruments specified in § 39.114 for each of the five criteria for which the student is nominated;
(2) If the assessment uses a multi-criteria evaluation, that evaluation must be an unbiased evaluation based on student needs and abilities;
(3) Indicators for visual and performing arts and leadership may be determined based on national, regional, or local criteria; and
(4) The assessment may use student portfolios.
(b) A multi-disciplinary team will review the assessment results to determine eligibility for gifted and talented services. The purpose of the team is to determine eligibility and placement to receive gifted and talented services.
(1) Team members may include nominator, classroom teacher, qualified professional who conducted the assessment, local experts as needed, and other appropriate personnel such as the principal and/or a counselor.
(2) A minimum of three team members is required to determine eligibility.
(3) The team will design a specific education plan to provide gifted and talented services related in the areas identified.
Gifted and talented services are provided through or under the supervision of highly qualified professional teachers. To provide gifted and talented services for a student, a school must take the steps in this section.
(a) The multi-disciplinary team formed under § 39.116(b) will sign a statement of agreement for placement of services based on documentation reviewed.
(b) The student's parent or guardian must give written permission for the student to participate.
(c) The school must develop a specific education plan that contains:
(1) The date of placement;
(2) The date services will begin;
(3) The criterion from § 39.114 for which the student is receiving services and the student's performance level;
(4) Measurable goals and objectives; and
(5) A list of staff responsible for each service that the school is providing.
For each student receiving gifted and talented services, the school must conduct a yearly evaluation of progress, file timely progress reports, and update the specific education plan.
(a) If a school identifies a student as gifted and talented based on § 39.114 (a), (b), or (c), then the student does not need to reapply for the gifted and talented program. However, the student must be reevaluated at least every 3 years through the 10th grade to verify eligibility for funding.
(b) If a school identifies a student as gifted and talented based on § 39.114 (d) or (e), the student must be reevaluated annually for the gifted and talented program.
A student must leave the gifted and talented program when either:
(a) The student has received all of the available services that can meet the student's needs;
(b) The student no longer meets the criteria that have qualified him or her for the program; or
(c) The parent or guardian removes the student from the program.
In providing services under this section, the school must:
(a) Provide a variety of programming services to meet the needs of the students;
(b) Provide the type and duration of services identified in the Individual Education Plan established for each student; and
(c) Maintain individual student files to provide documentation of process and services; and
(d) Maintain confidentiality of student records under the Family Educational Rights and Privacy Act (FERPA).
The WSU for a gifted and talented student is the base academic weight (see § 39.103) subtracted from 2.0. The following table shows the gifted and talented weights obtained using this procedure.
Grade level
Gifted and talented WSU
Kindergarten
0.85
Grades 1 to 3
0.62
Grades 4 to 6
0.85
Grades 7 to 8
0.62
Grades 9 to 12
0.50
Yes, schools can use ISEF funds to implement Language Development programs that demonstrate the positive effects of Native language programs on students' academic success and English proficiency. Funds can be distributed to a total aggregate instructional weight of 0.13 for each eligible student.
A Language Development program is one that serves students who either:
(a) Are not proficient in spoken or written English;
(b) Are not proficient in any language;
(c) Are learning their Native language for the purpose of maintenance or language restoration and enhancement;
(d) Are being instructed in their Native language; or
(e) Are learning non-language subjects in their Native language.
A school may offer Language Development programs to students as part of its regular academic program. Language Development does not have to be offered as a stand-alone program.
Tribal governing bodies or local school boards decide how their funds for Language Development programs will be used in the instructional program to meet the needs of their students.
A student is identified as limited English proficient (LEP) by using a nationally recognized scientifically research-based test.
A school must provide services that assist each LEP student to:
(a) Become proficient in English and, to the extent possible, proficient in their Native language; and
(b) Meet the same challenging academic content and student academic achievement standards that all students are expected to meet under 20 U.S.C. 6311(b)(1).
Language Development programs are funded at 0.13 WSUs per student.
Yes, a school may operate a language development program without a specific appropriation from Congress, but any funds used for such a program must come from existing ISEP funds. When Congress specifically appropriates funds for Indian or Native languages, the factor to support the language development program will be no more than 0.25 WSU.
A school will receive a small school adjustment if either:
(a) Its average daily membership (ADM) is less than 100 students; or
(b) It serves lower grades and has a diploma-awarding high school component with an average instructional daily membership of less than 100 students.
(a) A school with a 3-year ADM of 50 or fewer students will receive an adjustment equivalent to an additional 12.5 base WSU; or
(b) A school with a 3-year ADM of 51 to 99 students will use the following formula to determine the number of WSU for its adjustment. With X being the ADM, the formula is as follows:
WSU adjustment = ((100−X)/200)*X
For purposes of this part, a small high school:
(a) Is accredited under 25 U.S.C. 2001(b);
(b) Is staffed with highly qualified teachers;
(c) Operates any combination of grades 9 through 12;
(d) Offers high school diplomas; and
(e) Has an ADM of fewer than 100 students.
(a) The small high school adjustment is a WSU adjustment given to a small high school that meets both of the following criteria:
(1) It has a 3-year average daily membership (ADM) of less than 100 students; and
(2) It operates as part of a school that during the 2003-04 school year also included lower grades.
(b) The following table shows the WSU adjustment given to small high schools. In the table, “X” stands for the ADM.
ADM of high school component
Amount of small high school adjustment
School receives a component small school adjustment under § 39.141
50 or fewer students
6.25 base WSU
Yes.
51 to 99 students
determined using the following formula: WSU = ((100-X)/200)*X/2
Yes.
50 or fewer students
12.5 base WSU
No.
51 to 99 students
determined using the following formula: WSU = ((100-X)/200)*X
No.
A school that meets the criteria in § 39.140 can receive both a small school adjustment and a small high school adjustment. The following table shows the total amount of adjustments for eligible schools by average daily membership (ADM) category.
ADM—entire school
ADM—high school component
Small school adjustment
Small high school adjustment
Total adjustment
1-50
NA
12.5
NA
12.5
1-50
1-50
12.5
6.25
18.75
51-99
1-50
2 12.5-0.5
6.25
18.75-6.75
51-99
51-99
1 12.5-0.5
2 6.25-0.25
18.75-0.7
99
1-50
0.5
12.5
12.5
99
51-99
0.5
2 12.5-0.5
12.5-0.5
1 The amount of the adjustment is within this range. The exact figure depends upon the results obtained using the formula in § 39.141.
2 The amount of the adjustment is within this range. The exact figure depends upon the results obtained using the formula in § 39.144.
In order to compensate for the additional costs of operating a small residential program, OIEP will add to the total WSUs of each qualifying school as shown in the following table:
Type of residential program
Number of WSUs added
Residential student count of 50 or fewer ISEP-eligible students
12.5.
Residential student count of between 51 and 99 ISEP-eligible students
Determined by the formula ((100-X)/200))X, where X equals the residential student count.
Yes. Havasupai Elementary School, for as long as it remains in its present location, will be awarded an additional cost factor of 12.5 WSU.
OIEP uses the Indian School Equalization Formula (ISEF) to distribute Indian School Equalization Program (ISEP) appropriations equitably to Bureau-funded schools.
ISEF does not attempt to assess the actual cost of school operations either at the local school level or in the aggregate nationally. ISEF is a relative distribution of available funds at the local school level by comparison with all other Bureau-funded schools.
Homebound means a student who is educated outside the classroom.
Home schooled means a student who is not enrolled in a school and is receiving educational services at home at the parent's or guardian's initiative.
School day means a day as defined by the submitted school calendar, as long as annual instructional hours are as they are reflected in § 39.213, excluding passing time, lunch, recess, and breaks.
Three-year average means:
(1) For academic programs, the average daily membership of the 3 years before the current year of operation; and
(2) For the residential programs, the count period membership of the 3 years before the current year of operation.
OIEP calculates a school's allotment no later than July 1. Schools must submit final ADM enrollment figures no later than June 15.
OIEP calculates ADM by:
(a) Adding the total enrollment figures from periodic reports received from each Bureau-funded school; and
(b) Dividing the total enrollment for each school by the number of days in the school's reporting period.
(a) OIEP will add the weights obtained from the calculations in paragraphs (a)(1), (a)(2), and (a)(3) of this section to obtain the total weighted student units (WSUs) for each school.
(1) Each year's ADM is multiplied by the applicable weighted student unit for each grade level;
(2) Calculate any supplemental WSUs generated by the students; and
(3) Calculate any supplemental WSUs generated by the schools.
(b) The total WSU for the school year is the sum of paragraphs (a)(1), (a)(2), and (a)(3) of this section.
(a) To calculate the appropriated dollar value of one WSU, OIEP divides the systemwide average number of WSUs for the previous 3 years into the current year's appropriation.
(b) To calculate the average WSU for a 3-year period:
(1) Step 1. Add together each year's total WSU (calculated under paragraph (b) of this section); and
(2) Step 2. Divide the sum obtained in step 1 by 3.
To determine a school's funding for the school year, OIEP uses the following seven-step process:
(a) Step 1. Multiply the appropriate base academic and/or residential weight from § 39.103 by the number of students in each grade level category.
(b) Step 2. Multiply the number of students eligible for supplemental program funding under § 39.107 by the weights for the program.
(c) Step 3. Calculate the school-based supplemental weights under § 639.107.
(d) Step 4. Add together the sums obtained in steps 1 through 3 to obtain each school's total WSU.
(e) Step 5. Add together the total WSUs for all Bureau-funded schools.
(f) Step 6. Calculate the value of a WSU by dividing the current school year's funds by the average total WSUs as calculated under step 5 for the previous 3 years.
(g) Step 7. Multiply each school's WSU total by the base value of one WSU to determine funding for that school.
(a) On July 1, schools will receive 80 percent of their funds as determined in § 39.207.
(b) On December 1, the balance will be distributed to all schools after verification of the school count and any adjustments made through the appeals process for the third year.
If a student is enrolled, is in attendance during any of the first 10 days of school, and receives at least 5 days' instruction, the student is deemed to be enrolled all 10 days and shall be counted for ADM purposes. The first 10 days of school, for purposes of this section, are determined by the calendar that the school submits to OIEP.
(a) For ISEP purposes, a school can add a student to the membership when he or she has been enrolled and has received a full day of instruction from the school.
(b) Except as provided in § 39.210, to be counted for ADM, a student dropped under § 39.209 must:
(1) Be re-enrolled; and
(2) Receive a full day of instruction from the school.
If a student is absent for 10 consecutive school days, the school must drop that student from the membership for ISEP purposes of that school on the 11th day.
A school can count other categories of students for membership purposes as shown in the following table.
Type of student
Circumstances under which student can be included in the school's membership
(a) Homebound
(1) The student is temporarily confined to the home for some or all of the school day for medical, family emergency, or other reasons required by law or regulation; (2) The student is being provided by the school with at least 5 documented contact hours each week of academic services by certified educational personnel; and (3) Appropriate documentations is on file at the school.
(b) Located in an institutional setting outside of the school
The school is either: (1) Paying for the student to receive educational services from the facility; or (2) Providing educational services by certified school staff for at least 5 documented contact hours each week.
(c) Taking college courses during the school day
The student is both: (1) Concurrently enrolled in, and receiving credits for both the school's courses and college courses; and (2) In physical attendance at the school at least 3 documented contact hours per day.
(d) Taking distance learning courses
The student is both: (1) Receiving high school credit for grades; and (2) In physical attendance at the school at least 3 documented contact hours per day.
(e) Taking internet courses
The student is both: (1) Receiving high school credit for grades; and (2) Taking the courses at the school site under a teacher's supervision.
THE INDIAN SCHOOL EQUALIZATION PROGRAM (U.S.C.). Retrieved via LawPlayer, https://lawplayer.com/us/act/cfr-title-25-part-39
United States government works (U.S. Code, Code of Federal Regulations) are in the public domain under 17 U.S.C. § 105.
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