[Federal Register Volume 60, Number 206 (Wednesday, October 25, 1995)]
[Proposed Rules]
[Pages 54648-54651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-26365]



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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1305

RIN 0970-AB53


Head Start Program

AGENCY: Administration on Children, Youth and Families (ACYF), 
Administration for Children and Families (ACF), HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Administration on Children, Youth and Families is issuing 
this Notice of Proposed Rulemaking to amend the requirements on 
eligibility, recruitment, selection, enrollment and attendance in Head 
Start, in six areas affecting Head Start programs which are serving 
specific populations. The first and second proposed changes add a new 
definition for Indian Tribe and amend the definition of a migrant 
family to conform to a new statutory definition. The third change 
requires migrant programs to give priority to children from families 
that relocate most frequently. The fourth and fifth proposed changes 
affect Head Start programs operated by Indian Tribes by expanding the 
definition of a Head Start service area to include near-reservation 
designations and by expanding the family income eligibility criteria 
for Indian grantees meeting specific conditions. The sixth change 
establishes the number of years children remain eligible for Head Start 
when they are enrolled in an Early Head Start program.

DATES: In order to be considered, comments on this proposed rule must 
be received on or before December 26, 1995.

ADDRESSES: Please address comments to the Associate Commissioner, Head 
Start Bureau, Administration for Children, Youth and Families, P.O. Box 
1182, Washington, D.C. 20013. Beginning 14 days after close of the 
comment period, comments will be available for public inspection in 
Room 2215, 330 C Street, S.W., Washington, D.C. 20201, Monday through 
Friday between the hours of 9:00 a.m. and 4:00 p.m.

FOR FURTHER INFORMATION CONTACT: Rita Schwarz, (202) 205-8539.

SUPPLEMENTARY INFORMATION:

I. Program Purpose

    Head Start is authorized under the Head Start Act (42 U.S.C. 9801 
et seq.). It is a national program providing comprehensive 
developmental services primarily to low-income preschool children, who 
are primarily age three to the age of compulsory school attendance, and 
their families. In addition, Section 645A of the Head Start Act 
provides authority to fund programs for families with infants and 
toddlers. Programs receiving funds under the authority of this Section 
are referred to as Early Head Start programs. To help enrolled children 
achieve their full potential, Head Start programs provide comprehensive 
health, nutritional, educational, social and other services. 
Additionally, Head Start programs are required to provide for the 
direct participation of the parents of enrolled children in the 
development, conduct, and direction of local programs. Parents also 
receive training and education to foster their understanding of and 
involvement in the development of their children. In fiscal year 1994, 
Head Start served 740,500 children through a network of over 2,000 
grantees and delegate agencies.
    While Head Start is intended to serve primarily children whose 
families have incomes at or below the poverty line, or who receive 
public assistance, Head Start policy permits up to 10 percent of the 
children in local programs to be from families who do not meet these 
low-income criteria. The Act also requires that a minimum of 10 percent 
of the enrollment opportunities in each program be made available to 
children with disabilities. Such children are expected to participate 
in the full range of Head Start services and activities with their non-
disabled peers and to receive needed special education and related 
services.

II. Summary of the Proposed Regulation

    The authority for this Notice of Proposed Rulemaking (NPRM) is 
sections 637, 640, 641, 645 and 645A of the Head Start Act (42 U.S.C. 
9801 et seq.), as amended by Public Law 103-252, Title I of the Human 
Service Amendments of 1994.
    Section 637 contains a new definition for Indian Tribe which will 
be incorporated into this regulation. It also contains a new definition 
for ``migrant Head Start program'' which impacts the current definition 
of ``migrant family'', found in 45 CFR 1305.2(l), by amending the 
definition to include families that have changed their residence from 
one geographical location to another in the preceding two-year period.
    Section 640(l) states that the Secretary must give priority to 
migrant Head Start programs which serve eligible children of migrant 
families whose work requires them to relocate most frequently.
    Section 641(b) expands the definition of community to include 
Indians in any area designated as near-reservation. This requires a 
change in 45 CFR 1305.3(a) regarding the designation of a grantee's 
service area and the addition of a new paragraph (b) to that section.
    Section 645(d) expands the eligibility for participation in Head 
Start programs operated by Indian Tribes to include children from 
families whose income exceeds the income-eligibility guidelines when 
specific conditions exist in the community served by the Tribe, 
provided the program predominantly serves children from families who 
meet the low-income guidelines. This requires a change in 45 CFR 
1305.4(b) regarding family income eligibility.
    Section 645(d) also requires the Secretary to specify by regulation 
the requirements contained in that section after consultation with 
Indian Tribes. In preparation for developing these amendments to 45 CFR 
1305, ACYF solicited input from Indian Tribes through three meetings 
with members of the Indian community. Their comments and 
recommendations were considered in developing the amendments to this 
regulation that are applicable to Head Start programs operated by 
Tribes.
    Section 645A authorizes the funding of programs for families with 
infants and toddlers. Specifically, it states in section 645A(b) that 
programs receiving 

[[Page 54649]]
assistance for this purpose shall provide ``* * * early, continuous, 
intensive and comprehensive child development and family support 
services * * *.'' In order to provide continuous services for children 
funded under this authority in Early Head Start programs, 45 CFR 
1305.7(c) is being amended to extend the length of time the child's 
family remains income-eligible.
    The proposed rule:
     Adds a new definition for Indian Tribe.
     Amends the definition of a migrant family to include 
families who are engaged in agricultural work who have changed their 
residence from one geographical location to another within the 
preceding two-year period.
     Adds a requirement that migrant programs give priority to 
children from families whose work requires them to relocate most 
frequently.
     Expands the meaning of a grantee's service area when the 
grantee is an Indian Tribe to include a near-reservation designation.
     Permits an Indian Tribe, under certain conditions, to have 
more than ten percent of its Head Start program's enrollment be 
children from families with incomes that exceed the low-income 
guidelines. These conditions are: (1) That all income-eligible children 
who wish to be enrolled are served by the program, including Indian 
children from a near-reservation area, if the near reservation area is 
part of the Tribe's approved service area; (2) that the program 
predominantly serves children from families whose income meets the low-
income guidelines; and (3) that a Tribe may not use funds from HHS 
intended for expansion to serve children from over-income families 
beyond the ten percent permitted in current regulation.
     Extends income eligibility of families with children 
enrolled in an Early Head Start program funded under the authority of 
Section 645A of the Head Start Act to cover the time their child is 
enrolled in the Early Head Start program.

III. Section by Section Discussion of the NPRM

Section 1305.2  Definitions

    Under definitions, we are adding ``Indian Tribe'' as a new 
paragraph (k) to conform to the definition that is in section 637(10) 
of the Head Start Act and redesignating the remaining paragraphs, 
accordingly.
    Section 1305.2(l), which will be new paragraph (m) under the 
redesignation, currently defines a migrant family, for purposes of Head 
Start eligibility, to include a family with children under the age of 
compulsory school attendance who have changed their residence by moving 
from one geographic location to another, either intrastate or 
interstate, within the past twelve months, for the purpose of engaging 
in agricultural work that involves the production and harvesting of 
tree and field crops and whose family income comes primarily from this 
activity. This NPRM proposes to amend the definition to change the 
length of time between moves by the family from one geographic location 
to another from the past twelve months to the preceding two years. This 
will conform with new language in Section 637(12) of the Head Start Act 
that defines a ``migrant Head Start program''.

Section 1305.3  Determining Community Needs

    The current regulation requires each grantee to identify its 
proposed service area in its Head Start grant application and define it 
by county or sub-county area, such as a municipality, town or census 
tract or a federally recognized Indian reservation. A service area is 
currently defined in section 1305.2(q) as the geographic area 
identified in an approved grant application within which a grantee may 
provide Head Start services. This NPRM proposes to expand the meaning 
of service area contained in this section for Head Start grantees that 
are Indian Tribes to permit the Tribe to include all or part of any 
areas designated as near-reservation by the Bureau of Indian Affairs 
(BIA) as stated in Section 641(b) of the Head Start Act. In order to 
provide increased flexibility to Tribes which do not have a BIA 
designation but face the same needs for serving Indians who live near 
the reservation, we are proposing to allow such Tribes an opportunity 
to redefine their service area. If a Tribe does not have a BIA near-
reservation designation, it may, subject to the approval of the Tribe's 
governing council and the Associate Commissioner of the Head Start 
Bureau, propose to designate near-reservation areas in which Indian 
people native to the reservation reside, as part of its service area. 
Expanding the Tribe's service area to include a near-reservation area 
would permit them to serve Indian children who live near, but not on, 
the Tribe's reservation.

Section 1305.4  Age of Children and Family Income Eligibility

    The current regulation requires at least 90 percent of the children 
enrolled in Head Start to be from low-income families. Up to ten 
percent of the children enrolled may be from families that exceed the 
low-income guidelines. To conform with language in section 645(d) of 
the Head Start Act, the NPRM proposes to amend the family income 
eligibility requirements for Head Start programs operated by Indian 
Tribes to permit them to enroll additional children, beyond the ten 
percent, from families that exceed the low-income guidelines when the 
following conditions are met: (1) All children in the Tribe's approved 
service area from families that meet the low-income guidelines who wish 
to be enrolled in Head Start are served by the program, including those 
Indian children native to the reservation living in near reservation 
communities when such communities have been included in the Tribe's 
approved service area; (2) the Tribe has the resources to enroll these 
children, without using additional funds from HHS intended to expand 
Head Start services, and; (3) at least 51 percent of the children to be 
served by the program are from families whose incomes are below the 
low-income guidelines.
    The first condition requires the Tribe to serve all children who 
are from families whose incomes are below the low-income guidelines, 
who are between the ages of three and the age when kindergarten or 
first grade is available in the child's community, and whose families 
wish them to be served by Head Start before it may enroll children from 
families that exceed the low-income guidelines. This would include all 
children living on the Tribe's reservation, including those children 
from low-income families who are not members of the Tribe. It may also 
include Indian children who meet the low-income guidelines who live in 
a near-reservation area, if the Tribe's approved service area includes 
such near-reservation communities. The purpose of this condition is to 
ensure that all children eligible for Head Start are permitted the 
opportunity to attend Head Start, if they live on the Tribe's 
reservation. It also ensures that low-income Indian families living in 
near-reservation areas have an opportunity to enroll their children in 
the Tribe's Head Start program, if the Tribe has included that area in 
its approved service area.
    The second condition requires that at the time the Tribe proposes 
to serve more than ten percent of its Head Start enrollment from 
families exceeding the low-income guidelines, the Tribe must have the 
resources to enroll these children and that no funds provided by HHS 
that are intended to expand Head Start services may be used for this 
purpose. This means that such children must be served within the 
Tribe's 

[[Page 54650]]
existing Head Start funding or through the use of non-Federal 
resources. Funds to expand Head Start services that are provided by HHS 
to the Tribe would be intended to serve additional children from 
families that meet the low-income guidelines.
    The third condition is that at least 51 percent of the children to 
be enrolled in a Head Start program operated by a Tribe are to be 
children from families that meet the low-income guidelines. Section 645 
of the Head Start Act states that, when serving children from families 
whose income exceeds the low-income guidelines, the program must 
predominantly serve children from families that meet the low-income 
guidelines. We are defining the term ``predominantly'' to mean at least 
51 percent of the children enrolled in the program. This allows the 
Tribes as much flexibility as possible. This position was strongly 
supported during consultation sessions that were held with Tribes on 
this issue, as is required in the Head Start Act. Many individuals 
supported this interpretation of ``predominantly'' and expressed strong 
concern that Tribes be given this flexibility to serve children from 
families whose income exceeds the low-income guidelines when special 
circumstances on a Tribe's reservation exist. Several Tribal members 
gave examples of changing economic conditions on their reservation 
that, while varying from year to year, may limit the number of families 
who are eligible to enroll their child in Head Start at certain times 
using the low-income guidelines to determine eligibility.
    If programs meet these conditions, we are proposing that the 
program annually set criteria that are approved by the Policy Council 
and the Tribal Council for selecting over-income children who would 
benefit from enrollment in a Head Start program.

Section 1305.6  Selection Process

    Paragraph (b) of this section will be amended to add a new 
requirement that migrant programs must give priority to children from 
families whose work required them to relocate most frequently within 
the preceding two-year period. This change conforms with similar 
language in section 640(l) of the Head Start Act. This should not be 
interpreted to mean that frequency of relocation is the only factor to 
be considered when selecting children to be served by the program. 
Other factors should also be considered depending on the needs of the 
community being served and the recruitment priorities established by 
each program.

Section 1305.7  Enrollment and Re-enrollment

    Paragraph (c) of this section will be amended to include an 
exception to the current requirement which states that once a child has 
been found to be income-eligible, they remain eligible for the current 
and immediately succeeding enrollment year. The exception will apply to 
children who are enrolled in an Early Head Start program funded under 
the authority of section 645A of the Head Start Act for services to 
families with infants and toddlers. In order to assure continuity of 
services, once income-eligibility has been determined, such children 
remain income eligible while they are enrolled in Early Head Start. 
Income would have to be redetermined for the family if they wish to 
enroll their child in a Head Start program serving children between the 
ages of three and compulsory school attendance. This exception is 
proposed to meet the intent of section 645A of the Head Start Act.
    ACF appreciates the need to balance the assurance of continuity of 
services for children and families enrolled in the Early Head Start 
program with the assurance that Head Start programs are serving those 
children and families most in need of the program. We encourage 
comments on whether the correct balance has been achieved in this 
proposed regulation by our approach of allowing children to stay in the 
Early Start program for up to two additional years beyond when their 
families' income eligibility was determined while requiring that 
families whose children are scheduled to move from Early Head Start to 
Head Start should first have their income reverified to assure they are 
still income-eligible for the program.

IV. Impact Analysis

Executive Order 12866

    Executive Order 12866 requires that regulations be drafted to 
ensure that they are consistent with the priorities and principles set 
forth in the Executive Order. The Department has determined that this 
rule is consistent with these priorities and principles. This Notice of 
Proposed Rulemaking implements the statutory authority for Head Start 
grantees that are Indian Tribes to include a near-reservation area when 
recruiting children for Head Start services and, under certain 
circumstances, to enroll children from families with incomes that 
exceed the low-income guidelines. It also changes the definition of a 
migrant family, requires migrant Head Start grantees to give priority 
to families that relocate most frequently, and establishes the number 
of years children remain eligible for Head Start when they are enrolled 
in a program receiving funds under the authority of section 645A of the 
Head Start Act for services to families with infants and toddlers.

Regulatory Flexibility Act of 1980

    The Regulatory Flexibility Act (5 U.S.C. CH. 6) requires the 
Federal government to anticipate and reduce the impact of rules and 
paperwork requirements on small businesses. For each rule with a 
``significant economic impact on a substantial number of small 
entities'' an analysis must be prepared describing the rule's impact on 
small entities. Small entities are defined by the Act to include small 
businesses, small non-profit organizations and small governmental 
entities. While these regulations would affect small entities, they 
would not affect a substantial number. For this reason, the Secretary 
certifies that this rule will not have a significant impact on 
substantial numbers of small entities.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995, Public Law 104-13, all 
Departments are required to submit to the Office of Management and 
Budget (OMB) for review and approval any reporting or record-keeping 
requirement inherent in a proposed or final rule. This NPRM does not 
contain information collection and record-keeping requirements.

List of Subjects in 45 CFR Part 1305

    Disabilities, Education of Disadvantaged, Grant Programs/Social 
Programs, Head Start Enrollment, Preschool Education.

(Catalog of Federal Domestic Assistance Program Number 93.600, 
Project Head Start)

    Dated: October 4, 1995.
Mary Jo Bane,
Assistant Secretary for Children and Families.

    For the reasons set forth in the Preamble, 45 CFR Part 1305 is 
proposed to be amended as follows:

PART 1305--ELIGIBILITY, RECRUITMENT, SELECTION, ENROLLMENT AND 
ATTENDANCE IN HEAD START

    1. The authority citation continues to read as follows:

    Authority: 42 U.S.C. 9801 et seq.

    2. Section 1305.2 is amended by redesignating current paragraphs 
(k) through (r) as paragraphs (l) through (s); adding a new paragraph 
(k); and revising newly redesignated paragraph (m) to read as follows: 

[[Page 54651]]



Sec. 1305.2  Definitions.

* * * * *
    (k) Indian Tribe means any tribe, band, nation, pueblo, or other 
organized group or community of Indians, including any Native village 
described in section 3 (c) of the Alaska Native Claims Settlement Act 
(43 U.S.C. 1602 (c)) or established pursuant to such Act (43 U.S.C. 
1601 et seq.), that is recognized as eligible for special programs and 
services provided by the United States to Indians because of their 
status as Indians.
* * * * *
    (m) Migrant family means, for purposes of Head Start eligibility, a 
family with children under the age of compulsory school attendance who 
changed their residence by moving from one geographic location to 
another, either intrastate or interstate, within the preceding two 
years, for the purpose of engaging in agricultural work that involves 
the production and harvesting of tree and field crops and whose family 
income comes primarily from this activity.
* * * * *
    3. Section 1305.3 is amended by revising paragraph (a), 
redesignating current paragraphs (b) through (f) as paragraphs (c) 
through (g), and adding a new paragraph (b) to read as follows:


Sec. 1305.3  Determining community needs.

    (a) Each grantee must identify its proposed service area in its 
Head Start grant application and define it by county or sub-county 
area, such as a municipality, town or census tract or a federally 
recognized Indian reservation. With regard to Indian Tribes, the 
service area may include Indian families living in areas designated as 
near-reservation by the Bureau of Indian Affairs (BIA), or in the 
absence of such a designation, areas within the Tribe's approved 
service area. A Tribe lacking a BIA near-reservation designation may 
propose to define its service area to include Indian children and 
families native to the reservation living in near-reservation areas, 
provided the service area is approved by the Tribe's governing council.
    (b) The grantee's service area must be approved, in writing, by the 
responsible HHS official in order to assure that the service area is of 
reasonable size and, except in situations where a near-reservation 
designation has been approved for a Tribe, does not overlap with that 
of other Head Start grantees.
* * * * *
    4. Section 1305.4 is amended by revising paragraph (b) to read as 
follows:


Sec. 1305.4  Age of children and family income eligibility.

* * * * *
    (b)(1) At least 90 percent of the children who are enrolled in each 
Head Start program must be from low-income families.
    (2) Except as provided in paragraph (b)(3) of this section, up to 
ten percent of the children who are enrolled may be children from 
families that exceed the low-income guidelines but who meet criteria 
the program has established for selecting such children and who would 
benefit from Head Start services.
    (3) A Head Start program operated by an Indian Tribe may enroll 
more than ten percent of its children from families whose income 
exceeds the low-income guidelines when the following conditions are 
met:
    (i) All children from Indian and non-Indian families living on the 
reservation that meet the low-income guidelines who wish to be enrolled 
in Head Start are served by the program.
    (ii) All children from income-eligible Indian families native to 
the reservation living in near-reservation communities, if those 
communities are approved as part of the Tribe's service area, who 
wished to be enrolled in Head Start are served by the program;
    (iii) The Tribe has the resources within its Head Start grant or 
from non-Federal sources to enroll these children, without using 
additional funds from HHS intended to expand Head Start services; and
    (iv) At least 51 percent of the children to be served by the 
program are from families that meet the income-eligibility guidelines.
    (4) Programs who meet the conditions of paragraph (b)(3) of this 
section must annually set criteria that are approved by the Policy 
Council and the Tribal Council for selecting over-income children who 
would benefit from such a program.
* * * * *
    5. Section 1305.6 is amended by revising paragraph (b) to read as 
follows:


Sec. 1305.6  Selection process.

* * * * *
    (b) In selecting the children and families to be served, the Head 
Start program must consider the income of eligible families, the age of 
the child, the availability of kindergarten or first grade to the 
child, and the extent to which a child or family meets the criteria 
that each program is required to establish in Sec. 1305.3(c)(6). 
Migrant programs must give priority to children from families whose 
work required them to relocate most frequently within the previous two-
year period.
* * * * *
    6. Section 1305.7 is amended by revising paragraph (c) to read as 
follows:


Sec. 1305.7  Enrollment and re-enrollment.

* * * * *
    (c) If a child has been found income eligible and is participating 
in a Head Start program, he or she remains income eligible through that 
enrollment year and the immediately succeeding enrollment year. An 
exception to this are children who are enrolled in a program receiving 
funds under the authority of section 645A of the Head Start Act, 
programs for families with infants and toddlers. Such children remain 
eligible for Head Start services until such time as their family 
applies for enrollment in a Head Start program serving children between 
the ages of three to compulsory school attendance. When a child moves 
from a program serving infants and toddlers to a Head Start program 
serving children age three and older, the family's income eligibility 
must be reverified if it is two or more years since this has been done.

[FR Doc. 95-26365 Filed 10-24-95; 8:45 am]
BILLING CODE 4184-01-P