150 Subpart A—Defining Adequate Yearly Progress

SUBCHAPTER E—EDUCATION

PART 30—ADEQUATE YEARLY Subpart C—Failure To Make Adequate PROGRESS (Eff. until 4–27–20) Yearly Progress 30.117 What happens if a Bureau-funded Sec. school fails to make AYP? 30.100 What is the purpose of this part? 30.118 May a Bureau-funded school present 30.101 What definitions apply to terms in evidence of errors in identification before this part? it is identified for school improvement, corrective action, or restructuring? Subpart A—Defining Adequate Yearly 30.119 Who is responsible for implementing Progress required remedial actions at a Bureau- funded school identified for school im- 30.102 Does the Act require the Secretary of provement, corrective action or restruc- the Interior to develop a definition of turing? AYP for Bureau-funded schools? 30.120 Are Bureau-funded schools exempt 30.103 Did the Committee consider a sepa- from school choice and supplemental rate Bureau definition of AYP? services when identified for school improvement, corrective action, and re- 30.104 What is the Secretary’s definition of structuring? AYP? 30.121 What funds are available to assist ALTERNATIVE DEFINITION OF AYP schools identified for school improvement, corrective action, or restruc- 30.105 Can a tribal governing body or school turing? board use another definition of AYP? 30.122 Must the Bureau assist a school it 30.106 How does a tribal governing body or identified for school improvement, cor- school board propose an alternative defi- rective action, or restructuring? nition of AYP? 30.123 What is the Bureau’s role in assisting 30.107 What must a tribal governing body or Bureau-funded schools to make AYP? school board include in its alternative 30.124 Will the Department of Education definition of AYP? provide funds for schools that fail to 30.108 May an alternative definition of AYP meet AYP? use parts of the Secretary’s definition? 30.125 What happens if a State refuses to allow a school access to the State assess- TECHNICAL ASSISTANCE ment?

30.109 Will the Secretary provide assistance Subpart D—Responsibilities and in developing an alternative AYP defini- Accountability tion? 30.110 What is the process for requesting 30.126 What is required for the Bureau to technical assistance to develop an alter- meet its reporting responsibilities? native definition of AYP? 30.150 Information Collection. 30.111 When should the tribal governing AUTHORITY: Public Law 107–110, 115 Stat. body or school board request technical 1425. assistance? SOURCE: 70 FR 22200, Apr. 28, 2005, unless APPROVAL OF ALTERNATIVE DEFINITION otherwise noted.

30.113 How does the Secretary review and EFFECTIVE DATE NOTE: At 85 FR 17020, Mar. approve an alternative definition of 26, 2020, part 30 was revised, effective Apr. 27, AYP? 2020. For the convenience of the user, the new part 30 follows the text of this part. Subpart B—Assessing Adequate Yearly Progress § 30.100 What is the purpose of this part? 30.114 Which students must be assessed? This part establishes for schools re- 30.115 Which students’ performance data ceiving Bureau funding a definition of must be included for purposes of AYP? ‘‘Adequate Yearly Progress (AYP).’’ 30.116 If a school fails to achieve its annual Nothing in this part: measurable objectives, what other methods may it use to determine whether it (a) Diminishes the Secretary’s trust made AYP? responsibility for Indian education or any statutory rights in law;

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(b) Affects in any way the sovereign § 30.103 Did the Committee consider a rights of tribes; or separate Bureau definition of AYP? (c) Terminates or changes the trust Yes, the Committee considered hav- responsibility of the United States to ing the Bureau of Indian Affairs de- Indian tribes or individual Indians. velop a separate Bureau definition of AYP. For a variety of reasons, the § 30.101 What definitions apply to Committee reached consensus on the terms in this part? definition in § 30.104. This definition is Act means the No Child Left Behind in no way intended to diminish the Act, Public Law 107–110, enacted Janu- United States’ trust responsibility for ary 8, 2002. The No Child Left Behind Indian education nor is it intended to Act reauthorizes and amends the Ele- give States authority over Bureau- mentary and Secondary Education Act funded schools. (ESEA) and amends the Education Amendments of 1978. § 30.104 What is the Secretary’s defini- Bureau means the Bureau of Indian tion of AYP? Affairs in the Department of the Inte- The Secretary defines AYP as fol- rior. lows. The definition meets the require- Department means the Department of ments in 20 U.S.C. 6311(b). the Interior. (a) Effective in the 2005–2006 school OIEP means the Office of Indian Edu- year, the academic content and student cation Programs in the Bureau of In- achievement standards, assessments, dian Affairs. and the definition of AYP are those of School means a school funded by the the State where the school is located, Bureau of Indian Affairs. unless an alternative definition of AYP Secretary means the Secretary of the is proposed by the tribal governing Interior or a designated representative. body or school board and approved by Secretaries means the Secretary of the the Secretary. Interior and the Secretary of Edu- (1) If the geographic boundaries of cation. the school include more than one State, the tribal governing body or school board may choose the State def- Subpart A—Defining Adequate inition it desires. Such decision shall Yearly Progress be communicated to the Secretary in writing. § 30.102 Does the Act require the Sec- (2) This section does not mean that retary of the Interior to develop a definition of AYP for Bureau-fund- the school is under the jurisdiction of ed schools? the State for any purpose, rather a reference to the State is solely for the Yes, the Act requires the Secretary purpose of using the State’s assess- to develop a definition of AYP through ment, academic content and student negotiated rulemaking. In developing achievement standards, and definition the Secretary’s definition of AYP, the of AYP. No Child Left Behind Negotiated Rule- (3) The use of the State’s definition making Committee (Committee) con- of AYP does not diminish or alter the sidered a variety of options. In choos- Federal Government’s trust responsi- ing the definition in § 30.104, the Com- bility for Indian education. mittee in no way intended to diminish (b) School boards or tribal governing the Secretary’s trust responsibility for bodies may seek a waiver that may in- Indian education or any statutory clude developing their own definition rights in law. Nothing in this part: of AYP, or adopting or modifying an (a) Affects in any way the sovereign existing definition of AYP that has rights of tribes; or been accepted by the Department of (b) Terminates or changes the trust Education. The Secretary is committed responsibility of the United States to to providing technical assistance to a Indian tribes or individual Indians. school, or a group of schools, to develop an alternative definition of AYP.

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ALTERNATIVE DEFINITION OF AYP (5) Measure progress separately for reading or language arts and for math- § 30.105 May a tribal governing body ematics; or school board use another defini- (6) Unless disaggregation of data can- tion of AYP? not yield statistically reliable informa- Yes. A tribal governing body or tion or reveals personally identifiable school board may waive all or part of information, apply the same annual the Secretary’s definition of academic measurable objectives to each of the content and achievement standards, as- following: sessments, and AYP. However, unless (i) The achievement of all students; an alternative definition is approved under § 30.113, the school must use the and Secretary’s definition of academic con- (ii) The achievement of economically tent and achievement standards, as- disadvantaged students, students from sessments, and AYP. major racial or ethnic groups, students with disabilities, and students with § 30.106 How does a tribal governing limited English proficiency; body or school board propose an al- (7) Establish a starting point; ternative definition of AYP? (8) Create a timeline to ensure that If a tribal governing body or school all students are proficient by the 2013– board decides that the definition of 2014 school year; AYP in § 30.104 is inappropriate, it may (9) Establish annual measurable ob- decide to waive all or part of the defi- jectives; nition. Within 60 days of the decision (10) Establish intermediate goals; to waive, the tribal governing body or (11) Include at least one other aca- school board must submit to the Sec- demic indicator which, for any school retary a proposal for an alternative with a 12th grade, must be graduation definition of AYP. The proposal must meet the requirements of 20 U.S.C. rate; and 6311(b) and 34 CFR 200.13–200.20, taking (12) Ensure that at least 95 percent of into account the unique circumstances the students enrolled in each group and needs of the school or schools and under § 30.107(b)(6) are assessed. the students served. (c) If a Bureau-funded school’s alternative definition of AYP does not use a § 30.107 What must a tribal governing State’s academic content and student body or school board include in its achievement standards and academic alternative definition of AYP? assessments, the school must include (a) An alternative definition of AYP with its alternative definition the aca- must meet the requirements of 20 demic standards and assessment it pro- U.S.C. 6311(b)(2) of the Act and 34 CFR poses to use. These standards and as- 200.13–200.20, taking into account the sessments must meet the requirements unique circumstances and needs of the in 20 U.S.C. 6311(b) and 34 CFR 200.1– school or schools and the students 200.9. served. (b) In accordance with 20 U.S.C. § 30.108 May an alternative definition 6311(b) of the Act and 34 CFR 200.13– of AYP use parts of the Secretary’s 200.20, an alternative definition of AYP definition? must: Yes, a tribal governing body or (1) Apply the same high standards of school board may take part of the Sec- academic achievement to all students; retary’s definition and propose to (2) Be statistically valid and reliable; waive the remainder. The proposed al- (3) Result in continuous and substantial academic improvement for all stu- ternative definition of AYP must, how- dents; ever, include both the parts of the Sec- (4) Measure the progress of all stu- retary’s AYP definition the tribal gov- dents based on a high-quality assess- erning body or school board is adopting ment system that includes, at a min- and those parts the tribal governing imum, academic assessments in mathe- body or school board is proposing to matics and reading or language arts; change.

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TECHNICAL ASSISTANCE APPROVAL OF ALTERNATIVE DEFINITION

§ 30.109 Will the Secretary provide as- § 30.113 How does the Secretary re- sistance in developing an alter- view and approve an alternative native AYP definition? definition of AYP? Yes, the Secretary through the Bu- (a) The tribal governing body or reau, shall provide technical assistance school board submits a proposed alter- either directly or through contract to native definition of AYP to the Direc- the tribal governing body or the school tor, OIEP within 60 days of its decision board in developing an alternative AYP to waive the Secretary’s definition. definition. A tribal governing body or (b) Within 60 days of receiving a pro- school board needing assistance must posed alternative definition of AYP, submit a request to the Director of OIEP will notify the tribal governing OIEP under § 30.110. In providing assist- body or the school board of: ance, the Secretary may consult with (1) Whether the proposed alternative the Secretary of Education and may definition is complete; and use funds supplied by the Secretary of (2) If the definition is complete, an Education in accordance with 20 U.S.C. estimated timetable for the final deci- 7301. sion. (c) If the proposed alternative defini- § 30.110 What is the process for re- tion is incomplete, OIEP will provide questing technical assistance to develop an alternative definition of the tribal governing body or school AYP? board with technical assistance to complete the proposed alternative defi- (a) The tribal governing body or nition of AYP, including identifying school board requesting technical as- what additional items are necessary. sistance to develop an alternative defi- (d) The Secretaries will review the nition of AYP must submit a written proposed alternative definition of AYP request to the Director of OIEP, speci- to determine whether it is consistent fying the form of assistance it requires. with the requirements of 20 U.S.C. (b) The Director of OIEP must ac- 6311(b). This review must take into ac- knowledge receipt of the request for count the unique circumstances and technical assistance within 10 days of needs of the schools and students. receiving the request. (e) The Secretaries shall approve the (c) No later than 30 days after receiv- alternative definition of AYP if it is ing the original request, the Director consistent with the requirements of 20 of OIEP will identify a point of con- U.S.C. 6311(b), taking into consider- tact. This contact will immediately ation the unique circumstances and begin working with the tribal gov- needs of the school or schools and the erning body or school board to jointly students served. develop the specifics of the technical assistance, including identifying the (f) If the Secretaries approve the al- form, substance, and timeline for the ternative definition of AYP: assistance. (1) The Secretary shall promptly notify the tribal governing body or school § 30.111 When should the tribal gov- board; and erning body or school board re- (2) The alternate definition of AYP quest technical assistance? will become effective at the start of In order to maximize the time the the following school year. tribal governing body or school board (g) The Secretaries will disapprove has to develop an alternative definition the alternative definition of AYP if it of AYP and to provide full opportunity is not consistent with the requirements for technical assistance, the tribal gov- of 20 U.S.C. 6311(b). If the alternative erning body or school board should re- definition is disapproved, the tribal quest technical assistance before for- governing body or school board will be mally notifying the Secretary of its in- notified of the following: tention to waive the Secretary’s defini- (1) That the definition is disapproved; tion of AYP. and

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(2) The reasons why the proposed al- able objectives and participation rate ternative definition does not meet the identified in §§ 30.107(b)(9) and requirements of 20 U.S.C. 6311(b). 30.107(b)(12) respectively, and the (h) If the Secretaries deny a proposed school meets the other academic indi- definition under paragraph (g) of this cators identified in § 30.107(b)(11). If a section, they shall provide technical school fails to achieve its annual meas- assistance to overcome the basis for urable objectives for any group identi- the denial. fied in § 30.107(b)(6), there are two other methods it may use to determine Subpart B—Assessing Adequate whether it made AYP: Yearly Progress (a) Method A—‘‘Safe Harbor.’’ Under ‘‘safe harbor,’’ the following require- § 30.114 Which students must be as- ments must be met for each group ref- sessed? erenced under § 30.107(b)(6) that does All students in grades three through not achieve the school’s annual meas- eight and at least once in grades ten urable objectives: through twelve who are enrolled in a (1) In each group that does not Bureau-funded school must be assessed. achieve the school’s annual measurable objectives, the percentage of students § 30.115 Which students’ performance who were below the ‘‘proficient’’ level data must be included for purposes of academic achievement decreased by of AYP? at least 10 percent from the preceding The performance data of all students school year; and assessed pursuant to § 30.114 must be in- (2) The students in that group made cluded for purposes of AYP if the stu- progress on one or more of the other dent is enrolled in a Bureau-funded academic indicators; and school for a full academic year as de- (3) Not less than 95 percent of the fined by the Secretary or by an ap- students in that group participated in proved alternative definition of AYP. the assessment. (b) Method B—Uniform Averaging Pro- § 30.116 If a school fails to achieve its cedure. A school may use uniform aver- annual measurable objectives, what aging. Under this procedure, the school other methods may it use to deter- may average data from the school year mine whether it made AYP? with data from one or two school years A school makes AYP if each group of immediately preceding that school students identified in § 30.107(b)(6) year and determine if the resulting av- meets or exceeds the annual measur- erage makes AYP.

Subpart C—Failure To Make Adequate Yearly Progress

§ 30.117 What happens if a Bureau-funded school fails to make AYP?

Number of yrs of failing to make AYP in same Status Action required by entity operating school for the following school year academic subject

1st year of failing AYP No status change ...... Analyze AYP data and consider consultation with outside experts. 2nd year of failing AYP School improvement, Develop a plan or revise an existing plan for school improvement in con- year one. sultation with parents, school staff and outside experts. 3rd year of failing AYP School Improvement, Continue revising or modifying the plan for school improvement in consulta- year two. tion with parents, school staff and outside experts. 4th year of failing AYP Corrective Action ...... Implement at least one of the six corrective actions steps found in 20 U.S.C. 6316(b)(7)(C)(iv). 5th year of failing AYP Planning to Restructure Prepare a restructuring plan and make arrangements to implement the plan. 6th year of failing AYP Restructuring ...... Implement the restructuring plan no later than the beginning of the school year following the year in which it developed the plan. 7th year (and beyond) Restructuring ...... Continue implementation of the restructuring plan until AYP is met for two of failing AYP. consecutive years.

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§ 30.118 May a Bureau-funded school (b) In allocating funds under this sec- present evidence of errors in identi- tion, the Bureau will give priority to fication before it is identified for schools that: school improvement, corrective ac- (1) Are the lowest-achieving schools; tion, or restructuring? (2) Demonstrate the greatest need for Yes. The Bureau must give such a funds; and school the opportunity to review the (3) Demonstrate the strongest com- data on which the bureau would iden- mitment to ensuring that the funds en- tify a school for improvement, and able the lowest-achieving schools to present evidence as set out in 20 U.S.C. meet progress goals in the school im- 6316(b)(2). provement plans. (c) Funds reserved under this section § 30.119 Who is responsible for imple- must not decrease total funding under menting required remedial actions title I, part A of the Act, for any school at a Bureau-funded school identi- below the level for the preceding year. fied for school improvement, cor- To the extent that reserving funds rective action or restructuring? under this section would reduce the (a) For a Bureau-operated school, im- title I, part A dollar amount of any plementation of remedial actions is the school below the amount of title I, part responsibility of the Bureau. A dollars the school received the pre- (b) For a tribally operated contract vious year, the Secretary is authorized school or grant school, implementation to reduce the title I, part A allocations of remedial actions is the responsi- of those schools receiving an increase bility of the school board of the school. in the title I, part A funds over the previous year to create the 4 percent re- § 30.120 Are Bureau-funded schools ex- serve. This section does not authorize a empt from offering school choice school to receive title I, part A dollars and supplemental educational serv- it is not otherwise eligible to receive. ices when identified for school improvement, corrective action, and (d) The Bureau will publish in the restructuring? FEDERAL REGISTER a list of schools receiving funds under this section. Yes, Bureau-funded schools are exempt from offering public school choice § 30.122 Must the Bureau assist a and supplemental educational services school it identified for school im- when identified for school improve- provement, corrective action, or re- ment, corrective action, and restruc- structuring? turing. Yes, if a Bureau-funded school is identified for school improvement, cor- § 30.121 What funds are available to rective action, or restructuring, the assist schools identified for school Bureau must provide technical or other improvement, corrective action, or restructuring? assistance described in 20 U.S.C. 6316(b)(4) and 20 U.S.C. 6316(g)(3) . From fiscal year 2004 to fiscal year 2007, the Bureau will reserve 4 percent § 30.123 What is the Bureau’s role in of its title I allocation to assist Bu- assisting Bureau-funded schools to reau-funded schools identified for make AYP? school improvement, corrective action, The Bureau must provide support to and restructuring. all Bureau-funded schools to assist (a) The Bureau will allocate at least them in achieving AYP. This includes 95 percent of funds under this section technical assistance and other forms of to Bureau-funded schools identified for support. school improvement, corrective action, and restructuring to carry out those § 30.124 Will the Bureau apply for schools’ responsibilities under 20 U.S.C. funds that are available to help 6316(b). With the approval of the school schools that fail to meet AYP? board the Bureau may directly provide Yes, to the extent that Congress ap- for the remedial activities or arrange propriates other funds to assist schools for their provision through other enti- not meeting AYP, the Bureau will ties such as school support teams or apply to the Department of Education educational service agencies. for these funds.

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§ 30.125 What happens if a State re- 30.104(b), 30.106, 30.107, 30.110, and 30.118. fuses to allow a school access to the These collections have been approved State assessment? by OMB under control number 1076– (a) The Department will work di- 0163. rectly with State officials to assist EFFECTIVE DATE NOTE: At 85 FR 17020, Mar. schools in obtaining access to the 26, 2020, part 30 was revised, effective Apr. 27, State’s assessment. This can include 2020. For the convenience of the user, the re- direct communication with the Gov- vised text is set forth as follows: ernor of the State. A Bureau-funded school may, if necessary, pay a State PART 30—STANDARDS, ASSESSMENTS, for access to its assessment tools and AND ACCOUNTABILITY SYSTEM (Eff. scoring services. 4–27–20) (b) If a State does not provide access to the State’s assessment, the Bureau- Sec. funded school must submit a waiver for 30.100 What is the purpose of this part? an alternative definition of AYP. 30.101 What definitions apply to terms in this part? Subpart D—Responsibilities and Subpart A—Standards, Assessments, and Accountability Accountability System Requirements 30.102 What does the Act require of the Sec- § 30.126 What is required for the Bu- retary? reau to meet its reporting respon- 30.103 How will the Secretary implement sibilities? Standards, Assessments and Account- The Bureau has the following report- ability System requirements? ing responsibilities to the Department 30.104 How will the Secretary implement re- of Education, appropriate Committees quirements for standards? of Congress, and the public. 30.105 How will the Secretary implement re- (a) In order to provide information quirements for academic content assess- about annual progress, the Bureau ments? must obtain from all Bureau-funded 30.106 How will the Secretary provide for the inclusion of all students in assess- schools the results of assessments ad- ments? ministered for all tested students, spe- 30.107 How will the Secretary include stu- cial education students, students with dents with disabilities in assessments? limited English proficiency, and dis- 30.108 How will the Secretary provide for al- seminate such results in an annual re- ternate assessments for students with port. the most significant cognitive disabil- (b) The Bureau must identify each ities? school that did not meet AYP in ac- 30.109 How will the Secretary include cordance with the school’s AYP defini- English learners in academic content as- tion. sessments? (c) Within its annual report to Con- 30.110 How will the Secretary ensure BIE- gress, the Secretary shall include all of funded schools will provide for annual assessments of English language pro- the reporting requirements of 20 U.S.C. ficiency for English learners? 6316(g)(5). 30.111 How will the Secretary implement requirements for an accountability sys- § 30.150 Information collection. tem? Notwithstanding any other provision of law, no person is required to respond Subpart B—Accountability, Waiver of Require- to, nor shall any person be subject to a ments, Technical Assistance, and Approval of Proposals for Alternative Requirements penalty for failure to comply with, a collection of information subject to the 30.112 May a tribal governing body or school requirements of the Paperwork Reduc- board waive the Secretary’s require- tion Act of 1995 (44 U.S.C. 3501 et ments for standards, assessments, and an accountability system? seq.)(PRA), unless that collection of in- 30.113 How does a tribal governing body or formation displays a currently valid school board waive the Secretary’s re- Office of Management and Budget quirements? (OMB) Control Number. This part in- 30.114 What should a tribal governing body volves collections of information sub- or school board include in a proposal for ject to the PRA in §§ 30.104(a)(1), alternative requirements?

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30.115 May proposed alternative require- tional materials, culturally appropriate ments use parts of the Secretary’s re- methodologies and teaching and learning quirements? strategies that will reinforce, preserve, and 30.116 Will the Secretary provide technical maintain Indian and Alaska Native lan- assistance to tribal governing bodies or guages, cultures, and histories which school school boards seeking to develop alter- boards, Tribes and Alaska Native entities native requirements? may utilize at their discretion. 30.117 What is the process for requesting (c) In carrying out activities under this technical assistance? part, the Secretary will be guided by the 30.118 When should the tribal governing policies stated in 25 CFR part 32. body or school board request technical assistance? § 30.101 What definitions apply to terms in 30.119 How does the Secretary review and this part? approve alternative requirements? Act means the Elementary and Secondary Education Act of 1965, as amended by the Subpart C—Support and Improvement Every Student Succeeds Act, Public Law 114– 30.120 How will the Secretary notify BIE- 95, enacted December 10, 2015. funded schools that they have been iden- Agency Plan means a BIE document that tified for school support and improve- will provide Indian Tribes, parents, and ment activities? stakeholders with quality, transparent infor- 30.121 How will the Secretary implement re- mation about how standards, assessments, quirements for comprehensive support and an accountability system will be imple- and improvement activities? mented at a BIE-funded school. 30.122 How will the Secretary implement re- BIE-funded school(s) means a school funded quirements for targeted support and im- by the Bureau of Indian Education and in- provement activities? cludes Bureau-operated schools and tribally 30.123 How will the Secretary implement re- controlled schools. quirements to identify schools for addi- Bureau or BIE means the Bureau of Indian tional targeted support? Education. 30.124 How will the Secretary implement Bureau-operated school means a school op- continued support for Bureau-funded erated by the Bureau of Indian Education. schools and school improvement? Department means the Department of the Interior. Subpart D—Responsibilities and Accountability Director means the Director of the Bureau 30.125 What is required for the Bureau to of Indian Education. meet its reporting responsibilities? English learner means an individual: 30.126 What information collections have (1) Who is aged three (3) through twenty- been approved? one (21); (2) Who is enrolled or preparing to enroll in AUTHORITY: Pub. L. 114–94, 129 Stat. 1312, 20 an elementary school or secondary school; U.S.C. 6311 et. seq.; 20 U.S.C. 7824(c). (3)(i) Who was not born in the United § 30.100 What is the purpose of this part? States or whose native language is a lan- (a) This part establishes regulations re- guage other than English; garding standards, assessments, and an ac- (ii)(A) Who is a Native American or Alaska countability system at BIE-funded schools Native, or a native resident of the outlying consistent with section 1111 of the Elemen- areas; and tary and Secondary Education Act of 1965. (B) Who comes from an environment where The Act requires the Secretary to develop or a language other than English has had a sig- implement requirements for standards, as- nificant impact on the individual’s level of sessments, and an accountability system for English language proficiency; or BIE-funded schools. (iii) Who is migratory, whose native lan- (b) Nothing in this part may be construed guage is a language other than English, and to affect, modify, or diminish the sovereign who comes from an environment where a rights of Indian Tribes; statutory rights language other than English is dominant; under law, including the right to use Native and American languages as a medium of instruc- (4) Whose difficulties in speaking, reading, tion as described in the Native American Lan- writing, or understanding the English languages Act, Public Law 101–477; the Sec- guage may be sufficient to deny the indi- retary’s trust responsibility for Indian edu- vidual; cation; nor the trust responsibility of the (i) The ability to meet the challenging aca- United States to Indian Tribes or individual demic standards; Indians. In carrying out the education mis- (ii) The ability to successfully achieve in sion of the Department, the BIE has an obli- classrooms where the language of instruc- gation to provide for a comprehensive multi- tion is English; or cultural and multilingual education program (iii) The opportunity to participate fully in including the production and use of instruc- society.

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(5) This definition is not intended to affect implemented in accordance with this part, the right to use Native American language including assistance to extend technical ca- as a medium of instruction. pabilities and training opportunities; Foster care means 24-hour substitute care (2) Proposals for alternative requirements, for children placed away from their parents technical assistance means, subject to the and for whom the agency under title IV–E of availability of appropriations, assistance the Social Security Act has placement and from the BIE and the Department of Edu- care responsibility. This includes, but is not cation in the development of alternative re- limited to, placements in foster family quirements for standards, assessments, and homes, foster homes of relatives, group an accountability system in part or in whole, homes, emergency shelters, residential fa- including assistance in understanding what cilities, child care institutions, and pre- options may be available to enhance the ex- adoptive homes. A child is in foster care in ercise of sovereignty in education and ad- accordance with this definition regardless of whether the foster care facility is licensed dress the unique circumstances and needs of and payments are made by the State, tribal, BIE-funded schools and the students served or local agency for the care of the child, at such schools. whether adoption subsidy payments are (3) English language proficiency assess- being made prior to the finalization of an ments and alternate English language pro- adoption, or whether there is Federal match- ficiency assessments, assistance including ing of any payments that are made. training teachers on how to administer such Native American language means the histor- assessments. ical, traditional languages spoken by mem- Tribal consultation means consultation con- bers of federally recognized Indian Tribes, as ducted in accordance with the tribal con- defined in 25 U.S.C. 2021(20). sultation policy of the Department of the In- Peer review means, for purposes of this terior. part, the process through which an entity Tribal governing body means with respect to demonstrates the technical soundness of an waiver and submission of alternative pro- assessment system, including its validity posals for: and reliability for the purposes for which the (1) Tribally controlled schools, the entity assessments are intended. authorized under applicable tribal law to Proposal for alternative requirements means a waive the Secretary’s requirements and pro- proposal submitted by a tribal governing pose alternative requirements; and body or school board for requirements, in whole or in part, alternative to the ones (2) A BIE-operated school, the recognized adopted by the Secretary for standards, as- governing body of the Indian Tribe involved sessments, or an accountability system at that represents at least ninety (90) percent of BIE-funded schools except that an alter- the students served by such school. native proposal for a Bureau-operated school Tribally controlled school means, for the does not include any actions that would af- purposes of this part, a school operated fect BIE’s authority over inherently Federal under a Public Law 93–638 contract or Public functions as defined in 25 U.S.C. 2021(12). Law 100–297 grant that is: Secretary means the Secretary of the Inte- (1) Operated by an Indian Tribe or a tribal rior or a designated representative. organization, enrolling students in Kinder- School board means, with respect to waiver garten through grade twelve (12) of schools and submission of alternative proposals for a that may have varying structure, including a BIE-funded school, either an ‘‘agency school preschool; board’ as defined in 25 U.S.C. 2021(1), or a (2) Not a local education agency as defined ‘‘local school board’’ as defined in 25 U.S.C. in 25 U.S.C. 2511(5); and 2021(14). (3) Not directly administered by the Bu- School year means the academic school reau of Indian Education. year as described by a school in the BIE’s Waiver means the exercise of authority by student information system. a tribal governing body or school board for a Subgroup of students means: (1) Economically disadvantaged students; BIE-funded school to elect to implement re- (2) Students from major racial and ethnic quirements, in part or in whole, alternative groups; to the ones adopted by the Secretary pursu- (3) Children with disabilities; and ant to this part at schools that are under the (4) English learners. tribal governing body’s or school board’s ju- Technical assistance means with regard to: risdiction following approval of the proposal (1) Comprehensive or targeted support and for alternative requirements by the Sec- improvement or additional targeted support, retary and the Secretary of Education pursu- subject to the availability of appropriations, ant to section 8204 of the Act, except that a assistance from the BIE to address issues im- tribal governing body’s decision to exercise pacting a school’s or one or more subgroups waiver authority under this part takes pri- within a school’s ability to meet the BIE’s ority over a school board decision to exercise academic goals and indicators developed or waiver authority under this part.

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Subpart A—Standards, Assessments, the development of challenging academic and Accountability System Re- standards and assessments. quirements § 30.104 How will the Secretary implement requirements for standards? § 30.102 What does the Act require of the Secretary? (a) The Secretary will implement requirements for academic standards for BIE-funded (a) The Act requires the Secretary to de- schools by adopting: fine standards, assessments, and account- (1) Challenging academic content stand- ability system, consistent with section 1111 ards; and of the Act, for schools on a national, re- (2) Aligned academic achievement stand- gional, or tribal basis, as appropriate, taking ards consisting of at least three levels of into account the unique circumstances and achievement defined in the Agency Plan. needs of the schools and the students served, (b) Combined, both academic content using regulations developed through a nego- standards and academic achievement stand- tiated rulemaking process. ards are hereinafter collectively referred to (b) If a tribal governing body or school as ‘‘challenging academic standards.’’ board determines that the requirements de- (c) The academic content standards will scribed in paragraph (a) of this section are apply to all BIE-funded schools and the stu- inappropriate, it may waive these require- dents served at those schools. Such academic ments, in part or in whole, and propose alter- content standards will include: native requirements for standards, assess- (1) Mathematics; ments, and an accountability system that (2) Reading or Language Arts; meets the requirements of section 1111 of the (3) Science; Act, taking into account the unique cir- (4) Tribal civics, as appropriations become cumstances and needs of the school or available; and schools and the students served by such (5) Any other subject determined by the schools. Secretary. (c) The Secretary and the Secretary of (d) The academic content standards must Education will provide technical assistance, be aligned to entrance requirements for cred- upon request, either directly or through a it-bearing coursework in higher education contract, to a tribal governing body or and relevant career and technical education school board that seeks a waiver and alter- standards. native requirements described in paragraph (e) The Secretary must, through a docu- (b) of this section. mented and validated standards-setting process, adopt alternate academic achieve- § 30.103 How will the Secretary implement ment standards for students with the most Standards, Assessments, and Account- significant cognitive disabilities that: ability System requirements? (1) Are aligned with the challenging aca- (a) The Secretary, through the Director, demic content standards under paragraphs must describe requirements for standards, (a) and (b) of this section; assessments, and an accountability system (2) Promote access to the general edu- for use at BIE-funded schools in accordance cation curriculum, consistent with the Indi- with this part. The Director must periodi- viduals with Disabilities Education Act cally review and revise these requirements, (IDEA) (20 U.S.C. 1400 et seq.); as necessary, but review will occur not less (3) Reflect professional judgment as to the often than every four (4) years beginning highest possible standards achievable by the with the school year for which the require- students; ments become effective. (4) Are designated in the individualized (b) The Director will develop an Agency education program developed under section Plan that will provide Indian Tribes, schools, 614(d)(3) of IDEA (20 U.S.C. 1414(d)(3)) for parents, and other stakeholders with qual- each such student as the academic achieve- ity, transparent information about how the ment standards that will be used for the stu- Act will be implemented at BIE-funded dent; and schools, including the requirements that (5) Are aligned to ensure that a student have been established for standards, assess- who meets the alternate academic achieve- ments, and an accountability system for ment standards is on track to pursue post- BIE-funded schools. secondary education or competitive inte- (c) The Secretary will engage in meaning- grated employment, consistent with the pur- ful consultation with Indian Tribes and Alas- poses of the Rehabilitation Act of 1973, as ka Native Villages, schools, parents, and amended by the Workforce Innovation and other stakeholders, when developing and re- Opportunity Act, as in effect on July 22, 2014. vising requirements for standards, assess- (f) The Secretary will adopt English lan- ments, and an accountability system for guage proficiency standards that: BIE-funded schools. (1) Are derived from the four (4) recognized (d) The Secretary may voluntarily partner domains of speaking, listening, reading, and with States, or another Federal agency, in writing;

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(2) Address the different proficiency levels (ii) In the case of science, not less than one of English learners; and time during: (3) Are aligned with the challenging aca- (A) Grades three (3) through five (5); demic standards. (B) Grades six (6) through nine (9); and (C) Grades ten (10) through twelve (12); and § 30.105 How will the Secretary implement (iii) In the case of any other subject chosen requirements for academic content assessments? by the BIE, at the discretion of the BIE; (6) Involve multiple up-to-date measures of (a) Academic assessments. The BIE will im- student academic achievement, including plement a set of high quality student aca- measures that assess higher-order thinking demic assessments in mathematics, reading skills, such as critical thinking, reasoning, or language arts, and science. As appropria- analysis, complex problem solving, effective tions become available, BIE will implement communication, and understanding of chal- an assessment in tribal civics. lenging content, which may: (b) Requirements for academic assessments. (i) Include valid and reliable measures of The academic assessments must: student academic growth at all achievement (1) Except with respect to alternate assess- levels to help ensure that the assessment re- ments for students with the most significant sults could be used to improve student in- cognitive disabilities, be: struction; and (i) The same academic assessments used to measure the achievement of all BIE-funded (ii) Be partially delivered in the form of school students; and portfolios, projects, or extended performance (ii) Administered to all BIE-funded school tasks; students, including the following highly-mo- (7) At the BIE’s discretion, be administered bile student populations: through: (A) Students with status as a migratory (i) A single summative assessment; or child; (ii) Multiple Bureau-wide interim assess- (B) Students with status as a homeless ments during the course of the academic child or youth; year that result in a single summative score (C) Students with status as a child in fos- that provides valid, reliable, and transparent ter care; information on student achievement or (D) Students with status as a student with growth; a parent who is a member of the armed (8) Produce individual student interpre- forces on active duty or serves on full-time tive, descriptive, and diagnostic reports, con- National Guard duty; sistent with paragraph (b)(3) of this section, (2) Be aligned with the BIE’s challenging regarding achievement on such assessments academic standards, and provide coherent that allow parents, teachers, principals, and and timely information about student at- other school leaders to understand and ad- tainment of such standards and whether the dress the specific academic needs of stu- student is performing at the student’s grade dents, and that are provided to parents, level; teachers, and school leaders, as soon as is (3) Be used for purposes for which such as- practicable after the assessment is given, in sessments are valid and reliable, consistent an understandable and uniform format, and with relevant, nationally recognized profes- to the extent practicable, in a language that sional and technical testing standards; ob- parents can understand; jectively measure academic achievement, (9) Enable results to be disaggregated: knowledge, and skills; and use tests that do (i) Within the Bureau and each BIE-funded not evaluate or assess personal or family be- school by: liefs and attitudes, or publicly disclose per- (A) Each major racial and ethnic group; sonally identifiable information, except that (B) Economically disadvantaged students this provision does not preclude the use of: as compared to students who are not eco- (i) Constructed-response, short answer, or nomically disadvantaged; essay questions; or (C) Children with disabilities as defined in (ii) Items that require a student to analyze section 602(3) of the IDEA compared to chil- a passage of text or to express opinions; dren without disabilities; (4) Be of adequate technical quality for (D) English proficiency status; each purpose required under the Act and con- (E) Gender; sistent with the requirements of this section, (F) Migrant status; the evidence of which will be made public, (G) Status as a homeless child or youth as including on the BIE website; defined in section 725(2) of title VII, subtitle (5) Be administered: B of the McKinney–Vento Homeless Assist- (i) In the case of mathematics and reading ance Act, as amended; or language arts: (H) Status as a child in foster care; and (A) In each of grades three (3) through (I) Status as a student with a parent who eight (8); and is a member of the armed forces on active (B) At least once in grades nine (9) through duty or serves on full-time National Guard twelve (12); duty.

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(ii) Disaggregation is not required in the (i) The BIE will ensure that the computer cases in which the number of students in a adaptive assessments for students with the subgroup is insufficient to yield statistically most significant cognitive disabilities: reliable information or the results would re- (A) Assess a student’s academic achieve- veal personally identifiable information ment based on the challenging academic con- about an individual student; tent standards for the grade in which the (10) Enable itemized score analyses to be student is enrolled; produced and reported, consistent with para- (B) Meet the requirements of this section graph (b)(3) of this section, to BIE-funded and §§ 30.106 through 30.110, including § 30.108, schools, so that parents, teachers, principals, except the assessments are not required to other school leaders, and administrators can meet the requirements of paragraph (d)(1)(ii) interpret and address the specific academic of this section; and needs of students as indicated by the stu- (C) Assess the student’s academic achieve- dents’ achievement on assessment items; and ment to measure, in the subject being as- (11) Be designed and developed: sessed, whether the student is performing at (i) To be valid and accessible for use by all the student’s grade level; and students, including students with disabilities (ii) The BIE may provide for the use of and English learners; and computer adaptive assessments that: (ii) To the extent practicable, using the (A) Meet the requirements §§ 30.106 through principles of universal design for learning. 30.110 except the assessments are not re- For the purposes of this section, ‘‘universal quired to meet the requirements of para- design for learning’’ means a scientifically graph (d)(1)(ii) of this section; and valid framework for guiding educational (B) Assess the student’s English language practice that: (A) Provides flexibility in the ways infor- proficiency, which may include growth to- mation is presented, in the ways students re- wards such proficiency, in order to measure spond or demonstrate knowledge and skills, the student’s acquisition of English. and in the ways students are engaged; and (e) Peer review and future guidance on aca- (B) Reduces barriers in instruction, pro- demic assessments. (1) The BIE assessments vides appropriate accommodations, supports, required by these regulations must undergo and challenges, and maintains high achieve- peer review with the exception of tribal ment expectations for all students, including civics and non-content Native American lan- students with disabilities and English learn- guage academic assessments. ers. (2) BIE will develop guidance on the use of (c) Exception for advanced mathematics in academic assessments in a Native American middle school. The BIE will determine the use language for purposes of compliance with of this exemption in the Agency Plan. these regulatory requirements, including (d) Computer adaptive assessments. (1) BIE evidence of technical validity and reliability, retains the right to develop and administer in consultation with the Department of Edu- computer adaptive assessments as the as- cation, Tribes, and other stakeholders. sessments described in this section, provided (f) Rule of construction on parental rights. the computer adaptive assessments meet the Nothing in this section may be construed as requirements of this section, except that: preempting tribal law at a tribally con- (i) The requirement that the same aca- trolled school regarding the decision of a demic assessments must be used to measure parent to not have the parent’s child partici- the achievement of all BIE-funded school pate in the academic assessments under this students and that the assessments must be paragraph (f). administered to all BIE-funded school stu- (g) Limitation on assessment time. The Sec- dents may not be interpreted to require that retary may set a target limit on the aggre- all students taking the computer adaptive gate amount of time devoted to the adminis- assessment be administered the same assess- tration of assessments for each grade, ex- ment items; and pressed as a percentage of annual instruc- (ii) Such assessment: tional hours. (A) Must measure, at a minimum, each (h) Students in Native American language student’s academic proficiency based on the schools or programs. The BIE is not required challenging academic standards for the stu- to assess, using an assessment written in dent’s grade level and growth toward such English, student achievement in meeting the standards; and BIE’s challenging State academic standards (B) May measure the student’s level of aca- in reading/language arts, mathematics, or demic proficiency and growth using items science for a student who is enrolled in a above or below the student’s grade level, in- school or program that provides instruction cluding for use as part of the accountability primarily in a Native American language if: system. (1) The program or school provides an as- (2) In developing and administering com- sessment in the Native American language puter adaptive assessments for students with to all students in the program or school and: the most significant cognitive disabilities (i) Submits evidence to the BIE according and English learners: to BIE guidelines developed under paragraph

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(e)(2) of this section regarding such assess- (3) For each student under paragraph ment’s technical validity and reliability for (b)(3)(ii) of this section, the individual or the purposes for which it is intended; and team designated by the school to make these (ii) BIE submits this evidence to Depart- decisions. ment of Education for approval; and (d)(1) Except as provided in paragraph (2) For an English learner the BIE con- (d)(2) of this section, a student with a dis- tinues to assess the English language pro- ability must be assessed with an assessment ficiency of such English learner, using the aligned with the BIE’s challenging academic annual English language proficiency assess- standards for the grade in which the student ment required under § 30.110, and provides ap- is enrolled. propriate services to enable him or her to at- (2) A student with the most significant tain proficiency in English. cognitive disabilities may be assessed with: § 30.106 How will the Secretary provide for (i) The general assessment under § 30.106(b); the inclusion of all students in assess- or ments? (ii) The alternate assessment under § 30.108 The Secretary will provide assessment in- aligned with the BIE’s challenging academic struments that allow for: content standards for the grade in which the (a) The participation of all students, gen- student is enrolled and the BIE’s alternate erally; academic achievement standards. (b) The participation of students with dis- (e) The BIE and school must ensure that abilities, as detailed in §§ 30.107 and 30.108; general and special education teachers, para- and professionals, teachers of English learners, (c) The participation of English learners, specialized instructional support personnel, as detailed in § 30.109. and other appropriate staff receive necessary training to administer assessments and § 30.107 How will the Secretary include stu- know how to administer assessments, includ- dents with disabilities in assessments? ing, as necessary, alternate assessments, and (a) The BIE and BIE-funded schools must know how to make use of appropriate accom- ensure that students with disabilities have modations during assessment for all students the appropriate accommodations, such as with disabilities, consistent with section interoperability with, and ability to use, as- 1111(b)(2)(B)(vii)(III) of the Act. sistive technology, for students with disabil- (f) The BIE and school must ensure that ities, including students with the most sig- the use of appropriate accommodations nificant cognitive disabilities, necessary to under paragraph (c) of this section does not measure the academic achievement of such deny a student with a disability: children relative to the BIE’s challenging academic standards or alternate academic (1) The opportunity to participate in the achievement standards described in assessment; and § 30.104(d) and (e). (2) Any of the benefits from participation (b) The Secretary must include students in the assessment that are afforded to stu- with disabilities in all assessments, with ap- dents without disabilities. propriate accommodations. For purposes of this section, students with disabilities, col- § 30.108 How will the Secretary provide for lectively, are: alternate assessments for students with the most significant cognitive disabil- (1) All children with disabilities as defined ities? under section 602(3) of the IDEA; (2) Students with the most significant cog- (a) Alternate assessments aligned with alter- nitive disabilities who are identified from nate academic achievement standards. The BIE among the students in paragraph (a) of this will provide for alternate assessments section; and aligned with the challenging academic con- (3) Students with disabilities covered under tent standards for the grade in which the other acts, including: student is enrolled and alternate academic (i) Section 504 of the Rehabilitation Act of achievement standards described in 1973, as amended; and § 30.104(d) and (e) for students with the most (ii) Title II of the Americans with Disabil- significant cognitive disabilities. The BIE ities Act (ADA), as amended. must: (c) Appropriate accommodations for those (1) Consistent with paragraph (b) of this students described in paragraph (b) of this section, ensure that, for each subject, the section will be determined by: total number of students assessed in the sub- (1) For each student under paragraphs ject using the alternate assessments does not (b)(1) and (2) of this section, the student’s exceed one (1) percent of the total number of IEP team; all students in all BIE-funded schools who (2) For each student under paragraph are assessed in the subject; (b)(3)(i) of this section, the student’s place- (2) With regard to the percentage of stu- ment team; or dents assessed under this paragraph (a):

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(i) Not prohibit a BIE-funded school from fect the student from completing the re- assessing more than one (1) percent of its as- quirements for a regular high school di- sessed students in any subject for which as- ploma; sessments are administered with an alter- (4) Ensure that the parents of such stu- nate assessment aligned with alternate aca- dents are clearly informed, as part of the demic achievement standards; process for developing the individualized (ii) Require that the BIE-funded school education program (as defined in section submit by October 1 information into the 614(d)(1)(A) of the Individuals with Disabil- BIE’s student information system regarding what assessment the student is to take and ities Education Act (20 U.S.C. 1414(d)(1)(A))): which must be consistent with the individ- (i) That their child’s academic achieve- ualized education program (IEP); ment will be measured based on the alter- (iii) Provide appropriate oversight of a nate academic achievement standards; and BIE-funded school that is required to submit (ii) How participation in the assessments information to the BIE; and may delay or otherwise affect the student (iv) Make the information submitted by a from completing the requirements for a reg- BIE-funded school under paragraph (a)(2)(ii) ular high school diploma; of this section publicly available, provided (5) Promote, consistent with the IDEA (20 that such information does not reveal per- U.S.C. 1400 et seq.), the involvement and sonally identifiable information about an in- progress of students with the most signifi- dividual student; cant cognitive disabilities in the general (3) With regard to IEP teams: education curriculum; (i) Establish clear and appropriate guidelines, consistent with section 612(a)(16)(C) of (6) Describe the steps the Bureau has taken the IDEA, and provide technical assistance to incorporate universal design for learning, as requested in writing, and monitor imple- to the extent feasible, in alternate assess- mentation of clear and appropriate guide- ments; lines for IEP teams to apply in determining, (7) Describe that general and special edu- on a case-by-case basis, which students with cation teachers, and other appropriate staff: the most significant cognitive disabilities (i) Know how to administer the alternate will be assessed based on alternate academic assessments; and achievement standards. Such guidelines (ii) Make appropriate use of accommoda- must include a BIE definition of ‘‘students tions for students with disabilities on all as- with the most significant cognitive disabil- sessments required under this paragraph (a); ities’’ that addresses factors related to cog- (8) Develop, disseminate information on, nitive functioning and adaptive behavior, and promote the use of appropriate accom- such that: (A) The identification of a student as hav- modations to increase the number of stu- ing a particular disability as defined in the dents with significant cognitive disabilities: IDEA or as an English learner does not de- (i) Participating in academic instruction termine whether a student is a student with and assessments for the grade level in which the most significant cognitive disabilities; the student is enrolled; and (B) A student with the most significant (ii) Who are tested based on the BIE’s chal- cognitive disabilities is not identified solely lenging academic standards for the grade on the basis of the student’s previous low level in which the student is enrolled; and academic achievement, or the student’s pre- (9) Not preclude a student with the most vious need for accommodations to partici- significant cognitive disabilities who takes pate in general BIE assessments; and an alternate assessment based on alternate (C) A student is identified as having the academic achievement standards from at- most significant cognitive disabilities be- tempting to complete the requirements for a cause the student requires extensive, direct regular high school diploma. individualized instruction and substantial (b) Responsibility under IDEA. Subject to supports to achieve measurable gains on the the authority and requirements for the IEP BIE’s challenging academic content stand- team for a child with a disability under sec- ards for the grade in which the student is en- tion 614(d)(1)(A)(i)(VI)(bb) of the Individuals rolled; and (ii) Provide to IEP teams a clear expla- with Disabilities Education Act (20 U.S.C. nation of the differences between assess- 1414(d)(1)(A)(i)(VI)(bb)), such team, con- ments based on grade-level academic sistent with the guidelines established by achievement standards and those based on the BIE and required under section alternate academic achievement standards, 612(a)(16)(C) of such Act (20 U.S.C. including any effects of BIE and BIE-funded 1412(a)(16)(C)) and paragraph (a)(1) of this school policies on a student’s education re- section, will determine when a child with a sulting from taking an alternate assessment significant cognitive disability may partici- aligned with alternate academic achieve- pate in an alternate assessment aligned with ment standards, such as how participation in the alternate academic achievement stand- such assessments may delay or otherwise af- ards.

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§ 30.109 How will the Secretary include school for the purposes of the BIE-deter- English learners in academic content as- mined accountability system under § 30.111; sessments? or (a) English learners. English learners must (2) Assess, and report the performance of: be: (i) The English learner on the reading or (1) Assessed in a valid and reliable manner; language arts and mathematics assessments and required under § 30.105(b)(5)(i) in each year of (2) Provided appropriate accommodations the student’s enrollment in such a school; on assessments administered including, to and the extent practicable, assessments in the (ii) For the purposes of the BIE-determined language and form most likely to yield accu- accountability system: rate data on what the students know and can (A) For the first year of the student’s en- do in academic content areas, until the stu- rollment in the school, exclude the results dents have achieved English language pro- on the assessments described in paragraphs ficiency, consistent with standardized BIE- (d)(1)(i) and (ii) of this section; determined exit procedures. (B) Include a measure of student growth on (b) Language or form of assessment. Notwith- the assessments described in paragraphs standing paragraph (a)(2) of this section, (d)(1)(i) and (ii) of this section in the second BIE-funded schools must provide for assess- year of the student’s enrollment in the ments (using tests in English) of reading or school; and language arts of any student who has at- (C) Include proficiency on the assessments tended school in the United States for three in reading or language arts and mathematics (3) or more consecutive school years, except described in this paragraph (d) in the third that if the BIE-funded school determines, on year of the student’s enrollment in such a a case-by-case individual basis, that aca- school, and each succeeding year of enroll- demic assessments in another language or ment. form would likely yield more accurate and (e) English learner subgroup. With respect to reliable information on what the student a student previously identified as an English knows and can do, the BIE-funded school learner and for not more than four (4) years may make a determination to assess the stu- after the student ceases to be identified as dent in the appropriate language other than an English learner, the BIE may include the English for a period that does not exceed two results of the student’s academic content as- (2) additional consecutive years, provided sessments within the English learner sub- that the student has not yet reached a level group of the subgroups of students as defined of English language proficiency sufficient to in § 30.101 for the purposes of the BIE-deter- yield valid and reliable information on what mined accountability system. the student knows and can do on tests (written in English) of reading or language arts. § 30.110 How will the Secretary ensure BIE- This requirement does not permit either the funded schools will provide for annual BIE or BIE-funded schools to exempt English assessments of English language pro- learners from participating in the BIE’s as- ficiency for English learners? sessment system. (a) The BIE will ensure that BIE-funded (c) BIE responsibilities. The BIE must: schools will administer a valid and reliable (1) Disseminate information and resources annual assessment of English proficiency to regarding English learners to, at a min- all English learners in the schools served by imum, BIE-funded schools, and parents; the BIE. (2) Promote the use of accommodations for (b) The BIE will require BIE-funded schools English learners to ensure that all English to use the assessment to assess annually the learners are able to participate in academic English language proficiency, including instruction and assessments; and reading, writing, speaking, and listening (3) Provide technical assistance when re- skills, of all English learners in kindergarten quested in writing. through grade twelve (12). (d) Exception for recently arrived English (c) The English language proficiency as- learners. With respect to recently arrived sessment must be aligned with the BIE’s English learners who have been enrolled in a English language proficiency standards de- school in one of the 50 States in the United scribed in § 30.104(f). States or the District of Columbia for less (d) The assessment will be implemented, than twelve (12) months, the BIE may choose developed, and used consistent with the re- to: quirements of this section. (1) Exclude: (e) The assessment will provide coherent (i) The English learner from one adminis- and timely information about each student’s tration of the reading or language arts as- attainment of the BIE’s English language sessment required under § 30.105; and proficiency standards to parents. (ii) The English learner’s results on any of (f) If an English learner has a disability the assessments required under that precludes assessment of the student in § 30.105(b)(5)(i) or § 30.110 for the first year of one or more domains of the English language the English learner’s enrollment in the proficiency assessment such that there are

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no appropriate accommodations for the af- student academic achievement and school fected domain(s) (e.g., a non-verbal English success. learner who because of an identified dis- (c) The inclusion of science and tribal ability cannot take the speaking portion of civics will be phased into the Secretary’s re- the assessment), as determined, on an indi- quirements for accountability system start- vidualized basis, by the student’s IEP team, ing as a school quality or student success in- 504 team, or by the individual or team des- dicator and their continued use in such man- ignated by the BIE-funded school to make ner will be revisited as the accountability these decisions under title II of the ADA, system is implemented. then the BIE must assess the student’s (d) For all students and separately for each English language proficiency based on the subgroup of students within the BIE-funded remaining domains in which it is possible to school system, the BIE will establish long- assess the student. term goals and measurements of interim (g) The BIE must provide for an alternate progress that will include, at a minimum, English language proficiency assessment for improved academic achievement, as meas- English learners with the most significant ured by proficiency on the Bureau’s annual cognitive disabilities who cannot participate assessments in mathematics and reading or in the assessment under this paragraph (g) language arts under § 30.105(b)(5)(i), and high even with appropriate accommodations. school graduation rates, including the four (h) BIE will provide technical assistance, (4)-year adjusted cohort graduation rate, or including training teachers on how to admin- at BIE’s discretion one or more extended ister assessments, in regard to English lan- year graduation cohorts, and that will: guage proficiency assessments and alternate English language proficiency assessments to (1) Use the same multi-year length of time BIE-funded schools as requested in writing. for all students and for each subgroup of students within the BIE-funded school system § 30.111 How will the Secretary implement to meet the goals; and requirements for an accountability sys- (2) Take into account, for subgroups of stu- tem? dents who are behind on the measurements (a) The Secretary will define account- of academic achievement and high school ability system for BIE-funded schools con- graduations rates, the improvement nec- sistent with this section and subpart C of essary to make significant progress in clos- this part, including provisions for a single ing Bureau-wide proficiency and graduation Bureau-wide accountability system and sys- rate gaps. tem of support and improvement activities, (e) For all students and separately for each taking into account the unique cir- subgroup of students within the BIE-funded cumstances and needs of BIE-funded schools school system, the BIE will include a long- and the students served by BIE-funded term goal and measurements of interim schools. progress for increases in the percentage of (b) To improve student academic achieve- English learner students making progress in ment and school success among all elemen- achieving English language proficiency as tary and secondary schools within the BIE- defined by the Secretary and measured by funded school system, the Secretary will de- the assessments under § 30.110 within a velop and implement a single, Bureau-wide timeline determined by the Bureau. accountability system that: (f) For all students and separately for each (1) Is based on the Bureau’s challenging subgroup of students the Bureau will estab- academic standards and academic assess- lish and annually measure the following ac- ments; countability indicators: (2) Is informed by ambitious long-term (1) For all schools, based upon the long- goals and measurements of interim progress; term goals established under paragraphs (3) Includes all the accountability indica- (b)(2) and (d) of this section, academic tors described paragraph (e) of this section; achievement: (4) Takes into account the achievement of (i) As measured by proficiency on the an- all elementary and secondary school stu- nual assessments of mathematics and read- dents within the BIE-funded school system; (5) Is the same accountability system used ing or language arts described in to annually, meaningfully differentiate all § 30.105(b)(5)(i); and schools within the BIE-funded school system (ii) At the BIE’s discretion, for each high and the same accountability system used to school, growth, as measured by such annual identify schools for comprehensive and tar- assessments. geted support and improvement; and (2) For elementary and secondary schools (6) Includes the process that the Bureau that are not high schools: will use to ensure effective development and (i) A measure of student growth, if deter- implementation of school support and im- mined to be appropriate by the BIE; or provement plans, including evidence-based (ii) Another valid and reliable Bureau-wide interventions, to hold all schools within the academic indicator that allows for meaning- BIE-funded school system accountable for ful differentiation in school performance.

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(3) For high schools, based upon the long- support and improvement, which will in- term goals established under paragraphs clude: (b)(2) and (d) of this section: (i) Not less than the lowest-performing five (i) The four (4)-year adjusted cohort grad- (5) percent of all schools receiving Title I uation rate; and funding; (ii) At the BIE’s discretion, the extended- (ii) All high schools failing to graduate one year adjusted graduation cohort rate, as de- third (1⁄3) or more of their students; and fined in paragraph (j) of this section. (iii) All schools identified for additional (4) For all schools, progress in achieving targeted support and improvement that re- English language proficiency, as defined by ceive ESEA Title I funding and do not meet the BIE and measured by the assessments of exit criteria as provided in § 30.124(a)(2). English language proficiency described in (2) The BIE will provide technical assist- § 30.110, within a BIE-determined timeline for ance to all schools identified for comprehen- all English learners: sive support and improvement, targeted sup- (i) In each of grades three (3) through eight port and improvement, or additional tar- (8); and geted support. (ii) In the high school grade for which such (i) The Bureau’s accountability system will English learners are otherwise assessed in annually measure the achievement of at mathematics and reading or language arts. least ninety-five (95) percent of all students, and ninety-five (95) percent of each subgroup (5) For all schools, not less than one indi- of students, who are enrolled in a school cator of school quality or student success within the BIE-funded school system on the that: Bureau’s assessments. The denominator for (i) Allows for meaningful differentiation in the purpose of measuring, calculating, and school performance; reporting on the academic achievement indi- (ii) Is valid, reliable, comparable, and Bu- cator will be the greater of: reau-wide (with the same indicator or indica- (1) Ninety-five (95) percent of all students, tors used for each grade span, as such term or ninety-five (95) percent of each subgroup is determined by the BIE); and of students; or (iii) May include one or more of the fol- (2) The number of students participating in lowing measures: the assessments. (A) Student or Educator engagement; (j) The performance of students that have (B) Chronic absenteeism; not attended the same BIE-funded school for (C) Student access to and completion of ad- at least half (1⁄2) of a school year will not be vanced coursework; included in the academic achievement, other (D) Postsecondary readiness; academic, progress in achieving English lan- (E) School climate and safety; and guage proficiency, or school quality or stu- (F) Any other indicator the BIE chooses dent success indicators for that school year, that meets the requirements of this section. but will be used for the purpose of reporting (g) The BIE will establish a system for on the Bureau and school report cards for meaningfully differentiating, annually, all that school year. schools that will: (k) Extended-year adjusted cohort gradua- (1) Be based on all indicators described tion rate means the fraction— paragraph (f) of this section for all students (1) The denominator of which consists of and for each subgroup of students; and the number of students who form the origi- (2) With respect to paragraphs (f)(1) nal cohort of entering first-time students in through (4) of this section, afford: grade nine (9) enrolled in the high school, ad- (i) Substantial weight to each such indi- justed by— cator; (i) Adding the students who joined that co- (ii) In the aggregate, much greater weight hort, after the date of the determination of than is afforded to the indicator or indica- the original cohort; and tors utilized by the BIE and described in (ii) Subtracting only those students who paragraph (f)(5) of this section, in the aggre- left that cohort, after the date of the deter- gate; and mination of the original cohort, as described (iii) Include differentiation of any such in paragraph (l) of this section; and school in which any subgroup of students is (2) The numerator of which— consistently underperforming, as determined (i) Consists of the sum of— by the BIE, based on all indicators described (A) The number of students in the cohort, in paragraph (f) of this section. as adjusted under paragraph (k)(1) of this (h) Based on the system of meaningful dif- section, who earned a regular high school di- ferentiation described in paragraph (g) of ploma before, during, or at the conclusion this section, the BIE will establish a method- of— ology to identify: (1) One or more additional years beyond (1) Beginning with the first full school year the fourth year of high school; or following April 27, 2020, and at least once (2) A summer session immediately fol- every three (3) years thereafter, one (1) BIE- lowing the additional year of high school; wide category of schools for comprehensive and

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(B) All students with the most significant they are approved. Where a tribal governing cognitive disabilities in the cohort, as ad- body or school board proposes to use existing justed under paragraph (k)(1) of this section, State requirements, approval of the use of assessed using the alternate assessment such requirements is dependent upon the aligned to alternate academic achievement agreement of the applicable State. standards under § 30.108 and awarded an alternate diploma that is— § 30.113 How does a tribal governing body (1) Standards-based; or school board waive the Secretary’s re- (2) Aligned with the requirements for the quirements? regular high school diploma; and (a) A tribal governing body or school board (3) Obtained within the time period for may waive the Secretary’s requirements for which the BIE ensures the availability of a standards, assessments, and an account- free appropriate public education under 20 ability system, in part or in whole. U.S.C. 1412(a)(1); and (b) The tribal governing body or school (ii) Does not include any student awarded board must notify the Secretary and the Sec- a recognized equivalent of a diploma, such as retary of Education in writing of the deci- a general equivalency diploma, certificate of sion to waive the Secretary’s requirements completion, certificate of attendance, or in part or in whole. similar lesser credential. (c) Within sixty (60) days of the decision to (l) To remove a student from a cohort, a waive the Secretary’s requirements in part school or local educational agency must re- or in whole, the tribal governing body or quire documentation, or obtain documenta- school board must submit to the Secretary tion from the BIE, to confirm that the stu- for review and, in coordination with the Sec- dent has transferred out, immigrated to an- retary of Education, approval, a proposal for other country, transferred to a prison or ju- alternative requirements that are consistent venile facility, or is deceased. with section 1111 of the Act, taking into ac- (m) For purposes of this paragraph (m), the term ‘‘transferred out’’ has the meaning count the unique circumstances and needs of given the term in ESEA section 8101(25)(C). the school or schools and the students (n) For those high schools that start after served. The Secretary encourages a tribal grade nine (9), the original cohort will be governing body or school board to request calculated for the earliest high school grade and receive technical assistance well in ad- students attend no later than the date by vance of submission of a plan to the Sec- which student membership data is collected retary for review. The tribal governing body annually by the BIE. or school board must continue to follow the Secretary’s requirements for standards, as- Subpart B—Accountability, Waiver of sessments, and an accountability system Requirements, Technical Assist- until a proposal for alternative requirements has been approved and until alternative re- ance, and Approval of Proposals quirements become effective. for Alternative Requirements (d) A tribal governing body or school board § 30.112 May a tribal governing body or may request in writing an extension of the school board waive the Secretary’s re- sixty (60) day deadline for the provision of quirements for standards, assessments, technical assistance. and an accountability system? (e) A tribal governing body or school board Yes. A tribal governing body or school must use this process anytime a tribal gov- board may waive the Secretary’s require- erning body or school board proposes alter- ments for standards, assessments, and an ac- native requirements for standards, assess- countability system in part or in whole, and ments, and an accountability system, or pro- the tribal governing body or school board’s poses changes to approved alternative re- alternative requirements will apply if they quirements. meet the requirements of section 1111, tak- (f) The Secretary will work with the Sec- ing into account the unique circumstances retary of Education to develop and make and needs of the applicable school or schools available templates for proposals for alter- and the students served by such school or native requirements that tribal governing schools, and are approved by the Secretary bodies and school boards may use to assist in and the Secretary of Education. If the Sec- the development of such proposals for alter- retary and the Secretary of Education do not native requirements. approve the tribal governing body or school board’s proposal for alternative require- § 30.114 What should a tribal governing ments, the Secretary’s requirements under body or school board include in a pro- this part continue to apply. Depending on posal for alternative requirements? the nature and content of such proposals for Proposals for alternative requirements alternative requirements, and subject to the must include an explanation of how the al- availability of appropriations, alternative ternative proposal meets the requirements of requirements will generally be effective in section 1111 of the Act, taking into consider- the school year following the school year ation the unique circumstances and needs of

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BIE-funded schools and the students served quirements do not meet the requirements of at such schools. section 1111 of the Act. (1) The Secretary will consult with the § 30.115 May proposed alternative require- Secretary of Education through the review ments use parts of the Secretary’s re- of a proposal for alternative requirements. quirements? (2) Upon receipt of a proposal for alter- Yes, a tribal governing body or school native requirements for standards, assess- board may use the Secretary’s requirements ments, and an accountability system, in part in part or in whole. Alternative proposals or in whole, the Secretary will begin coordi- must clearly identify any retained portions nation with the Secretary of Education on of the Secretary’s requirements. review and approval of the proposal. (3) The Secretary will provide a status up- § 30.116 Will the Secretary provide technical assistance to tribal governing bodies or date regarding the processing of the proposal school boards seeking to develop alter- within 120 days of receipt of the proposal and native requirements? every thirty (30) days thereafter to discuss The Secretary and the Secretary of Edu- the stage of the review process. cation are required by statute to provide (b) If the Secretary and the Secretary of technical assistance, upon request, either di- Education approve a proposal for alternative rectly or through contract, to a tribal gov- requirements, the Secretary will: erning body or a school board that seeks to (1) Promptly notify the tribal governing develop alternative requirements. A tribal body or school board; and governing body or school board seeking such (2) Indicate the date for which the alter- assistance must submit a request in writing native proposal will be effective. (c) If a proposal for alternative require- to the Director. The Secretary will provide ments is not approved, the tribal governing such technical assistance on an ongoing and body or school board will be notified that: timely basis. (1) The proposal has not been approved; § 30.117 What is the process for requesting and technical assistance? (2) The reasons why the alternative pro- (a) Requests for technical assistance must posal was not approved. be in writing from a tribal governing body or (d) If a proposal for alternative require- school board to the Director of BIE and the ments is not approved, the Secretary will Department of Education’s Assistant Sec- provide technical assistance to the tribal retary of the Office of Elementary and Sec- governing body or school board to help to overcome the reasons why the alternative ondary Education. (b) The Director, or designee, will acknowl- proposal was not approved. (e) If a proposal for alternative require- edge receipt of a request for technical assist- ments is not approved, or is not moving for- ance. ward, then Tribes may individually request (c) No later than thirty (30) days after re- formal consultation with the Secretary and ceiving the original request, the Director Secretary of Education. will identify a point-of-contact and begin the process of providing technical assistance. Subpart C—Support and Improvement The Director and requesting tribal governing body or school board will work together to § 30.120 How will the Secretary notify BIE- identify the form, substance, and timeline funded schools that they have been iden- for the assistance. tified for school support and improvement activities? § 30.118 When should the tribal governing The Secretary will notify each BIE-funded body or school board request technical school that has been identified for com- assistance? prehensive support and improvement as de- A tribal governing body or school board scribed in § 30.111(h). may request technical assistance in writing at any time. A tribal governing body or § 30.121 How will the Secretary implement school board is welcomed and encouraged to requirements for comprehensive support request technical assistance before formally and improvement activities? notifying the Secretary of its intention to (a) Once notified that it has been identified waive the requirements established by the for comprehensive support and improvement, Secretary in order to maximize the time each BIE-funded school is required to de- available for technical assistance. velop and implement, in partnership with stakeholders (including principals and other § 30.119 How does the Secretary review and school leaders, teachers, and parents), a com- approve alternative requirements? prehensive support and improvement plan to (a) The Secretary and the Secretary of improve student outcomes that: Education will jointly approve plans for al- (1) Is informed by all indicators described ternative requirements for standards, assess- in § 30.111(f), including student performance ments, and an accountability system or de- against BIE-determined long-term goals determine that the proposed alternative re- scribed in § 30.111(d);

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(2) Includes evidence-based interventions; § 30.123 How will the Secretary implement (3) Is based on a school-level needs assess- requirements to identify schools for addi- ment; tional targeted support? (4) Identifies resource inequities, which (a) The BIE will identify for additional may include a review of school-level budg- support and improvement each school with eting, to be addressed through implementa- one (1) or more subgroups that is performing tion of such comprehensive support and im- as poorly as the lowest-performing five (5) percent of all Title I schools identified for provement plan; comprehensive support and improvement in (5) Is approved by the school and the BIE; the BIE system using the BIE’s system of an- and nual meaningful differentiation of schools (6) Upon approval and implementation, is described in § 30.111(g). monitored and periodically reviewed by the (b) Each school identified for additional BIE. targeted support and improvement must de- (b) In regard to high schools that have velop and implement a school-level targeted been identified as having failed to graduate support and improvement plan and identify one-third or more of their students, the BIE resource inequities (which may include a re- may: view of BIE-funded school level budgeting), (1) Permit differentiated improvement ac- to be addressed through implementation of tivities that use evidence-based interven- the plan. tions in the case of a school that predomi- § 30.124 How will the Secretary implement nantly serves students: continued support for Bureau-funded (i) Returning to education after having schools and school improvement? exited secondary school without a regular (a) The Secretary will establish exit cri- high school diploma; or teria for: (ii) Who, based on their grade or age, are (1) Schools identified for comprehensive significantly off track to accumulate suffi- support and improvement, which, if not sat- cient academic credits to meet high school isfied within a BIE-determined number of graduation requirements; and years (not to exceed four (4) years), will re- (2) In the case of a school that has a total sult in more rigorous BIE-determined action, enrollment of fewer than 100 students, per- such as implementation of interventions mit the BIE-funded school to forego imple- (which may include addressing school-level mentation of improvement activities. operations); and (2) Schools identified for additional tar- § 30.122 How will the Secretary implement geted support, which, if not satisfied within requirements for targeted support and a BIE-determined number of years, will, in improvement activities? the case of schools receiving Title I funds, (a) Using the system of annual meaningful result in identification of the school by the BIE for comprehensive support and improve- differentiation of schools described in ment. § 30.111(b)(5) and (f), the BIE will notify each (b) The Secretary will also periodically re- BIE-funded school in which any subgroup of view resource allocation to support school students is consistently underperforming in improvement. accordance with § 30.111(g)(2)(iii). (b) Each school that has been notified must Subpart D—Responsibilities and develop and implement, in partnership with Accountability stakeholders (including principals and other school leaders, teachers, and parents), a § 30.125 What is required for the Bureau to school-level targeted support and improve- meet its reporting responsibilities? ment plan to improve student outcomes The Bureau is required to prepare and dis- based on the BIE’s indicators for each sub- seminate widely to the public an annual re- group of students that was the subject of port card for the BIE-funded school system such notification that: as a whole, and also report cards for indi- (1) Is informed by all indicators described vidual BIE-funded schools, consistent with in § 30.111(f), including performance against the requirements of section 1111(h) of the long-term goals described in § 30.111(d); Act. The BIE’s annual report card will be (2) Includes evidence-based interventions; made available on the internet along with all BIE-funded school report cards. (3) Is approved by the BIE prior to implementation of such plan; § 30.126 What information collections have (4) Is monitored by the BIE, upon submis- been approved? sion and implementation; and The collections of information in this part (5) Results in additional action following have been approved by the Office of Manage- unsuccessful implementation of such plan ment and Budget under 44 U.S.C. 3501 et seq. after a number of years determined by the and assigned OMB Control Number 1076–0191. BIE. Response is required to obtain a benefit. A

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Federal agency may not conduct or sponsor, charged for such enrollment at the dis- and you are not required to respond to, a col- cretion of the superintendent or other lection of information unless it displays a officer in charge provided such fees currently valid OMB Control Number. shall not exceed the tuition fees al- lowed or charged by the State or coun- PART 31—FEDERAL SCHOOLS FOR ty in which such school is located for INDIANS the children admitted in the public schools of such State or county. Sec. 31.0 Definitions. (34 Stat. 1018, 35 Stat. 783, 40 Stat. 564; 25 31.2 Use of Federal school facilities. U.S.C. 288, 289, 297) 31.3 Non-Indian pupils in Indian schools. 31.4 Compulsory attendance. [29 FR 5828, May 2, 1964] 31.6 Coercion prohibited. 31.7 Handling of student funds in Federal § 31.4 Compulsory attendance. school facilities. Compulsory school attendance of In- AUTHORITY: Sec. 1, 41 Stat. 410; 25 U.S.C. dian children is provided for by law. 282, unless otherwise noted. (60 Stat. 962; 25 U.S.C. 231) SOURCE: 22 FR 10533, Dec. 24, 1957, unless otherwise noted. CROSS REFERENCE: For penalties for the failure of Indians to send children to school § 31.0 Definitions. and for contributing to the delinquency of As used in this part: minors, see § 11.424 of this chapter. (a) School district means the local unit § 31.6 Coercion prohibited. of school administration as defined by the laws of the State in which it is lo- There shall be no coercion of children cated. in the matter of transfers from one (b) Cooperative school means a school school to another, but voluntary en- operated under a cooperative agree- rollment should be effected through ment between a school district and the maintenance of Federal Indian schools Bureau of Indian Affairs in conform- or programs which suit the needs and ance with State and Federal school interests of the areas in which they are laws and regulations. located. (35 Stat. 72, 25 U.S.C. 295) (Sec. 1, 29 Stat. 348; 25 U.S.C. 287) [33 FR 6472, Apr. 27, 1968] § 31.7 Handling of student funds in § 31.2 Use of Federal school facilities. Federal school facilities. Federal Indian school facilities may The Secretary or his authorized rep- be used for community activities and resentative may authorize officials and for adult education activities upon ap- employees of the Bureau of Indian Af- proval by the superintendent or officer fairs to accept and to disburse deposits in charge. of funds of students and student activity associations in schools operated by § 31.3 Non-Indian pupils in Indian the Bureau in accordance with the pur- schools. poses of such deposits. The following Indian and non-Indian children who steps shall be taken to safeguard these are not eligible for enrollment in Bu- funds: reau-operated schools under § 31.1 may (a) A written plan of operation shall be enrolled in such schools under the be developed by the membership of following conditions: each student activity group. The plan (a) In boarding schools upon payment of operation subject to the approval of of tuition fees, which shall not exceed authorized officials shall outline proce- the per capita cost of maintenance in dures and provide for a system of ac- the school attended, when their pres- counting for the student funds com- ence will not exclude Indian pupils eli- mensurate with the age and grade level gible under § 31.1. of the students yet adequate for finan- (b) In day schools in areas where cial control purposes and shall stipu- there are no other adequate free school late the maximum operating capital of facilities available, tuition fees may be activity.

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