[Federal Register Volume 60, Number 127 (Monday, July 3, 1995)]
[Rules and Regulations]
[Pages 34800-34830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-16355]
[[Page 34799]]
_______________________________________________________________________
Part VII
Department of Education
_______________________________________________________________________
34 CFR Parts 200, 201, 203, 205, and 212
Helping Disadvantaged Children Meet High Standards; Final Rule
Federal Register / Vol. 60, No. 127 / Monday, July 3, 1995 / Rules
and Regulations
[[Page 34800]]
DEPARTMENT OF EDUCATION
34 CFR Parts 200, 201, 203, 205, and 212
RIN 1810-AA73
Title I--Helping Disadvantaged Children Meet High Standards
AGENCY: Department of Education.
ACTION: Final regulations.
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SUMMARY: As specifically required by statute, the U.S. Secretary of
Education (Secretary) issues a single set of final regulations
implementing the programs under Title I of the Elementary and Secondary
Education Act of 1965, as amended by the Improving America's Schools
Act of 1994. In order to provide maximum flexibility to grantees
implementing the programs under Title I, these regulations address only
those few provisions for which the Secretary believes rulemaking is
absolutely necessary. These regulations replace the regulations
currently found at 34 CFR Parts 200, 201, 203, 205 and 212.
EFFECTIVE DATE: These regulations take effect on August 2, 1995.
FOR FURTHER INFORMATION CONTACT: For subparts A and E, Wendy Jo New,
Telephone: (202) 260-0982; for subpart B, Patricia McKee, Telephone:
(202) 260-0991; for subpart D, Paul Brown, Telephone: (202) 260-0976:
Compensatory Education Programs, Office of Elementary and Secondary
Education, U.S. Department of Education, 600 Independence Avenue, SW,
Portals Building, room 4400, Washington, DC 20202-6132.
For subparts C and E, James English, Office of Migrant Education,
Office of Elementary and Secondary Education, U.S. Department of
Education, 600 Independence Avenue, SW, Portals Building, room 4100,
Washington, DC 20202-6135. Telephone: (202) 260-1394.
Individuals who use a telecommunications device for the deaf (TDD)
may call the Federal Information Relay Services (FIRS) at 1-800-877-
8339 between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
SUPPLEMENTARY INFORMATION: The 1994 reauthorization of the Elementary
and Secondary Education Act of 1965 (ESEA) revised Federal elementary
and secondary education programs extensively to help ensure that all
children acquire the knowledge and skills they will need to succeed in
the 21st century. Under the reauthorized ESEA, Federal education
programs for the first time are designed to work together with, rather
than separately from, one another. In addition, rather than operating
apart from the broader education that children receive, the ESEA
reinforces State and community reform efforts geared to challenging
State standards, particularly those initiated or supported by the Goals
2000: Educate America Act. In fact, all of the major ESEA programs are
redesigned to support comprehensive State and local reforms of teaching
and learning and ensure that all children--whatever their background
and whatever school they attend--can reap the benefit of those reforms.
As the largest by far of all ESEA programs, Title I is the
centerpiece of the ESEA's efforts to help the neediest schools and
students reach the same challenging standards expected of all children.
Effective July 1, 1995, the four Title I programs--the basic program in
local educational agencies (LEAs) (Part A), the Even Start Family
Literacy program (Part B), the Migrant Education program (Part C), and
the Neglected, Delinquent, and At-Risk Youth program (Part D)--are
designed to work together in support of this common purpose. Moreover,
the programs embrace the same fundamental new strategies to help ensure
that the intended beneficiaries are not left behind in State and local
efforts to promote higher standards. These strategies include: a
schoolwide focus on improving teaching and learning, strong program
coordination by LEAs, flexibility at the local level combined with
clear accountability for results, more focused targeting of resources
on the neediest schools, and stronger partnerships between schools and
communities to support higher achievement for all children.
On May 1, 1995, the Secretary published a notice of proposed
rulemaking (NPRM) for Title I in the Federal Register (60 FR 21400-
21419). The preamble to the NPRM included a discussion of the
provisions enacted by Congress that were addressed in the NPRM. The
preamble also included a summary of the results of the negotiated
rulemaking process the Secretary implemented under section 1601(b) of
Title I. In developing the proposed regulations, the Secretary
considered the comments of persons who responded to the October 28,
1994 Federal Register notice requesting advice and recommendations on
regulatory issues under Title I (59 FR 54372-74) and also the comments
of participants in the negotiated rulemaking process.
Changes From the NPRM and Analysis of Comments and Changes
In response to the Secretary's invitation to comment in the NPRM,
370 letters were received from State and LEA officials, teachers,
organizations, Members of Congress, citizens, and students. An analysis
of the comments and the Secretary's responses to those comments is
published as an appendix to these final regulations.
In these final regulations, the Secretary has considered these
comments, balancing the concerns of State and local school officials,
parents, and others with the statutory purposes of the program and the
needs of the children to be served. The following sections provide a
brief summary of the final regulations that differ from the regulations
proposed in the NPRM.
State Responsibilities for Assessment (Secs. 200.1, 200.4)
The Secretary has revised Secs. 200.1 and 200.4 to clarify that a
State's set of high-quality yearly assessments must measure performance
in at least mathematics and reading/language arts, but need not be
focused solely on reading/language arts or mathematics. Rather, as
indicated in Sec. 200.4(a)(1), a State may meet this requirement by
developing or adopting assessments in other academic subjects as long
as those assessments sufficiently measure performance in mathematics
and reading/language arts. For example, an assessment in an academic
subject such as social studies may sufficiently measure performance in
reading/language arts. Particularly at the secondary level, the
Secretary believes it may be especially appropriate to measure
performance in reading/language arts through assessments in content
areas. In addition, the Secretary emphasizes the importance of all
children attaining high levels of performance in all core academic
subjects. Limiting the focus of Title I accountability in no way is
intended to alter the overall responsibility of States, local school
districts, and schools for success of all students in the core academic
subjects determined by the State. If a State has standards and
assessments for all students in subjects beyond mathematics and
reading/language arts, the regulations do not preclude a State from
including, for accountability purposes, additional subject areas, and
the Secretary encourages them to do so.
[[Page 34801]]
Schoolwide Program Requirements (Sec. 200.8)
Section 200.8(c)(3)(ii)(B)(1)(A) of the proposed regulations would
have required a school that combines in its schoolwide program funds
received under Part C of Title I, in consultation with parents of
migratory children or organizations representing those parents, to
first address the identified needs of migratory children that result
from the effects of their migratory lifestyle or are needed to permit
migratory children to participate effectively in school. The Secretary
has revised this section to clarify that both parents and organizations
representing those parents may participate in consultation together to
clarify that the two parties are not mutually exclusive.
Responsibilities for Providing Services to Children in Private Schools
(Sec. 200.10)
Recognizing that some LEAs identify a public school as eligible for
Title I on the basis of student enrollment rather than because it
serves an eligible attendance area, the Secretary has amended
Sec. 200.10(b) to clarify that if an LEA identifies a public school as
eligible on the basis of enrollment, the LEA must, in consultation with
private school officials, determine an equitable way to identify
eligible private school children.
Payments to LEAs for Capital Expenses (Sec. 200.16)
Section 200.16(a)(2)(i)(D) makes clear that the salaries of
noninstructional technicians who monitor computer-assisted instruction
in private schools are administrative costs to be taken off the top of
an LEA's allocation. As such, the LEA may fund those technicians from
its capital expense funds.
Reservation of Funds by an LEA (Sec. 200.27)
The Secretary has amended Sec. 200.27 to clarify that capital
expenses incurred to implement alternative delivery systems necessary
to serve private school students in compliance with Aguilar v. Felton
that are not reimbursed under section 1002(e) of Title I are
administrative costs that must be taken off the top of an LEA's Part A
allocation.
Allocation of Funds to School Attendance Areas and Schools
(Sec. 200.28)
The Secretary has made several changes in Sec. 200.28. First, the
Secretary has added flexibility in paragraph (a)(3) to permit an LEA
that ranks its school attendance areas or schools below 75 percent
poverty by grade span groupings to determine the percentage of children
from low-income families in the LEA as a whole for each grade span
grouping.
Second, the Secretary has addressed a significant problem
concerning the availability of adequate poverty data on children who
reside in participating public school attendance areas but who attend
private schools. Paragraph (a)(2)(i) provides that, if the same data
are not available for private school children as are available for
public school children, an LEA may use comparable data collected
through alternative means such as a survey or from existing sources
such as Aid to Families with Dependent Children or tuition scholarship
programs. Under paragraph (a)(2)(ii), if complete actual poverty data
are not available on private school children, an LEA may extrapolate
from actual data on a representative sample of private school children
the number of poor private school children. If adequate data are not
available under paragraph (a)(2)(i) or (ii), the LEA, for the 1995-96
school year only, shall derive the number of private school children
from low-income families by applying the poverty percentage of each
participating public school attendance area to the number of private
school children who reside in that area.
For example, if a participating public school area has 50 percent
poverty and 100 children who reside in that area attend private
schools, 50 private school children would be deemed to be poor and thus
would generate Part A funds. For school years after 1995-96, however,
actual poverty data (or a reasonable estimate based on an adequate
sample) will be required. Finally, the Secretary has made clear in
paragraph (b)(1) that an LEA must calculate 125 percent of the per-
pupil amount of funds the LEA receives for a given fiscal year before
the LEA reserves any funds under Sec. 200.27.
Migrant Education Program (MEP) Definitions (Sec. 200.40)
The proposed regulations contained definitions of ``migratory
agricultural worker'' and ``migratory fisher'' to require a move to
obtain temporary or seasonal agricultural or fishing work ``as a
principal means of livelihood.'' This term was proposed to focus MEP
services on children who are truly migratory, i.e., children in
families with an actual, significant dependency on migratory
agricultural or fishing work. In doing so, the new requirement was
intended to correct a situation in which persons who move across school
district lines to perform temporary or seasonal agricultural or fishing
activities for only a short time are considered ``migratory'' under the
MEP, even when they do not have a significant economic dependence on
the agricultural or fishing activities. Because many commenters
appeared to have misunderstood the scope and intent of the ``principal
means of livelihood'' language, and the degree of burden that its use
would place on State and local program staff and parents of migratory
children, the regulations have been revised to more clearly define the
term, ``principal means of livelihood,'' for purposes of the MEP and
clarify the term's applicability to moves within 15,000 square mile
districts.
Use of Program Funds for Unique Program Function Costs
(Sec. 200.41)
The proposed regulations permit an SEA to use MEP funds to carry
out other administrative activities, beyond those allowable under
Sec. 200.61, that are unique to the MEP ``or that are the same or
similar to those performed by LEAs in the State under subpart A.'' In
response to comment, the regulations have been revised to clarify that
administrative activities ``that are the same or similar to those
performed by LEAs in the State under subpart A'' are included under
those administrative activities that are unique to the MEP.
Executive Order 12866
These final regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order, the Secretary has
assessed the potential costs and benefits of this regulatory action.
The benefits associated with these final regulations are clear.
Because the Secretary has chosen to regulate on very few statutory
provisions, SEAs and LEAs have considerable flexibility in implementing
the provisions of Title I to meet their particular needs and
circumstances. Moreover, the potential costs associated with these
final regulations are minimal; they result from specific statutory
requirements or have been determined by the Secretary to be necessary
for administering the Title I programs effectively and efficiently.
Intergovernmental Review
Grants to SEAs for the MEP and grants to SEAs and LEAs for the
Migrant Education Coordination Program are subject to the requirements
of Executive Order 12372 and the regulations in 34 CFR Part 79. The
objective of the Executive Order is to foster an intergovernmental
partnership and a strengthened federalism by relying on processes
developed by State and local
[[Page 34802]]
governments for coordination and review of proposed Federal financial
assistance.
In accordance with this order, this document is intended to provide
early notification of the Secretary's specific plans and actions for
these programs.
List of Subjects in 34 CFR Part 200
Administrative practice and procedure, Adult education, Children,
Coordination, Education, Education of disadvantaged children, Education
of individuals with disabilities, Elementary and secondary education,
Eligibility, Family, Family-centered education, Grant programs--
education, Indians--education, Institutions of higher education,
Interstate coordination, Intrastate coordination, Juvenile delinquency,
Local educational agencies, Migratory children, Migratory workers,
Neglected, Nonprofit private agencies, Private schools, Public
agencies, Reporting and recordkeeping requirements, State-administered
programs, State educational agencies, Subgrants.
34 CFR Part 201
Education of disadvantaged, Elementary and secondary education,
Grant programs--education, Migrant labor, Reporting and recordkeeping
requirements.
34 CFR Part 203
Education of disadvantaged, Elementary and secondary education,
Grant programs--education, Juvenile delinquency, Reporting and
recordkeeping requirements.
34 CFR Part 205
Education of disadvantaged, Elementary and secondary education,
Grant programs--education, Migrant labor.
34 CFR Part 212
Adult education, Education of disadvantaged, Elementary and
secondary education, Grant programs--education, Indians--education,
Infants and children, Migrant labor, Reporting and recordkeeping
requirements.
Dated: June 28, 1995.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Numbers: 84.010, Improving
Programs Operated by Local Educational Agencies; 84.011, Migrant
Education Basic State Formula Grant Program; 84.013, Prevention and
Intervention Programs for Children and Youth Who Are Neglected,
Delinquent, or At-Risk of Dropping Out; 84.144, Migrant Education
Coordination Program; 84.213, Even Start Family Literacy Program)
The Secretary amends Title 34 of the Code of Federal Regulations by
removing Parts 201, 203, 205, and 212 and revising Part 200 as follows:
PART 201 [Removed]
1. Part 201 is removed.
PART 203 [Removed]
2. Part 203 is removed.
PART 205 [Removed]
3. Part 205 is removed.
PART 212 [Removed]
4. Part 212 is removed.
5. Part 200 is revised to read as follows:
PART 200--TITLE I--HELPING DISADVANTAGED CHILDREN MEET HIGH
STANDARDS
Subpart A--Improving Basic Programs Operated by Local Educational
Agencies
Standards, Assessment, and Accountability
Sec.
200.1 Contents of a State plan.
200.2 State responsibilities for developing challenging standards.
200.3 Requirements for adequate progress.
200.4 State responsibilities for assessment.
200.5 Requirements for school improvement.
200.6 Requirements for LEA improvement.
200.7 [Reserved]
Schoolwide Programs
200.8 Schoolwide program requirements.
200.9 [Reserved]
Participation of Eligible Children in Private Schools
200.10 Responsibilities for providing services to children in
private schools.
200.11 Factors for determining equitable participation of children
in private schools.
200.12 Requirements to ensure that funds do not benefit a private
school.
200.13 Requirements concerning property, equipment, and supplies
for the benefit of private school children.
200.14 [Reserved]
Capital Expenses
200.15 Payments to SEAs for capital expenses.
200.16 Payments to LEAs for capital expenses.
200.17 Use of LEA payments for capital expenses.
200.18-200.19 [Reserved]
Procedures for the Within-State Allocation of LEA Program Funds
200.20 Allocation of funds to LEAs.
200.21 Determination of the number of children eligible to be
counted.
200.22 Allocation of basic grants.
200.23 Allocation of concentration grants.
200.24 Allocation of targeted grants.
200.25 Applicable hold-harmless provisions.
200.26 [Reserved]
Procedures for the Within-District Allocation of LEA Program Funds
200.27 Reservation of funds by an LEA.
200.28 Allocation of funds to school attendance areas and schools.
200.29 [Reserved]
Subpart B--Even Start Family Literacy Programs
200.30 Migrant Education Even Start program definition.
200.31-200.39 [Reserved]
Subpart C--Migrant Education Program
200.40 Program definitions.
200.41 Use of program funds for unique program function costs.
200.42 Responsibilities of SEAs and operating agencies for
assessing the effectiveness of the MEP.
200.43 Responsibilities of SEAs and operating agencies for
improving services to migratory children.
200.44 Use of MEP funds in schoolwide projects.
200.45 Responsibilities for participation of children in private
schools.
200.46-200.49 [Reserved]
Subpart D--Prevention and Intervention Programs for Children and Youth
Who Are Neglected, Delinquent, or At-Risk of Dropping Out
200.50 Program definitions.
200.51 SEA counts of eligible children.
200.52-200.59 [Reserved]
Subpart E--General Provisions
200.60 Reservation of funds for State administration and school
improvement.
200.61 Use of funds reserved for State administration.
200.62 [Reserved]
200.63 Supplement, not supplant.
200.64 Maintenance of effort.
200.65 Definitions.
200.66-200.69 [Reserved]
Authority: 20 U.S.C. 6301-6514, unless otherwise noted.
Subpart A--Improving Basic Programs Operated by Local Educational
Agencies
Standards, Assessment, and Accountability
Sec. 200.1 Contents of a State plan.
(a)(1) A State that desires to receive a grant under this subpart
shall submit to the Secretary a plan that meets the requirements of
this section.
(2) A State plan must be--
(i) Developed with broad-based consultation throughout the planning
process with local educational agencies (LEAs), teachers, pupil
services personnel, other staff, parents, and administrators, including
principals;
(ii) Developed with substantial involvement of the Committee of
[[Page 34803]]
Practitioners established under section 1603(b) of the Elementary and
Secondary Education Act of 1965, as amended (Act), and continue to
involve the Committee in monitoring the plan's implementation; and
(iii) Coordinated with other plans developed under the Act, the
Goals 2000: Educate America Act, and other acts, as appropriate,
consistent with section 14307 of the Act.
(3) In lieu of a State plan under this section, a State may include
programs under this part in a consolidated State plan submitted in
accordance with section 14302 of the Act.
(b) A State plan must address the following:
(1) Challenging standards. The State plan must include--
(i) Evidence that demonstrates that--
(A) The State has developed or adopted challenging content and
student performance standards for all students in accordance with
Sec. 200.2; and
(B) The State's procedure for setting the student performance
levels applies recognized professional and technical knowledge for
establishing the student performance levels; or
(ii) The State's strategy and schedule for developing or adopting
by the beginning of the 1997-1998 school year--
(A) Challenging content and student performance standards for all
students in accordance with Sec. 200.2(b); or
(B) Content and student performance standards for elementary and
secondary school children served under this subpart in accordance with
Sec. 200.2(c), if the State will not have developed or adopted content
and student performance standards for all students by the 1997-1998
school year or does not intend to develop such standards.
(iii) For subjects in which students will be served under this
subpart but for which a State has no standards, the State plan must
describe the State's strategy for ensuring that those students are
taught the same knowledge and skills and held to the same expectations
as are all children.
(2) Assessments. The State plan must--
(i) Demonstrate that the State has developed or adopted a set of
high-quality yearly student assessments, including assessments that
measure performance in at least mathematics and reading/language arts,
in accordance with Sec. 200.4, that will be used as the primary means
of determining the yearly performance of each school and LEA served
under this subpart in enabling all children participating under this
subpart to meet the State's student performance standards; or
(ii) If a State has not developed or adopted assessments that
measure performance in at least mathematics and reading/language arts
in accordance with Sec. 200.4--
(A) Describe the State's quality benchmarks, timetables, and
reporting schedule for completing the development and field-testing of
those assessments by the beginning of the 2000-2001 school year; and
(B) Describe the transitional set of yearly statewide assessments
the State will use to assess students' performance in mastering complex
skills and challenging subject matter; and
(iii)(A) Identify the languages other than English that are spoken
by the student population participating under this subpart; and
(B) Indicate the languages for which yearly student assessments
that meet the requirements of this section are not available and are
needed and develop a timetable for progress toward the development of
these assessments.
(3) Adequate yearly progress. The State plan must--
(i) Demonstrate, based on the assessments described under
Sec. 200.4, what constitutes adequate yearly progress toward enabling
all children to meet the State performance standards of--
(A) Any school served under this subpart; and
(B) Any LEA that receives funds under this subpart; or
(ii) For any year in which a State uses transitional assessments
under Sec. 200.4(e), describe how the State will identify schools under
Sec. 200.5 and LEAs under Sec. 200.6 in accordance with Sec. 200.3.
(4) Capacity building. Each State plan shall describe--
(i) How the State educational agency (SEA) will help each LEA and
school affected by the State plan to develop the capacity to comply
with each of the requirements of sections 1112(c)(1)(D), 1114(b), and
1115(c) of the Act that is applicable to the LEA and school; and
(ii) Other factors the State deems appropriate, which may include
opportunity-to-learn standards or strategies developed under the Goals
2000: Educate America Act, to provide students an opportunity to
achieve the knowledge and skills described in the challenging content
standards developed or adopted by the State.
(Authority: 20 U.S.C. 6311)
Sec. 200.2 State responsibilities for developing challenging
standards.
(a) Standards in general. (1) A State shall develop or adopt
challenging content and student performance standards that will be used
by the State, its LEAs, and its schools to carry out this subpart.
(2) Standards under this subpart must include--
(i) Challenging content standards in academic subjects that--
(A) Specify what children are expected to know and be able to do;
(B) Contain coherent and rigorous content; and
(C) Encourage the teaching of advanced skills; and
(ii) Challenging student performance standards that--
(A) Are aligned with the State's content standards;
(B) Describe two levels of high performance--proficient and
advanced--that determine how well children are mastering the material
in the State's content standards; and
(C) Describe a third level of performance--partially proficient--to
provide complete information to measure the progress of lower-
performing children toward achieving to the proficient and advanced
levels of performance.
(b) Standards for all children. A State that has developed or
adopted content standards and student performance standards for all
students under Title III of the Goals 2000: Educate America Act or
under another process, or will develop or adopt such standards by the
beginning of the 1997-1998 school year, shall use those standards,
modified, if necessary, to conform with the requirements in paragraph
(a) of this section and Sec. 200.3, to carry out this subpart.
(c) Standards for children served under this subpart. (1) If a
State will not have developed or adopted content and student
performance standards for all students by the beginning of the 1997-
1998 school year, or does not intend to develop those standards, the
State shall develop content and student performance standards for
elementary and secondary school children served under this subpart in
subject areas as determined by the State, but including at least
mathematics and reading/language arts. These standards must--
(i) Include the same knowledge, skills, and levels of performance
expected of all children;
(ii) Meet the requirements in paragraph (a) of this section and
Sec. 200.3; and
(iii) Be developed by the beginning of the 1997-1998 school year.
[[Page 34804]]
(2) If a State has not developed content and student performance
standards in mathematics and reading/language arts for elementary and
secondary school children served under this subpart by the beginning of
the 1997-1998 school year, the State shall then adopt a set of
standards in those subjects such as the standards contained in other
State plans the Secretary has approved.
(3) If and when a State develops or adopts standards for all
children, the State shall use those standards to carry out this
subpart.
(Authority: 20 U.S.C. 6311(b))
Sec. 200.3 Requirements for adequate progress.
(a) Except as provided in paragraph (c) of this section, each State
shall determine, based on the State assessment system described in
Sec. 200.1, what constitutes adequate yearly progress of--
(1) Any school served under this subpart toward enabling children
to meet the State's student performance standards; and
(2) Any LEA that receives funds under this subpart toward enabling
children in schools served under this subpart to meet the State's
student performance standards.
(b) Adequate yearly progress must be defined in a manner that--
(1) Results in continuous and substantial yearly improvement of
each school and LEA sufficient to achieve the goal of all children
served under this subpart, particularly economically disadvantaged and
limited-English proficient children, meeting the State's proficient and
advanced levels of performance;
(2) Is sufficiently rigorous to achieve that goal within an
appropriate timeframe; and
(3) Links progress primarily to performance on the State's
assessment system under Sec. 200.4, while permitting progress to be
established in part through the use of other measures, such as dropout,
retention, and attendance rates.
(c) For any year in which a State uses transitional assessments
under Sec. 200.4(e), the State shall devise a procedure for identifying
schools under Sec. 200.5 and LEAs under Sec. 200.6 that relies on
accurate information about the continuous and substantial yearly
academic progress of each school and LEA.
(Authority: 20 U.S.C. 6311(b)(2), (7)(B))
Sec. 200.4 State responsibilities for assessment.
(a) (1) Each State shall develop or adopt a set of high-quality
yearly student assessments, including assessments that measure
performance in at least mathematics and reading/language arts, that
will be used as the primary means of determining the yearly performance
of each school and LEA served under this subpart in enabling all
children participating under this subpart to meet the State's student
performance standards.
(2) A State may satisfy this requirement if the State has developed
or adopted a set of high-quality yearly student assessments in other
academic subjects that measure performance in mathematics and reading/
language arts.
(b) Assessments under this section must meet the following
requirements:
(1) Be the same assessments used to measure the performance of all
children, if the State measures the performance of all children.
(2)(i) Be aligned with the State's challenging content and student
performance standards; and
(ii) Provide coherent information about student attainment of the
State's content and student performance standards.
(3)(i)(A) Be used for purposes for which the assessments are valid
and reliable; and
(B) Be consistent with relevant, nationally recognized professional
and technical standards for those assessments.
(ii) Assessment measures that do not meet these requirements may be
included as one of the multiple measures if the State includes in its
State plan sufficient information regarding the State's efforts to
validate the measures and to report the results of those validation
studies.
(4) Measure the proficiency of students in the academic subjects in
which a State has adopted challenging content and student performance
standards.
(5) Be administered at some time during--
(i) Grades 3 through 5;
(ii) Grades 6 through 9; and
(iii) Grades 10 through 12.
(6) Involve multiple approaches within an assessment system with
up-to-date measures of student performance, including measures that
assess complex thinking skills and understanding of challenging
content.
(7) Provide for--
(i) Participation in the assessment of all students in the grades
being assessed;
(ii) Reasonable adaptations and accommodations for students with
diverse learning needs necessary to measure the achievement of those
students relative to the State's standards; and
(iii) (A) Inclusion of limited-English proficient students who
shall be assessed, to the extent practicable, in the language and form
most likely to yield accurate and reliable information on what those
students know and can do to determine the students' mastery of skills
in subjects other than English.
(B) To meet this requirement, the State--
(1) Shall make every effort to use or develop linguistically
accessible assessment measures; and
(2) May request assistance from the Secretary if those measures are
needed.
(8) Include, for determining the progress of the LEA only, students
who have attended schools in the LEA for a full academic year, but who
have not attended a single school in the LEA for a full academic year.
(9) Provide individual student interpretive and descriptive reports
that include--
(i) Individual scores; or
(ii) Other information on the attainment of student performance
standards.
(10) Enable results to be disaggregated within each State, LEA, and
school by--
(i) Gender;
(ii) Each major racial and ethnic group;
(iii) English proficiency status;
(iv) Migrant status;
(v) Students with disabilities as compared to students without
disabilities; and
(vi) Economically disadvantaged students as compared to students
who are not economically disadvantaged.
(c) (1) If a State has developed or adopted assessments for all
students that measure performance in mathematics and reading/language
arts under Title III of the Goals 2000: Educate America Act or under
another process, the State shall use those assessments, modified, if
necessary, to conform with the requirements in paragraph (b) of this
section and Sec. 200.3, to carry out this subpart.
(2) Paragraph (c)(1) of this section does not relieve the State
from including students served under this subpart in assessments in any
other subjects the State has developed or adopted for all children.
(d) (1) Except as provided in paragraph (d) (2) and (3) of this
section, if a State has not developed or adopted assessments that
measure performance in at least mathematics and reading/language arts
that meet the requirements in paragraph (b) of this section, the State
shall--
[[Page 34805]]
(i) By the beginning of the 2000-2001 school year, develop those
assessments and field-test them for one year; and
(ii) Develop a timetable and benchmarks, including reports of
validity studies, for completing the development and field testing of
those assessments.
(2) The State may request a one-year extension from the Secretary
to test its new assessments if the State submits a strategy to correct
problems identified in the field testing of its assessments.
(3) If a State has not developed assessments that measure
performance in at least mathematics and reading/language arts that meet
the requirements in paragraph (b) of this section by the beginning of
the 2000-2001 school year and is denied an extension, the State shall
adopt a set of assessments in those subjects such as assessments
contained in the plans of other States the Secretary has approved.
(e) (1) While a State is developing assessments under paragraph (d)
of this section, the State may propose to use a transitional set of
yearly statewide assessments that will--(i) Assess the performance of
complex skills and challenging subject matter in at least mathematics
and reading/language arts, which may be satisfied through assessments
in academic subjects other than mathematics and reading/language arts
if those assessments measure performance in mathematics and reading/
language arts;
(ii) Be administered at some time during--
(A) Grades 3 through 5;
(B) Grades 6 through 9; and
(C) Grades 10 through 12; and
(iii) Include all children in the grades being assessed.
(2) Transitional assessments do not need to meet the other
requirements of this section.
(Authority: 20 U.S.C. 6311(b))
Sec. 200.5 Requirements for school improvement.
(a) Local review. (1)(i) Each LEA receiving funds under this
subpart shall review annually the progress of each school served under
this subpart to determine whether the school is meeting or making
adequate progress toward enabling its students to meet the State's
student performance standards described in the State plan.
(ii) An LEA may review a targeted assistance school on the progress
of only those students that have been or are served under this subpart.
(2) In conducting its review, an LEA shall--
(i) (A) Use the State assessments or transitional assessments
described in the State plan; and
(B) Use any additional measures or indicators described in the
LEA's plan; or
(ii) If the State assessments are not conducted in a Title I
school, use other appropriate measures or indicators to review the
school's progress; and
(iii) (A) Disaggregate the results of the review according to the
categories specified in Sec. 200.4(b)(10);
(B) Seek to produce, in schoolwide program schools, statistically
sound results for each category through the use of oversampling or
other means; and
(C) Report disaggregated data to the public only when those data
are statistically sound.
(3) The LEA shall--
(i) Publicize and disseminate to teachers and other staff, parents,
students, the community, and administrators, including principals, the
results of the annual review of all schools served under this subpart
in individual school performance profiles; and
(ii) Provide the results of the annual review to schools served
under this subpart so that the schools can continually refine their
program of instruction to help all children participating under this
subpart meet the State's student performance standards.
(Authority: 20 U.S.C. 6317(a))
(Approved by the Office of Management and Budget under control
number 1810-0581)
Sec. 200.6 Requirements for LEA improvement.
(a) State review. (1)(i) Each SEA shall review annually the
progress of each LEA served under this subpart to determine whether the
schools receiving assistance under this subpart are making adequate
progress toward enabling their students to meet the State's student
performance standards described in the State plan.
(ii) An SEA may review the progress of the schools served by an LEA
only for those students that have been or are being served under this
subpart.
(2) In conducting its review, an SEA shall--
(i) Disaggregate the results of the review according to the
categories specified in Sec. 200.4(b)(10);
(ii) Consider other indicators, if applicable, in accordance with
section 1112(b)(1) of the Act; and
(ii) Report disaggregated data to the public only when those data
are statistically sound.
(3) The SEA shall publicize and disseminate to LEAs, teachers, and
other staff, parents, students, the community, and administrators,
including principals, the results of the State review.
(Authority: 20 U.S.C. 6317(d))
(Approved by the Office of Management and Budget under control
number 1810-0581)
Sec. 200.7 [Reserved]
Schoolwide Programs
Sec. 200.8 Schoolwide program requirements.
(a) General. (1) An eligible school, in consultation with its LEA,
may use funds or services under this subpart, in combination with other
Federal, State, and local funds it receives, to upgrade the entire
educational program in the school to support systemic reform in
accordance with the provisions of this section.
(2)(i) Except as provided in paragraph (a)(2)(ii) of this section,
a school may not start a new schoolwide program until the SEA provides
written information to each LEA that the SEA has established a
statewide system of support and improvement.
(ii) If a school desires to start a schoolwide program prior to the
establishment of a statewide system of support and improvement, the
school shall demonstrate to the LEA that the school has received high-
quality technical assistance and support from other providers of
assistance.
(b) Eligibility for a schoolwide program. A school may operate a
schoolwide program if--
(1) The LEA determines that the school serves a participating
attendance area or is a participating school under section 1113 of the
Act; and
(2)(i) For the initial year of the schoolwide program, the school
meets either of the following criteria:
(A) For the 1995-1996 school year--
(1) The school serves a school attendance area in which not less
than 60 percent of the children are from low-income families; or
(2) Not less than 60 percent of the children enrolled in the school
are from low-income families.
(B) For the 1996-1997 school year and subsequent years, the
percentages of children from low-income families in paragraph
(b)(2)(i)(A) may not be less than 50 percent.
(ii) The LEA may choose to determine the percentage of children
from low-income families under paragraph (b)(2)(i) based on a measure
of poverty that is different from the poverty measure or measures used
by the LEA to identify and rank school attendance areas for eligibility
and participation under this subpart.
[[Page 34806]]
(c) Availability of other Federal funds. (1) In addition to funds
under this subpart, a school may use in its schoolwide program Federal
funds under any program administered by the Secretary, except programs
under the Individuals with Disabilities Education Act (IDEA), that is
included on the most recent notice published by the Secretary in the
Federal Register.
(2) For the purposes of this section, the authority to combine
funds from other Federal programs also applies to services provided to
a school with those funds.
(3) (i) Except as provided in paragraph (c)(3)(ii) of this section,
a school that combines funds from any other Federal program
administered by the Secretary in a schoolwide program--
(A) Is not required to meet the statutory or regulatory
requirements of that program applicable at the school level; but
(B) Shall meet the intent and purposes of that program to ensure
that the needs of the intended beneficiaries of that program are
addressed.
(ii)(A) An LEA or a school that chooses to use funds from other
programs shall not be relieved of statutory and regulatory requirements
applicable to those programs relating to--
(1) Health and safety;
(2) Civil rights;
(3) Gender equity;
(4) Participation and involvement of parents and students; (5)
Private school children, teachers, and other educational personnel;
(6) Maintenance of effort;
(7) Comparability of services;
(8) Use of Federal funds to supplement, not supplant non-Federal
funds in accordance with paragraph (f)(1) (iii) and (2) of this
section; and
(9) Distribution of funds to SEAs and LEAs.
(B) A school operating a schoolwide program shall comply with the
following requirements if it combines funds from these programs in its
schoolwide program:
(1) Migrant education. A school that combines in its schoolwide
program funds received under Part C of Title I of the Act shall--
(i) In consultation with parents of migratory children or
organizations representing those parents, or both, first address the
identified needs of migratory children that result from the effects of
their migratory lifestyle or are needed to permit migratory children to
participate effectively in school; and
(ii) Document that services to address those needs have been
provided.
(2) Indian education. A school may combine funds received under
subpart 1 of Part A of Title IX of the Act in its schoolwide program if
the parent committee established by the LEA under section 9114(c)(4) of
the Act approves the inclusion of those funds.
(iii) This paragraph does not relieve--
(A) An LEA from complying with all requirements that do not affect
the operation of a schoolwide program; or
(B) A non-schoolwide program school from complying with all
applicable requirements.
(d) Components of a schoolwide program. A schoolwide program must
include the following components:
(1) A comprehensive needs assessment involving the parties listed
in paragraph (e)(2)(ii) of this section of the entire school that is
based on--
(i) Information on the performance of children in relation to the
State content standards and the State student performance standards
under section 1111(b)(1) of the Act; or
(ii) Until the State develops or adopts standards under section
1111(b)(1) of the Act, an analysis of available data on the achievement
of students in the school.
(2) Schoolwide reform strategies that--
(i) Provide opportunities, based on best knowledge and practice,
for all children in the school to meet the State's proficient and
advanced levels of student performance;
(ii) Are based on effective means of improving the achievement of
children, such as utilizing research-based teaching strategies;
(iii) Use effective instructional strategies that--
(A) Increase the amount and quality of learning time, such as
providing an extended school year and before- and after-school and
summer programs;
(B) Provide an enriched and accelerated curriculum; and
(C) Meet the educational needs of historically underserved
populations;
(iv) (A) Address the needs of all children in the school,
particularly the needs of children who are members of the target
population of any program that is included in the schoolwide program
under paragraph (c) of this section; and
(B) Address how the school will determine if those needs have been
met; and
(v) Are consistent with, and designed to implement, the State and
local improvement plans, if any, approved under Title III of the Goals
2000: Educate America Act.
(3) Instruction by highly qualified professional staff.
(4)(i) Professional development, in accordance with section 1119 of
the Act, for teachers and aides and, where appropriate, principals,
pupil services personnel, other school staff, and parents to enable all
children in the school to meet the State's student performance
standards.
(ii) The school shall devote sufficient resources to effectively
carry out its responsibilities for professional development, either
alone or in consortia with other schools.
(5) Strategies to increase parental involvement, such as family
literacy services.
(6) Strategies in an elementary school for assisting preschool
children in the transition from early childhood programs, such as Head
Start, Even Start, or a State-run preschool program, to the schoolwide
program.
(7) Strategies to involve teachers in the decisions regarding the
use of additional local, high-quality student assessments, if any,
under section 1112(b)(1) of the Act to provide information on, and to
improve, the performance of individual students and the overall
instructional program.
(8) (i) Activities to ensure that students who experience
difficulty mastering any of the standards required by section 1111(b)
of the Act during the school year will be provided effective, timely
additional assistance, which must include--
(A) Strategies to ensure that students' difficulties are identified
on a timely basis and to provide sufficient information on which to
base effective assistance;
(B) To the extent the school determines feasible using funds under
this subpart, periodic training for teachers in how to identify those
difficulties and to provide assistance to individual students; and
(C) For any student who has not met those standards, parent-teacher
conferences to discuss--
(1) What the school will do to help the student meet the standards;
(2) What the parents can do to help the student improve the
student's performance; and
(3) Additional assistance that may be available to the student at
the school or elsewhere in the community.
(ii) This provision does not--
(A) Require the school or LEA to develop an individualized
education program (IEP) for each student identified under paragraph
(d)(8) of this section; or
(B) Relieve the school or LEA from the requirement under the IDEA
to develop IEPs for students with disabilities.
(e) Schoolwide program plan. (1) An eligible school that desires to
operate a schoolwide program shall develop, in
[[Page 34807]]
consultation with the LEA and its school support team or other
technical assistance provider, a comprehensive plan for reforming the
total instructional program in the school that--
(i) Incorporates the components under paragraph (d) of this
section;
(ii) Describes how the school will use resources under this subpart
and from other sources to implement those components;
(iii) Includes a list of State and local programs and other Federal
programs under paragraph (c) of this section that will be included in
the schoolwide program; and
(iv) (A) If the State has developed or adopted a State assessment
system under section 1111(b)(3) of the Act--
(1) Describes how the school will provide individual student
assessment results, including an interpretation of those results, to
the parents of each child who participates in that assessment; and
(2) Provides for the disaggregation of data on the assessment
results of students and the reporting of those data in accordance with
Sec. 200.5(a); or
(B) If the State has not developed or adopted a State assessment
system under section 1111(b)(3) of the Act, describes the data on the
achievement of students in the school and effective instructional and
school improvement practices on which the plan is based.
(2) The schoolwide program plan must be--
(i) Developed during a one-year period unless--
(A) The LEA, after considering the recommendation of its technical
assistance providers, determines that less time is needed to develop
and implement the schoolwide program; or
(B) The school is operating a schoolwide program under section 1015
of Chapter 1 of Title I of the Act during the 1994-1995 school year, in
which case the school may continue its schoolwide program but shall
amend its current plan or develop a new plan in accordance with this
section during the first year it receives funds under this part;
(ii) Developed with the involvement of the community to be served
and individuals who will carry out the plan, including--
(A) Teachers;
(B) Principals;
(C) Other school staff;
(D) Pupil services personnel, if appropriate;
(E) Parents of students in the school; and
(F) If the plan relates to a secondary school, students from the
school;
(iii) Available to the LEA, parents, and the public;
(iv) Translated, to the extent feasible, into any language that a
significant percentage of the parents of participating children in the
school speak as their primary language; and
(v) If appropriate, developed in coordination with other programs,
including those under the School-to-Work Opportunities Act of 1994, the
Carl D. Perkins Vocational and Applied Technology Education Act, and
the National and Community Service Act of 1990.
(3) The schoolwide program plan remains in effect for the duration
of the school's participation under this section.
(4) A school operating a schoolwide program shall review and revise
its plan, as necessary, to reflect changes in its schoolwide program or
changes to reflect State standards established after the plan was
developed.
(f) Effect of operating a schoolwide program. (1) No school
operating a schoolwide program shall be required to--
(i) Identify particular children under this subpart and under any
other Federal program included under paragraph (c) of this section as
eligible to participate in the schoolwide program;
(ii) Document that funds available under this subpart and any other
Federal program included under paragraph (c) of this section are used
to benefit only the intended beneficiaries of the respective programs;
or
(iii) Demonstrate that the particular services paid for with funds
under this subpart and under any other Federal program included under
paragraph (c) of this section supplement the services regularly
provided in that school.
(2) A school operating a schoolwide program shall use funds
available under this subpart and under any other Federal program
included under paragraph (c) of this section only to supplement the
total amount of funds that would, in the absence of those funds, be
made available from non-Federal sources for that school, including
funds needed to provide services that are required by law for children
with disabilities and children with limited-English proficiency.
(Authority: 20 U.S.C. 6314, 6396(b))
Sec. 200.9 [Reserved]
Participation of Eligible Children in Private Schools
Sec. 200.10 Responsibilities for providing services to children in
private schools.
(a) An LEA shall, after timely and meaningful consultation with
appropriate private school officials, provide special educational
services or other benefits under this subpart, on an equitable basis,
to eligible children who are enrolled in private elementary and
secondary schools in accordance with the requirements in Secs. 200.11
through 200.17 and section 1120 of the Act.
(b) (1) Eligible private school children are children who--
(i) Reside in a participating school attendance area of the LEA;
and
(ii) Meet the criteria in section 1115(b) of the Act.
(2) If an LEA identifies a public school as eligible on the basis
of enrollment, rather than because it serves an eligible school
attendance area, the LEA shall, in consultation with private school
officials, determine an equitable way to identify eligible private
school children.
(3) Among the eligible private school children, the LEA shall
select children to participate in a manner that is consistent with the
provisions in Sec. 200.11.
(Authority: 20 U.S.C. 6315(b); 6321(a))
Sec. 200.11 Factors for determining equitable participation of
children in private schools.
(a) Equal expenditures. (1) Expenditures of funds made available
under this subpart for services for eligible private school children in
the aggregate must be equal to the amount of funds generated by private
school children from low-income families under Sec. 200.28.
(2) An LEA shall meet this requirement as follows:
(i) Before determining equal expenditures under paragraph (a)(1) of
this section, the LEA shall reserve, from the LEA's whole allocation,
funds needed to carry out Sec. 200.27.
(ii) The LEA shall reserve the amounts of funds generated by
private school children under Sec. 200.28 and, in consultation with
appropriate private school officials, may--
(A) Combine those amounts to create a pool of funds from which the
LEA provides equitable services to eligible private school children, in
the aggregate, in greatest need of those services; or
(B) Provide equitable services to eligible children in each private
school with the funds generated by children from low-income families
under Sec. 200.28 who attend that private school.
(b) Services on an equitable basis. (1) The services that an LEA
provides to eligible private school children must be equitable in
comparison to the services and other benefits provided to public school
children participating under this subpart.
(2) Services are equitable if the LEA--
[[Page 34808]]
(i) Addresses and assesses the specific needs and educational
progress of eligible private school children on a comparable basis as
public school children;
(ii) Meets the equal expenditure requirements under paragraph (a)
of this section; and
(iii) Provides private school children with an opportunity to
participate that--(A) Is equitable to the opportunity provided to
public school children; and
(B) Provides reasonable promise of those children achieving the
high levels called for by the State's student performance standards.
(3) The LEA shall make the final decisions with respect to the
services to be provided to eligible private school children.
(Authority: 20 U.S.C. 6321(a))
Sec. 200.12 Requirements to ensure that funds do not benefit a private
school.
(a) An LEA shall use funds under this subpart to provide services
that supplement, and in no case supplant, the level of services that
would, in the absence of Title I services, be available to
participating children in private schools.
(b) An LEA shall use funds under this subpart to meet the special
educational needs of participating private school children, but not
for--
(1) The needs of the private school; or
(2) The general needs of children in the private school.
(Authority: 20 U.S.C. 6321(a), 6322(b))
Sec. 200.13 Requirements concerning property, equipment, and supplies
for the benefit of private school children.
(a) A public agency must keep title to and exercise continuing
administrative control of all property, equipment, and supplies that
the public agency acquires with funds under this subpart for the
benefit of eligible private school children.
(b) The public agency may place equipment and supplies in a private
school for the period of time needed for the program.
(c) The public agency shall ensure that the equipment and supplies
placed in a private school--
(1) Are used only for Title I purposes; and
(2) Can be removed from the private school without remodeling the
private school facility.
(d) The public agency shall remove equipment and supplies from a
private school if--
(1) The equipment and supplies are no longer needed for Title I
purposes; or
(2) Removal is necessary to avoid unauthorized use of the equipment
or supplies for other than Title I purposes.
(e) No funds under this subpart may be used for repairs, minor
remodeling, or construction of private school facilities.
(f) For the purpose of this section, the term public agency
includes the LEA.
(Authority: 20 U.S.C. 6321(c))
Sec. 200.14 [Reserved]
Capital Expenses
Sec. 200.15 Payments to SEAs for capital expenses.
(a) From the amount appropriated for capital expenses under section
1002(e) of the Act, the Secretary pays a State an amount that bears the
same ratio to the amount appropriated as the number of private school
children in the State who received services under this subpart in the
most recent year for which data satisfactory to the Secretary are
available bears to the total number of private school children served
in that same year in all the States.
(b) The Secretary reallocates funds not used by a State for
purposes of Sec. 200.16 among other States on the basis of their
respective needs.
(Authority: 20 U.S.C. 6321(e)(1))
Sec. 200.16 Payments to LEAs for capital expenses.
(a)(1)(i) An LEA may apply to the SEA for a payment to cover
capital expenses that the LEA, in providing equitable services to
eligible private school children--
(A) Is currently incurring; or
(B) Would incur because of an expected increase in the number of
private school children to be served.
(ii) An LEA may apply for a payment to cover capital expenses it
incurred in prior years for which it has not been reimbursed if the LEA
demonstrates that its current needs for capital expenses have been met.
(2) Capital expenses means only expenditures for noninstructional
goods and services that are incurred as a result of implementation of
alternative delivery systems to comply with the requirements of Aguilar
v. Felton. These expenditures--
(i) Include--
(A) The purchase, lease, and renovation of real and personal
property (including mobile educational units, and leasing of neutral
sites or space);
(B) Insurance and maintenance costs;
(C) Transportation; and
(D) Other comparable goods and services, including noninstructional
computer technicians; and
(ii) Do not include the purchase of instructional equipment such as
computers.
(b) An SEA shall distribute funds it receives under Sec. 200.15 to
LEAs that apply on the basis of need.
(Authority: 20 U.S.C. 6321(e))
Sec. 200.17 Use of LEA payments for capital expenses.
(a) Unless an LEA is authorized by the SEA to reimburse itself for
capital expenses incurred in prior years, the LEA shall use payments
received under Sec. 200.16 to cover capital expenses the LEA is
incurring or will incur to maintain or increase the number of private
school children being served.
(b) The LEA may not take the payments received under Sec. 200.16
into account in meeting the requirements in Sec. 200.11(a).
(c) The LEA shall account separately for payments received under
Sec. 200.16.
(Authority: 20 U.S.C. 6321(e)(3))
Sec. 200.18-200.19 [Reserved]
Procedures for the Within-State Allocation of LEA Program Funds
Sec. 200.20 Allocation of funds to LEAs.
(a) Subcounty allocations. (1) Except as provided in paragraph (b)
of this section, Sec. 200.23(c)(1) and (3)(ii), and Sec. 200.25, an SEA
shall allocate the county amounts determined by the Secretary for basic
grants, concentration grants, and targeted grants to each eligible LEA
within the county on the basis of the number of children counted in
Sec. 200.21.
(2) If an LEA overlaps a county boundary, the SEA shall make, on a
proportionate basis, a separate allocation to the LEA from the county
aggregate amount for each county in which the LEA is located, provided
the LEA is eligible for a grant.
(b) Statewide allocations. (1) In any State in which a large number
of LEAs overlap county boundaries, an SEA may apply to the Secretary
for authority to make allocations under basic grants or targeted grants
directly to LEAs without regard to counties.
(2) In its application, the SEA shall--
(i) Identify the data in Sec. 200.21(b) the SEA will use for LEA
allocations; and
(ii) Provide assurances that--
(A) Allocations will be based on the data approved by the Secretary
under this paragraph; and
(B) A procedure has been established through which an LEA
dissatisfied with the determination by the SEA may appeal directly to
the Secretary for a final determination.
(c) LEAs containing two or more counties in their entirety. If an
LEA contains two or more counties in their entirety, the SEA shall
allocate funds
[[Page 34809]]
under paragraphs (a) and (b) of this section to each county as if such
county were a separate LEA.
(Authority: 20 U.S.C. 6333-6335)
Sec. 200.21 Determination of the number of children eligible to be
counted.
(a) General. An SEA shall count the number of children aged 5-17,
inclusive, from low-income families and the number of children residing
in local institutions for neglected children.
(b) Children from low-income families. (1) An SEA shall count the
number of children from low-income families in the school districts of
the LEAs using the best available data. The SEA shall use the same
measure of low-income throughout the State.
(2) An SEA may use one of the following options to obtain its count
of children from low-income families:
(i) The factors under section 1124(c)(1) of the Act (excluding
children in local institutions for neglected or delinquent children),
which include--
(A) Census data on children in families below the poverty level;
(B) Data on children in families above poverty receiving payments
under the program of Aid to Families with Dependent Children (AFDC);
and
(C) Data on foster children.
(ii) Alternative data that an SEA determines best reflect the
distribution of children from low-income families and that are adjusted
to be equivalent in proportion to the total number of children counted
under section 1124(c) of the Act (excluding children in local
institutions for neglected or delinquent children).
(iii) Data that more accurately reflect the distribution of
poverty.
(c) Children in local institutions for neglected children.
The SEA shall count the number of children ages 5 to 17, inclusive,
in the LEA who resided in a local institution for neglected children--
and were not counted under subpart 1 of Part D of Title I (programs for
neglected or delinquent children operated by State agencies)--for at
least 30 consecutive days, at least one day of which was in the month
of October of the preceding fiscal year.
(Authority: 20 U.S.C. 6333(c))
Sec. 200.22 Allocation of basic grants.
(a) Eligibility. An LEA is eligible for a basic grant if--(1) In
school year 1995-96, there are at least 10 children counted under
Sec. 200.21 in the LEA; and
(2) Beginning in school year 1996-97--
(i) There are at least 10 children counted under Sec. 200.21 in the
LEA; and
(ii) The number of those children is greater than two percent of
the LEA's total population aged 5 to 17 years, inclusive.
(b) Amount of the LEA grant. An SEA shall allocate basic grant
funds to eligible LEAs as provided in Sec. 200.20, except that the SEA
shall apply the hold-harmless provisions described in Sec. 200.25.
(Authority: 20 U.S.C. 6333)
Sec. 200.23 Allocation of concentration grants.
(a) Eligibility. An LEA is eligible for a concentration grant if--
(1) The LEA is eligible for a basic grant under paragraph
Sec. 200.22(a); and
(2) The number of children counted under Sec. 200.21 in the LEA
exceeds--
(i) 6,500; or
(ii) 15 percent of the LEA's total population ages 5 to 17,
inclusive.
(b) Amount of the grant. (1) Except as provided in paragraph (c) of
this section, an SEA shall allocate a county's concentration grant
funds only to LEAs that--
(i) Lie, in whole or in part, within the county; and
(ii) Meet the eligibility criteria in paragraph (a) of this
section.
(2) An SEA shall allocate concentration grant funds to eligible
LEAs as provided in Sec. 200.20(a), except that the SEA shall apply the
hold-harmless provision described in Sec. 200.25(a).
(c) Exceptions. (1) Eligible LEAs in ineligible counties.
(i) An SEA may reserve not more than two percent of the amount of
concentration grant funds it receives to make direct allocations to
eligible LEAs that are located in counties that do not receive a
concentration grant allocation.
(ii) If an SEA plans to reserve concentration grant funds under
paragraph (c)(1)(i) of this section, the SEA, before allocating any
concentration grant funds under paragraph (b) of this section, shall--
(A) Determine which LEAs located in ineligible counties are
eligible to receive concentration grant funds;
(B) Determine the appropriate amount to be reserved;
(C) Proportionately reduce the amount available for concentration
grants for eligible counties or LEAs to provide the reserved amount,
except that for school year 1996-97 an SEA may not reduce an LEA's
allocation below the hold-harmless amount determined under
Sec. 200.25(a);
(D) Rank order the LEAs eligible for concentration grant funds that
are located in ineligible counties according to the number or
percentage of children counted under Sec. 200.21;
(E) Select in rank order, those LEAs that the SEA plans to provide
concentration grant funds; and
(F) Distribute the reserved funds among the selected LEAs based on
the number of children counted under Sec. 200.21.
(2) Eligible counties with no eligible LEAs. In a county in which
no LEA meets the eligibility criteria in paragraph (a) of this section,
an SEA shall--
(i) Identify those LEAs in which either the number or percentage of
children counted under Sec. 200.21 exceeds the average number or
percentage of those children in the county; and
(ii) Allocate concentration grant funds for the county among the
LEAs identified in paragraph (c)(2)(i) of this section based on the
number of children counted under Sec. 200.21 in each LEA compared to
the number of those children in all those LEAs.
(3) States receiving minimum allocations. In a State that receives
a minimum concentration grant under section 1124A(d) of the Act, the
SEA shall--
(i) Allocate concentration grant funds among LEAs in the State
under paragraphs (a), (b), and (c)(1) and (2) of this section; or
(ii) Without regard to the counties in which the LEAs are located-
(A) Identify those LEAs in which either the number or percentage of
children counted under Sec. 200.21 exceeds the average number or
percentage of those children in the State; and
(B) Allocate concentration grant funds among the LEAs identified in
paragraph (c)(3)(ii)(A) of this section based on the number of children
counted under Sec. 200.21 in each LEA.
(Authority: 20 U.S.C. 6334)
Sec. 200.24 Allocation of targeted grants.
(a) Eligibility. An LEA is eligible for a targeted grant if--
(1) There are at least 10 children counted under Sec. 200.21 in the
LEA; and
(2) The number of those children is at least five percent of the
LEA's total population ages 5 to 17 years, inclusive.
(b) Weighted child count. In determining an LEA's grant, the SEA
shall compute a weighted child count in accordance with section 1125(c)
of the Act by taking the larger of--
(1) Percent-weighted child count. The number of children counted
under Sec. 200.21 multiplied by the weights shown in the following
table, with the weights applied in a step-wise manner so that only
those children above each weighting threshold receive the higher
weight:
[[Page 34810]]
------------------------------------------------------------------------
LEA percentage of children counted under Sec. 200.21 as a
percent of total children ages 5 through 17 Weights
------------------------------------------------------------------------
0 to 14.265%................................................. 1.00
More than 14.265% up to 21.553%.............................. 1.75
More than 21.553% up to 29.223%.............................. 2.50
More than 29.223% up to 36.538%.............................. 3.25
More than 36.538%............................................ 4.00
------------------------------------------------------------------------
or;
(2) Number-weighted child count. The number of children counted
under Sec. 200.21 multiplied by the weights shown in the following
table, with the weights applied in a step-wise manner so that only
those children above each weighting threshold receive the higher
weight:
------------------------------------------------------------------------
LEA number of children counted under Sec. 200.21 Weights
------------------------------------------------------------------------
1 to 575..................................................... 1.0
576 to 1,870................................................. 1.5
1,871 to 6,910............................................... 2.0
6,911 to 42,000.............................................. 2.5
42,001 or more............................................... 3.0
------------------------------------------------------------------------
(c) Amount of LEA grant. An SEA shall allocate targeted grant funds
to eligible LEAs as provided in Sec. 200.20 based on the weighted child
count determined in paragraph (b) of this section, except that the SEA
shall apply the hold-harmless provisions described in Sec. 200.25.
(Authority: 20 U.S.C. 6335)
Sec. 200.25 Applicable hold-harmless provisions.
(a) General. (1) An SEA may not reduce the allocation of an
eligible LEA below the hold-harmless amounts established under section
1122(c) of the Act.
(2) The hold-harmless protection limits the maximum reduction in an
LEA's allocation when compared to the LEA's allocation for the
preceding year.
(3) The hold-harmless shall be applied separately for basic grants,
concentration grants, and targeted grants, and shall be applied for
each grant formula only in those years authorized under section 1122(c)
of the Act, as shown in the table contained in paragraph (a)(4) of this
section.
(4) Under section 1122(c) of the Act, the hold-harmless percentage
varies based on the year and, for school years 1997-98 and beyond,
based on the LEA's number of children counted under Sec. 200.21 as a
percentage of the total number of children ages 5-17, inclusive, in the
LEA, as shown in the following table:
------------------------------------------------------------------------
LEA's Sec.
200.21 children Hold-
School year as a percentage harmless Applicable grant
of children ages percentage formulas
5-17, inclusive
------------------------------------------------------------------------
1995-96.......... Not applicable... 85 Basic Grants.
1996-97.......... Not applicable... 100 Basic Grants and
Concentration Grants.
1997-98 and 30% or more...... 95 Basic Grants and
beyond. Targeted Grants.
15% or more and 90
less than 30%.
Less than 15%.... 85
------------------------------------------------------------------------
(5) For school year 1995-96, the SEA shall compute each LEA's hold-
harmless amount without regard to the amount the LEA received for
delinquent children counted under section 1005 of Chapter 1 of Title I
of the Elementary and Secondary Education Act of 1965 as in effect on
September 30, 1994.
(b) Adjustment for insufficient funds. (1) School year 1995-96. If
the Secretary's allocation for a county is not sufficient to give an
LEA 85 percent of the amount it received for school year 1994-95,
without regard to the amount the LEA received for delinquent children,
the SEA may use funds received under Part D, subpart 2 (local agency
programs) of the Act to bring such LEA up to its hold-harmless amount.
(2) School years 1997-98 and beyond. If the Secretary's allocation
for a county is not sufficient to meet the LEA hold-harmless
requirements of paragraph (a) of this section, the SEA shall reallocate
funds proportionately from all other LEAs in the State that are
receiving funds in excess of the hold-harmless amounts specified in
paragraph (a) of this section.
(c) Eligibility for hold-harmless protection. An LEA must be
eligible for basic grant, concentration grant, and targeted grant funds
in order for the respective provisions in paragraphs (a) and (b) of
this section to apply.
(Authority: 20 U.S.C. 6332(c))
Sec. 200.26 [Reserved]
Procedures for the Within-District Allocation of LEA Program Funds
Sec. 200.27 Reservation of funds by an LEA.
Before allocating funds in accordance with Sec. 200.28, an LEA
shall reserve funds as are reasonable and necessary to--
(a) Provide services comparable to those provided to children in
participating school attendance areas and schools to serve--
(1) Children in local institutions for neglected children; and
(2) Where appropriate--
(i) Eligible homeless children who do not attend participating
schools, including providing educationally related support services to
children in shelters;
(ii) Children in local institutions for delinquent children; and
(iii) Neglected and delinquent children in community-day school
programs;
(b) Meet the requirements for parental involvement in section
1118(a)(3) of the Act;
(c) Administer programs for public and private school children
under this part, including special capital expenses not paid for from
funds provided under Sec. 200.16 that are incurred as a result of
implementing alternative delivery systems to comply with the
requirements of Aguilar v. Felton; and
(d) Conduct other authorized activities such as professional
development, school improvement, and coordinated services.
(Authority: 20 U.S.C. 6313(c)(3), 6317(c), 6319(a)(3), 6320)
Sec. 200.28 Allocation of funds to school attendance areas and
schools.
(a)(1) An LEA shall allocate funds under this subpart to school
attendance areas or schools, identified as eligible and selected to
participate under section 1113(a) or (b) of the Act, in rank order
[[Page 34811]]
on the basis of the total number of children from low-income families
in each area or school.
(2)(i) In calculating the total number of children from low-income
families, the LEA shall include children from low-income families who
attend private schools, using--
(A) The same poverty data, if available, as the LEA uses to count
public school children; or
(B) If the same data are not available, comparable data--
(1) Collected through alternative means such as a survey; or
(2) From existing sources such as AFDC or tuition scholarship
programs.
(ii) If complete actual poverty data are not available on private
school children, an LEA may extrapolate from actual data on a
representative sample of private school children the number of children
from low-income families who attend private schools.
(iii) For the 1995-96 school year only, if adequate data on the
number of private school children from low-income families are not
available under paragraph (a)(2) (i) or (ii) of this section, the LEA
shall derive the number of private school children from low-income
families by applying the poverty percentage of each participating
public school attendance area to the number of private school children
who reside in that area.
(3) If an LEA ranks its school attendance areas or schools below 75
percent poverty by grade span groupings, the LEA may determine the
percentage of children from low-income families in the LEA as a whole
for each grade span grouping.
(b)(1) Except as provided in paragraphs (b)(2) and (d) of this
section, an LEA shall allocate to each participating school attendance
area or school an amount for each low-income child that is at least 125
percent of the per-pupil amount of funds the LEA received for that year
under subpart 2 of Part A of Title I. The LEA shall calculate this per-
pupil amount before the LEA reserves any funds under Sec. 200.27, using
the poverty measure selected by the LEA under section 1113(a)(5) of the
Act.
(2) If an LEA is serving only school attendance areas or schools in
which the percentage of children from low-income families is 35 percent
or more, the LEA is not required to allocate a per-pupil amount of at
least 125 percent.
(c) An LEA is not required to allocate the same per-pupil amount to
each participating school attendance area or school provided the LEA
allocates higher per-pupil amounts to areas or schools with higher
concentrations of poverty than to areas or schools with lower
concentrations of poverty.
(d) An LEA may reduce the amount of funds allocated under this
section to a school attendance area or school if the area or school is
spending supplemental State or local funds for programs that meet the
requirements in Sec. 200.62(c).
(e) If an LEA contains two or more counties in their entirety, the
LEA shall distribute to schools within each county a share of the LEA's
total grant that is no less than the county's share of the child count
used to calculate the LEA's grant.
(Authority: 20 U.S.C. 6313(c), 6333(c)(2))
Sec. 200.29 [Reserved]
Subpart B--Even Start Family Literacy Program
Sec. 200.30 Migrant Education Even Start Program Definition.
Eligible participants under the Migrant Education Even Start
Program (MEES) are those who meet the definitions of a migratory child,
a migratory agricultural worker or a migratory fisher in Sec. 200.40.
(Authority: 20 U.S.C. 6362, 6511)
Secs. 200.31--200.39 [Reserved]
Subpart C--Migrant Education Program
Sec. 200.40 Program definitions.
The following definitions apply to programs and projects operated
under this subpart:
(a) Agricultural activity means--
(1) Any activity directly related to the production or processing
of crops, dairy products, poultry or livestock for initial commercial
sale or personal subsistence;
(2) Any activity directly related to the cultivation or harvesting
of trees; or
(3) Any activity directly related to fish farms.
(b) Fishing activity means any activity directly related to the
catching or processing of fish or shellfish for initial commercial sale
or personal subsistence.
(c) Migratory agricultural worker means a person who, in the
preceding 36 months, has moved from one school district to another, or
from one administrative area to another within a State that is
comprised of a single school district, in order to obtain temporary or
seasonal employment in agricultural activities (including dairy work)
as a principal means of livelihood.
(d) Migratory child means a child who is, or whose parent, spouse,
or guardian is, a migratory agricultural worker, including a migratory
dairy worker, or a migratory fisher, and who, in the preceding 36
months, in order to obtain, or accompany such parent, spouse, guardian
in order to obtain, temporary or seasonal employment in agricultural or
fishing work--
(1) Has moved from one school district to another;
(2) In a State that is comprised of a single school district, has
moved from one administrative area to another within such district; or
(3) Resides in a school district of more than 15,000 square miles,
and migrates a distance of 20 miles or more to a temporary residence to
engage in a fishing activity.
(e) Migratory fisher means a person who, in the preceding 36
months, has moved from one school district to another, or from one
administrative area to another within a State that is comprised of a
single school district, in order to obtain temporary or seasonal
employment in fishing activities as a principal means of livelihood.
This definition also includes a person who, in the preceding 36 months,
resided in a school district of more than 15,000 square miles, and
moved a distance of 20 miles or more to a temporary residence to engage
in a fishing activity as a principal means of livelihood.
(f) Principal means of livelihood means that temporary or seasonal
agricultural or fishing activity plays an important part in providing a
living for the worker and his or her family.
(Authority: 20 U.S.C. 6391-6399, 6511)
Sec. 200.41 Use of program funds for unique program function costs.
An SEA may use the funds available from its State Migrant Education
Program to carry out other administrative activities, beyond those
allowable under Sec. 200.61, that are unique to the MEP, including
those that are the same or similar to those performed by LEAs in the
State under subpart A. These activities include but are not limited
to--
(a) Statewide identification and recruitment of eligible migratory
children;
(b) Interstate and intrastate coordination of the State MEP and its
local projects with other relevant programs and local projects in the
State and in other States;
(c) Procedures for providing for educational continuity for
migratory children through the timely transfer of educational and
health records, beyond that required generally by State and local
agencies.
[[Page 34812]]
(d) Collecting and using information for accurate distribution of
subgrant funds; and
(e) Development and implementation of a statewide plan for needs
assessment and service delivery.
(f) Supervision of instructional and support staff.
(Authority: 20 U.S.C. 6392, 6511)
Sec. 200.42 Responsibilities of SEAs and operating agencies for
assessing the effectiveness of the MEP.
(a) Each SEA and operating agency receiving funds under the MEP has
the responsibility to determine the effectiveness of its program and
projects in providing migratory students with the opportunity to meet
the same challenging State content and performance standards, required
under Sec. 200.2, that the State has established for all children.
(b) To determine the effectiveness of its program and projects,
each SEA and operating agency receiving MEP funds shall, wherever
feasible, use the same high-quality yearly student assessments or
transitional assessments that the State establishes for use in meeting
the requirements of Sec. 200.4.
(c) In a project where it is not feasible to use the same student
assessments that are being used to meet the requirements of Sec. 200.4
(e.g., in a summer-only project, or in a project where no migratory
students are enrolled at the time the State-established assessment
takes place), the SEA must ensure that the relevant operating agency
carries out some other reasonable process or processes for examining
the effectiveness of the project.
(Authority: 20 U.S.C. 6394)
Sec. 200.43 Responsibilities of SEAs and operating agencies for
improving services to migratory children.
While the specific school improvement requirements of section 1116
of the statute do not apply to the MEP, SEAs and local operating
agencies receiving MEP funds shall use the results of the assessments
carried out under Sec. 200.42 to improve the services provided to
migratory children.
(Authority: 20 U.S.C. 6394)
Sec. 200.44 Use of MEP funds in schoolwide projects.
Funds available under Part C of Title I of the Act may be used in a
schoolwide program subject to the requirements of
Sec. 200.8(c)(3)(ii)(B)(1).
(Authority: 20 U.S.C. 6396)
Sec. 200.45 Responsibilities for participation of children in private
schools.
An SEA and its operating agencies shall conduct programs and
projects under this subpart in a manner consistent with the basic
requirements of section 1120 of the Act.
(Authority: 20 U.S.C. 6394)
Secs. 200.46-200.49 [Reserved]
Subpart D--Prevention and Intervention Programs for Children and
Youth Who Are Neglected, Delinquent, or At-Risk of Dropping Out
Sec. 200.50 Program definitions.
(a) The following definitions apply to the programs authorized in
Part D, subparts 1 and 2 of Title I of the Act:
Children and Youth means the same as ``children'' as that term is
defined in Sec. 200.65(a).
(b) The following definitions apply to the programs authorized in
Part D, subpart 1 of Title I of the Act:
Institution for delinquent children and youth means, as determined
by the SEA, a public or private residential facility that is operated
primarily for the care of children and youth who--
(1) Have been adjudicated to be delinquent or in need of
supervision; and
(2) Have had an average length of stay in the institution of at
least 30 days.
Institution for neglected children and youth means, as determined
by the SEA, a public or private residential facility, other than a
foster home, that is operated primarily for the care of children and
youth who--
(1) Have been committed to the institution or voluntarily placed in
the institution under applicable State law due to abandonment, neglect,
or death of their parents or guardians; and
(2) Have had an average length of stay in the institution of at
least 30 days.
Regular program of instruction means an educational program (not
beyond grade 12) in an institution or a community day program for
neglected or delinquent children that consists of classroom instruction
in basic school subjects such as reading, mathematics, and vocationally
oriented subjects, and that is supported by non-Federal funds. Neither
the manufacture of goods within the institution nor activities related
to institutional maintenance are considered classroom instruction.
(c) The following definitions apply to the local agency program
authorized in Part D, subpart 2 of Title I of the Act:
Immigrant children and youth and Limited English Proficiency have
the same meanings as those terms are defined in section 7501 of the
Act, except that the terms ``individual'' and ``children and youth''
used in those definitions mean ``children and youth'' as defined in
this section.
Locally operated correctional facility means a facility in which
persons are confined as a result of a conviction for a criminal
offense, including persons under 21 years of age. The term also
includes a local public or private institution and community day
program or school not operated by the State that serves delinquent
children and youth.
Migrant youth means the same as ``migratory child'' as that term is
defined in Sec. 200.40(d).
(Authority: 20 U.S.C. 6432, 6472)
Sec. 200.51 SEA counts of eligible children.
To receive an allocation under Part D, subpart 1 of Title I of the
Act, an SEA must provide the Secretary with a count of children and
youth under the age of 21 enrolled in a regular program of instruction
operated or supported by State agencies in institutions or community
day programs for neglected or delinquent children and youth and adult
correctional institutions as specified in paragraphs (a) and (b) of
this section:
(a) Enrollment. (1) To be counted, a child or youth must be
enrolled in a regular program of instruction for at least--
(i) 20 hours per week if in an institution or community day program
for neglected or delinquent children; or
(ii) 15 hours per week if in an adult correctional institution.
(2) The State agency shall specify the date on which the enrollment
of neglected or delinquent children is determined under paragraph
(a)(1) of this section, except that the date specified shall be--
(i) Consistent for all institutions or community day programs
operated by the State agency; and
(ii) Represent a school day in the calendar year preceding the year
in which funds become available.
(b) Adjustment of enrollment. The SEA shall adjust the enrollment
for each institution or community day program served by a State agency
by--
(1) Multiplying the number determined in paragraph (a) of this
section by the number of days per year the regular program of
instruction operates; and
(2) Dividing the result of paragraph (b)(1) of this section by 180.
(c) Date of submission. The SEA must annually submit the data in
paragraph (b) of this section no later than January 31.
(Authority: 20 U.S.C. 6432)
[[Page 34813]]
Secs. 200.52-200.59 [Reserved]
Subpart E--General Provisions
Sec. 200.60 Reservation of funds for State administration and school
improvement.
(a) State administration. An SEA may reserve for State
administration activities authorized in section 1603 of the Act no more
than--
(1) One percent from each of the amounts allocated to the State or
Outlying Area under section 1002(a), (c), and (d) of the Act; or
(2)(i) $400,000 ($50,000 for the Outlying Areas), whichever is
greater.
(ii) An SEA reserving $400,000 under paragraph (a)(2)(i) of this
section shall reserve proportionate amounts from each of the amounts
allocated to the State or Outlying Area under section 1002(a), (c), and
(d) of the Act.
(b) School improvement. (1) To carry out school improvement
activities authorized under sections 1116 and 1117 of the Act, an SEA
may reserve no more than .5 percent from each of the amounts allocated
to the State or Outlying Area under section 1002(a), (c), and (d) of
the Act.
(2)(i) An SEA shall have available from funds received under
section 1002(f) of the Act or reserved under paragraph (b)(1) of this
section no less than $200,000 ($25,000 for the Outlying Areas) to carry
out school improvement activities.
(ii)(A) If funds made available for school improvement under
section 1002(f) of the Act do not equal $200,000 ($25,000 for Outlying
Areas), the SEA shall reserve funds in accordance with paragraph (b)(1)
of this section.
(B) If the amount reserved under paragraph (b)(1) when added to
funds received under section 1002(f), does not equal $200,000 ($25,000
for the Outlying Areas), the SEA shall reserve additional funds under
section 1002(a), (c), and (d) as are necessary to make $200,000
($25,000 for the Outlying Areas) available to the SEA.
(c) Reservation from section 1002(a) funds. In reserving funds for
State administration and school improvement under section 1002(a) of
the Act, an SEA shall--
(1) Reserve proportionate amounts from each of the State's basic
grant, concentration grant, and targeted grant allocations; and
(2) Ensure that from the funds remaining for basic grants,
concentration grants, and targeted grants after reserving funds for
State administration and school improvement, no eligible LEA receives
less than the hold-harmless amounts determined under Sec. 200.25,
except when the amounts remaining are insufficient to pay all LEAs the
hold-harmless amounts provided in Sec. 200.25, the SEA shall ratably
reduce each LEA's hold harmless allocation to the amount available.
(Authority: 20 U.S.C. 6303, 6513(c))
Sec. 200.61 Use of funds reserved for State administration.
An SEA may use any of the funds that it has reserved under
Sec. 200.60(a) to perform general administrative activities necessary
to carry out, at the State level, any of the programs authorized under
Title I of the Act.
(Authority: 20 U.S.C. 6513(c))
Sec. 200.62 [Reserved]
Sec. 200.63 Supplement, not supplant.
(a) Except as provided in paragraph (c) of this section, a grantee
or subgrantee under subparts A, C, or D of this part may use funds
available under these subparts only to supplement the amount of funds
that would be made available, in the absence of funds made available
under subparts A, C, and D from non-Federal sources for the education
of pupils participating in programs assisted under subparts A, C, and D
and in no case may funds available under these subparts be used to
supplant those non-Federal funds.
(b) To meet the requirement in paragraph (a) of this section, a
grantee or subgrantee under subparts A, C, or D is not required to
provide services under subparts A, C, or D through the use of a
particular instructional method or in a particular instructional
setting.
(c)(1) For purposes of determining compliance with paragraph (a) of
this section, a grantee or subgrantee under subparts A or C may exclude
supplemental State and local funds spent in any eligible school
attendance area or eligible school for programs that meet the
requirements of section 1114 or section 1115 of the Act.
(2) A supplemental State or local program will be considered to
meet the requirements of section 1114 if the program--
(i) Is implemented in a school that meets the schoolwide poverty
threshold for eligibility in Sec. 200.8(b);
(ii) Is designed to upgrade the entire educational program in the
school to support students in their achievement toward meeting the
State's challenging student performance standards;
(iii) Is designed to meet the educational needs of all children in
the school, particularly the needs of children who are failing, or most
at risk of failing, to meet the State's challenging student performance
standards; and
(iv) Uses the State's system of assessment to review the
effectiveness of the program.
(3) A supplemental State or local program will be considered to
meet the requirements of section 1115 if the program--
(i) Serves only children who are failing, or most at risk of
failing, to meet the State's challenging student performance standards;
(ii) Provides supplementary services designed to meet the special
educational needs of the children who are participating to support
their achievement toward meeting the State's student performance
standards that all children are expected to meet; and
(iii) Uses the State's system of assessment to review the
effectiveness of the program.
(4) These conditions also apply to supplemental State and local
funds expended under sections 1113(b)(1)(C) and 1113(c)(2)(B) of the
Act.
(Authority: 20 U.S.C. 6322(b))
Sec. 200.64 Maintenance of effort.
(a) General. An LEA receiving funds under subparts A or C may
receive its full allocation of funds under subparts A and C if it finds
that either the combined fiscal effort per student or the aggregate
expenditures of State and local funds with respect to the provision of
free public education in the LEA for the preceding fiscal year was not
less than 90 percent of combined fiscal effort per student or the
aggregate expenditures for the second preceding fiscal year.
(b) Meaning of ``preceding fiscal year''. For purposes of
determining maintenance of effort, the ``preceding fiscal year'' is the
Federal fiscal year or the 12-month fiscal period most commonly used in
a State for official reporting purposes prior to the beginning of the
Federal fiscal year in which funds are available.
Example: For funds first made available on July 1, 1995, if a
State is using the Federal fiscal year, the ``preceding fiscal
year'' is Federal fiscal year 1994 (which began on October 1, 1993)
and the ``second preceding fiscal year'' is Federal fiscal year 1993
(which began on October 1, 1992). If a State is using a fiscal year
that begins on July 1, 1995, the ``preceding fiscal year'' is the
12-month period ending on June 30, 1994, and the ``second preceding
fiscal year, is the period ending on June 30, 1993.
(c) Expenditures. (1) To be considered. In determining an LEA's
compliance with the maintenance of effort requirement, the SEA shall
consider the LEA's expenditures from State and local funds for free
public education. These include expenditures
[[Page 34814]]
for administration, instruction, attendance and health services, pupil
transportation services, operation and maintenance of plant, fixed
charges, and net expenditures to cover deficits for food services and
student body activities.
(2) Not to be considered. The SEA shall not consider the following
expenditures in determining an LEA's compliance with the maintenance of
effort requirement:
(i) Any expenditures for community services, capital outlay, and
debt service; and
(ii) Any expenditures made from funds provided by the Federal
Government for which the LEA is required to account to the Federal
Government directly or through the SEA.
(Authority: 20 U.S.C. 6322(a))
Sec. 200.65 Definitions.
The following definitions apply to programs and projects operated
under this part:
(a) Children means--
(1) Persons up through age 21 who are entitled to a free public
education through grade 12; and
(2) Preschool children.
(b) Fiscal year means the Federal fiscal year--a period beginning
on October 1 and ending on the following September 30--or another 12-
month period normally used by the SEA for record-keeping.
(c) Preschool children means children who are--
(1) Below the age and grade level at which the agency provides free
public education; and
(2) Of an age at which they can benefit from an organized
instructional program provided in a school or educational setting.
(Authority: 20 U.S.C. 6315, 6511)
Secs. 200.66-200.69 [Reserved]
Appendix--Analysis of Comments and Changes
(Note: This appendix will not be codified in the Code of Federal
Regulations)
TITLE I--HELPING DISADVANTAGED CHILDREN MEET HIGH STANDARDS
Subpart A--Improving Basic Programs Operated by Local Educational
Agencies
Standards, Assessment, and Accountability
Section 200.1 Contents of a State Plan
Comment: One commenter suggested that the regulations include the
assurances or a reference to the assurances required by section 1111(c)
of Title I to be included in a State plan.
Discussion: The assurances in section 1111(c) relate to the
additional responsibilities of States to support teaching and learning.
The Department mailed to all States guidance for the development of a
Title I State plan and for consolidated applications that include Title
I. There is no need also to reference the assurances in the
regulations.
Changes: None.
Comment: A number of commenters commented on the requirement in
Sec. 200.1(b)(2)(iii) of the regulations to identify the languages
other than English for which yearly student assessments are needed but
not available, and then develop assessments for all those languages
according to a timetable established in the State plan. Several
commenters contended that this requirement is unreasonable because it
would be very expensive and time consuming. Moreover, in some cases,
the assessment would apply only to a few students and might not meet
the same standards of validity and reliability established for other
assessments. Several commenters suggested that the development of these
assessments in languages other than English be required only ``to the
extent practicable,'' tied to a minimum percentage of students that
speak a certain language in a State, or only be required when
instruction is actually given in that language. One commenter suggested
that the requirement to develop a timetable for progress towards the
development of these assessments is unreasonable because of the large
number of languages spoken in a State. Another commenter suggested that
a survey rather than a binding regulation be used to identify languages
other than English that are spoken by Title I participating students.
On the other hand, several commenters supported this requirement.
One commenter emphasized that States have a special obligation with
regard to assessing limited-English proficient (LEP) students and must
make every effort to develop assessments in languages that will yield
accurate information. Another commenter suggested that more specific
reporting requirements be included for identifying spoken languages and
developing assessments. One commenter suggested that the regulations
provide guidelines for inclusion of LEP students in State assessments
and another commenter suggested that the regulations address access to
assistance from the Department's Office of Bilingual Education and
Minority Languages Affairs.
Discussion: Section 1111(b)(3)(F)(iii) of Title I requires that
each State's assessments provide for the inclusion of LEP students who
shall be assessed, to the extent practicable, in the language and form
most likely to yield accurate and reliable information on what such
students know and can do to determine such students' mastery of skills
in subjects other than English. Also, section 1111(b)(5) of Title I
requires that each State plan identify the languages other than English
that are present in the participating student population and indicate
the languages for which yearly student assessments are not available
and are needed.
Section 200.1(b)(2)(iii)(B) of the regulations requires each State
plan to include a timetable for progress towards the development of
these assessments to ensure that States match their needs for LEP
assessments to a workable timetable that, over time, would improve
participation of LEP students in high-quality, yearly assessments. The
Secretary recognizes that there are many problems that must be
addressed in the process, including issues involving time, expense, and
usefulness of such assessments. To help address these issues, the
Department's Office of Bilingual Education and Minority Languages
Affairs and Office of Elementary and Secondary Education are developing
nonregulatory guidance on options that States might consider in
determining their own policy regarding the development of assessments
in other languages and criteria for inclusion of LEP students.
Changes: None.
Comment: Two commenters suggested that Title I State plans include
evidence that States used recognized professional and technical
knowledge to develop challenging content standards and performance
standards that may serve as benchmarks for student performance and as a
means of issuing rewards and sanctions for schools and districts.
Another commenter recommended that performance standards in Title I
schools be comparable to those established for schools that serve
middle- and upper-income families.
Discussion: Section 1111(b)(1)(D)(i) of Title I and
Sec. 200.2(a)(2)(i) of the regulations require States to demonstrate in
their plan that they have established, or will establish, challenging
content standards in academic subjects that specify what all children
are expected to know and be able to do, contain coherent and rigorous
content, and encourage the teaching of advanced skills to all
[[Page 34815]]
children. In addition, section 1111(b)(1)(D)(ii) of Title I and
Sec. 200.2(a)(2)(ii) of the regulations require States to establish
challenging student performance standards that are aligned with the
State's content standards and that include two levels of high
performance and a third level of partial proficiency against which the
progress of students and schools can be measured. Also,
Sec. 200.1(b)(1)(i)(B) of the regulations requires that a State plan
include evidence that the State's procedure for setting student
performance levels applies recognized professional and technical
knowledge. Finally, provisions in sections 1116 and 1117 of Title I
focus on recognized professional and technical knowledge as a basis for
State systems for rewarding school districts and holding them
accountable for progress. The Secretary believes these provisions
adequately address the concerns of the commenters.
Changes: None.
Comment: Several commenters suggested that Sec. 200.1(b)(2)(ii)(B)
of the regulations, which requires the State plan to describe the
transitional set of yearly statewide assessments the State will use to
assess students' performance in mastering complex skills and
challenging subject matter, be replaced with the statutory language in
section 1111(b)(7) of Title I that, in the commenters' opinion, makes
transitional assessments an option for States instead of a requirement.
Two commenters expressed concerns that, because the regulatory
provision only requires States to describe transitional assessments, it
sends the message that States need not go through the approval process.
Discussion: Section 1111(b)(7) of Title I states that, if a State
does not have final assessments that fully meet the statutory
requirements, ``the State may propose to use a transitional set of
yearly statewide assessments that will assess the performance of
complex skills and challenging subject matter.'' The Secretary does not
believe that use of the word ``may'' in this context means that
transitional assessments are optional. Rather, the Secretary believes
that the word ``may'' permits the use of transitional assessments while
final assessments are being developed, rather than requiring final
assessments immediately. Moreover, because transitional assessments are
part of the State plan, they are subject to peer review and approval
under section 1111(d) of Title I.
Changes: None.
Section 200.2 State Responsibilities for Developing Challenging
Standards
Comment: One commenter suggested that the regulations and guidance
need to clarify that a State may adopt or approve locally developed
standards and assessments under the Goals 2000 process or another State
process for use in the Title I program. Another commenter recommended
that the Department clarify whether State standards and assessments
must be uniform throughout the State for Title I accountability
purposes. This commenter suggested that past experience with LEAs
establishing high school graduation standards resulted in high-level
proficiencies for affluent communities and low-level proficiencies for
poor communities.
Discussion: Section 1111(b)(1)(B) of Title I and Secs. 200.2(b) and
200.4(c) of the regulations make clear that, if a State has State
content standards or State student performance standards and an aligned
set of assessments for all students developed under Title III of the
Goals 2000: Educate America Act or another process, the State must use
those standards and assessments, modified, if necessary, to conform
with the requirements of section 1111 of Title I, to carry out Part A.
Guidance for Goals 2000 requires that participating States develop or
adopt challenging content and performance standards. It does not
require that there be a single set of content or performance standards
that are applied uniformly to every LEA within the State. A State may
choose to develop or adopt model standards or criteria against which
locally developed standards would be measured and approved.
Changes: None.
Section 200.3 Requirements for Adequate Progress
Comment: One commenter suggested that the phrase ``except as
provided in paragraph (c) of this section'' should be deleted from
Sec. 200.3(a) of the regulations, suggesting that it appears to require
States to develop two different definitions of adequate yearly
progress. The commenter argued that, while Congress intended for States
to use different measures in transitional and final assessment periods
to determine adequate yearly progress, Congress also intended that
States develop one standard for determining adequate yearly progress
regardless of the assessment period.
Discussion: The Secretary believes that Sec. 200.3 (a) and (c) of
the regulations accurately reflect the statute and is necessary to give
each State the flexibility to develop and refine, over the next five
years, its own approach for establishing high-quality assessments that
will effectively assess learning. The definition of adequate yearly
progress must be flexible to accommodate changes in State approaches to
assessment. It does not make sense to require one standard for
determining adequate progress when assessments used to measure that
progress may be different during the transition period. The Secretary,
however, does not expect States to establish lower expectations during
the transitional period.
Changes: None.
Comment: One commenter suggested that references to adequate yearly
progress in different regulatory sections are repetitive and could be
confusing.
Discussion: State and local accountability for helping Title I
children meet high standards is a central theme in the Title I statute.
Adequate yearly progress plays a pivotal role in measuring
accountability and it is part of several different statutory sections.
The regulations clarify these statutory provisions, first with regard
to the State plan and then in subsequent sections devoted to
implementation. The Secretary believes that adequate yearly progress
needs emphasis in the regulations to help maintain an overall focus on
enabling children in Title I programs to meet the same high standards
expected of all children.
Changes: None.
Comment: Two commenters argued that repetition of the statute
regarding adequate yearly progress without additional explanation
provides insufficient guidance to grantees.
Discussion: Section 200.3(b)(2) of the regulations provides that a
State's determination of adequate yearly progress must be sufficiently
rigorous to achieve the goal of helping all children served under Part
A, particularly economically disadvantaged and LEP children, meet the
State's proficient and advanced levels of performance within an
appropriate timeframe. Each State has the flexibility to develop its
own definition within its framework for standards and assessments.
Standards and assessments will differ from State to State, along with
definitions of adequate progress for each State's schools and LEAs.
Some models and examples will be provided through policy guidance.
Changes: None.
Comment: One commenter suggested that adequate yearly progress be
based on empirical data on or knowledge about growth in academic
performance of schools and LEAs in the State in order to prevent States
from arbitrarily using a benchmark.
[[Page 34816]]
Discussion: Section 200.3(b)(3) of the regulations requires that
adequate yearly progress be defined in a manner that links progress
primarily to performance on the State's assessment system under
Sec. 200.4, while permitting progress to be established in part through
the use of other measures, such as dropout, retention, and attendance
rates. The Secretary expects that a State, in developing its definition
of adequate progress, would draw on knowledge and empirical data about
the degree of progress that should be expected of effective schools.
Changes: None.
Comment: One commenter suggested that the regulations require SEAs
and LEAs to make every effort to notify private schools about the SEA's
definition of adequate yearly progress.
Discussion: The definition of adequate yearly progress that an SEA
establishes will be the standard against which schools and LEAs will be
measured as to whether they are enabling children to meet the State's
challenging student performance standards. While private schools are
not recipients of Title I funds, the Department will issue policy
guidance that will, for the purpose of private school student Title I
participants, address whether private school students served by Title
I, but not private schools, are making adequate yearly progress toward
meeting the standards.
Changes: None.
Comment: One commenter expressed concern regarding the statement in
the preamble of the Notice of Proposed Rulemaking (NPRM) that the new
Title I will shift from ``an evaluation of how individual students are
performing to an evaluation of how well schools and LEAs are helping
students meet the challenging standards'' since States will be
assessing changes in the performance of different cohorts of students.
The commenter argued that changes in test scores are likely to reflect
differences in the groups of students instead of changes in school or
LEA performance, particularly in poor urban districts with high rates
of student mobility.
Discussion: The impact of the Title I program cannot be divorced
from that of the regular program. This is particularly true as an
increasing number of Title I schools develop schoolwide programs.
Although the assessment systems operated by States and LEAs generally
test only some grades, the Secretary believes that they will provide
more revealing data than the current Chapter 1 testing system on the
success of Title I schools and children served by Title I because they
will be tied to high standards and will show how Title I schools are
doing compared to other schools in the district and State. In addition,
Chapter assessments, which used gains of individual students, rather
than a specified level of expected achievement, often resulted in
minimal expectations of gains being set for Chapter 1 children. While
the children improved, they were still performing far below a level
needed for successful completion of school and employment. Classroom
teachers will continue--as they do now--to assess individual children
to determine their performance and improvement on an ongoing basis.
Changes: None.
Comment: One commenter requested that the regulations allow a State
to define adequate progress in terms of progress made over either a
one- or two-year period for the purpose of meeting the requirements of
Title I accountability.
Discussion: States have the discretion to define adequate yearly
progress over a one- or two-year period as long as the definition is
sufficiently rigorous to achieve the goal that all children served
under Part A, particularly economically disadvantaged and LEP children,
meet the State's proficient and advanced levels of performance within
an appropriate timeframe.
Changes: None.
Section 200.4 State Responsibilities for Assessment
Comment: One commenter suggested that the regulations inform SEAs
and LEAs of their responsibilities regarding the assessment of
participating private school children and specify that the expenses of
conducting the assessment are allowable costs under Title I.
Discussion: The assessment requirements in the statute apply to
private school students as well as public school students who
participate in Title I. The Department will clarify in guidance that
Title I funds may be used to assess private school children if they
would not otherwise be participating in the State assessment. However,
if private school children, in general, are included in the State
assessment, Title I funds may not be used to pay for the assessment of
those private school children participating in Title I.
Changes: None.
Comment: Many comments were received regarding the issue on which
the Secretary specifically invited comments in the NPRM: whether
accountability under Title I should be based on all subject areas for
which a State has developed or adopted standards and assessments for
all children or whether assessments in mathematics and reading/language
arts are sufficient for Title I accountability purposes as permitted in
Sec. 200.4(c)(1) of the regulations. Many commenters agreed with the
regulations that accountability in math and reading/language arts was
sufficient for Title I purposes. A number of other commenters, however,
recommended that Title I schools be held accountable for all areas in
which the State has developed standards and assessments in order to
break the mold of Title I as a remedial reading and math program with
lower expectations for the children served. A handful of commenters
recommended a different resolution--that science be assessed in
addition to reading and math to reflect the importance of that subject
or that Title I accountability be based on those subject areas in which
Title I services are provided.
Discussion: This issue continues to be one of the most difficult to
resolve because each of the two major options has important advantages
but also significant drawbacks. A major goal of the reauthorization is
to redirect Title I from a low-level reading and math add-on program to
a significant resource for high-poverty Title I schools to use to
promote comprehensive schoolwide improvement in teaching and learning
geared to the same challenging standards expected of all children.
There is significant and legitimate concern that permitting Title I
accountability to be limited to reading and math will stymie the shift
toward comprehensive schoolwide reform, reinforce lower expectations
for Title I schools, and send a message that other subjects are not
important for children in high-poverty schools to learn. There is also
the concern that this provision will lead States, LEAs, and schools to
abrogate their responsibility for the performance of students served by
Part A in all other subject areas besides reading and math. Extending
Title I accountability to include all subjects in which a State has
standards and assessments, including applying Title I assessment
requirements to each of those subjects, however, also raises
significant concerns about federal overreaching and the imposition of
unwarranted and excessive burden. In addition, it risks creating
additional disincentives to developing new State standards and limits
the ability of States and LEAs to take advantage of innovations in
performance assessments since, in the short run, many of those
assessments will not be able to satisfy the Title I assessment
requirements--at least in a timely and cost-efficient way.
Needing to give effect to the statutory language that a State must
have
[[Page 34817]]
developed or adopted a set of assessments in at least mathematics and
reading/language arts while not imposing additional requirements at the
Federal level, the Secretary has retained the requirement that a State
must use assessments that measure performance in math and reading/
language arts to determine accountability under Part A. Nevertheless,
the Secretary is concerned that Title I not continue to be viewed as
solely a remedial program in math and reading. In addition, he wishes
to afford appropriate flexibility to States as they begin to implement
Goals 2000 plans. Therefore, the Secretary has revised Sec. 200.4 to
clarify that a State's assessments need not be focused solely on math
and reading/language arts. Rather, a State may meet Title I's
assessment requirements by developing or adopting assessments in other
academic subjects as long as those assessments sufficiently measure
performance in math and reading/language arts. For example, an
assessment in an academic subject such as social studies may
sufficiently measure performance in reading/language arts. Particularly
at the secondary level, the Secretary believes it may be especially
appropriate to measure performance in reading/language arts through
assessments in content areas.
The Secretary emphasizes the importance of all children attaining
high levels of performance in all core academic subjects. Limiting the
focus of Title I accountability to math and reading/language arts in no
way is intended to alter the overall responsibility of States, LEAs,
and schools for the success of all students in the core academic
subjects determined by the State. If a State has standards and
assessments for all students in subjects beyond math and reading/
language arts, the regulations do not preclude a State from including,
for accountability purposes, additional subject areas, and the
Secretary encourages them to do so.
Changes: Section 200.4(a)(1) of the regulations has been revised to
clarify that a State may satisfy the requirement to develop or adopt a
set of high-quality yearly assessments, including assessments that
measure performance in at least mathematics and reading/language arts
if the State has developed or adopted a set of high-quality yearly
student assessments in other academic subjects that measure the
performance in mathematics and reading/language arts. Likewise,
Sec. 200.4(e)(1)(i) has been revised to clarify that a State's
transitional set of yearly statewide assessments may be assessments in
academic subjects other than mathematics and reading/language arts that
measure performance in mathematics and reading/language arts.
References to these clarifications are reflected in Sec. 200.1
regarding State plan requirements and throughout Sec. 200.4 in
provisions related to the development or adoption of State assessments.
Comment: A number of commenters proposed that some or all of the
criteria applicable to the final assessments under Title I be applied
to the transitional assessments. The commenters were concerned that,
without additional transitional requirements, States would be relieved
of accountability during the entire reauthorization period. A number of
commenters recommended that the regulations require all, or at least
one, transitional assessment to be valid and reliable and consistent
with existing professional and technical standards. A number of
commenters also proposed that disaggregated data be required during the
transition period, particularly for LEP children and poor children and
for schoolwide programs. Other transitional assessment criteria that
commenters recommended include; that all students, including LEP,
minority, and poor students, be included in transitional assessments;
that transitional assessments be aligned with State standards once
these standards are developed; that LEP criteria for assessments be
provided; that there be individual student and interpretive reports;
and that parents receive the achievement information they need to be
involved in the education of their children. In addition, three
commenters supported applying all of the requirements of the final
assessments to the interim assessments, although one would be willing
to exempt specific technical requirements that need to be field tested,
while the two others would only grant narrow exceptions after careful
examination.
Discussion: Section 1111(a)(3)(7) of Title I allows States
developing final assessments to use a transitional set of yearly
statewide assessments that assesses the performance of complex skills
and challenging subject matter. The Act itself contains no other
criteria for these assessments and Sec. 200.4(e) of the regulations
only clarifies that these assessments must be at least in mathematics
and reading/language arts and be administered during the grade spans
required of the final assessments. Neither the statute nor the
legislative history supports the application of other requirements on
transitional assessments. In fact, the Secretary believes that
requiring transitional assessments to meet a host of requirements,
particularly those relating to validity, reliability, and
disaggregation, may end up frustrating Title I's longer-term goal of
promoting high-quality innovative assessments aligned with challenging
standards. Developing new, high-quality assessments that conform with
these requirements will require time--time that the transition period
is precisely designed to provide. If the same criteria are applied to
transitional assessments as to the final assessments, this purpose
would be nullified and States, in effect, may have to develop two
systems.
Title I and the regulations, however, clearly intend that all
children within the grades tested during the transition period
participate in the assessment. Moreover, section 1111(b)(7)(B) of Title
I and Sec. 200.3(c) make clear that LEAs and schools must be identified
for improvement during the transitional period based on accurate
information about the academic progress of each such local education
agency and school.
Changes: Section 200.4(e)(1)(iii) has been added to clarify that
transitional assessments must include all students in the grades
assessed.
Comment: One commenter recommended that the reliability and
validity of assessments used to evaluate Title I programs be
established and described for each specific purpose or use of the
scores. Another commenter emphasized the importance of conducting and
reporting on validation studies to ensure that accountability decisions
are not based on flawed results, and another suggested that the
Department make clear that following a particular validation process is
not required.
Discussion: Section 200.4(b)(3)(i) of the regulations requires that
each State's assessments be used for purposes for which they are valid
and reliable and to be consistent with relevant, nationally recognized
professional and technical standards for those assessments. The
Secretary believes that this provision adequately addresses the
commenters' concerns yet does not require a particular validation
process.
Changes: None.
Comment: One commenter expressed concern that the individual,
group, total school, and district reports required by the regulations
will be subject to error from several sources, including measurement
and sampling error: many schools will have too few students in some of
the groups for which disaggregated reporting is required to provide
reliable estimates of group performance (let alone reliable estimates
of change). The requirements also overlook that some State assessment
[[Page 34818]]
programs are designed to provide school-level rather than student-level
estimates of performance. At a minimum, the commenter recommends:
adding language in Sec. 200.4(b)(9) requiring that individual student
reports include estimates of measurement error for the scores and any
limitations of the results to permit accurate interpretation; adding
language in Sec. 200.4(b)(10) that reports of disaggregated data should
be modified when the results would be unreliable or invalid due to
inadequate numbers of students in the categories; or permitting a
school to report annual results in a three-year rolling average to
reflect that estimates from individual years contain too much error to
be interpreted in isolation.
Discussion: Section 200.5(a)(2)(iii)(C) of the regulations
clarifies that disaggregated data should be reported to the public only
when those data would be statistically sound. It is appropriate for a
State to have considerable flexibility in determining the content of
its assessment reports so long as those reports conform with the
requirements of the law.
Changes: None.
Comment: One commenter described some of the difficulties involved
in disaggregating data by economically disadvantaged children: the
definition is subject to various interpretations; schools currently do
not collect these data in disaggregated form; collection of such data
would be very difficult; and current USDA guidelines limit the use of
individual student eligibility free and reduced price lunch data to
USDA purposes only. Another commenter, reinforcing this position,
suggested that the regulations provide as much flexibility as possible
regarding disaggregation of data by poverty status.
Discussion: The Secretary recognizes that there are difficulties
involved in complying with this requirement. However, the need to
determine how well Title I is assisting poor children to meet
challenging standards is acute.
Changes: None.
Comment: One commenter suggested deleting the phrase ``in the
grades being assessed'' from Sec. 200.4(b)(7)(i) of the regulations on
the grounds that it may cause unnecessary problems for students who are
placed in ``ungraded'' classes, or who have disabilities and are not in
the age-appropriate grade. According to the commenter, this phrase is
not necessary to clarify that students in all grades need not be
assessed and might create perverse incentives for schools wanting to
exclude students from assessments. Another commenter suggested that
Sec. 200.4(b)(7)(i) of the regulations be modified to read
``participation in the assessment of all students, including students
served under this subpart, in the grades being assessed.''
Discussion: Inclusion of the phrase ``in the grades being
assessed'' in Sec. 200.4(b)(7)(i) of the regulations is necessary to
clarify that assessments used for Title I purposes do not have to
assess all students in a school or all students served by Title I, but
only those students in the specific grades being assessed. Within the
grades being assessed, however, students being served under Title I
must be included in the assessment.
Changes: None.
Comment: One commenter stated that the requirement in Sec. 200.4(b)
of the regulations that the ``same assessments be used to measure the
performance of all children'' should be relaxed to permit appropriate
modifications for children with diverse learning needs. The commenter
recommended regulatory language stating that ``reasonable adaptations
may require modifications in item format, item content, test structure,
administrative procedures and time limits that result in a different
test form and/or procedure.'' The commenter would also require those
modifications to be described and the validity and reliability of those
assessments estimated and reported. Another commenter suggested that
the regulations state that all students, including those who are
limited English proficient, have a disability, or otherwise might not
always be included in State and local assessment systems, be included
under Title I assessment requirements, with appropriate modifications.
Discussion: Section 1111(b)(3)(A) of Title I and Sec. 200.4(b)(1)
of the regulations make clear that assessments used for Title I
purposes must be the same assessments used to measure the performance
of all children, if the State measures the performance of all children.
These provisions remedy the situation under Chapter 1, in which a
separate testing system was often used to assess only Chapter 1
participants. Section 200.4(b)(7)(i) of the regulations makes clear
that State assessments must provide for the participation of all
students in the grades being assessed. Section 200.4(b)(7)(ii) further
clarifies that all students includes students with diverse learning
needs. However, it also makes clear that reasonable adaptations and
accommodations must be made for students with diverse learning needs so
that the State's assessment measures the achievement of those students
relative to the State's content and performance standards. Moreover,
under Sec. 200.4(b)(7)(iii), children with limited English proficiency
must be assessed, to the extent practicable, in the language and form
most likely to yield accurate and reliable information on what those
students know and can do to determine the students' mastery of skills
in subjects other than English. The Secretary believes these provisions
effectively address the commenters' concerns.
Changes: None.
Comment: Several commenters focused specifically on
Sec. 200.4(b)(7)(iii) concerning the assessment of limited English
proficient children. One commenter recommended modifying this section
to make clear that the State must make every effort to use or develop
linguistically accessible assessment measures and develop appropriate
modifications to test formats and administration procedures for LEP
students assessed in English. Another commenter recommended deleting
``to the extent practicable'' from Sec. 200.4(b)(7)(iii)(A) to ensure
the assessment of all students without regard to primary language.
Discussion: The Secretary believes that Sec. 200.4(b)(7) of the
regulations, which replicates, by and large, the language in section
1111(b)(3)(F) of Title I is clear in its requirements that all students
participate in the assessments, that reasonable adaptations and
accommodations be provided where necessary, and that children with
limited English proficiency be assessed, to the extent practicable, in
the language and form most likely to yield accurate and reliable
information on what those students know and can do to determine the
students' mastery of skills in subjects other than English.
Changes: None.
Comment: Several commenters expressed concerns about the addition
of the phrase ``to meet this requirement'' in Sec. 200.4(b)(7)(iii)(B)
of the regulations. To some, it suggests that States can meet the
requirement that they include LEP students in their assessment by
making every effort to use linguistically accessible assessment
measures even though these are two distinct and important provisions.
To another commenter, the provision gives the impression that
assessment of LEP students is required only when assessments are
available in the students' native languages. Recommendations included
either deleting the phrase, or substituting the words ``in meeting''
for ``to meet'' in Sec. 200.4(b)(7)(iii)(B).
Discussion: The Secretary agrees with the commenter that, as
proposed, the provision did not make clear the
[[Page 34819]]
requirement for including LEP students in the State assessments. In
meeting this requirement, States must make every effort to develop
linguistically accessible assessments. However, even without such
assessments, LEP students must be included in the State's assessments.
Changes: Section 200.4(b)(7)(iii)(B) has been modified by deleting
the phrase ``to meet this requirement'' and inserting ``in meeting this
requirement.''
Comment: One commenter suggested that clarification is needed in
Sec. 200.4(b)(8) of the regulations regarding determining of those
children from mobile families who have attended schools in the LEA for
``a full academic year.'' Specifically, in districts operating year-
round programs, the commenter suggested that students who have attended
school in the district for the amount of time required of any
particular student must be included in determining the progress of the
LEA.
Discussion: The Secretary agrees that students from mobile families
must be included in determining an LEA's progress if they have attended
school in that LEA for the period of time necessary to meet the State's
annual requirement for compulsory education.
Changes: None.
Comment: One commenter recommended that the regulations expressly
state that group-administered, norm-referenced tests below grade 4 are
inappropriate. The same commenter recommended that LEAs, not SEAs,
select the particular approaches to assess children's school
performance during the first 3-4 years of elementary school.
Discussion: Under Title I, States are provided with the
responsibility of developing assessments aligned with State-developed
standards. LEAs may also implement any additional assessments. The
Secretary, therefore, believes it is inappropriate to prescribe the
type of assessments that SEAs and LEAs should use.
Changes: None.
Section 200.5 Requirements for school improvement
Comment: One commenter requested that Secs. 200.5 and 200.6 of the
regulations be expanded to cover the numerous interrelated and complex
provisions of Title I on which no regulations for program improvement
have been included.
Discussion: The Secretary is committed to issuing regulations only
where absolutely necessary and, when regulating, to promoting flexible
approaches to meeting the requirements of the law. As a result, the
Secretary has not expanded the provisions on school improvement through
regulations. The Secretary intends, however, to issue nonregulatory
guidance on these provisions, including examples to illustrate possible
approaches to school improvement.
Changes: None.
Comment: One commenter suggested that, when an LEA reviews a
targeted assistance school to determine if the school has made adequate
progress, the State should have the flexibility to decide whether to
include only students served by Title I or all students who participate
in the assessment.
Discussion: Section 1116(c)(1)(B)(ii) of Title I states that an LEA
shall identify for school improvement any school served under this part
that has not made adequate progress as defined in the State's plan for
two consecutive school years, except that, in the case of a targeted
assistance school, such school may be reviewed on the progress of only
those students that have been or are served under this part.
Additionally, section 1116(d)(3)(A)(i) of Title I provides a State some
flexibility in reviewing the progress of an LEA. In a State's review of
an LEA, schools served by the LEA that are operating targeted
assistance programs may be reviewed on the basis of the progress of
only those students served under Part A.
Changes: None.
Comment: One commenter suggested that language be added to
Sec. 200.5(a)(2) to include parental involvement in the annual review
of the progress of each school for school improvement since parental
involvement is a key theme in Title I of the Act.
Discussion: The Secretary strongly supports parental involvement
efforts and participation by parents in their children's learning
process and believes that such participation is crucial to the
children's success in school. However, the progress of a school is
measured on the basis of student achievement, not the process to elicit
that achievement. Section 1118 of Title I contains comprehensive
parental involvement requirements, including a requirement for the
yearly review of the effectiveness of the parental involvement policy
in increasing the participation of parents.
Changes: None.
Comment: One commenter supported the Secretary's position in
Sec. 200.5(a)(2)(iii)(c) that in conducting its annual review, an LEA
must report disaggregated data to the public only when those data are
statistically sound. This commenter explained that reporting data that
are not statistically sound will mislead policymakers and the public
regarding how well schools are performing.
Discussion: The Secretary supports reporting data to teachers and
other staff, parents, students, and the community annually so that this
information may be used to determine the effectiveness of the program
and for school improvement purposes. However, informed decisions can be
made only if the data are accurate and statistically sound.
Changes: None.
Schoolwide Programs
Section 200.8 Schoolwide Program Requirements
Comment: Some commenters recommended that Sec. 200.8(a)(1) of the
regulations be changed to indicate that the decision to operate a
schoolwide program is an LEA decision or an LEA decision after
consultation with school-level staff as opposed to a school decision
after consultation with the LEA. According to one of the commenters,
this change would respect the role of the LEA and, at the same time,
reinforce the concept that schoolwide programs should be undertaken in
a building on a voluntary basis.
Discussion: Both section 1114 of Title I on schoolwide programs and
section 1115 of Title I on targeted assistance schools emphasize
greater decisionmaking authority at the school level so that schools,
in consultation with their LEA, determine how to use their Title I
funds in ways that best meet the needs of their students. Section 1114
contains many provisions addressing a school's responsibility for
conducting a schoolwide program should the school choose to operate
one. By emphasizing that an eligible school makes the decision to
operate a schoolwide program, in consultation with its LEA,
Sec. 200.8(a)(1) recognizes that schoolwide programs will be successful
only when the school community is fully behind that decision and that
accountability at the school level must be coupled with decisionmaking
authority.
Changes: None.
Comment: One commenter requested that the following language be
added to Sec. 200.8(a)(2)(ii): ``If a district selects a provider of
School Support from another entity outside of the statewide system, it
must be subject to the State Validation System before the SWP plan is
approved by the local board.''
Discussion: A State may choose to include, as part of its State
support system addressed in section 1117 of Title I, provisions
allowing its LEAs to select technical assistance providers
[[Page 34820]]
other than those provided by the State. Because the responsibility is
placed upon a State to design its system of support, this is an
individual State decision.
Changes: None.
Comment: Numerous comments were received on Sec. 200.8(c) of the
regulations combining other Federal education program funds to support
schoolwide programs and exempting those funds from their specific
program requirements. Two commenters viewed the proposed regulations as
going beyond what Congress authorized and did not believe that the
ability to combine funds exempts schools from other Federal education
laws and regulations. Several commenters asked that the authority to
combine funds not extend to Title VII bilingual programs. They also
stated that Sec. 200.8(c)(ii)(B), which requires only that the intent
and purposes of Federal education programs whose funds are combined be
met, is too vague and will allow LEAs to evade the intent of Congress.
Some commenters suggested deleting Sec. 200.8(c)(3)(i)(A) because they
believe that provision misconstrues the statute by exempting
``programs'' as opposed to the statutory term ``provisions.'' Other
commenters suggested deleting all references to ``and any other Federal
program included under (c) in this section.'' One commenter expressed
concern that protection of services children receive will be
eliminated, especially if parents are not specifically informed about
funding and program design.
Discussion: One of the most promising changes in the recent
reauthorization of Title I is the expansion of schoolwide programs to
include other Federal programs. A schoolwide program permits a school
to use funds under Part A of Title I to upgrade the entire educational
program of the school and to raise academic achievement for all
children in the school, in contrast to categorical programs in which
Federal funds may generally be used only for supplementary educational
services for specific target populations.
The Secretary strongly believes that schoolwide programs hold the
greatest promise for raising the achievement of all children in high-
poverty schools. He also believes the success of schoolwide programs
depends on the ability of the schools to combine other Federal
education program funds along with Part A funds and State and local
funds to support their overall instructional programs. This authority
affords a schoolwide program school significant flexibility to serve
more effectively all children in the school and their families through
comprehensive reforms of the entire instructional program, rather than
by providing separate services to specific target populations.
The Secretary emphasizes that a school with a schoolwide program
must address the needs of all children in the school, particularly the
needs of children who are members of the target population of any other
Federal education program that is included in the schoolwide program
and that accountability is based on how well children in the target
populations perform with respect to State standards. The Secretary has
not included additional provisions in the regulations because he does
not want to impede a schoolwide program school from serving all
children through comprehensive reforms of its entire instructional
program.
Changes: None.
Comment: One commenter stated that Sec. 200.8(c)(3)(ii)(A)(8) and
(f)(1)(iii) and (2) of the regulations concerning application of the
supplement, not supplant requirement in schoolwide program schools are
contradictory and confusing.
Discussion: Consistent with section 1114(a)(4)(B) of Title I,
Sec. 200.8(c)(3)(ii)(A)(8) of the regulations does not relieve an LEA
or school operating a schoolwide program from applicable supplement,
not supplant requirements. On the other hand, consistent with section
1114(a)(3), Sec. 200.8(f)(1)(iii) and (2) exempts a schoolwide program
school from providing supplemental services to eligible children,
although it requires the school to demonstrate that Part A funds and
any other Federal education funds that are combined for use in a
schoolwide program supplement the total amount of funds that would, in
the absence of such funds, be made available to the school from non-
Federal sources. Thus, the regulations do not contradict one another.
Rather, paragraph (f) clarifies paragraph (c): schoolwide program
schools must comply with the modified supplement, not supplant
requirements in section 1114(a)(3) of Title I and Sec. 200.8
(f)(1)(iii) and (2) of the regulations.
Changes: None.
Comment: One commenter suggested that Sec. 200.8(e)(1)(iv)(A)(2) of
the regulations conform to the statutory requirement for the collection
of disaggregated achievement and assessment results, which the
commenter argues is required during the transitional assessment period.
Discussion: Section 1111(b)(3)(I) of Title I requires that final
assessment systems enable assessment results to be disaggregated.
Section 1111(b)(7), which authorizes transitional assessments, does not
include the requirement for disaggregation. Therefore, disaggregating
assessment data for schoolwide programs during the transitional
assessment period is not required by the statute. Moreover, the
Secretary believes that requiring disaggregation during the transition
period would frustrate Title I's long-term goal of promoting high-
quality, innovative assessments aligned with challenging standards. If
there are data that can be disaggregated in a schoolwide program, an
LEA may certainly disaggregate that data during the transitional
assessment period. Furthermore, the Secretary encourages LEAs and
schools to use information available from other sources such as
teacher-made assessments to determine the progress of intended
beneficiaries in the programs included in the schoolwide program.
Changes: None.
Comment: One commenter requested that language be added to
Sec. 200.8(d)(8)(C) of the regulations permitting Title I funds to be
used to conduct parent-teacher conferences in parents' native language
in order to help LEP parents be more involved.
Discussion: The use of Title I funds to conduct parent-teacher
conferences, including in a parent's native language, is an allowable
and appropriate use of Title I funds. Given that many funding sources
may be combined to conduct schoolwide programs, any of the funding
sources, including Title I, could provide such language-related
services. The Department is planning to issue guidance on schoolwide
programs that covers additional issues, including this one.
Furthermore, the Department is consulting with many groups with
knowledge on and experience with issues concerning the specific needs
of children and their parents with limited-English proficiency and will
produce specific guidance on activities related to working with LEP
children and their families.
Changes: None.
Comment: One commenter requested that Sec. 200.8(c)(3)(ii)(B)(1) of
the regulations concerning a special rule for migratory children in
schoolwide programs be expanded to include students from homeless,
highly mobile, and isolated families.
Discussion: Part C of Title I includes a specific provision with
respect to migratory children in schoolwide programs, which is
reflected in the regulations. There is no authority to
[[Page 34821]]
expand that provision to cover other target populations.
Changes: None.
Comment: One commenter requested that Sec. 200.8(c)(3)(ii)(B)(1)(i)
of the regulations be revised to refer to parents of migratory children
``and/or'' organizations representing those parents.
Discussion: The Secretary agrees that an LEA may consult with both
parents of migratory children and organizations representing those
parents. These parties are not mutually exclusive.
Changes: The Secretary has revised Sec. 200.8(c)(3)(ii)(B)(1)(i) to
include ``or both.''
Comment: One commenter recommended that Sec. 200.8(d)(8)(ii)(A) and
(B) of the regulations be deleted, arguing that the language on
Individualized Education Programs (IEP) is an unnecessary clarification
that unfairly targets an effective strategy that helps children with
special needs improve their academic achievement.
Discussion: This provision is included to prevent misinterpretation
of the statutory provision that requires a schoolwide program to
discuss with parents what the school will do to help students meet the
standards and identify additional assistance that may be available.
Section 200.8(d)(8)(ii)(A) of the regulations makes clear the statute
does not require that IEPs, like those required under the Individuals
with Disabilities Education Act, be developed for children not served
in special education. This clarification does not, however, prohibit
IEPs from being developed should a schoolwide program school elect to
do so.
Changes: None.
Comment: One commenter suggested that the Secretary focus on
curriculum and instruction in its guidance to States, school districts,
and schools regarding the development of schoolwide plans. The
commenter also suggested that schools be required to explain how and
why they designed their instructional program and to describe any
evidence that their approach has been researched and evaluated in peer-
reviewed publications. In addition, the commenter suggested that the
Secretary ask schools to explain how their schoolwide programs will
help students master the knowledge and skills outlined in the State
content standards. Further, the commenter suggested that the Secretary
urge schools to include a timetable in their schoolwide plans showing
what changes will take place immediately and what other changes will
follow.
Discussion: Section 1114(b)(1) of Title I contains the components
required of a schoolwide program, including, among other things,
schoolwide reform strategies that provide opportunities for all
children to meet the State's proficient and advanced levels of student
performance, that are based on effective means of improving the
achievement of children, and that use effective instructional
strategies. Further, section 1114(b)(2) provides that a school
operating a schoolwide program must develop a comprehensive plan for
reforming the school that incorporates the components required in
section 1114(b)(1). Therefore, the statute already sufficiently ensures
that the schoolwide program plan include information on those areas
critical to the improvement of teaching and learning.
Changes: None.
Participation of Eligible Children in Private Schools
Section 200.10 Responsibilities for Providing Services to Children in
Private Schools
Comment: Two commenters suggested that Sec. 200.10(a) of the
regulations be augmented to clarify that timely and meaningful
consultation must occur before decisions are made that affect the
opportunities of participating private school children and that a
unilateral offer of services would not suffice.
Discussion: Section 1120(a) of Title I requires an LEA to provide
equitable services to eligible private school children after timely
meaningful consultation with private school officials. Section 1120(b)
further elaborates on what constitutes timely and meaningful
consultation. Paragraph (b)(2) requires consultation to occur ``before
the [LEA] makes any decision that affects the opportunities of eligible
private school children to participate'' in Part A programs. These
statutory provisions clearly preclude an LEA from making a unilateral
offer of services or consulting after services are already being
provided, and no further regulations are needed.
Changes: None.
Comment: Several commenters argued that the definition of eligible
students in section 1115 of Title I does not require eligible Title I
children attending private schools to reside in a participating
attendance area as stated in Sec. 200.10(b)(1) of the regulations. They
argued that the poverty of a private school is reflective of a larger
area such as an entire LEA and, therefore, the attendance areas of the
public school system are not relevant.
Discussion: Section 1113(a) of Title I defines a public school
attendance area as the geographic area in which children who are
normally served by the school reside. To be eligible for Title I
services, a school attendance area must have a higher percentage of
poverty than the LEA as a whole. The degree of poverty in a private
school is irrelevant because private schools do not participate in
Title I. Rather, private school children are eligible because they
reside in a public school attendance area that is participating in
Title I; thus, they would have been eligible for services had they
attended the public school. In essence, Title I puts private school
children in the same place they would have been in had they attended a
public school.
Changes: None.
Section 200.11 Factors for Determining Equitable Participation of
Children in Private Schools
Comment: Several commenters commented on Sec. 200.11(a)(2)(ii) (A)-
(B) of the regulations, which provides two options to an LEA for
determining which eligible private school children to serve. One
commenter suggested that a combination of the options should be allowed
as a third option. Another commenter recommended that paragraph (A),
which permits the pooling of funds generated by poor private school
children in all participating areas, be deleted because it provides
greater flexibility in serving private school children than exists for
serving public school children. Other commenters recommended that
paragraph (B) be deleted, arguing that it is administratively
burdensome and appears to directly benefit private schools.
Discussion: The regulations provide two options for utilizing the
funds allocated on the basis of the number of low-income children who
reside in participating Title I attendance area. In consultation with
private school officials, an LEA may select one option or combine the
options to best serve eligible private school children. Thus, an LEA
does not need to select the option in paragraph (B) if the LEA believes
it is administratively burdensome. The Secretary does not believe the
option for pooling funds in paragraph (A) favors private school
children. Rather, it adds needed flexibility, particularly because the
number of poor children who reside in participating public school
attendance areas and attend a particular private school may be so small
that the funds those children generate are not commensurate with the
educational needs of eligible children in that school.
Changes: None.
Comment: One commenter suggested that Sec. 200.11(b)(2)(iii) of the
regulations
[[Page 34822]]
be modified to require that private school children be provided with an
opportunity to participate in Title I in a manner that addresses the
particular needs of the private school children.
Discussion: Section 1120 of Title I clearly provides private school
children an opportunity to participate in Title I in a way that
addresses their particular educational needs. It requires that
equitable services be provided and requires an LEA to consult with
private school officials about how private school children's needs will
be identified and what services will be provided. Moreover, because
there is no longer a districtwide needs assessment, the needs of
private school children can be determined independently from the needs
of public school children.
Changes: None.
Section 200.13 Requirements Concerning Property, Equipment, and
Supplies for the Benefit of Private School Children
Comment: Several commenters recommended that Sec. 200.13(d) of the
regulations be revised to afford LEAs discretion in deciding whether to
remove equipment and materials no longer needed to provide services to
private school children if there is the possibility that the program
would be resumed in a subsequent year. The commenters explained that
new zoning ordinances in many districts make it very expensive, once
portable units, for example, are removed, to resituate the units.
Discussion: The Secretary recognizes that, under the new law,
services to eligible private school children may differ from those
provided under Chapter 1. The Secretary has attempted in Sec. 200.28 of
the regulations to provide maximum flexibility to ease the transition
to the new law. Consistent with that flexibility, however, if equipment
is no longer needed to provide equitable services to private school
children, it must be removed as required in Sec. 200.13(d).
Changes: None.
Capital Expenses
Section 200.16 Payments to LEAs for Capital Expenses
Comment: Two commenters recommended amending
Sec. 200.16(a)(1)(i)(B) of the regulations to also allow capital
expenses to pay for costs that would be incurred to improve the quality
of services provided to private school students.
Discussion: Capital expenses funds may pay the costs of
noninstructional goods and services needed to improve the quality of
equitable services provided to private school children. The Secretary
did not amend the regulations because these costs would be covered
under Sec. 200.16(a)(1)(i)(A)--that is, capital expenses an LEA ``is
currently incurring'' to provide equitable services.
Changes: None.
Comment: One commenter suggested that Sec. 200.16(a)(1)(ii) of the
regulations be revised to allow an LEA to apply for a payment to cover
capital expenses it incurred in prior years for which it has not been
reimbursed ``only'' if the LEA demonstrates that its current needs for
capital expenses have been met.
Discussion: The Secretary believes that the regulatory language in
Sec. 200.16(a)(1)(ii) clearly does not permit payments for previously
incurred capital expenses if the LEA cannot demonstrate that its
current needs for capital expenses have been met.
Changes: None.
Section 200.17 Use of LEA Payments for Capital Expenses
Comment: One commenter supported the use of capital expenses for
reimbursement of costs in prior years but suggested that such
reimbursement not be contingent upon approval by the SEA.
Discussion: Section 200.16(a)(1)(ii) of the regulations makes clear
that an LEA may apply to the SEA for capital expense funds to cover
expenses it incurred in prior years only if the LEA has demonstrated
that its current needs for capital expenses have been met. Section
200.17 reflects this provision.
Changes: None.
Procedures for the Within-State Allocation of LEA Program Funds
Section 200.20 Allocation of Funds to LEAs
Comment: One commenter asked why Sections 1124(a)(2) and 1125(d) of
Title I and Sec. 200.20(b)(2)(ii)(B) of the regulations concerning
direct allocations to LEAs require the SEA to establish appeal
procedures for an LEA dissatisfied with the determination by the SEA
when section 14401(c) of the ESEA prohibits the Secretary from waiving
any statutory or regulatory requirement relating to the allocations or
distribution of funds to States, LEAs, or other recipients of funds
under the ESEA.
Discussion: Section 200.20(b)(2)(ii)(B) of the regulations follows
the statute, which requires that a State applying for authorization to
allocate funds directly to LEAs without regard to counties assure that
its SEA has established procedures through which LEAs dissatisfied with
the SEA's determination may appeal directly to the Secretary. In
reviewing an LEA's appeal, the Secretary would consider whether the
SEA's allocation procedures in general comply with the statute and
regulations. The Secretary could not waive any of the statutory or
regulatory requirements related to allocating funds, however.
Changes: None.
Comment: One commenter requested clarification of the provision in
Sec. 200.20(c) of the regulations concerning LEAs that contain two or
more counties in their entirety. In the case of New York City, for
example, the SEA is required to allocate funds to each county within
the city school system as if each county were a separate LEA. The
commenter asked whether the LEA or SEA could adjust individual county
allocations within New York City to account for poor children who live
in one county but attend school in another county. The commenter
believes that the Title I allocation procedures would be more equitable
if adjustments could be made to county allocations in cases where poor
children who live in one county attend school in another county, even
though those poor children are in the same LEA.
Discussion: The situation described by the commenter is similar to
that provided for in section 1126(b) of Title I. Section 1126(b) allows
an SEA, in cases where an LEA provides free public education for
children who reside in the school district of another LEA, to adjust
the amount of grants among the affected LEAs. Because the statute
requires an SEA to treat the individual counties within a single school
district as separate LEAs for allocation purposes, section 1126(b)
authorizes an SEA to adjust the counties' amounts because they are
treated as LEAs. Therefore, the SEA may adjust amounts made available
to the counties within a single LEA to account for poor children who
live in one county but attend school in another county.
Changes: None.
Comment: Because of the disruption the ``one LEA with two or more
counties'' provision in Sec. 200.20(c) of the regulations will cause
the New York City school system, one commenter recommended that the
regulations allow such LEAs to use current Chapter 1 allocation
procedures for two more years in order to minimize disruption to
ongoing projects and make the transition to the new law smoother.
Discussion: Section 3(a)(1)(A) of the IASA provides that Title I
shall take effect on July 1, 1995. The Secretary
[[Page 34823]]
does not have authority to delay this effective date.
Changes: None.
Section 200.25 Applicable Hold-Harmless Provisions
Comment: One commenter opposed the provision in Sec. 200.25(c) of
the regulations that requires an LEA to be eligible for basic,
concentration, or targeted grants in order for the respective hold-
harmless provisions to apply. The commenter believes this provision
penalizes poor students with educational needs who live in wealthy
districts.
Discussion: Sections 1124 (basic grants), 1124A (concentration
grants), and 1125 (targeted grants) of Title I all contain requirements
limiting the eligibility of certain LEAs to receive grants under those
sections. The hold-harmless provisions in section 1122(c) of Title I
apply to ``the amount made available to each local educational agency''
under sections 1124, 1124A, and 1125. If an LEA is not eligible, no
funds would be ``made available'' to it and, thus, the hold-harmless
protection would not apply. These sections help implement the statute's
purpose to target funds more effectively on LEAs with the highest
concentrations of poverty and are supported by research findings that
show children from low-income families attending schools in relatively
wealthy school districts tend on average to do better academically than
similar children attending schools in school districts with high
concentrations of poverty.
Changes: None
Procedures for the Within-District Allocation of LEA Program Funds
Section 200.27 Reservation of Funds by an LEA
Comment: One commenter asked for clarification about how the
reservation of funds provision in Sec. 200.27 of the regulations works
with regard to calculating 125 percent of an LEA's allocation per poor
child and how this provision affects an LEA that serves only attendance
areas or schools with poverty rates of 35 percent or more.
Discussion: Section 1113(c)(2)(A) of Title I requires that, in
allocating funds to eligible attendance areas or schools, an LEA
provide an amount per poor child for each area or school that is at
least 125 percent of the amount per poor child that the LEA received
under Part A of Title I. Thus, an LEA must calculate 125 percent of its
allocation per poor child based on its total allocation before
reserving any funds. An LEA that serves only attendance areas or
schools with poverty rates of 35 percent or more is not subject to this
requirement.
Changes: A change has been made. The Secretary has amended
Sec. 200.27(b)(1) of the regulations to make clear that an LEA subject
to the 125 percent rule must calculate its minimum per pupil allocation
before the LEA reserves any funds.
Comment: One commenter believed the reference to capital expenses
in Sec. 200.27(c) of the regulations is incorrect because it is a
separate Title I program that the SEA subgrants to LEAs. Several other
commenters recommended that a separate provision be included for
reserving funds for capital expenses.
Discussion: Although capital expenses is a separate Title I
program, LEAs must apply to the SEA for these funds. There is no
guarantee an LEA that applies will receive capital expense funds or
that the amount received will be enough to cover all capital expense
costs associated with implementing alternative delivery systems needed
to serve private school students and comply with the requirements of
Aguilar v. Felton. Thus, an LEA may still need to reserve
administrative funds for the costs of noninstructional goods and
services incurred because of the Felton decision.
Change: A change has been made. The Secretary has added language in
Sec. 200.27(c) of the regulations to make clear that an LEA may reserve
off the top of its Part A allocation funds necessary to pay those
capital expenses not reimbursed under Sec. 200.16.
Section 200.28 Allocation of Funds to School Attendance Areas and
Schools
Comment: Several commenters stated that requirements to allocate
funds to schools based on poverty rather than educational need
undermine the original purpose of Title I by making it a poverty
program rather than an educational program. The commenters argued that
basing Title I allocations on the number of poor children residing in
an eligible school attendance area adversely affects the number of
educationally needy public and private school students who can
participate.
Discussion: Section 1113(c) of Title I requires an LEA to allocate
funds to participating attendance areas and schools based on the number
of children from low-income families. Congress enacted this provision
to target funds on areas with the highest concentrations of poverty,
recognizing the close relation between high concentrations of poverty
and low academic achievement and realizing that successful schools have
been penalized in the past by losing Title I funds because their
children made academic gains. Even though funds are allocated to
participating areas and schools on the basis of poverty, however,
educationally needy children in those schools do not need to be poor to
receive services. Title I continues to be an education program.
Changes: None
Comment: One commenter stated that the Secretary should not
regulate how LEAs distribute funds to schools with poverty rates of at
least 35 percent. According to the commenter, the decision on how to
allocate funds in such cases should be an LEA decision; regulations in
this area represent a Federal intrusion into local school
decisionmaking.
Discussion: LEAs that serve only schools with poverty rates of 35
percent or more do, in fact, have more flexibility in allocating funds
than other LEAs. Nevertheless, the statute does place certain
requirements concerning the allocation of funds on all LEAs. Section
1113(a) of Title I requires that an LEA with more than 1,000 students
rank its school attendance areas in order of poverty based on the
percentage of children from low-income families in each area. Section
1113(c) requires an LEA to allocate funds to eligible school attendance
areas or schools in rank order based on the number of children from
low-income families. The Secretary believes that regulations are needed
to clarify that an LEA serving only school attendance areas or schools
with poverty rates of 35 percent or more has the flexibility to use an
amount per poor child that the LEA deems appropriate and is not
required to allocate an amount based on 125 percent of the LEA's
allocation per poor child. However, for an LEA that serves any school
with a poverty level under 35 percent, this provision applies to all
its schools. The regulations further clarify that an LEA is not
required to allocate the same amount per poor child to each
participating school attendance area or school, provided that the LEA
allocates higher amounts per poor child to areas or schools with higher
concentrations of poverty than to areas or schools with lower
concentrations of poverty.
Changes: None.
Comment: One commenter raised the issue that schools with similar
allocations may need to spend different amounts because of variations
in salaries and benefits of Title I staff. The commenter suggested that
the regulations be modified to allow for the use of a pupil-teacher
ratio instead of a funding ratio or to allow a 15 to 20
[[Page 34824]]
percent leeway among schools in the per-pupil allocation.
Discussion: Section 1113(c) of Title I requires that Part A funds
be allocated to school attendance areas and schools based on the number
of children from low-income families in each area or school. The
provision assumes, for example, that two schools with the same number
of poor children need similar amounts of funds to provide comparable
education programs to participating children. The Secretary recognizes
that an inequity may occur, however, if schools with similar
allocations offering similar instructional programs need to spend
different amounts due the salary and fringe benefit costs of the staff
providing the instruction. To address this situation, the Secretary has
issued guidance that allows an LEA to consider variations in personnel
costs, such as seniority pay differentials or fringe benefits
differentials, as LEA-wide administrative costs, rather than as part of
the funds allocated to school attendance areas or schools. The LEA
would pay the differential salary and fringe benefit costs from its
administrative funds taken off the top of the LEA's Part A allocation.
This policy would have to be applied consistently to staff serving both
public and private school children throughout the LEA.
Changes. None.
Comment: One commenter noted that Sec. 200.28 of the regulations
does not specifically address the issue of variations in per-pupil
amounts by grade spans.
Discussion: The Secretary has clarified this issue in guidance. An
LEA opting to serve schools below 75 percent poverty using grade span
groupings may determine different amounts per poor child for different
grade spans as long as those amounts do not exceed the amount allocated
to any area or school above 75 percent poverty. Amounts per poor child
within grade spans may also vary as long as the LEA allocates higher
amounts per poor child to areas or schools with higher poverty rates
than it allocates to areas or schools with lower poverty rates.
Changes: None.
Comment: For LEAs that select eligible school attendance areas
according to grade spans, a commenter recommended that the poverty
percentage to determine eligibility be based on the districtwide
average for the grade span rather than the overall districtwide poverty
percentage.
Discussion: Section 1113(a)(4) of Title I allows an LEA, after
ranking eligible attendance areas or schools above 75 percent, to rank
its remaining eligible school attendance areas by grade span. Sections
1113(a)(2) defines an eligible school attendance area as one in which
the percentage of poor children is at least as high as the percentage
of such children in the LEA as a whole. The Secretary has determined
that it is reasonable to continue the flexibility contained in the
current Chapter 1 regulations. Thus, an LEA may base school eligibility
on (1) the overall poverty percentage for the LEA as a whole or (2) the
districtwide poverty percentage for each grade span.
Changes: The Secretary has added Sec. 200.28(a)(3) of the
regulations, which permits an LEA that ranks its school attendance
areas or schools at or below 75 percent poverty by grade span to
determine the percentage of children from low-income families in the
LEA as a whole for each grade span grouping.
Comment: One commenter noted that proposed regulations do not
address how LEAs may handle carryover funds when allocating funds to
school attendance areas.
Discussion: LEAs have considerable discretion in handling carryover
funds. For example, an LEA may: (1) allow each school to retain its
carryover funds for use in the subsequent year; (2) add carryover funds
to the LEA's subsequent year's allocation and distribute to
participating areas and schools in accordance with allocation
procedures; or (3) designate carryover funds for particular activities
that could best benefit from additional funding (examples: parental
involvement activities or for schools with the highest concentrations
of poverty). The Secretary has provided guidance to clarify this issue.
Changes: None.
Comment: A number of commenters raised issues concerning the
within-district allocation of funds to provide for children residing in
participating public school attendance areas but attending private
schools. Virtually all of the comments focused on problems with the
availability for the 1995-96 school year of adequate poverty data on
those children. Because of the difficulty in obtaining reliable poverty
data for private school children, several commenters suggested that
there be a one-year delay in implementing the within-district
allocation procedures and that the procedures used during the 1994-95
school year be used for one more year. Other commenters recommended
that, if reliable poverty data on private school children residing in a
participating school attendance area are not available, an LEA be
allowed to apply the poverty percentage of public school children
residing in the participating school attendance area to the number of
children from that attendance area attending private schools to
determine a count of poor private school children.
Discussion: Under Part A of Title I, an LEA must distribute funds
generally to participating school attendance areas based on the total
number of children from low-income families residing in those
attendance areas, including children from low-income families attending
private schools. The level of services available for eligible private
school children will be determined by the amount of funds generated by
poor private school children residing in participating areas. The
Secretary realizes that the collection of data needed to implement
these provisions becomes complicated because many private schools do
not participate in the free and reduced price lunch program, whose data
will likely be used by most LEAs.
Section 200.28(a)(2) of the proposed regulations addressed this
issue by making clear that, if poverty data are not available for
private school children as are available for public school children, an
LEA may use comparable data for private school children collected
through an alternative means such as a survey. The Secretary has
expanded this provision in the final regulations to also make clear
that an LEA may use data from existing sources such as Aid to Families
with Dependent Children or tuition scholarship programs. The Secretary
has also added paragraph (a)(2)(ii), which provides that, if complete
actual poverty data are not available on private school children, an
LEA may extrapolate from actual data on a representative sample of
private school children the number of poor private school children
residing in a particular attendance area. For example, if parents of
half the private school children who reside in a participating school
attendance area respond to a survey and 50 percent of the private
school children whose parents respond are poor, the LEA may project
from this sample that 50 percent of the private school children
residing in that attendance area are poor. The sample size should be
large enough to draw a reasonable conclusion that the poverty estimate
is accurate.
Even with this additional flexibility, however, an LEA may still
not have adequate poverty data on private school children that it needs
for the 1995-96 school year in time to make allocations to
participating school attendance areas, complete the planning process
with respect to services for both public and private school children,
and submit timely plans to their SEA for approval.
[[Page 34825]]
Thus, for the 1995-96 school year only, an LEA that does not have
adequate poverty data on private school children must apply the poverty
percentage of each participating public school attendance area to the
number of private school children in that area. For example, if a
participating public school area has 50 percent poverty and 100
children who reside in that area attend private schools, 50 private
school children would be deemed to be poor and thus generate Title I
funds. For school years after 1995-96, actual poverty data (or a
reasonable estimate based on an adequate sample) will be required.
The Secretary realizes that there may be issues about the adequacy
of the poverty data available for private school children. These issues
need to be resolved in consultation with private school officials.
Because sampling would be permitted, an LEA would not need to have
actual data on each private school child residing in a participating
school attendance area for the data to be adequate. Moreover, to allay
privacy concerns, an LEA does not need to collect or maintain the names
of individual poor children attending private schools or signatures of
their parents or guardians. In determining the adequacy of the data, an
LEA should take into consideration factors such as the reliability of
the data, the response rate, and whether the data are comparable to the
data on public school children.
The Secretary urges public and private school officials to continue
their efforts to collect actual poverty data for the 1995-96 school
year, particularly in light of the flexibility to use sampling. To
facilitate these efforts, SEAs and LEAs may wish to extend deadlines
and amend applications, as necessary. Assuming adequate poverty data on
private school children are not available for the 1995-96 school year,
efforts to collect actual data should continue, because the alternative
method requiring an LEA to apply the poverty rate for each public
school attendance area to the private school children in that area will
be allowed only for the 1995-96 school year.
Changes: Several changes have been made. The Secretary has added
Sec. 200.28(a)(2)(i)(B)(2) to make clear that an LEA may use data from
existing sources such as Aid to Families with Dependent Children or
tuition scholarship programs. The Secretary has also added paragraph
(a)(2)(ii), which provides that, if complete actual poverty data on
private school children are not available, an LEA may extrapolate from
actual data on a representative sample of private school children the
number of poor private school children. Finally, the Secretary has
added paragraph (a)(2)(iii) to require, for the 1995-96 school year
only, an LEA that does not have adequate data on the actual number of
private school children from low-income families under either paragraph
(a)(2) (i) or (ii) to derive the number of those children by applying
the poverty percentage of each participating public school attendance
area to the number of private school children who reside in that area.
Comment: Several commenters recommended that Sec. 200.28 of the
regulations permit an LEA, in order to provide services to eligible
private school children, to reserve an amount of funds that is
proportionate to the number of children from low-income families who
attend private school in the entire LEA compared to the number of
children from low-income families who attend public schools in the LEA.
Discussion: The clear meaning of the statute requires an LEA to
allocate Title I funds based on the number of poor private school
children residing in participating public school attendance areas.
Under section 1113(c)(1) of Title I, funds are allocated to
participating school attendance areas ``on the basis of the total
number of children from low-income families in each area or school.''
The ``total number of children from low-income families'' includes both
poor public and private school children residing in each public school
attendance area. Consistent with this provision, section 1120(a)(4) of
Title I requires expenditures for services to eligible private school
children to be ``equal to the proportion of funds allocated to
participating school attendance areas based on the number of children
from low-income families who attend private schools (emphasis added).''
Determining the amount of funds available for services to private
school children at the LEA level would be inconsistent with allocating
funds to participating areas based on the number of poor public and
private school children in each area.
Changes: None.
Comment: One commenter interpreted Sec. 200.28 of the regulations
to require only that the allocation of funds to school attendance areas
be based on the number of children from low-income families from both
public and private schools. According to the commenter, Sec. 200.28
would allow an LEA to select and rank eligible attendance areas or
schools based only on the number of public school poor children.
Discussion: Section 200.28 deals only with the allocation of funds
to participating school attendance areas and schools and makes clear
that funds must be allocated on the basis of the total number of
children--public and private--from low-income families in each area or
school. Thus, adequate data on the number of private school children
from low-income families in participating school attendance areas is
essential. To include numbers of private school children in identifying
and selecting eligible school attendance areas and schools, however,
would require adequate poverty data on private school children
throughout the LEA. Because obtaining these data for the entire LEA may
be extremely difficult, an LEA may identify and rank its eligible
school attendance areas and schools on the basis of children from low-
income families attending public schools only.
Changes: None.
Comment: Several commenters raised the issue of how private school
children would be identified as residing in a participating attendance
area if an LEA is operating under an open enrollment, a desegregation,
or magnet school plan where there are no geographically defined
attendance areas. A number of commenters recommended that the
regulations allow LEAs to allocate Title I funds for poor private
school children based on their relative share of the total population
of public and private school children for the LEA as a whole.
Discussion: An LEA operating under an open enrollment,
desegregation, or magnet school plan must still offer equitable
services to eligible private school children. Determining which private
school children are eligible, however, is often very difficult because
it is not clear to which public school they would have gone were they
not in a private school. Because of the wide variety of open enrollment
arrangements, the Secretary was unable to fashion a regulation that
would appropriately govern each situation. Rather, the Secretary will
assist SEAs and LEAs on a case-by-case basis to design reasonable
approaches that will allow for the provision of equitable services for
eligible private school children.
Changes: The Secretary has added Sec. 200.10(b)(2) to make clear
that an LEA that identifies a school as eligible on the basis of
enrollment because the school is operating, for example, under an open
enrollment or desegregation plan, must determine an equitable way to
identify eligible private school children.
Comment: Several commenters recommended that Title I expenditures
[[Page 34826]]
for private school children be set at 85 percent of the Title I amount
spent on them in the previous year.
Discussion: The statute does not authorize a hold harmless for
services to private school students based on the prior year's
expenditures.
Changes: None.
Subpart C--Migrant Education Program
Section 200.40 Program Definitions
Comment: One hundred and sixty-seven letters were received
objecting to the proposal to require that, to be a migratory
agricultural worker or fisher, temporary or seasonal employment in an
agricultural or fishing activity must be a ``principal means of
livelihood.'' Most of the commenters on this issue read into the
proposed language a requirement that, for a child to qualify for
services under the Migrant Education Program (MEP), the child's parents
or guardians either must derive the majority of their income from, or
spend the majority of their time performing, agricultural or fishing
activities. Most of the commenters were concerned that the proposed
language imposed a specific recordkeeping burden on migratory workers.
Specifically, they believed that, for a child to be determined eligible
under the MEP, his/her parent or guardian now would be required to
maintain, and produce for inspection by State and local MEP staff,
records documenting the percentage of time or income associated with
their agricultural or fishing work.
Many commenters also suggested that the proposed language would
place an unreasonable burden on local MEP staff, by requiring them to
make subjective determinations of eligibility based on review of
parents' income or occupational history records. Several commenters
noted that these determinations would vary from place to place and from
MEP staff member to staff member.
While the majority of commenters suggested eliminating the proposed
language, several commenters suggested that the Secretary should
clarify the proposed language and/or issue clear guidance on how to
determine whether a migratory worker's agricultural or fishing work
constitutes ``a principal means of livelihood.''
Discussion: The commenters have misinterpreted the scope and intent
of the proposed language regarding what constitutes ``a principal means
of livelihood.'' As noted in the preamble to the NPRM, the Secretary
proposed this language to better focus MEP services on children of
persons with an actual, significant dependency on migratory
agricultural or fishing work.
The Secretary never intended the proposed language to mean that
agricultural or fishing activities had to constitute the principal
means of livelihood for a worker. That is to say, this work need not be
the only type of work performed by a worker during the year, nor the
one which provides the largest portion of income or which employed the
worker for a majority of time. Additionally, the Secretary never
intended the proposed language to require a worker or his or her family
to maintain, or an SEA or operating agency to review, written
documentation on income or work history as a condition of determining
the eligibility of children for the MEP.
With regard to the concern about the burden the proposed language
might place on State and local MEP staff, the Secretary believes that
it is necessary for SEAs and operating agencies receiving MEP funds to
determine that children eligible for the MEP are those for whom
temporary or seasonal employment in an agricultural or fishing activity
constitutes an important part of their families' livelihood. However,
this determination should be no more difficult than the determinations
currently made by State and local MEP staff regarding the
reasonableness of other eligibility information provided by a parent or
guardian as to work activities and mobility. State and local officials
responsible for determining MEP eligibility often rely on oral
information from parents, guardians, as well as employers and others
regarding a move to seek or obtain seasonal agricultural or fishing
employment. State and local MEP staff currently use their best judgment
regarding the accuracy of this information, especially in cases where
agricultural or fishing work was sought but not found. The Secretary's
interpretation of eligibility requirements under the MEP will continue
to permit reliance on any credible source, without the need to secure
written documentation from a parent or guardian. The Secretary only
intends, with this new eligibility requirement, that State and local
staff be reasonably assured that, in view of a family's circumstances,
it is sensible to conclude that temporary or seasonal employment in an
agricultural or fishing activity is one important way of providing a
living for the worker and his or her family.
Changes: In order to clarify the meaning of the new language, the
Secretary has revised the regulatory definition in Sec. 200.40(f) of
the regulations to clarify that the term ``principal means of
livelihood'' as used in Sec. 200.40 (c) and (e) of the regulations
means that ``temporary or seasonal employment in an agricultural or
fishing activity plays an important part in providing a living for the
worker and his or her family.'' The Secretary will issue guidance
regarding how SEAs and their operating agencies may exercise
flexibility in the ways in which they identify and recruit migratory
children consistent with this regulatory requirement.
Comment: Thirty-four commenters noted that the ``principal means of
livelihood'' language included in the proposed MEP regulatory
definitions was not found in the statute. Seven commenters suggested
that the inclusion of this language in the regulations would violate
the Department's principles for regulating insofar as the proposed
language was not absolutely necessary and/or contrary to the intent of
the statute to give flexibility to States and local operating agencies
in implementing the new statute.
Discussion: The Secretary believes that the proposed language
regarding ``principal means of livelihood'' is a necessary addition to
the longstanding definitions of ``migratory agricultural worker'' and
``migratory fisher'' and, therefore, conforms to the Department's
regulatory principles. Because the existing definitions had been frozen
by prior statutes, children have been identified and served as
migratory children simply because they moved with or to join a parent
or guardian who, though having another full-time occupation, indicated
that he or she moved across a school district line to perform, however
briefly, an agricultural or fishing activity. ESEA has removed this
statutory freeze. Continuing to allow children to be served as
migratory children on the basis of a purely technical application of
the definition would perpetuate an injustice against those children
whose lives are disrupted by moves made because their families are
truly dependent, to a significant degree, on temporary or seasonal
agricultural or fishing activities. In this way, the Secretary
continues to believe that this change in the MEP definitions is
absolutely necessary.
Changes: None.
Comment: None.
Discussion: In order to conform to the statutory language, the
Secretary has revised the definition of a ``migratory child'' in
Sec. 200.40(d) by replacing the term, ``has moved,'' in subsection (3)
with the term, ``migrates.''
[[Page 34827]]
Changes: Section 200.40(d)(3) is changed accordingly.
Comment: None.
Discussion: The second sentence of the definition of a ``migratory
fisher'' in Sec. 200.40(e) notes that the definition also includes a
person who resides in a school district of more than 15,000 square
miles, and moves a distance of 20 miles or more to a temporary
residence to engage in a fishing activity. As purely an editorial
clarification, the Secretary has revised this sentence to read, ``This
definition also includes a person who, in the preceding 36 months,
resided in a school district of more than 15,000 square miles, and
moved a distance of 20 miles or more to a temporary residence to engage
in a fishing activity as a principal means of livelihood.''
Changes: Section 200.40(e) is changed accordingly.
Section 200.41 Use of Program Funds for Unique Program Function Costs
Comment: Two commenters addressed this section of the proposed
regulations. Both commenters agreed that it was appropriate to use
program funds to address those administrative functions that are unique
to the MEP; however, one commenter questioned why the proposed
regulation also mentioned the use of program funds for ``administrative
activities * * * that are the same or similar to those performed by
LEAs in the State under subpart A.'' This commenter suggested deleting
the language or providing examples of what these activities might
include.
Discussion: The MEP is a State-operated as well as a State-
administered program. In cases where it directly operates aspects of
the program, rather than having local operating agencies do so, an SEA
has to perform the same kind of administrative activities that an LEA
carries out when it administers a project under subpart A. While these
activities could be described as unique to the nature of the MEP, the
Secretary believes deleting the term, which has been in the prior
regulations, would create unnecessary confusion about the scope of
permissible uses of funds under Sec. 200.41 of the regulations.
Instead, the Secretary has decided to make minor modifications to
clarify that those ``administrative activities * * * that are unique to
the MEP'' include ``administrative activities * * * that are the same
or similar to those performed by LEAs in the State under subpart A.''
The list of permissible activities has also been expanded to include an
example of this type of administrative activity.
Changes: Section 200.41 is changed accordingly.
Section 200.42 Responsibilities of SEAs and Operating Agencies for
Assessing the Effectiveness of the MEP
Comment: Two commenters addressed this section of the proposed
regulations. One commenter agreed with the proposed language. The other
commenter noted that the schoolwide program requirements in Sec. 200.8
of the regulations do not require the identification of particular
children as eligible to participate, and questioned how an operating
agency can meet its responsibility under Sec. 200.42 of the regulations
to evaluate the effectiveness of how a school within the agency which
combines MEP funds in a schoolwide program serves migratory children.
Discussion: The commenter misconstrues the applicable provisions of
Sec. 200.8, regarding schoolwide programs. While Sec. 200.8(f)(1) does
not require a schoolwide program to identify particular children as
eligible to participate (emphasis added), a schoolwide program will
have to identify a given child in terms of needs. This is necessary in
order for the school to meet other schoolwide program requirements to
(1) employ instructional strategies which address the needs of children
who are members of the target population of any program whose funds are
included in the schoolwide program [Sec. 200.8(d)(2)(iv)(A)]; and 2)
address the identified needs of migratory children specifically, and
document how these needs have been met in the schoolwide program
[Sec. 200.8(c)(3)(ii)(B)(1)]. A schoolwide program is also required,
under Sec. 200.8(e)(1)(iv)(A)(2), to disaggregate assessment data
according to specific categories, including migrant status. In this
way, a schoolwide program which includes MEP funds will be able to meet
the requirements of Sec. 200.42 to determine the effectiveness of the
program for migratory students.
Changes: None.
Section 200.44 Use of MEP Funds in Schoolwide Programs
Comment: Nine comments were received regarding the inclusion of MEP
funds in schoolwide programs. Seven of the commenters expressed support
for the continued inclusion of the proposed language in
Sec. 200.8(c)(3)(ii)(B)(1) of the regulations. As developed through the
negotiated rulemaking process, this subsection requires schoolwide
programs to (1) first address, in consultation with parents and other
representatives, or both, of migratory children, the identified needs
of those children that result from the effects of their migratory
lifestyle or are needed to permit them to function effectively in
school; and (2) document that services to address those needs have been
provided. One commenter expressed concern that the special needs of
migratory children will not be addressed in a schoolwide program
without a requirement to ``identify and document the services that
supplemented the regular academic program.'' Another commenter
suggested that the language of Sec. 200.8(c)(3)(ii)(B) of the
regulations was too vague and flexible, and would ``allow school
districts to evade the intentions of Congress.''
Discussion: The Secretary continues to believe that the language in
Sec. 200.8(c)(3)(ii)(B)(1) of the regulations, as drafted in negotiated
rulemaking, provides an adequate safeguard that the special needs of
migratory children will be addressed in schoolwide programs. In
particular, subsection (1)(B) requires that schoolwide programs
document that services have been provided to address the identified
needs of migratory children. The Secretary continues to believe that it
is neither necessary nor desirable--and, in fact, is contrary to the
purpose of schoolwide programs--for schoolwide programs to have a
requirement to demonstrate that services provided using Federal funds,
e.g. MEP funds, combined under the schoolwide program authority
supplement the services regularly provided in that school.
Changes: None.
Subpart D--Prevention and Intervention Programs for Children and Youth
Who Are Neglected, Delinquent, or At-Risk of Dropping Out
Comment: One commenter indicated that the regulations do not
adequately address many of the statutory changes, particularly as they
relate to prevention and intervention. The commenter suggests
organizing the regulations into State agency and locally operated
program categories.
Discussion: In developing regulations for programs authorized by
Title I, the Department sought to regulate only where absolutely
necessary, and when regulating, to promote flexible approaches to
meeting the requirements of the law. The Secretary believes that the
statute provides sufficient direction to State agencies (SAs) and local
educational agencies (LEAs) operating Part D subpart 1 and 2 programs
for children and youth who are neglected, delinquent, or at-risk of
dropping out and does not require regulations. The Department, however,
is developing more detailed guidance to help SAs and LEAs design
programs that meet the
[[Page 34828]]
needs of this population. This guidance will be organized to provide
guidance related specifically to the Part D, Subpart 1 State agency N
or D program and the Subpart 2 local agency program.
Changes: None.
Comment: For the Part D, Subpart 2 local agency program, a
commenter asked for clarification about the distinction in funds and
services between delinquent and at-risk children and youth. The
commenter further asked if LEAs may reserve a portion of their funds
for at-risk students who have not been adjudicated delinquent or must
LEAs use those funds only for delinquent youth transferring from
institutions into the district's schools.
Discussion: LEAs must use a portion of its Title I, Part D, Subpart
2 funds to operate a dropout prevention program for at-risk youth in
local schools in the LEA. At the same time, the LEA must also use some
of its Subpart 2 funds for programs that will serve children and youth
in locally operated correctional facilities and in locally operated
institutions or community day programs for delinquent children and
youth in accordance with the requirements in section 1425 of Title I.
The statute, however, provides that if more than 30 percent of the
children or youth in a local correctional facility or delinquent
institution within an LEA do not reside in the LEA after leaving the
facility or institution, the LEA is not required to operate a dropout
prevention program in a local school.
Changes: None.
Comment: One commenter expressed concern about the low status of
``prison education,'' particularly in his State, where the lack of
support for juvenile institutions has reduced both the number and the
quality of course offerings and has relegated correctional education to
a supplemental or support role. The commenter indicated that there
should be more recognition of the status of correctional education and
hopes that the Title 1 program in these institutions will help N or D
children and youth attain the high standards expressed in Goals 2000
and State school reform initiatives.
Discussion: The Secretary expects consolidated State plans for ESEA
programs or individual State plans for Part D funds to provide an
overall plan for meeting the needs of N or D children and youth and,
where applicable, youth at-risk of dropping out of school that is
integrated with the State's other educational programs.
Changes: None.
Comment: One commenter expressed concern that section 1603 of Title
I does not require that the membership of the State's Committee of
Practitioners include a representative from State agencies (SAs)
operating N or D institutions.
Discussion: Section 1603 of Title I requires that the Committee of
Practitioners review and comment on all proposed rules, regulations,
and policies relating to programs authorized in Title I, including Part
D. The Secretary expects that a representative from SAs operating Title
I N or D programs will be included on the Committee of Practitioners so
it can address issues related to the State agency N or D program.
Changes: None.
Comment: A commenter noted that the regulations do not address how
an SEA awards Part D, Subpart 2 grants to LEAs with high numbers or
percentages of youth residing in locally operated correctional
facilities for youth (including institutions and community day programs
or schools that serve delinquent children and youth).
Discussion: The SEA has flexibility in establishing the criteria
used to determine which LEAs have high numbers or percentages of
children and youth in local correctional facilities or institutions and
community day programs for delinquent children. Once an SEA determines
which LEAs are eligible, the SEA may award Part D, Subpart 2 subgrant
to eligible LEAs through a formula or on a discretionary basis.
Changes: None.
Section 200.50 Program Definitions
Comment: One commenter expressed concern that the definition for
locally operated correctional facility does not include institutions or
community day programs that serve neglected children and that the Part
D, Subpart 2 local agency program does not address the educational
needs of these neglected children.
Discussion: The specific educational needs of neglected children
are met through several Title I programs. The State agency N or D
program, authorized in Part D, Subpart 1 of Title I, serves the needs
of neglected children in State-operated or supported institutions or
community day programs. Part A, section 1113 of Title I requires that
an LEA receiving Title I funds reserve funds to meet the educational
needs of children in local institutions for neglected children. If the
LEA is unable or unwilling to provide services to children in local
institutions for neglected children, the State educational agency must
reduce the LEA's allocation by the amount generated by the neglected
children and assign those funds to another agency or LEA that agrees to
assume educational responsibility for those children.
Changes: None.
Section 200.51 SEA Counts of Eligible Children
Comment: One commenter strongly supported the change requiring the
use of enrollment rather than average daily attendance.
Discussion: Section 200.51 of the regulations follows the statute,
which requires that counts used for allocating Part D, State agency N
or D funds be based on the number of children and youth under aged 21
enrolled in a regular program of instruction for 20 hours per week if
in a institution or community day program for N or D children and youth
and 15 hours per week if in an adult correctional facility.
Changes: None.
Comment: One commenter objected to requirements in the proposed
regulations that State agency N or D allocations be based on counts of
children enrolled in a regular program of instruction for 20 hours per
week if in an institutions or community day program for N or D
children; and only children and youth in institutions with an average
length of stay of 30 days or more can be counted. The commenter argued
these requirements will result in an under count of the children and
youth that State institutions serve and does not take turnover into
account.
Discussion: The criteria that children be enrolled in a regular
program of instruction for 15 or 20 hours of instruction per week,
depending on the type of institution, reflect statutory requirements.
The statute, however, addresses the issue of turnover in part by
requiring that enrollment be adjusted to take into consideration the
relative length of the program's school year.
Although short-term institutions such as detention, diagnostic, and
reception centers provide basic education services for youth, the
Secretary believes that Title I services are most effective when their
duration is longer and is requiring in regulations that the average
length of stay in institutions and programs eligible for Title I funds
average at least 30 days.
Changes: None .
Subpart E--General Provisions
Section 200.60 Reservation of Funds for State Administration and
School Improvement
Comment: One commenter argued that Congress appropriated fiscal
year 1995 funds specifically for School Improvement as a limitation or
cap on
[[Page 34829]]
the amount that could be spent by States for this activity in the same
manner that Congress provided funds specifically for State
Administration in prior years. According to the commenter, the line
item appropriation, therefore, provides the entire amount that may be
expended for school improvement activities for 1995-96, and SEAs have
no authority to reserve any additional funds for that purpose from
their allocations under sections 1002 (a), (c), and (d) of Title I in
1995-96.
Discussion: In the 1995 Appropriations Act (P.L. 103-333), Congress
appropriated funds for activities authorized by Title I and
specifically provided $27,560,000 for ``program improvement
activities.'' Because the ESEA had not been enacted at the time P.L.
103-333 became law, these funds were not appropriated under the
authority in section 1002(f) of Title I. However, legislative history
accompanying the 1995 Appropriations Act (Senate Report 318, p. 177)
indicates that Congress provided a specific amount for program
improvement grants with the knowledge that the Senate ESEA bill, S.
1513, also authorized each State to reserve a portion of its Title I
LEA and State agency grants for school improvement. Thus, the Secretary
believes that Congress intended to provide funds for school improvement
as a separate line item and still allow States to reserve additional
funds under sections 1003 (a), (c), and (d) from its LEA and State
agency grants.
Changes: None.
Section 200.61 Use of Funds Reserved for State Administration
Comment: One commenter believed Sec. 200.61 of the regulations
should be expanded to address the use of funds reserved for school
improvement. The commenter recommended that any alternative system
established by the State should be addressed in its State plan and
thereby subject to peer review. The commenter argued that States may be
tempted to use school improvement funds to support SEA staff costs that
should otherwise be funded with State Administration funds.
Discussion: The Secretary believes that sections 1116 and 1117 of
Title I adequately address how States must use school improvement
funds. States are expected to address in individual State plans how
they will monitor LEA school improvement activities, provide technical
assistance, identify LEAs in need of school improvement assistance,
take necessary corrective action, and establish a State school
improvement support system.
Changes: None.
Comment: One commenter asked what the phrases ``any of the funds''
and ``general administrative activities'' mean in Sec. 200.61 of the
regulations.
Discussion: Section 200.61 of the regulations provides that an SEA
may use any of the funds it has reserved under Sec. 200.60(a) to
perform general administrative activities necessary to carry out, at
the State level, any of the programs authorized under Title I. This
authority, provided under section 1603 of Title I, is very broad and
includes activities that the SEA considers necessary to the proper and
efficient performance of its duties under Title I. Such activities may,
for example, include reviewing plans submitted by LEAs and State
agencies, monitoring program activities at the local level, providing
technical assistance, and developing rules and policy guidance needed
to implement the law.
Changes: None.
Subpart E--General Provisions
Comment: One commenter strongly supported the language in
Sec. 200.63 of the regulations concerning the supplement, not supplant
requirement and believed that it clarifies the language of the Title I
statute. Another commenter suggested that the regulations further
clarify section 1120A(b)(1)(B) of Title I pertaining to the exclusion
of supplemental State and local funds from supplement, not supplant
determinations, given the likelihood of unintended noncompliance in the
near future.
Discussion: Although the Title I legislation on the exclusion of
supplemental State and local funds from Title I supplement, not
supplant and comparability determinations is different from that in the
Chapter 1 legislation, the Secretary believes that the statutory
language does not need further clarification beyond that contained in
Sec. 200.63(c) of the regulations. To the extent additional
clarification becomes necessary, the Department will provide it in
policy guidance.
Changes: None.
Comment: One commenter suggested that Sec. 200.65 of the
regulations include definitions of terms and requirements that are not
clearly described in the statute so that wide variation in State and
local interpretation does not result. The commenter suggested that
States and LEAs need examples or minimum standards that can be used to
interpret and measure terms such as ``joint development,''
``comprehensive needs assessment,'' ``adequate progress,'' ``high
quality,'' ``sufficient,'' and ``compacts''.
Discussion: The Secretary believes that including specific
definitions of these terms in the regulations would lessen State and
local flexibility. To the extent clarification is needed, the
Department will include it in policy guidance.
Changes: None.
Comment: One commenter suggested that sections 14401 and 14501 of
Title XIV regarding ESEA waivers and maintenance of effort waivers,
respectively, appear contradictory; under section 14401, maintenance of
effort may not be waived yet under section 14501, the Secretary has the
authority to waive maintenance of effort under certain circumstances.
Discussion: Because section 14501 contains specific maintenance of
effort provisions, including the authority to waive those provisions
under certain circumstances, that section takes precedence over the
general waiver provisions in section 14401. Thus, the Secretary may
waive maintenance of effort requirements under programs covered by
section 14501, if the jurisdiction meets the statutory criteria for a
waiver. If a jurisdiction does not meet those criteria or is not
covered under section 14501, the Secretary may not waive maintenance of
effort under section 14401.
Changes: None.
Comments on Issues Not Addressed in Final Regulations
Comment: One commenter requested that the Secretary specify a date
by which an SEA must distribute its plan to its LEAs (suggesting July
1, 1995) and further specify that the draft plan and final plan be made
public, stressing that, because of the LEAs' heavy reliance on the SEA
plan, it is imperative that LEAs have access to the SEA plan for review
prior to the plan becoming final.
Discussion: The Secretary agrees that an SEA must adequately
communicate with its LEAs. In fact, the SEA must consult with LEAs,
teachers and other school staff, and parents in developing its State
plan. Given the variation among States, however, the Secretary does not
believe establishing a national ``due date'' would be appropriate.
Changes: None.
Comment: One commenter recommended that regulations be added to
address the provisions of section 1115(b) of Title I that are designed
to ensure that students with educational needs are not excluded on the
basis of English proficiency, family income, disability, or migrant
status. The commenter found that many LEP
[[Page 34830]]
students were inappropriately excluded from Chapter 1 participation.
Discussion: Section 1115(b)(2) makes clear that children who are
economically disadvantaged, children with disabilities, migrant
children, and LEA children are eligible for services under Part A on
the same basis as other children selected to receive services. The
Secretary does not believe that regulations are needed to enforce this
statutory provision.
Changes: None.
Comment: One commenter recommended that the regulations encourage
the use of technology to increase learning, parental involvement, and
professional development and cited the Conference Report on the
legislation, which states: ``The conferees intend to allow maximum
flexibility for the use of funds under this Act to encourage schools to
think of new ways to use technology to expand the learning day in the
home, increase parental involvement with their children's education,
and provide readily accessible professional development for teachers
and staff.''
Discussion: As reflected in the Improving America's Schools Act
(IASA), the use of technology is certainly strongly encouraged. Because
the design of Title I programs is a responsibility of schools and LEAs,
however, the Secretary believes it is inappropriate to regulate on this
issue.
Changes: None.
Comment: One commenter expressed concern that parental involvement
is hardly addressed in the regulations. Specifically, because LEA and
school-level parent involvement policies must be developed jointly with
and agreed upon with parents, the commenter suggested that the terms
``joint development'' and ``agreement'' be defined in the regulations.
Two commenters also suggested that the regulations specify the manner
in which these activities are to be carried out to ensure that (1)
parents and school system personnel can understand concretely the steps
for implementing the provisions; and (2) the parental involvement
policies provide the SEA and LEA with sufficient information to enable
them to determine that the policies are fully adequate to meet the
statutory requirements. The commenters also recommended that the
regulations make clear that the SEA and LEAs are responsible for
ensuring that the parent involvement policies and processes are
sufficient to meet Title I's parent involvement requirements.
One commenter suggested that the regulations provide additional
clarification regarding school-parent compacts, specifying that the
compact must be agreed upon, through informed consent, by parents as
part of the school-level parent involvement policy. The commenter also
asked that the regulations contain qualifying language providing that
nothing in the school-parent compact section shall permit school
officials to limit or deny families' rights to privacy and to determine
the upbringing of their children. The commenter also suggested that the
regulations connect parental involvement sections with other related
sections so that parent involvement provisions are not used in
isolation.
One commenter strongly supported the terms ``broad-based'' and
``throughout the planning process'' that are contained in the
provisions related parental involvement in the development of the State
plan and suggested the same language be added in the regulations with
respect to parent involvement in local plan and policy development.
Another commenter recommended that the regulations outline a framework
for parent involvement as described in section 1118 of Title I and, in
addition to repeating the statute, expand on the newer parent
involvement provisions such as ``Shared Responsibilities for High
Student Performance'' and ``Building Capacity for Involvement.''
Discussion: The Secretary strongly agrees that parental involvement
is essential for the education of children; the many detailed statutory
provisions on parental involvement reflect this belief. Because the
statute is very detailed, however, the Secretary does not believe
additional regulations are necessary.
Changes: None.
Comment: Two commenters noted that the regulations did not contain
complaint procedures. One commenter offered very detailed language to
be added. The other commenter expressed concern that, without complaint
procedures, many low-income parents would have nowhere to turn to
attempt to redress individual and systemic wrongs, and also that LEAs
and schools would receive a message that compliance is not important.
Discussion: The Secretary will be issuing in the near future
proposed regulations implementing Title XIV of the ESEA and covering
other general areas. These proposed regulations will contain provisions
on complaint procedures that would apply to Title I.
Changes: None.
[FR Doc. 95-16355 Filed 6-29-95; 10:48 am]
BILLING CODE 4000-01-P