[Federal Register: December 5, 2007 (Volume 72, Number 233)]
[Rules and Regulations]
[Page 68491-68502]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de07-7]
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DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 36
RIN 1076-AE51
Homeliving Programs
AGENCY: Bureau of Indian Education, BIA, Interior.
ACTION: Final Rule.
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SUMMARY: Under the No Child Left Behind Act of 2001, the Secretary of
the Interior is publishing final regulations addressing homeliving
programs administered under the Bureau of Indian Education-funded
school system.
DATES: Effective Date: January 4, 2008.
FOR FURTHER INFORMATION CONTACT: Kevin Skenandore, Director, Bureau of
Indian Education, 1849 C Street NW., MS-3609, Washington, DC 20240,
phone (202) 208-6123.
SUPPLEMENTARY INFORMATION:
I. Background
A. What Information Does This Section Address?
This section addresses:
--Requirements of the No Child Left Behind Act of 2001 (Pub. L. 107-
110; enacted January 8, 2002; ``NCLBA'' or ``the Act''), section 1122.
[[Page 68492]]
--Overview of the negotiated rulemaking process.
--How public comments were handled.
B. What Are the Negotiated Rulemaking Requirements of the Act?
The Secretary of the Interior (``Secretary'') established a
negotiated rulemaking committee (Committee) to develop proposed
regulations to implement several sections of the Act related to the
Bureau of Indian Education (Bureau)-funded school system. The Act
required that the committee be comprised only of representatives of the
Federal Government and representatives of tribes served by Bureau-
funded schools. The Act also required that, to the maximum extent
possible, the tribal representative membership reflect the
proportionate share of students from tribes served by the Bureau-funded
school system. The Secretary chartered the committee under the Federal
Advisory Committee Act (5 U.S.C. Appendix (FACA)) on May 1, 2003. The
committee was comprised of Federal representatives and representatives
of tribes served by Bureau-funded schools who met in February 2006 to
negotiate recommendations for proposed regulations under Section 1122
of the Act, 25 CFR part 36, Minimum Academic Standards for the Basic
Education of Indian Children and National Criteria for Dormitory
Situations. As a basis for negotiations and for consensus, the
committee used draft regulations proposed by the Bureau school and
residential administrators.
C. What Was the Negotiated Rulemaking Process?
As required by the No Child Left Behind Act of 2001 (Pub. L. 107-
110; enacted January 8, 2002, referred to in this preamble as ``NCLB''
or ``the Act''), the Department of the Interior established a
Negotiated Rulemaking Committee to develop proposed rules to implement
several sections of the Act relating to the Bureau of Indian Education-
funded school system. Negotiated Rulemaking is a process sanctioned by
Subchapter III, or Chapter 5, Title 5, United States Code and the
Federal Advisory Committee Act, 5 U.S.C. Appendix (FACA), that employs
Federal representatives and members of the public who will be affected
by rules to jointly develop proposed rules.
In this case, the Act required the Secretary of the Interior to
select representatives of Indian tribes and Bureau-funded schools as
well as Federal Government representatives to serve on the Committee.
The Committee's task was to draft proposed rules to recommend to the
Secretary. Upon the Secretary's approval, draft rules are published in
the Federal Register for written public comments within a 120-day
public comment period. After the close of the public comment period,
the Committee will reconvene to review these comments and to recommend
promulgation of final rules to the Secretary.
The Secretary chartered the Committee under the FACA on May 1,
2003. It is comprised of 19 members nominated by Indian tribes and
tribally operated schools. The law required that, to the maximum extent
possible, the tribal representative membership should reflect the
proportionate share of students from tribes served by the Bureau-funded
school system. The Secretary also appointed to the Committee six
members from within the Department of the Interior. The Committee
selected three tribal representatives and two Federal representatives
as co-chairs. Six individuals were hired to facilitate all Committee
meetings.
The Committee initially met in the months of June through October
2003 to develop regulations in six areas. Subsequently, the Department
reconvened the Committee in February 2004 to develop regulations in the
areas of closure and consolidation of schools and criteria for
homeliving situations. The Committee met on several occasions and
developed the proposed rules that were published on July 12, 2004 (69
FR 41770).
D. How Were Public Comments Handled?
The Secretary published proposed regulations on July 12, 2004, for
public comment. The public comment period ended on November 9, 2004. We
received comments on this proposed rule from nine commenters, including
tribal leaders, educators, and administrators. We reviewed all
comments. Summaries of individual public comments and our responses are
noted below. The final regulations are organized, as were the proposed
regulations, under three broad categories: homeliving staffing;
homeliving programs; and homeliving privacy. The final regulations,
published as 25 CFR part 36--Homeliving Situations, reflect the public
comments that were accepted. The Department still has under
consideration the regulations for school closure and consolidation. At
this time, the Department has made no final decision on issuing these
rules.
II. Public Comments
In this section we discuss the main public comments received.
General comments are discussed first, followed by comments on specific
sections of the rule. Our responses follow each comment.
Section 36.70 What Terms do I Need to Know?
Comment: Several commenters suggested that we clarify or define the
term ``supplemental services'' in Sec. 36.70 and several others
suggested that we clarify what ``actually receiving supplemental
services'' means in Sec. 36.70(2)(ii).
Response: We considered these comments and removed the obsolete
reference to ``supplemental services.''
Comment: Several commenters suggested we add definitions for the
following terms: ``behavioral health programs,'' ``behavioral health
services,'' and ``behavioral health staff.''
Response: We accepted the comments and have added definitions for
the terms.
Comment: A commenter recommended clarifying the definitions of
``homeliving manager'' and ``homeliving supervisor'' by switching the
definitions to more accurately reflect what each position is
responsible for. In the alternative, if the manager is to be
responsible for physically supervising students, the commenter
recommended changing the name of the ``homeliving supervisor'' to
``homeliving administrator.''
Response: We considered this comment and made no change.
Section 36.71 What Is the Purpose of This Part?
Comment: A commenter recommended changing the definition for
``homeliving situation'' to: ``Any program where education instruction
and residential services are provided for students enrolled in Bureau-
funded schools, who are housed at a Bureau-funded school facility, and
who receive care, before and after school hours, in a manner in which
they do not have to depend on family or guardianship.''
Response: We considered this comment, but, determined no change was
necessary.
Comment: A commenter suggested replacing the term ``homeliving
situations'' with ``homeliving programs.''
Response: We considered the comment and revised Sec. 36.71.
[[Page 68493]]
Section 36.75 What Qualifications Must Homeliving Staff Possess?
Comment: A commenter suggested that the competency or professional
standards of homeliving personnel should not be compromised in Sec.
36.75. The commenter stated that agreements to operate a quality
program with quality staff is between BIE and the tribal governing body
and should not be discretionary at the school staff level. The
commenter stated that it may be appropriate to waive such
qualifications only where the employee is a trainee under the
supervision of a fully qualified supervisor, and it is a tribal
decision, not a Federal one.
Response: We considered the comment, but determined that no change
was necessary because a tribe can instruct the school supervisor if the
school is a tribally operated school.
Comment: A commenter stated that requirements for improved criteria
for homeliving staff in Sec. 36.75 should not be unfunded mandates.
The commenter supports a complete overhaul of the current funding
formula in order to create a universal therapeutic model in all BIE-
funded schools.
Response: While the Committee was aware of the funding needs for
Indian education, the scope of the Committee was to draft regulations
to implement the statute. Therefore, while the Committee notes the
commenter's general comments about the need for additional funding and
different funding priorities, these comments are outside of the scope
of the rulemaking. Therefore, we made no change to the regulations.
Comment: A commenter suggested that substance abuse education and
prevention training should be added to required training in Sec.
36.75.
Response: This is already required in Sec. 36.86(c)(2).
Comment: A commenter suggested: (1) that a determination of good
cause in Sec. 36.75(b)(2) should be made at the Education Line Officer
level, (2) that guidelines or standards be provided for determining
what good cause means, and (3) that a timeframe for waivers be added.
Response: We considered the comment and accepted it in part and
rejected it in part. We rejected the part of the comment that raised
issues the Committee considered in its deliberations. We accepted the
part of the comment on adding a timeframe for waivers and revised Sec.
36.75(b)(2).
Comment: A commenter recommended that in Sec. 36.75 the delay of
the effective date for higher standards for homeliving staff apply to
current staff as a well as to new hires, and that the effective date
depend on the Department's securing additional funding.
Response: The Committee considered the effective date of the higher
standards for homeliving staff. The comment does not raise new issues
that the Committee did not consider. Therefore, we considered the
comment, but we made no change to the regulations.
Comment: A commenter suggested changing Sec. 36.75 to allow the
homeliving supervisor rather than the ``school supervisor'' to grant a
waiver for a showing of good cause.
Response: We considered the comment, but we believed the proposed
language provides for the entity with decision-making authority to
decide whether to grant the waiver. Therefore, we made no change to the
regulations.
Comment: Several commenters suggested that some homeliving program
staff may not need the same level of educational standards as others
because they work at night when students are sleeping and recommended
changing the required standards in Sec. 36.75(a).
Response: In adopting these regulations, the Committee considered
that there are different levels of homeliving program staff. The
Committee considered and did not adopt different standards for night-
duty. Therefore, we considered the comment, but made no change to the
regulations.
Comment: A commenter recommended that Sec. 36.75 include a
certificate program in lieu of the 32-hour post-secondary semester hour
requirement since BIE-operated boarding schools are unique. Another
commenter suggested that Sec. 36.75 provide for development of a
residential certificate of training including at least 80 hours in
topics such as child development, behavior management, working with
students at risk, special education students, social interaction
skills, etc., as an option to requiring 32/48 hours of college credit.
The certificate would be updated every 3 years with at least 10 hours
of training.
A second commenter recommended that distance education and computer
modules be available to staff.
A third commenter recommended that Sec. 36.75 provide that each
facility is responsible to set its own appropriate training
requirements to fit its specific needs. This commenter further
suggested that requiring 32 hours of post-secondary semester hours in a
field related to child development and at least 1 year of relevant
experience will cause a drop in the applicant pool and that a degree
does not necessarily make an applicant competent for a position.
Response: We considered these comments and made no changes to the
rule.
Comment: A commenter suggested that if the definitions for
``homeliving manager'' and ``homeliving supervisor'' are switched, the
qualifications for the two positions should also be switched in Sec.
36.75.
Response: We considered this comment and made no changes because
the definitions were not switched.
Comment: A commenter recommended deleting Sec. 36.75(b) ``when
this part is published in final'' because it is unnecessary considering
the 2009-2010 timeframe and could be interpreted to apply only to those
persons employed at the time the rule becomes final.
Response: We accepted this comment and changed the text to delete
the reference to the rule's publication date.
Comment: A commenter recommended that we clarify Sec. 36.75(b)(2)
by stating whether the supervisor empowered to grant waivers from new
qualifications has procedural guidance to follow.
Response: We considered this comment and revised the paragraph to
clarify the process. The paragraph now states that a person not meeting
the qualifications, ``may, upon showing good cause, petition the school
supervisor (or the homeliving supervisor for peripheral dorms) for a
waiver from the new qualifications.''
Comment: A commenter stated that: (1) 32 hours of post-secondary
semester hours for basic homeliving staff would dramatically reduce the
applicant supply pool for those positions at the local level; (2) We
should clarify whether new hires before SY 2009-2010 must meet the new
requirements; (3) Funding should be made available for dormitory
programs, for training and post-secondary credit hours for meeting the
recommended qualification requirements, and for meeting the needs of
the students being served.
Response: We considered the comment, but did not change the
section. While the training requirement may reduce the number of
applicants for these positions, dormitory staff must have more training
because of new needs children are exhibiting in behavior, new
diagnostic findings affecting learning skills, and changes in life
styles affecting family concepts and step-parenting, among other
issues.
Comment: A commenter stated that if ``recreation staff'' is
included in ``homeliving staff'' that fact should be
[[Page 68494]]
stated and clarified in the definition of ``homeliving staff.''
Response: The committee considered this in its original
deliberation and no new issues have been raised by this comment that
were not already considered by the committee.
Section 36.76 Who Is in Charge of all Homeliving Operations?
Comment: A commenter stated that the purpose of Sec. 36.76 is
unclear. If the section means there will be clear lines of authority,
the question should be revised to read: ``Must there exist clear lines
of authority?'' and the answer should read: ``Yes, clear lines of
authority must be established through the development of an
organizational chart approved by the local board * * *'' Or, if this
section means to make a point other than establishing the requirement
that an organizational chart be developed; the section needs to be re-
written for clarity.
Response: We accepted this comment and made corresponding changes
to the rule.
Section 36.77 What Are the Homeliving Program Staffing Requirements?
Comment: Several commenters recommended that the delayed
implementation of the homeliving staff-to-student ratios to school year
2009-10 in Sec. 36.77 depend on the Department's securing the
necessary funding to make the new ratios affordable.
Response: We considered this comment and revised the section title
in response.
Comment: A commenter suggested that adult-to-child staffing ratios
in dormitories for Native American children should be lower than 1:20-
30 if other similar programs require lower adult-to-child staffing
ratios.
Response: The Committee considered adult-to-child staffing ratios
in drafting the regulations. The Committee discussed the pros and cons
of changing staffing ratios and chose to adopt credentialing rather
than changing staffing ratios. The comments raise no new issues to
consider. Therefore, we made no change to the regulations.
Comment: A commenter recommended that Sec. 36.77 should state what
ratios will be effective until SY 2009-2010.
Response: We considered this comment, but made no changes to the
regulation.
Comment: A commenter suggested that since Sec. 36.75 requires
higher quality staff, Sec. 36.77 should provide that this staff be
compensated appropriately, but questioned how positions will be funded
if IRG is cut.
Response: The Committee in its original deliberations considered
the impact of these requirements and balanced them with the needs of
the students. No new issues are raised by the commenter that were not
considered in the original deliberations. Therefore, we made no change
to the rule.
Comment: A commenter suggested that Sec. 36.77 state that existing
staff-to-student ratios remain in effect until the new requirements are
effective.
Response: The Committee considered this issue at the time it
negotiated the regulations and the comment raises no new issues.
Therefore, we made no change to the regulations.
Comment: A commenter questioned whether it is necessary in Sec.
36.77(b) to have three different staff-to-student ratios on weekends
because weekend staff is presumably supervising rather than conducting
structured programs.
Response: The Committee considered this issue at the time it
negotiated the regulations and the comment raises no new issues.
Therefore, we made no change to the regulations.
Comment: A commenter recommended revising Sec. 36.77 by revising
the question to: ``What is the minimum acceptable staffing supervisory
requirements necessary to adequately supervise students and provide a
safe environment?'' and eliminating the introductory sentence.
Response: We considered this comment and changed the section title
to read, ``What are the homeliving program staffing requirements?''
Section 36.79 What Are the Homeliving Behavioral Staff/Student Ratio
Requirements?
Comment: A commenter suggested that the regulations define the term
``behavioral staff.'' Another commenter suggested clarifying whether a
behavioral health professional is the same as a certified counselor,
either school or MSW, in Sec. 36.79.
Response: We accepted these comments and defined ``behavioral
staff'' at Sec. 36.79.
Comment: A commenter stated that the regulations at Sec. 36.79(b)
change ``should'' to ``must'' for providing one full-time behavioral
health professional for off-reservation boarding schools.
Response: We considered the comment, but we did not accept it. This
issue was raised during the original Committee deliberations. In order
to reach consensus the Committee adopted the provision that the
homeliving program ``should'' consider providing these services. This
comment does not raise any new issues that were not considered by the
committee when originally discussing this issue. Therefore, we made no
change to the regulations.
Comment: A commenter recommended that Sec. 36.79 be amended to
delete a 20-hour minimum.
Response: We accepted this comment and added new paragraph (d) in
response.
Comment: A commenter stated that funding increases are necessary to
meet the criteria in Sec. 36.79 for the number of and the educational
level of behavioral health professionals who are necessary in
homeliving programs to address issues such as abuse, neglect, trauma,
cultural conflict, and lack of school success.
Response: Budget-related issues are fully addressed elsewhere in
this preamble.
Comment: A commenter recommended revising Sec. 36.79(b) to state
``must,'' not ``should'' so that behavioral health may not be made
optional and students who live off-reservation are not deprived of this
requirement.
Response: This issue was raised during the original deliberations
and, to reach consensus, the Committee adopted the provision that the
homeliving program ``should'' consider providing these services. This
comment does not raise any new issues that were not considered by the
Committee when originally discussing this issue. Therefore, the comment
is not accepted.
Section 36.80 If a School Has Separated Boys' and Girls' Homeliving
Programs, May the Same Behavioral Staff Be Used for Each Program?
Comment: A commenter recommended clarifying the term ``homeliving
count period'' in Sec. 36.80.
Response: We considered the comment, but we are making no change to
the regulations because the homeliving count period is defined in the
funding formula regulations at 25 CFR 39.
Section 36.81 May a Homeliving Program Use Support Staff or Teachers to
Meet Behavioral Health Staffing Requirements?
Comment: A commenter recommended revising the second sentence in
Sec. 36.81 to allow for flexibility in how a residential facility
meets the behavioral health staffing requirements. The sentence is
recommended to read: ``The only exception is if the individual support
staff employee or teacher has the appropriate behavioral health license
or
[[Page 68495]]
certification or other appropriate training and supervision.''
Response: We accepted this comment in part and revised the second
sentence to read as follows: ``The only exception is if the individual
support staff employee or teacher has the appropriate behavioral health
license or certification.''
Comment: A commenter recommended eliminating the exception in Sec.
36.81 or adding a requirement that the individual's contract provide
that the teaching and behavioral health services are not to be provided
simultaneously.
Response: We considered this comment in conjunction with other
comments on this issue. If teachers have the requisite training, then
they may be able to provide the service as long as the provisions of
Sec. 36.82 have been met. Therefore, we made no change to the rule.
Section 36.82 May Behavioral Health Staff Provide Services During the
Academic School Day?
Comment: A commenter recommended adding a provision for maximizing
time the behavioral health staff is working with students during the
time students are in the dorms, especially on weekends. Another
commenter stated that we should amend Sec. 36.82 to require that
behavioral health staff provide services outside the academic school
day except in emergencies and provide that schools have the necessary
staff to handle emergency situations. The commenter suggested that
behavioral health staff may observe students in their academic
environment.
Response: In response to these comments, we revised Sec. 36.82.
Section 36.83 How Many Hours Can a Student be Taken Out of the Academic
Setting to Receive Behavioral Health Services?
Comment: A commenter suggested that Sec. 36.83 be clarified so
that schools may not use behavioral health staff outside their intended
services.
Response: We considered the comment and addressed the suggested
changes in Sec. 32.82.
Comment: A commenter recommended that we amend Sec. 36.83 to
provide that students not be taken out of the academic setting to
receive behavioral health services unless it is an emergency and to
provide that schools have their own behavioral health professionals.
The commenter recommended that Licensed Practicing Counselors not have
a caseload of students. Another commenter recommended revising Sec.
36.83 to state: ``should not spend more than'' rather than ``may spend
no more than'' in order to provide staff the needed flexibility to
appropriately address each student's individual needs and provide
necessary services.
Response: We considered these comments and made changes consistent
with the other comments on this section.
Section 36.84 Can a Program Hire or Contract or Acquire by Other Means
Behavioral Health Professionals to Meet Staffing Requirements?
Comment: A commenter recommended that Sec. 36.84 provide that
instructional time be guarded. Each student should be able to go
through an initial screening provided by the counselors.
Response: We considered this comment, but no change to the rule is
necessary.
Comment: A commenter recommended delaying implementation of
behavioral staff license requirement until additional appropriations
are obtained and recommended revising Sec. 36.84, paragraph (b) by
changing ``and'' to ``or.''
Response: We accepted this comment and changed the rule.
Comment: A commenter recommended that more instruction be provided
so BIE-operated and grant/contract school programs can strategize with
one another to maximize services to students and minimize the cost of
services. In some locations distance is a factor and highly qualified
people are in extreme demand and few agree to travel long distances
and/or agree to provide services to a large number of identified
students. Restrictions imposed by preferences of authority hinder
meeting the needs of students. Schools must have strong working
relationships.
Response: We revised this section to allow tribes and schools to
work together to provide these services to students.
Section 36.85 Is a Nurse Required To Be Available in the Evenings?
Comment: A commenter recommended that we amend Sec. 36.85 to
require that nursing staff be on campus not only during the academic
hours, but also outside of academic hours because more accidents are
going to happen outside of academic hours. Another commenter
recommended making the requirement in Sec. 36.85 for having a RN or
LPN available in the evenings when enrolment is over 300 mandatory.
Response: The committee considered the response but rejected it.
Section 36.86 Are There Staff Training Requirements?
Comment: A commenter agreed with the increase in educational
requirements for new staff and homeliving managers and supervisors in
Sec. 36.86.
Response: We made no change to Sec. 36.86 because the comment
required no change.
Comment: A commenter stated that in Sec. 36.86 (a)(4)
confidentiality should follow the Family Education Right to Privacy
Act, not just the Health Information Privacy Act.
Response: We considered the comment and revised Sec. 36.86(a)(4).
Comment: A commenter recommended inserting ``surrogate'' before
``parent training'' in Sec. 36.86(b)(4) because staff serves as
surrogate parents in residential settings.
Response: We accepted the idea behind the comment and changed Sec.
36.86(b)(4) to read:
(4) Parenting skills/child care.
Comment: A commenter recommended revising the question in Sec.
36.86 as follows: ``Are there homeliving staff training requirements?''
Response: We considered this comment and revised the section text,
but not the title. To be more inclusive, the section states that all
homeliving program staff and employees that supervise students
participating in homeliving services and activities must have
appropriate certification or requirements and receive annual training
in specified topics.
Comment: A commenter suggested that the first paragraph in Sec.
36.86, which applies to training that is ``appropriate to the
certification and licensing requirements,'' is erroneous since none of
the required training will result in licensing or certification, except
in First Aid or CPR. Homeliving staff is not required to be licensed or
certified (Sec. 36.75). The commenter recommended that this section be
revised to provide flexibility so that residential programs may
determine the frequency and timing of training as appropriate to their
situations, including providing for refresher sessions for returning
staff and training that may be completed over a 2- or 3-year period
(lessening the financial impact) or more frequently as new developments
occur (such as new or revised policy).
Another commenter suggested correcting the cite to ``Health
Information Patient Privacy Act'' to ``Health Insurance Portability and
Accountability Act of 1996'' in Sec. 36.86(a)(4).
A commenter suggested changing the title in Sec. 36.86(a)(7) to
``Child Abuse
[[Page 68496]]
Reporting Requirements and Protection Procedures.''
Another commenter recommended that in Sec. 36.86(b)(7) we clarify
the term ``child development'' or make the terms applicable only to
those residential programs with younger children in residence since
some residential programs serve only high school age students. If
paragraph (7) remains in this section, the commenter recommended adding
``if appropriate to the student ages served.''
Response: We considered these comments and made some changes based
upon them. We did not change the section title because changes that we
made in response to other comments made this unnecessary. Similarly,
other changes we made regarding licensure eliminated the need to
consider that suggestion. On the issue of training being only a
refresher for returning staff, the committee considered this issue in
its original deliberations and this comment raised no new issues.
Comment: A commenter suggested that Sec. 36.86 include a
recommendation that courses be provided on dealing with the tween, pre-
teen, and teenage adolescent years.
Response: We considered this comment, but these various
developmental stages are covered under the broader title of child
development. We revised this section to clarify this.
Section 36.90 What Recreation, Academic Tutoring, Student Safety and
Health Care Services Must Homeliving Programs Provide?
Comment: A commenter suggested clarifying in Sec. 36.90 what a
``homeliving program board'' is and whether it applies to schools with
peripheral dorms.
Response: We accepted the comment and changed Sec. 36.90 to read:
`` * * * as deemed necessary by the local school board or homeliving
program board.''
Comment: A commenter suggested that if staff are required to
provide these services in Sec. 36.90, it should be required that
students be assigned to participate in the service schedule.
Response: We considered this comment, but it is not something that
should be addressed in regulations.
Comment: A commenter recommended that in Sec. 36.90 we require
that library and computer program requirements must be met in the
dormitory facility because of the staff-to-student ratio, individual
student needs, and academic needs in all subject areas and age/grade
levels.
Response: These issues are addressed in Sec. 36.102.
Section 36.91 What Are the Program Requirements for Behavioral Health
Services?
Comment: A commenter suggested that requirements that a reiteration
of the Intensive Residential Guidance program elements in Sec. 36.91
is unnecessary because the IRG program was eliminated. Also, costs
associated with some of the required services are prohibitive and not
all students will require each of the enumerated services. The
commenter recommended that this section be revised as follows: `` * * *
behavioral health program must include the following services as
needed:''
Response: We considered this comment and clarified the rule to
provide that the homeliving program should have the capacity to provide
these services.
Section 36.92 Are There Any Activities That Must be Offered by a
Homeliving Program?
Comment: A commenter recommended that we clarify Sec. 36.92(a) by
providing a requirement for one hour of scheduled, structured physical
activity Monday through Thursday instead of through Friday since many
residential programs dismiss students on Friday through Sunday. The
commenter recommended requiring two hours total of physical or
recreational activities for those present in the dorm on the weekend.
Another commenter suggested revising Sec. 36.92(b) to allow each
tribe/school to decide whether to offer and to decide the content of
any of these topics to ensure consistency with local community values.
Response: We accepted the comment regarding Monday through Thursday
physical activity and changed the rule to reflect this. We partially
accepted the suggestion regarding personal wellness, excluding the idea
of consistency with tribal mores, since it is implicit in the ability
to design a wellness program and some schools, such as off-reservation
boarding schools, may not have local tribal mores.
Comment: A commenter recommended changing Sec. 36.92(e) to refer
to activities as ``personal wellness,'' since mandating ``character''
and ``sex education'' may not be congruent with the local values or
belief systems of the community.
Response: We accepted the comment and modified Sec. 36.92(e).
Comment: A commenter recommended deleting the term ``structures''
in Sec. 36.92 since it is not clear whether a lesson plan is required
or students may pick from a choice of activities.
Response: We considered this comment, but did not modify the rule.
The goal of the committee was to have a structured organized physical
activity without a program goal or plan. We believe that the term
``structure'' adequately connotes this.
Section 36.93 Is a Homeliving Handbook Required?
Comment: A commenter suggested that in Sec. 36.93 we add the terms
``school board approval.''
Response: We considered the comment and found the comment
unpersuasive. Therefore, we made no change to the regulations.
Comment: A commenter recommended revising Sec. 36.93 by requiring
that the home living handbook be provided rather than referring to
student rights and responsibilities and requiring that the handbook be
provided during the first week the students are in residence rather
than before the first day of school.
Response: We accepted this comment and revised the section
accordingly.
Comment: A commenter recommended changing ``school staff'' to
``homeliving staff'' or ``residential staff'' in Sec. 36.93(d).
Response: We considered limiting circulation of the handbook only
to homeliving staff. However, we believe that all staff should receive
a copy of the handbook.
Section 36.94 What Must a Homeliving Handbook Contain?
Comment: Commenters recommended the following changes to Sec.
36.94: revise (i) to read ``Personnel and position listing or a copy of
the residential staff organizational chart''; revise
(l) to ``Transportation Policy and Procedures''; revise (o) to read
``Drug, Alcohol and Tobacco Products Policy'' and revise (q) to read:
``Medication Administration Policy.''
Response: We made several of the suggested changes, but did not
require an organizational chart or transportation procedures. We do not
see the need for requiring an organizational chart. The rule requires
transportation policies, not procedures.
Comment: A commenter suggested that we add drug/alcohol policy and
consequences and move up its priority in Sec. 36.94.
Response: We accepted part of the comment and revised Sec.
36.94(o) to read ``drug/alcohol policy.'' We rejected the rest of the
comment because the list is a list of all items that must be included
in the handbook and is not a priority list. Therefore, we did not make
the change to the regulations.
[[Page 68497]]
Section 36.95 What Sanitary Standards Must Homeliving Programs Meet?
Comment: A commenter recommended changing the term ``rooms'' to
``dorm rooms'' for clarification in Sec. 36.95, and adding ``unless
need arises sooner'' at the end of paragraph (c). A commenter
recommended that Sec. 36.95(d) and (e) be revised to read that linens
and toiletries ``may be provided as needed.''
Response: We considered this change, but did not revise the rule
because the existing is adequate.
Comment: A commenter recommended that Sec. 36.95 require that
dorms pass inspection by some entity, and that each site be visited at
least once in five years to verify that health, safety and standards
are met.
Response: We considered this comment and made no change because
health and safety inspection requirements vary by locality.
Section 36.96 May Students Be Required to Assist With Daily or Weekly
Cleaning?
Comment: A commenter noted that in Sec. 36.96 students should be
required to assist in cleaning the dorm.
Response: We considered the comment, but made no change because
that rule already provides for students to assist with cleaning.
Comment: A commenter suggested we add a provision to Sec. 36.96
for cleaning and maintaining a healthy environment by dorm staff as
role models for students.
Response: We considered the comment and rejected it including any
additional provisions on cleaning in Sec. 36.96.
Section 36.97 What Basic Requirements Must a Program's Health Services
Meet?
Comment: A commenter recommended revising Sec. 36.97(a) to also
allow for agreements between a tribe or tribal school board and IHS.
Response: We accepted this comment and changed the rule
accordingly.
Section 36.98 Must the Homeliving Program Have an Isolation Room for
Ill Children?
Comment: A commenter recommended modifying Sec. 36.98 to require
that a sickroom be available, but space does not have to be dedicated
to this use only. Another commenter recommended rewriting the question
in Sec. 36.98 to read: ``Must the homeliving program provide special
accommodations for ill children?'' Using the singular reference to ``an
isolation room,'' coupled with the first sentence and the second
sentence could cause confusion as to whether one or two rooms are
required.
Response: We considered these comments and made appropriate changes
to the rule.
Section 36.100 Are There Minimum Requirements for Student Attendance
Checks?
Comment: A commenter recommended revising Sec. 36.100(d) to state
that night time physical checks will be made once every hour, except
high school student rooms which will be checked every two hours.
Response: We considered the comment, but did not change the rule.
High school students are just as likely, or even more likely, to be out
of their rooms at night.
Comment: A commenter recommended revising Sec. 36.100(f) to make
it applicable only when residential staff knows that a student will be
absent from school.
Response: We accepted this comment and changed the rule
accordingly.
Comment: A commenter suggested that Sec. 36.100 provide that each
child accepted into the dorm should agree to undergo drug and alcohol
screening if needed.
Response: We considered the comment and made no change to the rule.
Schools should develop their own drug and alcohol policies.
Section 36.102 What Student Resources Must be Provided by A Homeliving
Program?
Comment: A commenter recommended that we clarify the terms
``library resources'' and ``reasonable access'' in Sec. 36.102.
Response: We considered the comment, but found no change to the
rule necessary.
Comment: A commenter recommended adding at the beginning of Sec.
36.102(b): ``To the extent the student does have their own * * *''
Response: We considered the comment, but made no change, as the
committee believes it is in the best interest of students to have
textbooks available after hours.
Section 36.110 Must Programs Provide Space for Storing Personal
Effects?
Comment: A commenter recommended adding the following after the
first sentence in Sec. 36.110: ``This requirement is met if a
residential room door can be locked'' because some residential
facilities will have difficulty meeting the lockable storage space
requirement due to space limitations and/or age of the facility.
Response: We considered this comment, but made no change. The
committee wanted the students to have one lockable space, such as a
drawer, closet, or storage bin.
Section 36.111 Can a Tribe, Tribal Governing Body, or Local School
Board Waive the Homeliving Standards?
Comment: A commenter suggested that in Sec. 36.111 we clarify how
60 days are calculated and recommended that a school board or tribal
body submit a proposed waiver by January 1 of the year preceding
implementation in order to provide time for revisions and for starting
the year with alternative standards in place.
Response: We considered the comment and rejected it in part because
the regulatory section is based on statutory language. We accepted some
of the comment and made the following changes:
A tribal governing body or local school board may waive some or all
of the standards established in this part by adopting a written
resolution that determines that the standards are inappropriate for the
needs of the tribe's students. The approved alternative standards are
effective on the first day of the following school year.
Section 36.112 What Are the Consequences for Failing to Meet the
Requirements of This Part?
Comment: A commenter suggested adding a new question after Sec.
36.112: ``What happens to a school that does not meet these
standards?''
Response: We considered the comment, but made no changes because
this question is limited to whether the school can be closed or
consolidated for failing to meet these standards and not for other
reasons that are addressed in other regulations.
Section 36.120 What Type of Reporting Is Required to Ensure
Accountability?
Comment: A commenter recommended that we identify a specific time
for reporting enrolment figures in Sec. 36.120.
Response: We accepted the comment and revised Sec. 36.120(c) and
(d).
Comment: A commenter recommended adding a requirement in Sec.
36.120 that the report be filed 45 days after the end of the school
year and a statement that the accountability report is the only report
a residential program is required to file.
Response: We accepted the suggestions to add a 45-day filing
period.
[[Page 68498]]
Comment: A commenter recommended adding a provision in Sec. 36.120
to require that the report also be submitted to the Division of
Residential Life in BIE.
Response: We did not accept this comment. The BIE already receives
the report, and there is no reason to require in the rule that the
report go to a particular division within the office.
III. Procedural Matters
A. Regulatory Planning and Review (E.O. 12866)
This document is a significant rule and the Office of Management
and Budget (OMB) has reviewed the rule under Executive Order 12866.
(1) This rule will not have an effect of $100 million or more on
the economy. It will not adversely affect in a material way the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities. The rule deals exclusively with homeliving programs and is
not expected to have a significant effect on budgets.
(2) This rule will not create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency. This rule
has been prepared in consultation with the U.S. Department of
Education.
(3) This rule does not alter the budgetary effects of entitlements,
grants, user fees, or loan programs or the rights or obligations of
their recipients. This rule spells out student rights, the procedures
for their dissemination, and the procedures for implementing them. The
rule is not expected to have a significant effect on budgets.
(4) Office of Management and Budget has determined that this rule
raises novel legal or policy issues. For this reason review is required
under E.O. 12866.
B. Regulatory Flexibility Act
The Department of the Interior certifies that this document will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
C. Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. Nothing in the rule proposes rules of
private property rights, constitutional or otherwise, or invokes the
Federal condemnation power or alters any use of Federal land held in
trust. The focus of this rule is homeliving programs. A takings
implication assessment is not required.
D. Federalism (E.O. 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Assessment. Nothing in this rule has substantial direct
effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government. This rule does
not implicate State government. A Federalism Assessment is not
required.
E. Consultation With Indian Tribes (E.O. 13175)
In accordance with Executive Order 13175, we have identified
potential effects on federally recognized Indian tribes that will
result from this rule. Accordingly: (1) We have consulted with the
affected tribe(s) on a government-to-government basis. The
consultations have been open and candid to allow the affected tribe(s)
to fully evaluate the potential effect of the rule on trust resources.
(2) We have fully considered tribal views in drafting this final rule.
(3) We have consulted with the appropriate bureaus and offices of the
Department about the political effects of this rule on Indian tribes.
The BIE and the Office of the Assistant Secretary--Indian Affairs have
been consulted.
F. Paperwork Reduction Act
This rulemaking requires information collection from 10 or more
parties and a submission under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) is required. Accordingly, the Department prepared
submissions on these collections for review and approval by OMB. Having
reviewed the Department's submissions, along with any comments that
were submitted by the reviewing public, OMB has approved the
information collection requirements in this rulemaking and has assigned
the OMB control number 1076-0164. In addition to this number, the
information collections in part 39 are also covered by OMB control
numbers 1076-0134 and 1076-0122.
The information collected will be used to enable the Bureau to
better administer Bureau-funded schools subject to this rulemaking. In
all instances, the Department has striven to lessen the burden on the
public and ask for only information essential to administering the
responsibility to federally recognized tribes. The public may make
additional comments on the accuracy of our burden estimates (which are
explained in detail in the preamble to the proposed rule published on
February 25, 2004, at 69 FR 8752) and any suggestions for reducing this
burden to the OMB Interior Desk Officer, Docket Number 1076-AE49,
Office of Information and Regulatory Affairs, 202/395-6566 (facsimile);
email: OIRA_DOCKET@omb.eop.gov.
G. National Environmental Policy Act
This rule does not constitute a major Federal action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 is not required.
H. Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Department has
determined that this rule does not unduly burden the judicial system
and meets the requirements of sections 3(a) and 3(b)(2) of the Order.
List of Subjects in 25 CFR Part 36
Indians--Education, Schools, Elementary and secondary education
programs, grant programs--Indians, Government programs--education.
Dated: October 19, 2007.
Carl J. Artman,
Assistant Secretary--Indian Affairs.
0
For the reasons given in the preamble, part 36 of Title 25 of the Code
of Federal Regulations is amended by revising subpart G to read as
follows:
PART 36--MINIMUM ACADEMIC STANDARDS FOR THE BASIC EDUCATION OF
INDIAN CHILDREN AND NATIONAL CRITERIA FOR DORMITORY SITUATIONS
Subpart G--Homeliving Programs
Sec.
Sec. 36.70 What terms do I need to know?
Sec. 36.71 What is the purpose of this part?
Staffing
Sec. 36.75 What qualifications must homeliving staff possess?
Sec. 36.76 Who is in charge of all homeliving operations?
Sec. 36.77 What are the homeliving staffing requirements?
Sec. 36.78 What are the staffing requirements for homeliving
programs offering less than 5 nights service?
Sec. 36.79 What are the homeliving behavioral staff/student ratio
requirements?
Sec. 36.80 If a school has separated boys' and girls' homeliving
programs, may the same behavioral staff be used for each program?
Sec. 36.81 May a homeliving program use support staff or teachers
to meet behavioral health staffing requirements?
Sec. 36.82 May behavioral health staff provide services during the
academic school day?
[[Page 68499]]
Sec. 36.83 How many hours can a student be taken out of the
academic setting to receive behavioral health services?
Sec. 36.84 Can a program hire or contract or acquire by other means
behavioral health professionals to meet staffing requirements?
Sec. 36.85 Is a nurse required to be available in the evenings?
Sec. 36.86 Are there staff training requirements?
Program Requirements
Sec. 36.90 What recreation, academic tutoring, student safety and
health care services must homeliving programs provide?
Sec. 36.91 What are the program requirements for behavioral health
services?
Sec. 36.92 Are there any activities that must be offered by a
homeliving program?
Sec. 36.93 Is a homeliving handbook required?
Sec. 36.94 What must a homeliving handbook contain?
Sec. 36.95 What sanitary standards must homeliving programs meet?
Sec. 36.96 May students be required to assist with daily or weekly
cleaning?
Sec. 36.97 What basic requirements must a program's health services
meet?
Sec. 36.98 Must the homeliving program have an isolation room for
ill children?
Sec. 36.99 Are immunizations required for residential program
students?
Sec. 36.100 Are there minimum requirements for student attendance
checks?
Sec. 36.101 How often must students who have been separated for
emergency health or behavioral reasons be supervised?
Sec. 36.102 What student resources must be provided by a homeliving
program?
Sec. 36.103 Are there requirements for multipurpose spaces in
homeliving programs?
Privacy
Sec. 36.110 Must programs provide space for storing personal
effects?
Waivers and Accountability
Sec. 36.111 Can a tribe, tribal governing body or local school
board waive the homeliving standards?
Sec. 36.112 Can a homeliving program be closed, transferred,
consolidated, or substantially curtailed for failure to meet these
standards?
Sec. 36.120 What type of reporting is required to ensure
accountability?
Subpart G--Homeliving Programs
Authority: 25 U.S.C. 13; 25 U.S.C. 2008; Pub. L. 107-110 (115
Stat. 1425).
Sec. 36.70 What terms do I need to know?
The following definitions apply to this subpart:
Behavioral health professional means a State licensed or State
certified Social Worker, School Counselor, Drug and Alcohol Counselor,
School Psychologist, or School Psychometrist responsible for
coordinating a broad range of needs including:
(1) Support groups;
(2) Individual counseling;
(3) Crisis intervention;
(4) Preventive activities; and
(5) Coordination of referrals and outside services with appropriate
providers.
Behavioral Health Program means a homeliving based service designed
to decrease barriers to learning or increase positive, personal well-
being by:
(1) Providing early intervention services, coordinating crisis
intervention and prevention services;
(2) Promoting a positive social and emotional environment;
(3) Reducing the incidence of problems; and
(4) Referring students with behavioral needs that require
professional medical care to an appropriate residential care facility.
Behavioral health services means the services provided by a school
behavioral health program as defined in this section.
Homeliving Manager means the employee responsible for direct
supervision of the homeliving program staff and students.
Homeliving Program means a program that provides room and board in
a boarding school or dormitory to residents who are either:
(1) Enrolled in and are current members of a public school in the
community in which they reside; or
(2) Members of the instructional program in the same boarding
school in which they are counted as residents and:
(i) Are officially enrolled in the residential program of a Bureau-
operated or funded school; and
(ii) Are actually receiving a homeliving program provided to all
students who are provided room and board in a boarding school or
dormitory.
Homeliving Program Staff means the employee(s) responsible for
direct supervision of students in the homeliving area.
Homeliving Supervisor means the employee with overall
administrative responsibility for supervising students, programs, and
personnel in the homeliving area.
Sec. 36.71 What is the purpose of this part?
The purpose of this part is to establish standards for homeliving
programs.
Staffing
Sec. 36.75 What qualifications must homeliving staff possess?
(a) Homeliving staff must possess the qualifications shown in the
following table:
------------------------------------------------------------------------
Position Required training
------------------------------------------------------------------------
(1) Homeliving Supervisor.... Must be qualified based on size and
complexity of the school, but at minimum
possess a bachelor's degree.
(2) Homeliving Manager....... Must be qualified based on the size and
complexity of the student body but must
at a minimum have an associate's degree
no later than 2008.
(3) Homeliving Program Staff. Must have at least 32 post-secondary
semester hours (or 48 quarter hours) in
an applicable academic discipline,
including fields related to working with
children, such as, child development,
education, behavioral sciences and
cultural studies.
------------------------------------------------------------------------
(b) A person employed as a homeliving program staff:
(1) Should meet the requirements of paragraph (a) of this section
by the 2009-2010 school year; and
(2) May, upon showing good cause, petition the school supervisor
(or the homeliving supervisor for peripheral dorms) for a waiver from
the new qualifications.
Sec. 36.76 Who is in charge of all homeliving operations?
One staff member who has the authority to ensure the successful
functioning of all phases of the homeliving program should be
designated as in charge of all homeliving operations. All staff should
be advised of the lines of authority through an organizational chart
approved by the local board responsible for operations of the
homeliving program.
Sec. 36.77 What are the homeliving staffing requirements?
Homeliving programs must meet the staffing requirements of this
section.
(a) Effective with the 2009-2010 school year, each homeliving
program must maintain the following student minimum supervisory
requirements on weekdays:
[[Page 68500]]
------------------------------------------------------------------------
Grade level Time of day Ratio
------------------------------------------------------------------------
Elementary (Grade 1-6).......... Morning........... 1:20.
During school..... As school needs.
Evening........... 1:20.
Night............. 1:40.
High School (Gr. 7-12).......... Morning........... 1:20.
During school As school needs.
Evening........... 1:30.
Night............. 1:50.
------------------------------------------------------------------------
(b) The following staffing ratios apply on weekends:
------------------------------------------------------------------------
Grade level Time of day Ratio
------------------------------------------------------------------------
Elementary (Grade 1-6)...... Morning/day......... 1:20.
Evening............. 1:20.
Night............... 1:40.
High School (Gr. 7-12)...... Morning/day......... 1:40.
Evening............. 1:40.
Night............... 1:50.
------------------------------------------------------------------------
Sec. 36.78 What are the staffing requirements for homeliving programs
offering less than 5 nights service?
For homeliving programs providing less than 5 nights service, the
staffing levels from Sec. 36.77 apply. To fill this requirement, the
program must use only employees who work a minimum of 20 hours per
week.
Sec. 36.79 What are the homeliving behavioral professional staff/
student ratio requirements?
Behavioral health professional(s) is necessary in homeliving
programs to address issues, such as abuse, neglect, trauma, cultural
conflict, and lack of school success. Each homeliving program must
provide a minimum of one half-time behavioral health professional for
every 50 students.
(a) The program may fill the staffing requirements of this section
by using contract services, other agencies (including the Indian Health
Service) or private/nonprofit volunteer service organizations.
(b) Off-reservation homeliving programs should consider providing
one full-time behavioral health professional for every 50 students.
(c) For purposes of this section, a one half-time behavioral health
professional is one that works for the homeliving program a minimum of
20 hours per week.
(d) For purposes of this section, in instances where the behavioral
health services are obtained through other programs, the behavioral
health professional must be available at the request of the homeliving
program.
Sec. 36.80 If a school or dormitory has separated boys' and girls'
homeliving programs, may the same behavioral professional be used for
each program?
Yes, a program may use the same behavioral professional for both
boys' and girls' programs. However, behavioral health staffing
requirements are based on the combined enrollment during the homeliving
count period.
Sec. 36.81 May a homeliving program use support staff or teachers to
meet behavioral health staffing requirements?
No, a homeliving program must not use support staff or teachers to
meet behavioral health staffing requirements. The only exception is if
the individual support staff employee or teacher has the appropriate
behavioral health license or certification.
Sec. 36.82 May behavioral health professional(s) provide services
during the academic school day?
Behavioral health professional(s) must average at least 75 percent
of their work hours with students in their dormitories. These work
hours must occur outside of the academic school day, except in
emergency situations as deemed by the administrative head of the
homeliving program or designee. The purpose of this requirement is to
maximize contact time with students in their homeliving setting.
Sec. 36.83 How many hours can a student be taken out of the academic
setting to receive behavioral health services?
A student may spend no more than 5 hours per week out of the
academic setting to receive behavioral health services from the
homeliving behavioral health professional(s), except for emergency
situations.
Sec. 36.84 Can a program hire or contract or acquire by other means
behavioral health professionals to meet staffing requirements?
A program may hire or contract behavioral health professionals to
meet staffing requirements or acquire such services by other means such
as through a Memorandum of Understanding with other programs.
(a) At least one individual must be a licensed or certified school
counselor or a social worker who is licensed/certified to practice at
the location where the services are provided.
(b) For additional staffing, other individuals with appropriate
certifications or licenses are acceptable to meet staffing
requirements.
Sec. 36.85 Is a nurse required to be available in the evenings?
No, a program is not required to make a nurse (LPN or RN) available
in the evenings. However, this is encouraged for homeliving programs
with an enrollment greater than 300 or for programs that are more than
50 miles from available services.
Sec. 36.86 Are there staff training requirements?
(a) All homeliving program staff as well as all employees that
supervise students participating in homeliving services and activities
must have the appropriate certification or licensing requirements up to
date and on file. Programs must provide annual and continuous
professional training and development appropriate to the certification
and licensing requirements.
(b) All homeliving program staff as well as all employees who
supervise students participating in homeliving services and activities
must receive annual training in the topics set out in this section
before the first day of student occupancy for the year.
(1) First Aid/Safety/Emergency & Crisis Preparedness;
(2) CPR--Automated External Defibrillator;
(3) Student Checkout Policy;
(4) Confidentiality (Health Information Privacy Act and the Family
Education Right to Privacy Act.);
(5) Medication Administration;
(6) Student Rights;
(7) Child Abuse Reporting Requirements and Protection Procedures;
and
(8) Suicide Prevention.
[[Page 68501]]
(c) Homeliving staff as well as all employees that supervise
students participating in homeliving services and activities must be
given the following training annually:
(1) De-escalation/Conflict Resolution;
(2) Substance Abuse Issues;
(3) Ethics;
(4) Parenting skills/Child Care;
(5) Special Education and Working with Students with Disabilities;
(6) Student Supervision Skills;
(7) Child Development (recognizes various stages of development in
the student population);
(8) Basic Counseling Skills; and
(9) Continuity of Operations Plan (COOP).
Program Requirements
Sec. 36.90 What recreation, academic tutoring, student safety, and
health care services must homeliving programs provide?
All homeliving programs must provide for appropriate student
safety, academic tutoring, recreation, and health care services for
their students, as deemed necessary by the local school board or
homeliving board.
Sec. 36.91 What are the program requirements for behavioral health
services?
(a) The homeliving behavioral health program must make available
the following services:
(1) Behavioral Health Screening/Assessment;
(2) Diagnosis;
(3) Treatment Plan;
(4) Treatment and Placement;
(5) Evaluation; and
(6) Record of Services (if applicable, in coordination with the
student's Individual Education Plan).
(b) Each homeliving behavioral health program must have written
procedures for dealing with emergency behavioral health care issues.
(c) Parents or guardians may opt out of any non-emergency
behavioral health services by submitting a written request.
(d) Parents or guardians must be consulted before a child is
prescribed behavioral health.
(e) Medication in a non-emergency situation.
Sec. 36.92 Are there any activities that must be offered by a
homeliving program?
Yes, a homeliving program must make available the following
activities:
(a) One hour per day of scheduled, structured physical activity
Monday through Thursday, and two hours of scheduled physical activities
on the weekends for any students who are in residence on the weekends;
(b) One hour per day of scheduled, structured study at least four
days per week for all students, and additional study time for students
who are failing any classes;
(c) Tutoring during study time;
(d) Native language or cultural activities; and
(e) Wellness program that may include character, health, wellness,
and sex education.
Sec. 36.93 Is a homeliving handbook required?
Yes, each program must publish a homeliving handbook, which may be
incorporated into a general student handbook. During the first week the
students and staff are in the dormitory, the homeliving program must:
(a) Provide each student with a copy of the handbook that contains
all the provisions in Sec. 36.94;
(b) Provide all staff, students, and parents or guardians with a
current and updated copy of student rights and responsibilities;
(c) Conduct an orientation for all students on the handbook and
student rights and responsibilities; and
(d) Ensure that all students, school staff, and to the extent
possible, parents and guardians confirm in writing that they have
received a copy of and understand the homeliving handbook.
Sec. 36.94 What must a homeliving handbook contain?
A homeliving handbook must contain all of the following, and may
include additional information:
(a) Mission/Vision Statement;
(b) Discipline Policy;
(c) Parent/Student Rights and Responsibilities;
(d) Confidentiality;
(e) Sexual Harassment Policy;
(f) Violence/Bullying Policy;
(g) Homeliving Policies and Procedures;
(h) Services Available;
(i) Personnel and Position Listing;
(j) Emergency Procedures and Contact Numbers;
(k) Bank Procedures;
(l) Transportation Policy;
(m) Check-Out Procedures;
(n) Dress Code;
(o) Drug/Alcohol Policy;
(p) Computer Usage Policy;
(q) Medication Administration Policy and Procedure; and
(r) Isolation/Separation Policy.
Sec. 36.95 What sanitary standards must homeliving programs meet?
Each homeliving program must meet all of the following standards:
(a) Restrooms, showers, and common areas must be cleaned daily;
(b) Rooms must be cleaned daily;
(c) Linens must be changed and cleaned weekly;
(d) Linens are to be provided;
(e) Basic Toiletries must be provided; and
(f) Functional washing machines and dryers must be provided.
Sec. 36.96 May students be required to assist with daily or weekly
cleaning?
Yes, students can be required to assist with daily or weekly
cleaning. However, the ultimate responsibility of cleanliness rests
with the homeliving supervisor and local law or rules regarding
chemical use must be followed.
Sec. 36.97 What basic requirements must a program's health services
meet?
(a) A homeliving program must make available basic medical, dental,
vision, and other necessary health services for all students residing
in the homeliving program, subject to agreements between the BIE and
the Indian Health Service or between a tribally-operated homeliving
program and the Indian Health Service or tribal health program.
(b) A homeliving program must have written procedures for dealing
with emergency health care issues.
(c) Parents or guardians may opt out of any non-emergency services
by submitting a written request.
(d) The homeliving supervisor or designee must act in loco parentis
when the parent or guardian cannot be found.
Sec. 36.98 Must the homeliving program have an isolation room for ill
children?
Yes, the homeliving program must have an isolation room(s)
available for ill students. The isolation room (or rooms, if needed)
must be made available for use by students with contagious conditions.
Contagious boys and girls should have separate rooms. The isolation
room(s) should have a separate access to shower and restroom
facilities. Students isolated for contagious illness must be supervised
as frequently and as closely as the circumstances and protocols
require, but at least every 30 minutes.
Sec. 36.99 Are immunizations required for residential program
students?
Each student must have all immunizations required by State, local,
or tribal governments before being admitted to a homeliving program.
Annual flu shots are not required, but are encouraged.
Sec. 36.100 Are there minimum requirements for student attendance
checks?
Yes, there are minimum requirements for student attendance checks
as follows:
[[Page 68502]]
(a) All students must be physically accounted for four times daily;
(b) Each count must be at least two hours apart;
(c) If students are on an off-campus activity, physical accounts of
students must be made at least once every two hours or at other
reasonable times depending on the activity;
(d) At night all student rooms should be physically checked at
least once every hour;
(e) If a student is unaccounted for, the homeliving program must
follow its established search procedures; and
(f) When homeliving staff is aware of a student who is going to be
absent from school, the homeliving program is required to notify the
school.
Sec. 36.101 How often must students who have been separated for
emergency health or behavioral reasons be supervised?
Students who have been separated for emergency behavioral or health
reasons must be supervised as frequently and as closely as the
circumstances and protocols require. No student will be left
unsupervised for any period until such factors as the student's health
based on a medical assessment, the safety of the student, and any other
applicable guidance for dealing with behavior or health emergencies are
considered.
Sec. 36.102 What student resources must be provided by a homeliving
program?
The following minimum resources must be available at all homeliving
programs:
(a) Library resources such as access to books and resource
materials, including school libraries and public libraries which are
conveniently available;
(b) A copy of each textbook used by the academic program or the
equivalent for peripheral dorms; and
(c) Reasonable access to a computer with Internet access to
facilitate homework and study.
Sec. 36.103 What are the requirements for multi-purpose spaces in
homeliving programs?
Homeliving programs must provide adequate areas for sleeping,
study, recreation, and related activities.
Privacy
Sec. 36.110 Must programs provide space for storing personal effects?
Yes, students are entitled to private personal spaces for storing
their own personal effects, including at least one lockable closet,
dresser drawer, or storage space. However, all drawers, dressers,
storage space, or lockable space are the property of the homeliving
program and are subject to random search.
Waivers and Accountability
Sec. 36.111 Can a tribe, tribal governing body, or local school board
waive the homeliving standards?
A tribal governing body or local school board may waive some or all
of the standards established by this part if the body or board
determines that the standards are inappropriate for the needs of the
tribe's students.
(a) If a tribal governing body or school board waives standards
under this section, it must, within 60 days, submit proposed
alternative standards to the Director, BIE.
(b) Within 90 days of receiving a waiver and proposal under
paragraph (a) of this section, the Director must either:
(1) Approve the submission; or
(2) Deliver to the governing body or school board a written
explanation of the good cause for rejecting the submission.
(c) If the Director rejects a submission under paragraph (c) of
this section, the governing body or school board may submit another
waiver and proposal for approval. The standards in this part remain in
effect until the Director approves alternative standards.
Sec. 36.112 Can a homeliving program be closed, transferred,
consolidated, or substantially curtailed for failure to meet these
standards?
No, a homeliving program cannot be closed, transferred to any other
authority, consolidated, or its programs substantially curtailed for
failure to meet these standards.
Sec. 36.120 What type of reporting is required to ensure
accountability?
The homeliving program must provide to the appropriate local school
board or alternative board such as a homeliving board, the tribal
governing body, BIE, and the Secretary of the Interior, an annual
accountability report within 45 days following the end of the school
year consisting of:
(a) Enrollment figures identified by the homeliving count period;
(b) A brief description of programs offered;
(c) A statement of compliance with the requirements of this part
and, if the program is not in compliance, recommendations for achieving
compliance; and
(d) Recommendations to improve the homeliving program including
identification of issues and needs.
[FR Doc. E7-23330 Filed 12-4-07; 8:45 am]
BILLING CODE 4310-6W-P
