[Federal Register Volume 70, Number 242 (Monday, December 19, 2005)]
[Notices]
[Pages 75161-75165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-7507]


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DEPARTMENT OF EDUCATION

RIN 1820-ZA42


The Individuals With Disabilities Education Act Paperwork Waiver 
Demonstration Program

AGENCY: Office of Special Education and Rehabilitative Services, 
Department of Education.

ACTION: Notice of proposed requirements and selection criteria.

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SUMMARY: The Assistant Secretary for Special Education and 
Rehabilitative Services proposes requirements and selection criteria 
for a competition in which the Department will select up to 15 States 
to participate in a pilot program, the Paperwork Waiver Demonstration 
Program (Paperwork Waiver Program). State proposals approved under this 
program would create opportunities for participating States to reduce 
paperwork burdens and other administrative duties in order to increase 
time for instruction and other activities to improve educational and 
functional results for children with disabilities. The proposed 
requirements and selection criteria focus on an identified national 
need to reduce the paperwork burden associated with the requirements of 
Part B of the Individuals with Disabilities Education Act, as amended, 
while preserving students' civil rights and promoting academic 
achievement.
    The requirements and selection criteria proposed in this notice 
will be used for a single, one-time-only competition under this 
program.

DATES: We must receive your comments on or before March 6, 2006.

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ADDRESSES: Address all comments about this notice to Troy Justesen, 
U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center 
Plaza, room 5126, Washington, DC 20202-2641. If you prefer to send your 
comments through the Internet, you may address them to us at the 
following address: [email protected].
    You must include the term ``Paperwork Waiver Public Comment'' in 
the subject line of your electronic message. Please submit your 
comments only one time, in order to ensure that we do not receive 
duplicate copies.

FOR FURTHER INFORMATION CONTACT: Troy Justesen. Telephone: 202-245-
7468.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

    We invite you to submit comments regarding the proposed 
requirements and selection criteria. To ensure that your comments have 
maximum effect in developing the notice of final requirements and 
selection criteria, we urge you to identify clearly the specific 
proposed requirement or selection criterion that each comment 
addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from the proposed 
requirements and selection criteria. Please let us know of any further 
opportunities we should take to reduce potential costs or increase 
potential benefits while preserving the effective and efficient 
administration of the program.
    During and after the comment period, you may inspect all public 
comments about this notice in room 5126, 550 12th Street, SW., 
Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern 
time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for this notice. If you want to schedule an 
appointment for this type of aid, please contact the person listed 
under FOR FURTHER INFORMATION CONTACT.

Statutory Background of the Paperwork Waiver Program

    On December 3, 2004, President Bush signed into law Public Law 108-
446, 118 Stat. 2647, the Individuals with Disabilities Education 
Improvement Act of 2004, reauthorizing and amending the Individuals 
with Disabilities Education Act (Act). This new law reflects the 
importance of strengthening our Nation's efforts to ensure every child 
with a disability has available a free appropriate public education 
(FAPE) that is (1) of high quality and (2) designed to achieve the high 
standards established in the No Child Left Behind Act of 2001.
    The Paperwork Waiver Program is one of two demonstration programs 
authorized under the new law that is designed to address parents', 
special educators' and States' desire to reduce excessive and 
repetitious paperwork, administrative burden, and non-instructional 
teacher time and, at the same time, to increase the resources and time 
available for classroom instruction and other activities focused on 
improving educational and functional results of children with 
disabilities.
    Paperwork burden in special education affects (1) the time school 
staff can devote to instruction or service provision and (2) retention 
of staff, particularly special education teachers. In 2002, the Office 
of Special Education Programs (OSEP) funded a nationally representative 
study of teachers' perceptions of sources of paperwork burden, the 
hours devoted to these activities, and possible explanations for 
variations among teachers in the hours devoted to these tasks. Among 
the findings related to the Individualized Education Program (IEP), 
student evaluations, progress reporting, and case management was that 
teachers whose administrative duties and paperwork exceeded four hours 
per week were more likely to perceive these responsibilities as 
interfering with their job of teaching. Moreover, the study found that 
the mean number of hours reported by teachers to be devoted to these 
tasks was 6.3 hours per week.
    Through the Paperwork Waiver Program, established under section 
609(a) of the Act, the Secretary may grant waivers of certain statutory 
and regulatory requirements under Part B of the Act to not more than 15 
States, including Puerto Rico, the District of Columbia, and the 
outlying areas (States) based on State proposals to reduce excessive 
paperwork and non-instructional time burdens that do not assist in 
improving educational and functional results for children with 
disabilities. The Secretary is authorized to grant these waivers for a 
period of up to four years.
    Although the purpose of the Paperwork Waiver Program is to reduce 
the paperwork burden associated with the Act, not all statutory and 
regulatory requirements under Part B of the Act may be waived. 
Specifically, the Secretary may not waive any statutory or regulatory 
provisions relating to applicable civil rights requirements or 
procedural safeguards. Furthermore, waivers may not affect the right of 
a child with a disability to receive FAPE. In short, State proposals 
must preserve the basic rights of students with disabilities.

Statutory Requirements for Paperwork Waiver Program

    The Act establishes the following requirements to govern the 
Paperwork Waiver Program proposals:
    1. States applying for approval under this program must submit a 
proposal to reduce excessive paperwork and non-instructional time 
burdens that do not assist in improving educational and functional 
results for children with disabilities.
    2. A State submitting a proposal for the Paperwork Waiver Program 
must include in its proposal a list of any statutory requirements of, 
or regulatory requirements relating to, Part B of the Act that the 
State desires the Secretary to waive, in whole or in part (not 
including civil rights requirements and procedural safeguards as noted 
elsewhere in this notice); and a list of any State requirements that 
the State proposes to waive or change, in whole or in part, to carry 
out the waiver granted to the State by the Secretary. Waivers may be 
granted for a period of up to four years.
    3. The Secretary is prohibited from waiving any statutory 
requirements of, or regulatory requirements relating to applicable 
civil rights requirements or procedural requirements under section 615 
of the Act. A waiver may not affect the right of a child with a 
disability to receive FAPE (as defined in section 602(9) of the Act).
    4. The Secretary will not grant any waiver to a State if the 
Secretary has determined that the State currently meets the conditions 
under section 616(d)(2)(A)(iii) or (iv) of the Act relative to its 
implementation of Part B of the Act.

[[Page 75163]]

    5. The Secretary will terminate a State's waiver granted as part of 
this program if the Secretary determines that the State (a) needs 
assistance under section 616(d)(2)(A)(ii) of the Act and that the 
waiver has contributed to or caused the need for assistance; (b) needs 
intervention under section 616(d)(2)(A)(iii) of the Act or needs 
substantial intervention under section 616(d)(2)(A)(iv) of the Act; or 
(c) fails to appropriately implement its waiver.

Background for Proposed Requirements and Selection Criteria

    Although the Act sets out the previously-described situations in 
which requirements cannot be waived, it does not provide specificity as 
to the particular requirements that are not subject to waiver or 
provide for other requirements that are necessary for implementation of 
this program. For instance, the Act does not address what requirements 
States may propose to waive without affecting the right of a child with 
a disability to receive FAPE. The Act also does not establish the 
selection criteria for the Department to use to evaluate State 
proposals. Thus, in this notice, we are proposing additional Paperwork 
Waiver Program requirements to address these and other implementation 
issues and selection criteria that we will use to evaluate State 
proposals.
    Under section 609(b) of the Act, the Department is required to 
report on the effectiveness of the waiver program. In this notice, we 
are proposing requirements with which States must comply that will 
allow the Department to evaluate the effectiveness of this program. To 
accomplish this, the Institute of Education Sciences (Institute) will 
conduct an evaluation using a quasi-experimental design that collects 
data on the following outcomes: (a) Educational and functional results 
for students with disabilities, (b) allocation and engagement of 
instructional time for students with disabilities, (c) administrative 
duties, paperwork requirements, and resources by teaching and related 
services personnel, (d) quality of special education services and plans 
incorporated in IEPs, and (e) teacher, parent and administrator 
satisfaction. These outcomes will be compared for students who 
participate in the Paperwork Waiver Demonstration Program, and students 
who are matched on disability and prior educational outcomes who do not 
participate in the paperwork waiver program. Specifics of the design 
will be confirmed during discussion with the evaluator, a technical 
workgroup, and the participating States during the first several months 
of the study.
    Participating States will play a crucial supportive role in this 
evaluation. They will, at minimum, assist in developing the evaluation 
plan, assure that districts participating in the Paperwork Waiver 
Demonstration Program will collaborate with the evaluation, provide 
background information on relevant State policies and practices, and 
supply data relevant to the outcomes from State data sources (e.g., 
student achievement and functional performance data, complaint 
numbers), provide access to current student IEPs (if appropriate and 
paperwork waiver affects an IEP) during Year 1 of the evaluation, and 
complete questionnaires, surveys, and participate in interviews. Data 
collection and analysis will be the responsibility of the Institute 
through its contractor. States can expect to allocate resources for 
this purpose at minimum during Year 1 to assist with planning the 
details of the evaluation, ensuring participation of involved 
districts, providing access to relevant State records, and completing 
questionnaires or participating in interviews. Over the course of the 
evaluation, participating States will receive an annual incentive 
payment (described in the next section) that will offset the cost of 
participating in the evaluation.
    We will announce the final requirements and selection criteria in a 
notice in the Federal Register. We will determine the final 
requirements and selection criteria after considering responses to this 
notice and other information available to the Department.

    Note: An application and award for the Paperwork Waiver Program 
does not preclude application and award for the Multi-Year 
Individualized Education Program Demonstration Program, which is the 
subject of a separate notice of proposed requirements and selection 
criteria.


    Note: This notice does not solicit applications. We will invite 
applications through a notice in the Federal Register at a later 
date.

Proposed Additional Requirements for Paperwork Waiver Program

    The Secretary proposes the following additional requirements for 
the Paperwork Waiver Program.
    1. A State submitting a proposal under the Paperwork Waiver Program 
must include the following material in its proposal:
    (a) A description of how the State obtained input from school and 
district personnel and parents in selecting the requirements it is 
proposing for waiver and a description of any specific proposals for 
changing those requirements to reduce paperwork.
    (b) A detailed description of how the State obtained broad 
stakeholder input on the proposal.
    (c) A description of the procedures the State will employ to ensure 
that, if the waiver is granted, it will not result in a denial of the 
right to FAPE to any child with a disability.
    (d) Assurances that parents will be given notice of any statutory 
requirements that will be waived.
    (e) If a State is applying for a waiver of any paperwork 
requirements related to IEPs, assurances that the State will require 
that (i) any participating local educational agency (LEA) obtain 
informed consent from the parents before an IEP that does not meet the 
requirements of 614(d) of the Act is developed for a child; and (ii) 
before an LEA requests a parent's informed consent, the LEA inform the 
parent in writing of (A) Any differences between the requirements of 
section 614(d) of the Act relating to the content, development, review 
and revision of IEPs and the requirements relating to the content, 
development, review and revision of IEPs under the State's approved 
Paperwork Waiver Program proposal; (B) the parent's right to revoke 
consent to the use of the IEP under the Paperwork Waiver Program 
proposal at any time; and (C) the LEA's responsibility to conduct, 
within 30 calendar days after revocation by the parent, an IEP meeting 
to develop an IEP that meets all the requirements of section 614(d) of 
the Act.
    (f) Assurances that the State will cooperate fully, if selected, in 
a national evaluation of the Paperwork Waiver Program. Cooperation 
includes devoting a minimum of 4 months between the award and the 
implementation of the State's waiver to conduct joint planning with the 
evaluator. It also includes participation by the State educational 
agency (SEA) in the following evaluation activities:
    (i) For each item in the list of statutory, regulatory, or State 
requirements submitted pursuant to paragraph 2 in the Statutory 
Requirements for Paperwork Waiver Program section of this notice, 
ensuring that the evaluator will have access to the original and all 
subsequent new versions of the associated documents for each child 
involved in the evaluation, together with a general description of the 
process for completing each of the documents. For example, if elements 
of the IEP process are waived, the evaluator shall have access to the 
most recent IEP created under previous guidelines for each 
participating child,

[[Page 75164]]

as well as all of the new IEPs created under the waiver, along with a 
description of the process for completing both types of IEPs.
    (ii) Recruiting districts or schools to participate in the 
evaluation (as established in the evaluation design) and ensuring their 
continued cooperation with the evaluation. Providing a list of 
districts and schools that have been recruited and have agreed to 
implement the proposed Paperwork Waiver Program, allow data collection 
to occur, and cooperate fully with the evaluation. For each 
participating school or district, providing basic demographic 
information such as student enrollment, district wealth and ethnicity 
breakdowns, the number of children with disabilities by category, and 
the number or type of personnel, as requested by the evaluator.
    (iii) Serving in an advisory capacity to assist the evaluator in 
identifying valid and reliable data sources and improving the design of 
data collection instruments and methods.
    (iv) Providing to the evaluator an inventory of existing State-
level data relevant to the evaluation questions or consistent with the 
identified data sources. Supplying requested State-level data in 
accordance with the timeline specified in the evaluation design.
    (v) Providing assistance to the evaluator with the collection of 
data from parents, including obtaining informed consent, for parent 
interviews and responses to surveys and questionnaires, if necessary to 
the final design of the evaluation.
    (vi) Designating a coordinator for the project who will monitor the 
implementation of the project and work with the evaluator. This 
coordinator also will serve as the primary point of contact for the 
OSEP project officer.
    2. For purposes of the statutory requirement prohibiting the 
Secretary from waiving any statutory requirements of, or regulatory 
requirements relating to, but not limited to, applicable civil rights 
requirements, the term applicable civil rights requirements as used in 
this notice includes all civil rights requirements in: (a) Section 504 
of the Rehabilitation Act of 1973, as amended; (b) Title VI of the 
Civil Rights Act of 1964; (c) Title IX of the Education Amendments of 
1972; (d) Title II of the Americans with Disabilities Act of 1990; and 
(e) Age Discrimination Act of 1975 and their implementing regulations. 
The term does not include other requirements under the Act.
    3. Each State receiving approval to participate in the Paperwork 
Waiver Program will be awarded an annual incentive payment of $10,000 
to be used exclusively to support program-related evaluation 
activities, including one trip to Washington, DC, annually to meet with 
the project officer and the evaluator. Each participating State will 
receive an additional incentive payment of $15,000 annually from the 
evaluation contractor to support evaluation activities in the State. 
Incentive payments may also be provided to participating districts to 
offset the cost of their participation in the evaluation of the 
Paperwork Waiver Demonstration Program.

Proposed Selection Criteria

    We propose that the following selection criteria be used to 
evaluate State proposals submitted under this program. These particular 
criteria were selected because they address the statutory requirements 
and proposed program requirements and permit applicants to propose a 
distinctive approach to addressing these requirements.

    Note: The maximum score for all of these criteria will be 100 
points. We will inform applicants of the points or weights assigned 
to each criterion and sub-criterion in a notice published in the 
Federal Register inviting States to submit applications for this 
program.

    1. Significance. The Secretary considers the significance of the 
proposed project. In determining the significance of the proposed 
project, the Secretary considers the following factors:
    (a) The extent to which the proposed project involves the 
development or demonstration of promising new strategies that build on, 
or are alternatives to, existing strategies.
    (b) The likelihood that the proposed project will reduce the 
paperwork burden and increase instructional time and improve academic 
achievement.
    2. Quality of the project design. The Secretary considers the 
quality of the design of the proposed project. In determining the 
quality of the design of the proposed project, the Secretary considers 
the following factors:
    (a) The extent to which the goals, objectives, and outcomes to be 
achieved by the proposed project are clearly specified, measurable, and 
address active participation in the program evaluation.
    (b) The extent to which the design of the proposed project will 
successfully reduce excessive paperwork and increase instructional 
time.
    (c) The extent to which the proposed project encourages consumer 
involvement, including parental involvement.
    3. Quality of the management plan. The Secretary considers the 
quality of the management plan for the proposed project. In determining 
the quality of the management plan for the proposed project, the 
Secretary considers the following factors:
    (a) The adequacy of procedures for ensuring feedback and continuous 
improvement in the operation of the proposed project.
    (b) The extent to which the applicant has devoted sufficient 
resources to the evaluation of the waiver program.
    (c) How the applicant will ensure that a diversity of perspectives 
are brought to bear in the operation of the proposed project, including 
those of parents, teachers, related services providers, school 
administrators, or others, as appropriate.

Executive Order 12866

    This notice of proposed requirements and selection criteria has 
been reviewed in accordance with Executive Order 12866. Under the terms 
of the order, we have assessed the potential costs and benefits of this 
regulatory action.
    The potential costs associated with this regulatory action are 
those resulting from statutory requirements and those we have 
determined as necessary for administering this program effectively and 
efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of the actions proposed in this notice, we have 
determined that the benefits of the proposed requirements and selection 
criteria justify the costs.
    We have also determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.

Intergovernmental Review

    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
www.ed.gov/news/fedregister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.


[[Page 75165]]


    Note: The official version of this document is the document 
published in the Federal Register. Free Internet access to the 
official edition of the Federal Register and the Code of Federal 
Regulations is available on GPO Access at: http://www.gpoaccess.gov/nara/index.html.


    Program Authority: 20 U.S.C. 1408.

    Dated: December 14, 2005.
John H. Hager,
Assistant Secretary for Special Education and Rehabilitative Services.
 [FR Doc. E5-7507 Filed 12-16-05; 8:45 am]
BILLING CODE 4000-01-P