[Federal Register Volume 73, Number 5 (Tuesday, January 8, 2008)]
[Rules and Regulations]
[Pages 1285-1297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-25462]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 1304 and 1306

RIN 0970-AB90


Head Start Program

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

ACTION: Final rule.

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SUMMARY: This final rule implements the addition of family child care 
as a Head Start and Early Head Start program option. Family child care 
is care and education provided to children in a private home or other 
family-like setting. In keeping with the goal of designing programs 
that meet family and community needs, some Head Start and Early Head 
Start agencies have identified family child care as an effective Head 
Start service delivery model.

DATES: Effective Dates: This final rule is effective February 7, 2008.

FOR FURTHER INFORMATION CONTACT: Camille Loya, Office of Head Start, 
Administration on Children and Families, 1250 Maryland Avenue, SW., 
Washington, DC 20024; (202) 401-5964.

SUPPLEMENTARY INFORMATION:

I. Program Purpose
II. Background and Purpose of Rule
III. Summary of Major Provisions of the Rule
IV. Rulemaking History
V. Section-by-Section Discussion of Comments
VI. Impact Analysis

SUPPLEMENTARY INFORMATION: 

I. Program Purpose

    Head Start is authorized under the Head Start Act (the Act), Title 
VI, Subtitle A, Chapter 8 of the Public Law 97-35, the Omnibus 
Reconciliation Act of 1981 (42 U.S.C. 9801 et seq.). It is a national 
program providing comprehensive child development services primarily to 
low-income children from birth to five years of age, pregnant women, 
and their families. To help enrolled children achieve their full 
potential, Early Head Start and Head Start programs provide 
comprehensive health, nutritional, educational, social, and other 
services.
    Additionally, 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 2005, Early Head Start 
and Head Start served 906,993 children and their families through over 
2,000 local grantee and delegate agencies. More than 23 million 
children and families have been served since the 1965 initiation of the 
Head Start program.
    While Early Head Start and Head Start are intended to serve 
primarily children whose families have incomes at or below the poverty 
line, or who receive public assistance, Head Start regulations

[[Page 1286]]

permit 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. These 
children are expected to participate in the full range of Head Start 
services and activities with their non-disabled peers and to receive 
special educational and related services, as needed.

II. Background and Purpose of the Rule

    The authority for this final rule is found in sections 644(a) and 
644(c) and section 645A(b)(9) of the Head Start Act (42 U.S.C. 9839(a), 
9839(c), and 9840a(b)(9)). Sections 644(a) and (c) require the issuance 
of regulations setting standards for organization, management, and 
administration of Head Start programs. Section 645A(b)(9) requires that 
Early Head Start agencies comply with the requirements established by 
the Secretary concerning design and operation of such programs.
    Since the program's inception, Head Start grantee and delegate 
agencies have been required to use data from a community assessment as 
required by 45 CFR 1305.3 to design programs that meet local community 
needs and support individual family goals. As a result, over the years, 
Head Start has implemented a variety of program options, including the 
provision of comprehensive child development services in centers (the 
center-based option), in the child's home (the home-based option), or 
through a combination of center and home-based services (the 
combination option). With the issuance of this final rule, regulations 
applicable to family child care, as a program option, are established. 
Family child care is care and education provided to children in a 
private home or other family-like setting not necessarily the child's 
home as in the home-based option. In keeping with the goal of designing 
programs that meet family and community needs, some Head Start and 
Early Head Start agencies have identified family child care as an 
effective Head Start service delivery model. Family child care may 
offer advantages in greater hours of service, flexibility, and smaller 
group size. Many families believe their children will benefit from a 
home-like setting and multi-age groupings that can include siblings.
    The formal recognition of the family child care setting as a Head 
Start and Early Head Start program option is particularly relevant 
given the increased participation of many parents in the workforce or 
education and training opportunities. This increase is largely due to 
the Personal Responsibility and Work Opportunity Reconciliation Act of 
1996 (PRWORA), Public Law 104-193, which created the Temporary 
Assistance for Needy Families (TANF) program. To support parents as 
they pursue training opportunities and seek and maintain employment, 
Head Start will provide increased opportunities for full day and full 
year services. Partnerships with other community agencies will ensure 
quality, flexibility and cost effectiveness. Because family 
circumstances may vary and many low income wage earners are obligated 
to work non-traditional hours, full day services may include extended 
hours of care including evenings and weekends. The family child care 
option may be particularly appropriate in these and other situations as 
it will provide grantee and delegate agencies with more flexibility in 
designing services to meet individual family needs. Early Head Start 
programs may choose the home-like setting of family child care for 
serving infants and toddlers from families with parents who are working 
or in training as a result of TANF. Family child care also may be a 
particularly appropriate option in rural areas where families are 
widely dispersed or in any area where there is a shortage of 
facilities. Finally the family child care option may be ideal for some 
children whose temperaments and learning styles flourish in a smaller, 
less formal setting.
    Family child care has long been considered a possible Head Start 
program option. Since 1970, Head Start has served as a catalyst for 
promoting discussions and collaborations among a variety of 
organizations and agencies interested in expanding Head Start's 
comprehensive services to family child care settings. With the intent 
of increasing the availability of family child care services, beginning 
in 1984 and continuing through 1997, a number of Head Start grantees 
established family child care homes through innovative demonstration 
grants and program expansions. In keeping with its role as a national 
laboratory for the field of child development and early education, the 
Office of Head Start funded these demonstration projects to provide 
resources and leadership in the implementation of Head Start 
comprehensive services in family child care settings. This effort 
helped agencies meet community and family needs and provided 
opportunities for exchanging information and experience among the 
participating agencies and establishing a professional network among 
previously isolated providers.
    To help raise the level of quality in the family child care 
community and to support agencies in delivering Head Start's 
comprehensive child development services within the family child care 
setting, the Office of Head Start has supported significant initiatives 
to promote the professional development of family child care staff, 
including establishing the Child Development Associate (CDA) credential 
for family child care providers. This nationally awarded credential is 
recognized in 47 States as meeting staff qualification requirements for 
child care licensing. To promote developmentally appropriate 
programming for infants, toddlers, and preschoolers in family child 
care, Head Start supported the development of a curriculum and 
corresponding staff training program titled, ``The Creative Curriculum 
for Family Child Care.'' Head Start also engaged in extensive work with 
a satellite distance learning network and over 45 community colleges to 
offer child development courses and other classes relevant to the 
provision of family child care, leading to the award of the CDA 
credential. In 1988, Head Start collaborated with the State of 
Washington and local community colleges to support the Job Training 
Partnership Act (JTPA) and Welfare Reform by providing education and 
credentialing opportunities for family child care providers, including 
Head Start parents.
    From 1992 to 1997, the Office of Head Start conducted an 
``Evaluation of the Head Start Family Child Care Homes Demonstration'' 
to determine whether the services provided in family child care 
settings had the capacity to meet the Head Start Program Performance 
Standards and have impacts comparable to those resulting from 
enrollment in center based Head Start programs. Based on the data from 
this study, family child care was found to be a viable setting for 
providing comprehensive Head Start services at costs comparable to 
those for full-day center-based services. Although the study focused on 
programs serving four year old children, the findings show that 
services delivered in a family child care setting can meet Head Start 
standards of quality and can produce similar outcomes for children and 
families.
    Based on these initiatives, accumulated experience, and research, 
the Office of Head Start identified indicators of quality family child 
care. These quality indicators include: use of licensed homes with very 
small groups of children, especially when infants and

[[Page 1287]]

toddlers are enrolled; qualified family child care providers with 
adequate training and experience; implementation of a curriculum based 
on sound child development principles; the integral involvement of 
parents; and the provision of strong support from the Head Start 
program to the family child care providers.
    Through the demonstration efforts and through recent expansion of 
Head Start and Early Head Start enrollment, approximately five percent 
of programs currently provide family child care to some of their 
children and families under approved locally-designed models. 
Approximately 5,000 children are enrolled in these programs. We expect 
that this number will increase following publication of this final 
rule.
    In the past several years, the Office of Head Start has convened 
several groups of representatives from a cross-section of for-profit 
and non-profit family child care programs, other organizations and 
agencies, experts, and parents to advise the Office of Head Start 
regarding various aspects of family child care programming. The family 
child care issues addressed by these groups included staff-child 
ratios, staff qualifications, oversight and support for the family 
child care provider and utilization of multiple funding sources. 
Informed by years of experience, and by a wide range of individuals and 
groups, as well as the findings of the evaluation study, the Office of 
Head Start is implementing regulations that will add family child care 
as a Head Start and Early Head Start program option.
    All Head Start and Early Head Start grantees and delegate agencies 
must comply with the Head Start Performance Standards and other 
applicable regulations. Current Standards (45 CFR part 1304) were 
published in the Federal Register on November 5, 1996 (61 FR 57186) and 
were effective January 1, 1998. The Standards include requirements for 
Early Childhood Development and Health Services, Family and Community 
Partnerships and Program Design and Management. Early Childhood 
Development and Health includes child health and developmental 
services, education and early childhood development, child health and 
safety, child nutrition, and child mental health. Program Design and 
Management includes program governance, management systems and 
procedures, human resources, and facilities, materials and equipment. 
All Head Start and Early Head Start programs, regardless of program 
options offered, must comply with the Head Start Performance Standards 
and other regulations including 45 CFR part 1304 (Program Performance 
Standards for the Operation of Head Start Programs by Grantee and 
Delegate Agencies), 45 CFR parts 1301 (Head Start Grants 
Administration), 1302 (Policies and Procedures for Selection, Initial 
Funding, and Refunding of Head Start Grantees and for Selection of 
Replacement Grantees, 1303 (Appeal Procedures for Head Start Grantees 
and Current or Prospective Delegate Agencies), 1305 (Eligibility, 
Recruitment, Selection, Enrollment and Attendance in Head Start), 1306 
(Head Start Staffing Requirements and Program Options), 1308 (Head 
Start Program Performance Standards on Services to Children with 
Disabilities), 1309 (Facilities), and 1310 (Head Start Transportation 
Services).
    Several program elements are unique to family child care and thus 
are not addressed specifically in the current Head Start Program 
Performance Standards. These elements include the hours and days of 
possible operation, differences in staff qualification, differences in 
indoor and outdoor facilities and space, group size and age composition 
variations, different health and safety issues, role of the Head Start 
Policy Council and the applicability of management policies and 
procedures.
    Other program elements, such as child development and education, 
proportionate Policy Council, Committee or other governing group 
representation, and the conduct of home visits are addressed in the 
Head Start Performance Standards and are made applicable to the Head 
Start family child care program option. In addition to the Head Start 
Program Performance Standards and other Head Start regulations, Head 
Start and Early Head Start grantee and delegate agencies implementing 
the family child care program option must ensure the provisions, as 
specified in this revision, are met. Also, Early Head Start programs 
are required to ``provide early, continuous, child development and 
family supportive services on a year-round basis (62 FR 18966). 
Therefore, grantee and delegate agencies providing Early Head Start 
through the family child care option must provide these services year 
round.

III. Summary of the Major Provisions of the Rule

    A summary of the major provisions of the final rule follows. The 
rule:
     Establishes requirements for including family child care 
settings as a Head Start and Early Head Start program option.
     Describes the minimum credentials, which must be held or 
obtained by providers of Head Start and Early Head Start family child 
care services.
     Describes the minimum knowledge and experience that must 
be possessed by family child care providers who enroll Head Start and 
Early Head Start children.
     Describes the minimum qualifications of the Head Start or 
Early Head Start child development specialist.
     Specifies training opportunities that must be made 
available to family child care providers.
     Requires that family child care homes establish schedules 
to meet the needs of Head Start and Early Head Start parents.
     Requires that Head Start and Early Head Start programs 
offering the family child care option ensure that homes are available 
that can accommodate the special needs of children with disabilities.
     Specifies minimum requirements for the indoor and outdoor 
space available to children enrolled in the Head Start or Early Head 
Start family child care option.
     Describes Policy Council role in program decision to offer 
family child care option and requires proportionate representation of 
family child care providers on Policy Council or Policy Committee.
     Establishes requirements to ensure the health and safety 
of Head Start and Early Head Start children enrolled in the family 
child care option.
     Establishes allowable adult to child ratios and group size 
limits for the family child care program option.
     Requires that agencies offering the family child care 
option employ a child development specialist to provide support and 
oversight to family child care providers.
     Requires that homes where family child care is provided as 
a Head Start or Early Head Start program option are licensed or 
otherwise certified by State, Tribal or local authority.

IV. Rulemaking History

    On August 29, 2000, the Department of Health and Human Services 
(Department) published a Notice of Proposed Rulemaking (NPRM) in the 
Federal Register (65 FR 52394), proposing regulations establishing 
requirements for the provision of family child care as a Head Start and 
Early Head Start program option. Copies of the proposed regulation were 
mailed to all Head Start and Early Head Start grantee and delegate 
agencies. Interested individuals were given 60 days to comment on the 
proposed rule. During

[[Page 1288]]

the 60-day comment period, the Department received 1,166 individual 
comments from 217 respondents. The respondents included Head Start and 
Early Head Start grantee and delegate agencies, family child care 
providers, parents, people with college and university affiliations, 
and other public and private agencies and individuals interested in 
family child care and Head Start.
    This final rule amends Head Start Regulation 45 CFR part 1306 to 
provide grantees authority to operate a family child care program 
option and specify what requirements will be imposed on Head Start 
programs implementing this option. We have amended the final rule in a 
judicious manner, and taken time to carefully consider the large number 
of comments in order to provide clarity to the family child care 
program option.

V. Section-by-Section Discussion of Comments

    The comments were analyzed and categorized by regulatory section. 
Only those sections for which comments were made or which were changed 
in the final rule are discussed below.

Section 1304.52(h)(1)--Human Resource Management

    This section described the qualifications required for family child 
care providers with Head Start or Early Head Start children enrolled.
    Comments. This section elicited the largest number of comments from 
respondents. Three comments supported the proposed section as written. 
The remaining respondents made specific recommendations for changes. 
Several comments cautioned that the section implied an employer-
employee relationship and other sections were inconsistent with this 
assumption. Three respondents objected to the requirement that 
providers have ``previous child care experience.'' Several respondents 
indicated that the Department should allow family child care providers 
to possess the Child Development Associate Credential (CDA) in 
preschool, home-based or infant-toddler services as more people have 
these and it gives them much of the necessary foundation in early 
learning. Many of the comments asked for clarification of the section's 
stipulations. Ten respondents wrote that ``child care experience'' 
should be liberally interpreted to allow parents and others to become 
family child care providers. Two respondents questioned experience as a 
prerequisite given the lack of a commensurate requirement for Head 
Start and Early Head Start center based teachers.
    Eighty comments were critical of the provision's requirement that 
providers obtain at least a CDA within one year of hire. The majority 
indicated that one year is not a reasonable length of time to receive a 
degree. Some respondents suggested specific allowances including 
permitting longer time for non-English speakers. One respondent asked 
if the Office of Head Start would provide funds for providers to obtain 
a credential. Many respondents indicated that the allowable time period 
for obtaining a credential or degree is too short. Recommendations 
ranged from 18 to 60 months, but the majority of respondents, wrote 
that 24 months would be reasonable. A few respondents indicated that 
there should be no requirement at all for provider education. Finally, 
several respondents drew attention to the difficulty of obtaining a CDA 
in rural areas, while several others made the same statement about 
small cities or ``disadvantaged'' cities.
    Response. Previous experience and the possession of a degree or CDA 
are critical indicators of the ability to provide high quality services 
for young children. In response to comments indicating that the 
specified time period was unreasonable, the final regulation allows up 
to two years to obtain a CDA. The final rule specifies that providers 
offering family child care as a Head Start or Early Head Start option 
must enroll in a CDA program within six months of beginning service 
provision. While it is true that access to the CDA program and colleges 
and universities varies across the country, distance learning 
opportunities via satellite and computer, are increasing access 
significantly regardless of geography. The requirement that providers 
have ``early child care experience'' was left essentially unchanged. 
The lack of specificity, in both duration and nature, related to the 
requirement permits considerable latitude in interpretation while still 
holding agencies responsible for ensuring that providers who they 
employ or with whom they contract are qualified.
    The language in the final rule was clarified throughout to indicate 
that Head Start or Early Head Start and family child care program 
relationships may be contractual or employer-employee based on the 
nature of each situation.

Section 1304.52(h)(3)

    Under the proposed rule, this section required that agencies 
offering the family child care program option ensure that alternative 
arrangements are made for enrolled children in the event a provider or 
family child care facility is unavailable.
    Comments. Five respondents indicated full support for this 
provision. One respondent suggested a minimum of three substitutes be 
available for each provider. One respondent indicated that alternative 
arrangements should be a recommendation, not a requirement. Several 
respondents indicated that the rule should be changed from requiring 
``alternative arrangements'' to requiring ``alternative plans'' which 
would allow more flexibility. Several respondents indicated concern 
about the qualifications of substitute staff and the safety of 
alternative facilities. Writers also emphasized that young children 
should not be left in the care of strangers in the event the family 
child care provider is unavailable. Several respondents wrote that this 
provision was overly prescriptive, indicating that the responsibility 
for alternative arrangements should be borne by the family child care 
provider, not the Head Start or Early Head Start grantee. Many writers 
expressed concern that requiring substitute arrangements represents a 
prohibitive cost.
    Finally, respondents pointed out that arrangement for alternative 
care, either when planned or in the event of an emergency, should be 
made by family child care providers with the parents of the enrolled 
children. A few comments indicated that the responsibility for finding 
alternative care should rest entirely with parents as such 
responsibility ``promotes the parent's self-sufficiency.'' Several 
respondents requested that the Office of Head Start provide 
recommendations of appropriate alternative sites when the family child 
care home is not available.
    Response. We agree with respondents that the proposed rule was 
unnecessarily stringent regarding this provision and did not fully 
account for the variety of issues surrounding alternate care 
arrangements. The final rule has been changed to specify that grantees 
offering the family child care option ensure that closures for 
emergency reasons are minimized and providers work with parents to 
establish emergency notification and alternative care arrangement 
plans. The rule further specifies that providers must notify parents of 
any planned closures well in advance.

Section 1304.52(h)(4)

    This section of the proposed rule specified that when a grantee or 
delegate provides substitute or additional staff, such staff must have 
the knowledge and experience necessary to

[[Page 1289]]

implement the Head Start family child care option.
    Comments. There were three comments on this section. One respondent 
recommended clarification of the requirements for a family child care 
assistant. The other two respondents stated that it is unreasonable to 
require substitutes to meet education criteria.
    Response. The final rule was re-worded slightly to require that 
substitutes and assistants have training and experience necessary to 
ensure the continuous provision of quality services. The change 
acknowledges that assistants and substitutes may not be equipped to 
single handedly ``implement the Head Start family child care program,'' 
but that they must be qualified to maintain services and contribute to 
a safe nurturing environment in the provider's absence or as an 
assistant to the provider.

Section 1304.52(h)(5)

    This section of the proposed rule required that at the time of 
hire, the child development specialist must have at least an Associate 
degree in child development or early childhood education.
    Comments. One respondent suggested that any degree should be 
acceptable as long as a minimum amount of course work in child 
development or early childhood education is obtained.
    Response. The provision was re-worded from the NPRM to be 
consistent with the degree requirement specifications for teachers as 
written in the Head Start Act. The child development specialist will 
provide support and guidance for family child care providers and must 
have the academic background necessary to ensure sound Knowledge of 
child development and early learning.

Section 1304.52(l)(5)(i-viii)

    This section of the proposed rule specified that grantee and 
delegate agencies offering family child care must provide specific 
training topics for family child care staff.
    Comments. Eight respondents supported regulations requiring 
training for family child care staff. One respondent indicated that 
grantee and delegate agencies should determine the amount and type of 
training based on the needs of family child care providers. Another 
respondent recommended changing the wording to state that agencies 
shall make the specified training available, but not required, because 
providers may have different needs and resources. Several respondents 
objected to the requirement that the Head Start or Early Head Start 
agency's curriculum be implemented in the family child care home, 
stating that there should be flexibility to allow the selection of a 
curriculum that best fits an individual family child care home. One 
respondent suggested that the required certification in cardiopulmonary 
resuscitation (CPR) should include CPR for adults as well as infant and 
child CPR. Finally there were a number of comments suggesting 
additional training topics including, the Head Start Performance 
Standards, meeting the needs of children with disabilities, cultural 
competency, the importance of relationships, business training, 
observation skills and stress management.
    Response. The language in the final rule is changed to specify that 
grantee and delegate agencies offering the family child care option 
must make opportunities available for providers to receive training in 
the following topics: Knowledge of child development; curriculum 
implementation; working with children with disabilities; effective 
communication with children and their families; knowledge of safety, 
hygiene and health, including infant and child CPR; identification and 
reporting of possible child abuse; information on the United States 
Department of Agriculture's Child and Adult Care Food Program; and 
other training as necessary based on individual needs. The NPRM's 
section 1304.52(i)(5)(vii), regarding appropriate sanitation and 
hygiene, was combined with paragraph (v) regarding safety and health 
issues because the requirements are closely related.

Section 1306.3(n)

    This section of the proposed rule provided definitions of ``family 
child care'' and ``Head Start family child care.'' There were no 
significant comments specifically in response to this section. However, 
the word ``comprehensive'' was added to describe the Head Start and 
Early Head Start services provided to children enrolled in family child 
care. The addition was made to clarify the nature of the services to be 
provided.

Section 1306.3(o)

    This section of the proposed rule provided the definition of 
``family child care program option'' as the provision of Head Start and 
Early Head Start services to children receiving child care in the home 
of the provider or in a family-like setting, such as space in an 
apartment building which has been set aside for the provision of child 
care.
    Comments. One respondent requested clarification on the definition 
of ``family-like'' setting. Other respondents questioned whether family 
child care would be permitted in public housing facilities because it 
would be a commercial venture.
    Response. The definition remains essentially unchanged. The term 
``family-like setting'' could include the myriad of households in which 
American families live, as long as there is conformance with applicable 
regulations. The phrase ``under the auspices of an Early Head Start or 
Head Start grantee or delegate agency'' was deleted as unnecessary.

Section 1306.3(p)

    This section of the proposed rule defined the term ``family child 
care teacher'' as the provider of Head Start or Early Head Start 
services to children in their own residence or a family-like setting.
    Comments. There were 28 comments submitted that addressed this 
section. Six respondents supported use of the term ``family child care 
teacher'' as they felt it would enhance the public perception of a 
professional role. Twenty-two respondents objected to the term 
``teacher'' and some suggested alternatives. Several respondents 
indicated concern that the term ``teacher'' would too narrowly imply a 
home set up and operated like a child care or preschool center. Other 
respondents commented that the term ``teacher'' is not reflective of 
their myriad roles, including, small business owner, nurturer, and 
homemaker. Three respondents suggested that use of the word teacher may 
influence the ability to maintain a contractual rather than employer 
relationship. Alternative titles suggested by respondents included, 
``family child caregiver,'' ``early care and education provider,'' 
``family child care professional'' and ``family child care learning 
professional.'' One respondent indicated that ``family child care 
provider'' is the nationally recognized term for individuals who 
provide child care in a family-like setting. The writer noted the use 
of that term in National Association for Family Child Care materials 
and in the United States Department of Agriculture's Child and Adult 
Care Food Program (CACFP).
    Response. We agree with the respondents who suggest that the term 
``teacher'' might not be the most appropriate title. While we believe 
teaching is a primary function when children are enrolled in the Head 
Start family child care option, we changed the term to ``Family Child 
Care Provider'' in the regulation to be

[[Page 1290]]

inclusive of the variety of relationships grantees may establish to 
offer family child care as a program option.

Section 1306.20(g)

    This section of the proposed rule specified that when Head Start or 
Early Head Start children are enrolled, designated group size limits 
apply and the provider's own children under the age of six years must 
be counted in the group size.
    Comments. There were seven respondents who indicated that inclusion 
of the provider's own children in the adult to child ratio would pose a 
significant financial burden. Several of these respondents included 
information about less restrictive State requirements.
    Response. We added language to the final rule section 1306.20(g) to 
indicate the provider's children under the age of six must be included 
in the group count whenever present in the home. While we recognize 
this may reduce the capacity of the provider to enroll children, we 
believe that children under age six need considerable adult support and 
excluding them from the count could pose a danger to the safety and 
development of the group.

Section 1306.20(g)(1)

    This section stated that when no more than two of the children are 
under three years of age, the maximum group size is six children.

Section 1306.20(g)(2)

    This section of the proposed rule specified that when more than two 
children are under three years of age, the maximum group size is four 
children and in such cases, no more than two of the four children may 
be under the age of 24 months.
    Comments. This section generated a substantial number of responses. 
Many responses were in favor of the provision, but several of these 
cautioned it might not be financially viable. A majority of respondents 
indicated criticism of the adult to child ratios proposed. Several 
respondents suggested that the allowable ratio and group size should be 
consistent with those established for Head Start center-based programs, 
one teacher for every eight three-to five-year old children. Others 
suggested deferring to each State's family child care licensing 
regulations. Several respondents forwarded copies of various States' 
regulations.
    Another category of comments elicited by this section suggested 
that the provisions governing group family child care include larger 
group size with a second adult assisting the family child care 
provider.
    Response. We agree with respondents that Head Start family child 
care group size limits and adult-child ratios should generally reflect 
those established for Head Start and Early Head Start. The primary 
considerations in determining ratio and group size requirements are the 
safety, education, and well-being of enrolled children. We reviewed the 
family child care licensing regulations in all the States where they 
exist and found tremendous variability in allowable group size and 
adult-child ratios. We feel that simply deferring to States is not an 
acceptable option as it would not ensure the ratios and group sizes 
required for the delivery of high quality Head Start and Early Head 
Start services.
    We changed the final rule to be more consistent with requirements 
for Head Start classrooms. A majority of States identify a ratio of 
approximately six children, with no more than two under two years of 
age, for a single provider and the final rule was changed to reflect 
this majority. This consistency with the Head Start requirement will 
reduce problems associated with variance from State regulations. In 
view of the many possible advantages and research supporting the 
quality of ``family group'' child care homes, we have included a 
provision allowing a family child care provider and an assistant to 
care for up to twelve children when no more than four of the children 
are under two years of age.
    The ratio for teacher to infants and toddlers in Early Head Start 
classrooms is one to four. We maintain this ratio for the family child 
care option with the stipulation that no more than two of the four 
children may be under the age of 24 months. We believe this ratio and 
the associated age limits are necessary both in the event of an 
emergency and for the provision of high quality services.

Section 1306.20(g)(3)

    In the proposed rule, this section specified that when children 
requiring additional care because of special needs are enrolled, ``* * 
* group sizes are smaller than the maximum allowed.''
    Comments. There were several comments on this section indicating 
concern that additional compensation would be required if the group 
size was reduced in order to cover the resulting lost revenue. Other 
respondents were concerned about how an appropriate ``smaller'' group 
size would be determined when special needs children were enrolled. One 
respondent recommended having a ``special needs aide'' to assist when a 
child with a disability is enrolled. Several responded that decisions 
about group size must be made in accordance with individual needs.
    Response. We agree that children's special needs are extremely 
diverse and decisions about group size must take into account the 
individual needs of children enrolled. Young children with disabilities 
are entitled to appropriate education and related services in the least 
restrictive environment where their needs can be met. If the family 
child care home is deemed the least restrictive environment, the local 
jurisdiction must provide any necessary services. The language in the 
final rule is modified slightly to indicate that it may be necessary to 
adjust group size or accommodate additional assistance to meet the 
needs of children with disabilities. Head Start and Early Head Start 
grantees must ensure that at least ten percent of enrollment 
opportunities are available to children with disabilities.

Section 1306.20(h)(1)

    Under the proposed rule, this section specified that Head Start and 
Early Head Start programs offering the family child care option must 
provide support and oversight to providers through the employment of a 
child development specialist and through other staff with 
responsibilities related to the provision of comprehensive services. 
Included was the requirement that there are mechanisms in place for 
assuring communication with providers at all times when Head Start or 
Early Head Start children are present.
    In the NPRM section 1306.20(h)(2) it was also specified that a 
full-time child development specialist be assigned no more than 12 
family child care homes with part-time child development specialists 
being assigned a proportionate number. We have combined this section 
into a single section 1306.20(h)(1) in this final rule.
    Comments. Respondents indicated concern that dictating the hours of 
service and requiring external oversight could jeopardize the capacity 
to maintain a contractual, as opposed to employee to employer, 
relationship. Several respondents indicated they currently provide Head 
Start services as specified in their contracts with the support, but 
not supervision of the grantee. One respondent recommended that support 
be specifically identified.
    A number of respondents indicated support for the proposal that 
child development specialists be assigned a limited number of family 
child care homes, but some said they would require additional funding 
to meet the requirement. Other respondents questioned a prescribed 
ratio given the

[[Page 1291]]

potential variation in traveling distance between homes reflective of 
the region or area where the grantee or delegate agency operates. Many 
respondents indicated that the requirement as stated would influence 
the ability of providers to maintain a contractual, as opposed to 
employee, relationship with the grantee or delegate agency. Several 
respondents proposed different ratios ranging from one specialist to 
every six family child care homes to one specialist for every 15 family 
child care homes. One respondent suggested that the ratio should be 
based on the number of children enrolled rather than the number of 
homes as the number of children enrolled in each home may vary 
considerably. Finally a number of respondents objected to the 
prescription of a child development specialist, arguing it would limit 
program flexibility in providing staff to best meet the individual 
needs of family child care providers. Others argued the provision as 
written makes erroneous assumptions about a relative lack of child 
development qualifications on the part of family child care providers.
    Response: We agree that the specific responsibilities of the child 
development specialist will depend on the nature of the relationship 
between the grantee or delegate agency and the family child care 
providers. The final rule was modified to broadly require that child 
development specialists and other Head Start staff with specific 
responsibilities for the provision of comprehensive services provide 
support for the family child care option homes.
    We also agree that Head Start programs will need flexibility in 
designing their family child care option. We believe that a child 
development specialist is essential to connect the family child care 
homes with the Head Start and Early Head Start program and ensure 
effective communication. Based on these two conditions, we deleted 
section 1306.20(h)(2), as designated in the NPRM, and added language to 
section 1306.20(h)(1) to require that programs offering the family 
child care option employ and assign child development specialists or 
other Head Start or delegate agency staff to ensure the provision of 
high quality comprehensive services.

Section 1306.20(h)(2)

    This section (section 1306.20(h)(3) in the NPRM) specified that the 
responsibilities assigned to child development specialists include 
unannounced and announced visits to family child care homes with at 
least one 90 minute visit per home per week.
    Comments. A number of respondents supported the proposed standard 
speculating that providers would welcome the visits and that the child 
development specialist would positively influence family child care 
services. Several respondents indicated concern that the visits not be 
intrusive. The majority of respondents wrote that the provision should 
be modified. Many felt that the requirement was too prescriptive and 
not adequately flexible to ensure responsiveness to the needs of 
individual providers. One respondent suggested that the visits of 
various specialists during a single week could be combined to 
constitute the required 90 minute visit. Others suggested reducing the 
requirement to bi-weekly visits or permitting phone or e-mail 
communication in lieu of visits. There also were suggestions for 
including a monthly meeting of providers in the requirements.
    Response. We agree with respondents that the need for child 
development specialist visits may vary considerably among providers. 
Veteran providers with early childhood degrees for example, may not 
need the same number and duration of visits as new providers who are 
enrolled in CDA or early childhood education classes for the first 
time. We believe, however, that the grantee agency must have a 
systematic approach to ensure that providers have regular access to the 
resources and specialists that the Head Start or Early Head Start 
agency offers. Whether its relationship with providers is contractual 
or employment based, grantees and delegates will need assurance that 
all applicable regulations are met. The final rule was re-worded to 
clarify that the grantee or delegate agency must assign 
responsibilities to the child development specialist to support and 
ensure the provision of high quality services at each family child care 
home. The duration and timing of such visits may vary, but there must 
be at least one visit to every provider every two weeks and some form 
of contact at least once per week. Visits must be both announced and 
unannounced.

Section 1306.20(h)(3)

    This section (section 1306.20(h)(4) in the NPRM) of the proposed 
rule stated that the child development specialist must conduct health, 
nutrition and safety checks of the home, and must observe and assess 
curriculum implementation and child development services. The section 
also required that the specialist provide on-site feedback and training 
and technical assistance to the providers including support for the 
development of collegial or mentoring relationships.
    Comments. The responses applicable to this section were submitted 
under proposed section 1306.20(h)(2) and (3) and related to concern 
that the requirement is too stringent and doesn't reflect the wide 
variety of strengths and needs across family child care settings.
    Response. The language in the final rule was modified to clarify 
that the role of the child development specialist includes: Verifying 
compliance with either contract requirements or agency policy depending 
on the nature of the relationship; facilitating communication between 
the family child care provider, Head Start and Early Head Start staff, 
enrolled families and other community services; making recommendations 
for training and technical assistance; and supporting providers in 
developing collegial or mentoring relationships.

1306.20(i)

    This section of the proposed rule required that grantees or 
delegates formally assign family child care management functions to 
agency staff.
    Comments. This provision elicited six comments, all of which were 
supportive. One respondent indicated that responsibilities should be 
assigned not only to existing staff, but that new staff should be hired 
as necessary.
    Response. This section was considered unnecessary as provision for 
the assignment of management functions is currently required in 
1304.52(a). Therefore, the section was deleted from the final rule.

Section 1306.20(i)

    Under the proposed rule, this section (1306.20(j) in the NPRM) 
specified that to ensure that all program services are available to 
children enrolled in the family child care option, grantee and delegate 
agencies must ensure that providers are supported by agency staff with 
responsibilities related to the provision of comprehensive services as 
described by 45 CFR parts 1304 and 1308. There were no comments in 
response to this section. However, the provision was reworded to simply 
state that grantee and delegate agencies must ensure that children 
enrolled in the family child care option receive comprehensive Head 
Start or Early Head Start services as described by 45 CFR parts 1304 
and 1308.

Section 1306.31(a)

    This section of the proposed rule was amended to include Family 
Child Care in the list of Head Start program options that consists of a 
center-based option, a

[[Page 1292]]

home-based option, and a combination program option.
    Sections 1306.35 and 1306.36 were revised and redesignated as 
sections 1306.36 and 1306.37 respectively and a new section 1306.35 was 
added.

Section 1306.35(a)(1).

    This section of the proposed rule required that agencies 
implementing the family child care option must ensure that each family 
child care home operates year round, five or more days per week and at 
least six hours per day.
    Comments. Many respondents stated confusion about this provision. 
Some respondents indicated that they interpreted ``year round'' to mean 
no vacation or holiday time would be permitted. Two respondents 
indicated that if the grantee or delegate sets required hours of 
operation, it would preclude a contractual relationship. Many people 
suggested modifying the provision to allow family child care providers 
to determine their schedules and keep enrolled families informed. Other 
respondents pointed out that they serve populations who, due to 
seasonal employment or school or college enrollment, only require part-
year care. Several comments suggested that six hours per day would 
never be enough and the regulation should specify a minimum of nine or 
ten hours.
    Response. We agree with respondents that family child care 
providers must establish hours and days of operation in accordance with 
the needs of enrolled families and their own needs. We do not wish to 
interfere with the ability of providers to remain independent 
contractors. We also recognize the large degree of variation in need 
for care according to individual community and family circumstances. 
The final rule was changed to allow greater flexibility while still 
emphasizing the need to meet community needs. It states that grantees 
and delegates must ensure that the family child care option, whether 
provided directly or via contractual arrangement, operates sufficient 
hours to meet the child care needs of the children enrolled and their 
families.

Section 1306.35(a)(2)(i)(ii).

    In the proposed rule, paragraph (i) of section 1306.35(a)(2) 
specified that agencies offering the family child care option must 
ensure that family child care homes are available to serve children 
with disabilities and accommodate parents with disabilities. Paragraph 
(ii) stated that services must be provided as specified in children's 
individual education plans (IEPs) or Individual Family Services Plans 
(IFSPs).
    Comments. Respondent suggested that the Office of Head Start needs 
to make funds available to renovate homes to make them accessible and 
provide funds to offset revenue lost when a child with a disability 
requires a smaller group size. One respondent indicated concern that 
family child care providers are not certified in special education and 
therefore could not provide an appropriate placement for children with 
disabilities. Another respondent pointed out that accommodations in 
each home would need to be based on the needs of the individual 
children enrolled. Finally two respondents recommended requiring that 
Head Start and Early Head Start agency specialists be required to act 
as resources for children with disabilities and their families.
    Response. Head Start and Early Head Start agencies must make ten 
percent of all enrollment opportunities available for children with 
disabilities. The final rule references the Americans with Disabilities 
Act, Section 504 of the Rehabilitation Act, and 45 CFR Part 1308, the 
Head Start Performance Standards for Services to Children with 
Disabilities which require that children's special needs be met in the 
least restrictive possible environment. Grantees and delegates offering 
the family child care program option must ensure the availability of a 
setting among family child care homes as appropriate. The words ``as 
appropriate'' were added at section 1306.35(a)(2)(i) to indicate that a 
family child care home may be an appropriate setting for meeting the 
special education and related service needs of a child with a diagnosed 
disability.

Section 1306.35(a)(3)

    In the proposed rule, this section required that Head Start family 
child care homes provide sufficient indoor and outdoor space for 
children to be supervised and participate in activities that foster 
physical, emotional, and cognitive growth and development.
    Comments. This section generated a number of responses. Several 
recommended that clarification of the term ``sufficient space'' be 
provided in the final rule. Respondents indicated concern about 
providers who live in apartments being able to provide outdoor space 
and possible conflicts between the Head Start regulation for Family 
Child Care as a program option and State child care licensing 
requirements.
    Response. The language in the final rule was clarified to include 
that at a minimum, Head Start Family Child Care option homes must meet 
State licensing requirements for usable space. In the event the State 
does not include specifications regarding space, agencies offering the 
option must ensure that the available space is safe and adequate for 
child development. There must be sufficient indoor space for individual 
child and small group experiences to occur and the provider must have 
access to safe outdoor areas where children can play. The nature of 
outdoor space may vary considerably based on the child care home's 
location, but agencies must ensure that children are protected from 
hazards, are supervised at all times, and age appropriate experiences 
are available.

Section 1306.35(a)(4)

    Under the proposed rule, this section required that agencies 
include Policy Councils in decisions to ``hire or terminate contracted 
Head Start family child care teachers.''
    Comments. Respondents strongly objected to this provision, pointing 
out that the requirement would be inappropriate in contractual 
situations.
    Response. The final rule indicates that the Policy Council's 
decision making role must be exercised at the point of including family 
child care as a program option. Under the final rule, the Policy 
Council will participate in hiring and termination decisions consistent 
with 45 CFR 1304.50(d)(1)(xi). The section was also expanded to include 
the required proportionate representation of the family child care 
option on the Policy Council.

Section 1306.35(b)(1)

    In the proposed rule, this section required that agencies offering 
the family child care option have a plan in place to ensure the health 
and safety of children and conduct at least one safety inspection of 
each home each year. Further requirements regarding frequent 
observations by the child development specialist policies and 
procedures to correct identified concerns also were included.
    Comments. Some respondents agreed that a safety plan should be 
required, but recommended additional criteria for inspections. One 
respondent indicated concern that requiring a grantee safety plan 
applicable to family child care homes could compromise the capacity for 
a contractual relationship with a provider.
    Response. The final rule specifies that agencies offering the 
family child care option must ensure the health and safety of children 
enrolled. When an agency employs family child care providers directly, 
it must establish written descriptions of health, safety, and emergency 
policies and procedures.

[[Page 1293]]

When the family child care option is offered through contractual 
arrangements with providers, the contracts must specify the provider's 
obligations for ensuring the health and safety of children enrolled in 
Head Start.

Section 1306.35(b)(2)(i)

    This section of the proposed rule required that Head Start and 
Early Head Start children enrolled in the family child care program 
option be kept away from potentially hazardous situations, including, 
sources of heat and appliances. It also stated that premises must be 
free from health endangering pests.
    Comments. Respondents strongly objected to what they read as a 
prohibition against children's participation in cooking activities. 
Several pointed out the value of kitchen experiences as related to 
science and math learning. Others emphasized the developmental benefits 
related to learning about good nutrition and health. One respondent 
observed that kitchen appliances are present in all households and 
banning all child access will fail to permit teaching about safety 
around such appliances. One person indicated concern that the provision 
contradicted what she is learning in her CDA classes. Finally, one 
respondent suggested that providers should have a safety plan that 
includes how children will safely participate in meal preparation.
    Response. We agree that experiences in the kitchen can be 
significant contributors to child development. It also is true that 
virtually all children grow up with kitchen appliances in their homes. 
We modified the language in the final rule to state that children 
enrolled in the Head Start or Early Head Start Family Child Care Option 
must be protected from potential hazards, including those posed by 
appliances. We also specify that premises must be free of pests and 
that chemicals used to control pests are not to be used during hours of 
operation of the family child care home.

Section 1306.35(b)(ii)

    This section required that smoke and carbon monoxide detectors be 
installed in spaces occupied by children.
    Comments. One respondent objected that carbon monoxide detectors 
should not be required as they are too expensive. Another indicated 
that required detectors should be provided by the grantee or delegate 
agency at no charge to the provider. One respondent said the required 
detectors should reflect the year of the home's construction. A company 
that manufactures alarms asserted the need for the proper installation 
and maintenance of alarms.
    Response. While we appreciate concerns regarding cost, the safety 
advantages of smoke and carbon monoxide detectors are well documented. 
We continue to require the detectors under the final rule.

Section 1306.35(b)(iii)

    Under the proposed rule, this section required radon detectors in 
family child care homes where basements are devoted to the program.
    Comments. There were three respondents to this section. One 
objected on the grounds of cost, one objected because there is not a 
commensurate requirement for Head Start centers, and the third said 
that the grantee should have to pay for the detectors.
    Response. The final rule was clarified to maintain the requirement 
that radon detectors are required when family child care sites have 
basements and the local health officials recommend the use of the 
detectors.

Section 1306.35(b)(iv)

    Under the proposed rule, this section required that children be 
directly supervised at all times.
    Comments. Respondents indicated that this provision would be 
problematic as often only one provider is present with children and may 
need to take care of a personal need which requires a temporary pause 
in direct supervision.
    Response. We clarified the final rule to emphasize that children 
are supervised and kept safe at all times. Providers must be able to 
assure the safety of any child not within view for any period.

Section 1306.35(b)(2)(v)

    In the proposed rule, this section required ``enhanced 
supervision'' when children are near a body of water or a source of 
heat or when they are being transported.
    Comments. Respondents indicated a need for clarification regarding 
the meaning of this provision. For example, several respondents asked 
for more explanation of ``enhanced supervision'' and one respondent 
indicated that the term ``heat source'' is too vague.
    Response. We clarified the final rule slightly to state that when 
family child care is offered as a Head Start or Early Head Start 
program option, providers must ensure the safety of children around any 
body of water, road or other potential hazard, or if children are being 
transported.

Section 1306.35(b)(vi)

    This provision in the proposed rule required that all water hazards 
be enclosed with a fence and safeguarded against access by children.
    Comments. Respondents indicated varying amounts of agreement with 
this section. Several emphasized the value of water as a teaching tool 
and protested a complete prohibition to supervised access by children. 
Some indicated that supervision is the key to water safety; others 
recommended requiring locked gates and attendants trained in first aid 
and cardiopulmonary resuscitation (CPR).
    Response. The final rule clarifies that unsupervised access by 
children to all water hazards are prevented by a fence.

Section 1306.35(b)(2)(vii)

    This section stated in the proposed rule that no firearms or other 
weapons shall be kept in space occupied by or accessible to children.
    Comments. Respondents requested clarification about whether this 
section would require removal of weapons from a child care home or 
whether locking up weapons could satisfy the requirement.
    Response. The provision was left unchanged in the final rule. 
Providers must comply with State and local licensing regulations. If 
those regulations permit weapons in the home, providers must ensure 
that those weapons are kept out of areas occupied by children and that 
they are absolutely inaccessible to children by any means.

Section 1306.35(b)(2)(viii)

    In the proposed rule, this section required that alcohol and other 
drugs not be consumed while children are present and are not accessible 
to children at any time.
    Comments. One respondent indicated that the final rule should 
specify that smoking and prescription drugs are allowed. Others 
suggested requiring that alcohol and drugs of any kind be kept in 
locked cabinets or boxes.
    Response. The final rule is unchanged. The statement that drugs and 
alcohol not be accessible to children requires that providers 
accomplish this through any necessary means, including keeping them in 
locked containers or removing them from the premises. Every effort 
should be made to avoid taking over the counter or prescription drugs 
while children are in care. If a provider must use a prescription drug 
while children are in care, the provider must prevent children from 
accessing that drug. It

[[Page 1294]]

should be noted that the limitations regarding smoking that apply when 
children are enrolled in center-based Head Start or Early Head Start 
also apply when children are enrolled in the Head Start or Early Head 
Start Family Child Care Option.

Section 1306.35(b)(2)(ix)

    Under the program rules, this section required that domestic 
animals be disease free, immunized, appropriately restrained and kept 
from children.
    Comments. A substantial number of respondents unanimously supported 
the first three conditions, properly immunized, disease free, and 
appropriately restrained animals, but opposed the requirement that 
animals be ``kept from children.'' Some respondents indicated concern 
that, as Head Start grantees, they would lose many of their family 
child care partners if they required them to ``get rid of their family 
pets.'' Many respondents stated the important role responsible 
interaction with pets can have in the development of young children. 
Others pointed out that pets reside in many early childhood classrooms. 
One respondent stated that many family child care homes are on farms 
and that animals can help withdrawn children. Another respondent 
stressed that parents make the decision about placement for their 
child, and if there is an objection to a pet at a home, another 
provider can be identified.
    Response. We agree that pets can play important roles in the lives 
of young children. However, there are health and safety risks inherent 
in a close association between pets and young children. These risks 
vary according to the type of pet, the condition of its environment and 
the safeguards established by a provider. We clarified the final rule 
to state that providers must keep up to date health certificates signed 
by a veterinarian for any pets which have contact with children. The 
Head Start grantee or delegate agency must ensure that any pets 
residing with family child care providers are appropriately managed to 
ensure child safety at all times. The nature of pet safety measures 
will vary in accordance with the type of animal involved. For example, 
while some animals will need to be prevented from having any contact 
with children, others may require making sure children wash their hands 
after handling the animal. It should be noted that while child safety 
is our paramount concern, the health and well-being of animals must 
also be considered.

Section 1306.35(c)

    In the proposed rule, this provision required that ``emergency 
coverage plans'' be in place to ensure that a qualified substitute 
provider is in place in the event the regular provider must leave due 
to an emergency.
    Comments. Several respondents recommended no change to this 
section. Other respondents suggested it should be the grantee or 
delegate agency's responsibility to provide coverage in the event of an 
emergency.
    Response. We have re-worded the provision to indicate that grantee 
and delegate agencies offering the family child care program option 
must ensure that providers have made plans of how they will notify 
parents in the event of any emergency or unplanned interruption in 
service. Such plans may include the use of alternate sites or 
substitute providers. Parents must be informed that they may need to 
pick their child up and arrange care if the child is ill or if an 
emergency arises.

Section 1306.35(d)

    This section of the proposed rule stated that grantees and 
delegates must ensure that homes where Head Start or Early Head Start 
family child care services are offered meet State, Tribal, and local 
licensing requirements. When State, Tribal, and local regulations vary 
from the Head Start Standards, the more stringent regulation shall 
apply.
    Comments. This provision elicited several comments. Two respondents 
agreed unconditionally. One respondent suggested that grantees may need 
to provide initial funding to bring family child care homes up to 
licensable condition. One respondent pointed out that, if the 
relationship is contractual, the grantee can require a family child 
care license, but can't actually secure the license for the provider. 
One respondent suggested that the Head Start requirement would increase 
the workload for State licensing officials and they should be notified 
in advance to begin preparation. The same respondent suggested that, in 
States where there are no family child care licensing regulations, Head 
Start grantees should perform inspections of family child care homes.
    Response. The section remains unchanged in the final rule for 
consistency with Head Start licensing requirements.

Section 1306.36

    This section in the proposed rule asserted the continued right of 
the Commissioner of the Administration on Children, Youth and Families 
to fund alternative program variations.
    Comments. There were five comments to this section. One respondent 
indicated concern that the proposed regulations made no allowance for 
existing Head Start family child care relationships. The other 
respondents supported the idea of additional program variations to meet 
unique community needs.
    Response. The final rule remains unchanged. It is expected that 
existing Head Start and Early Head Start family child care options will 
be modified as necessary to meet the requirements of this rule. If 
there are existing relationships that vary from the requirements of the 
rule due to specific community needs, those programs can apply to the 
Director of the Office of Head Start for approval as alternative 
program variations or local program options.

Section 1306.37

    This section of the proposed rule stipulated that any exception to 
the requirements contained in sections 1306.32, 1306.33, 1306.34, and 
1306.35 would only be granted if the Director of the Office of Head 
Start determines that the grantee made a reasonable effort to comply 
but was unable to do so because of limitations or circumstances of a 
specific community or communities served by the grantee. This section 
did not elicit any comments. The section remains unchanged in the final 
rule.

V. Impact Analyses

Executive Order 12866

    Executive Order 12866 requires that regulations be drafted to 
ensure that there is consistency 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 final 
rule establishes a program option, which will not require grantees to 
expend a significant amount of funds. Agencies choosing to operate this 
program option will not incur significant costs exceeding those costs 
incurred to deliver Head Start services in other program settings, such 
as in center-based or home-based settings and options.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires that 
the Federal government 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

[[Page 1295]]

the rule's impact on small entities. Small entities are defined by the 
Act to include small businesses, small nonprofit organizations and 
small governmental entities. This rule will affect small entities.
    In keeping with the goal of designing programs to meet community 
and family needs, Head Start agencies have identified family child care 
as a preferred option for parents who believe their children will 
benefit from a home-like setting. Head Start agencies also have found 
that family child care is a suitable option for parents who are working 
or in training, or when families need care for more than one child. 
While we have no measure at this point to estimate the number of 
grantees that are small entities which will choose the family child 
care option, we believe the number which will choose it will not be 
significant at this time, given the newness of the option and diversity 
of needs across the country. 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 recordkeeping 
requirements inherent in a proposed or final rule. This final rule does 
not contain any information collection or recordkeeping requirements.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1532) requires that a covered agency prepare a budgetary impact 
statement before promulgating a rule that includes any Federal mandate 
that may result in the expenditure by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. If a covered agency must prepare a 
budgetary impact statement, section 205 further requires that it select 
the most cost-effective and least burdensome alternative that achieves 
the objectives of the rule and is consistent with the statutory 
requirements. In addition, section 205 requires a plan for informing 
and advising any small government that may be significantly or uniquely 
impacted by the proposed rule. We have determined that this final rule 
will not impose a mandate that will result in the expenditure by State, 
local, and Tribal governments, in the aggregate, or by the private 
sector, of more than $100 million in any one year. Accordingly, we have 
not prepared a budgetary impact statement, specifically addressed the 
regulatory alternatives considered, or prepared a plan for informing 
and advising any significantly or uniquely impacted small government.

Congressional Review of Rulemaking

    This rule is not a ``major'' rule as defined in Chapter 8 of 5 
U.S.C.

The Family Impact Requirement

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (Pub. L. 105-277, Div. A, section 101(h)) requires a family 
impact assessment affecting family well-being.

Family Impact

    Many parents, especially those from low-income families, work 
during nontraditional hours, and their work schedules often change from 
week to week. The Head Start family child care option will ensure the 
availability of quality child care during both traditional and 
nontraditional work hours. Head Start family child care also provides a 
network that ensures training to increase the competence of the family 
child care teacher as well as a system of back-up in the event that he 
or she is unavailable. Allowing parents to place their Early Head Start 
or Head Start children as well as school-age children in the care of 
one provider will decrease the number of stops they must make to drop 
children off prior to going to work. The availability of family child 
care increases the choices available to parents by ensuring that their 
children are well cared for, and ensures that parents are not 
distracted from their work by worrying about the dependability and 
quality of care being provided to their children. This will increase 
family financial stability by enabling parents to secure and keep jobs. 
Many low-income workers have minimal leave and little flexibility in 
their work schedules and are unable to take time off to compensate for 
unreliable care or to make numerous phone calls to ensure the safety 
and well-being of their children. Head Start ensures a level of quality 
care for children, as well as back-up systems, thereby promoting family 
stability.

Executive Order 13132

    Executive Order 13132 on Federalism applies to policies that have 
Federalism implications, defined as ``regulations, legislative comments 
or proposed legislation, and other policy statements or actions that 
have substantial direct effects on the States, or on the distribution 
of powers and responsibilities among the various levels of 
government.'' This rule does not have Federalism implications for State 
or local governments as defined in the Executive Order.

List of Subjects

45 CFR Part 1304

    Dental health, Education of disadvantaged, Grant program--social 
programs, Health care, Mental health programs, Nutrition, Reporting and 
recordkeeping requirements.

45 CFR Part 1306

    Education of disadvantaged, Grant program--social programs.

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

    Dated: January 26, 2007.
Daniel C. Schneider,
Acting Assistant Secretary for Children and Families.


    Dated: September 20, 2007.
Michael O. Leavitt,
Secretary of Health and Human Services.


0
For the reasons set forth in the preamble, 45 CFR parts 1304 and 1306 
are amended to read as follows:

PART 1304--PROGRAM PERFORMANCE STANDARDS FOR OPERATION OF HEAD 
START PROGRAMS BY GRANTEE AND DELEGATE AGENCIES

0
1. The authority citation for part 1304 continues to read as follows:

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


0
2. Amend Sec.  1304.52 by redesignating paragraphs (h) through (k) as 
(i) through (l), and adding new paragraphs (h) and (l)(5) to read as 
follows:


Sec.  1304.52  Human resource management.

* * * * *
    (h) Family child care providers. (1) Head Start and Early Head 
Start grantee and delegate agencies must ensure that family child care 
providers have previous early child care experience and, at a minimum, 
enroll in a Child Development Associate (CDA) program or an Associates 
or Bachelor's degree program in child development or early childhood 
education within six months of beginning service provision. In 
addition, such grantee and delegate agencies must ensure that family 
child care providers acquire the CDA credential or Associate's or 
Bachelor's degree within two years of February 7, 2008 or, thereafter, 
within two years of beginning service provision.
    (2) Family child care providers who enroll Head Start children must 
have the knowledge and skill necessary to

[[Page 1296]]

develop consistent, stable, and supportive relationships with young 
children and their families, and sufficient knowledge to implement the 
Head Start Performance Standards and other applicable regulations.
    (3) Grantee and delegate agencies offering the family child care 
option must ensure that closures of the family child care setting for 
reasons of emergency are minimized and that providers work with parents 
to establish alternate plans when emergencies do occur. Grantees and 
delegates must also ensure that the family child care home advises 
parents of planned closures due to vacation, routine maintenance, or 
other reason well in advance.
    (4) Substitute staff and assistant providers used in family child 
care must have necessary training and experience to ensure the 
continuous provision of quality services to children.
    (5) At the time of hire, the child development specialist must 
have, at a minimum, an Associate degree in child development or early 
childhood education.
    (6) Child development specialists must have knowledge and 
experience in areas that include the theories and principles of child 
growth and development, early childhood education (birth to age five), 
and family support. Child development specialists must have previous 
early childhood experience, familiarity with the Child Development 
Associate (CDA) competency standards and knowledge and understanding of 
the Head Start Program Performance Standards and other applicable 
regulations.
* * * * *
    (l) * * *
    (5) In addition, grantee and delegate agencies offering the family 
child care program option must make available to family child care 
providers training on:
    (i) Infant, toddler, and preschool age child development;
    (ii) Implementation of curriculum (see Sec.  1304.3(a)(5) for the 
definition of curriculum);
    (iii) Skill development for working with children with 
disabilities;
    (iv) Effective communication with infants, toddlers, and 
preschoolers and with their families;
    (v) Safety, sanitation, hygiene, health practices and certification 
in, at minimum, infant and child cardiopulmonary resuscitation (CPR);
    (vi) Identifying and reporting suspected child abuse or neglect;
    (vii) United States Department of Agriculture's Child and Adult 
Care Food Program; and
    (viii) Other areas necessary to increase the knowledge and skills 
of the family child care providers.
* * * * *

PART 1306--HEAD START STAFFING REQUIREMENTS AND PROGRAM OPTIONS

0
1. The authority citation for part 1306 continues to read as follows:

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

0
2. Amend Sec.  1306.3 by adding new paragraphs (n), (o), and (p) to 
read as follows:


Sec.  1306.3  Definitions.

* * * * *
    (n) Family child care is care and education provided to children in 
a private home or other family-like setting. Head Start family child 
care means Head Start and Early Head Start comprehensive services 
provided to a small group of children through their enrollment in 
family child care.
    (o) Family child care program option means Head Start and Early 
Head Start and child care services provided to children receiving child 
care primarily in the home of a family child care provider or other 
family-like setting, such as space in a public housing complex which 
has been licensed by the state and set aside specifically for the 
provision of or purpose of providing family child care.
    (p) Family child care provider means the provider of Early Head 
Start or Head Start services in his or her place of residence or in 
another family-like setting.

0
3. Amend Sec.  1306.20 by adding new paragraphs (g), (h), and (i), to 
read as follows:


Sec.  1306.20  Program staffing patterns.

* * * * *
    (g) Grantee and delegate agencies offering the family child care 
program option must ensure that in each family child care home where 
Head Start children are enrolled, the group size does not exceed the 
limits specified in this paragraph. Whenever present, not at school or 
with another care provider, the family child care provider's own 
children under the age of six years must be included in the count.
    (1) When there is one family child care provider, the maximum group 
size is six children and no more than two of the six may be under two 
years of age. When there is a provider and an assistant, the maximum 
group size is twelve children with no more than four of the twelve 
children under two years of age.
    (2) One family child care provider may care for up to four infants 
and toddlers, with no more than two of the four children under the age 
of 18 months.
    (3) Additional assistance or smaller group size may be necessary 
when serving children with special needs who require additional care.
    (h)(1) Grantee and delegate agencies offering the family child care 
program option must provide support for family child care providers 
through a child development specialist or other Head Start or delegate 
agency staff member with responsibilities related to the provision of 
comprehensive Head Start and Early Head Start services.
    (2) The grantee or delegate agency will assign responsibilities to 
the child development specialist and other agency staff to support and 
ensure the provision of quality Head Start services at each family 
child care home. These responsibilities must include both regular 
announced and unannounced visits to each home. The duration and timing 
of such visits will be planned in accordance with the needs of each 
home but shall occur not less than once every two weeks.
    (3) During visits to family child care homes the child development 
specialist will periodically verify compliance with either contract 
requirements or agency policy depending on the nature of the 
relationship; facilitate ongoing communication between grantee or 
delegate agency staff, family child care providers, and Head Start and 
Early Head Start families; provide recommendations for technical 
assistance; and support the family child care provider in developing 
collegial or mentoring relationships with other child care 
professionals.
    (i) Head Start, Early Head Start and delegate agencies must ensure 
that children in the Head Start family child care option receive 
comprehensive services as specified in 45 CFR Parts 1304 and 1308.

0
4. Amend Sec.  1306.31 by revising paragraph (a) to read as follows:


Sec.  1306.31  Choosing a Head Start program option.

    (a) Grantees may choose to implement one or more than one of four 
program options: a center-based option, a home-based program option, a 
combination program option, or a family child care option.
* * * * *

0
5. Sections 1306.35 and 1306.36 are redesignated as Sec.  1306.36 and 
Sec.  1306.37, respectively, and revised, and a new Sec.  1306.35 is 
added to read as follows:

[[Page 1297]]

Sec.  1306.35  Family child care program option.

    (a) Grantee and delegate agency implementation. Grantee and 
delegate agencies offering the family child care program option must:
    (1) Hours of operation. Ensure that the family child care option, 
whether provided directly or via contractual arrangement, operates 
sufficient hours to meet the child care needs of families.
    (2) Serving children with disabilities. (i) Ensure the availability 
of family child care homes capable of serving children and families 
with disabilities affecting mobility as appropriate; and
    (ii) Ensure that children with disabilities enrolled in family 
child care are provided services which support their participation in 
the early intervention, special education, and related services 
required by their individual family service plan (IFSP) or individual 
education plan (IEP) and that the child's teacher has appropriate 
knowledge, training, and support.
    (3) Program Space-indoor and outdoor. Ensure that each family child 
care home has sufficient indoor and outdoor space which is usable and 
available to children. This space must be adequate to allow children to 
be supervised and safely participate in developmentally appropriate 
activities and routines that foster their cognitive, socio-emotional, 
and physical development, including both gross and fine motor. Family 
child care settings must meet State family child care regulations.
    (4) Policy Council role. The Policy Council must approve or 
disapprove the addition of family child care as a Head Start or Early 
Head Start program option. When families are enrolled in the Head Start 
or Early Head Start family child care program option, they must have 
proportionate representation on the Policy Council or policy committee.
    (b) Facilities. (1) Safety Plan. Grantees and delegate agencies 
offering the family child care program option must ensure the health 
and safety of children enrolled. The family child care home must have a 
written description of its health, safety, and emergency policies and 
procedures, and a system for routine inspection to ensure ongoing 
safety.
    (2) Injury prevention. Grantee and delegate agencies must ensure 
that:
    (i) Children enrolled in the Head Start family child care program 
option are protected from potentially hazardous situations. Providers 
must ensure that children are safe from the potential hazards posed by 
appliances (stove, refrigerator, microwave, etc). Premises must be free 
from pests and the use of chemicals or other potentially harmful 
materials for controlling pests must not occur while children are on 
premises.
    (ii) Grantee and delegate agencies must ensure that all sites 
attended by children enrolled in Head Start and Early Head Start are 
equipped with functioning and properly located smoke and carbon 
monoxide detectors.
    (iii) Radon detectors are installed in family child care homes 
where there is a basement and such detectors are recommended by local 
health officials;
    (iv) Children are supervised at all times. Providers must have 
systems for assuring the safety of any child not within view for any 
period (e.g. the provider needs to use the bathroom or an infant is 
napping in one room while toddlers play in another room);
    (v) Providers ensure the safety of children whenever any body of 
water, road, or other potential hazard is present and when children are 
being transported;
    (vi) Unsupervised access by children to all water hazards, such as 
pools or other bodies of water, are prevented by a fence;
    (vii) There are no firearms or other weapons kept in areas occupied 
or accessible to children;
    (viii) Alcohol and other drugs are not consumed while children are 
present or accessible to children at any time; and
    (ix) Providers secure health certificates for pets to document up 
to date immunizations and freedom from any disease or condition that 
poses a threat to children's health. Family child care providers must 
ensure that pets are appropriately managed to ensure child safety at 
all times.
    (c) Emergency plans. Grantee and delegate agencies offering the 
family child care option must ensure that providers have made plans to 
notify parents in the event of any emergency or unplanned interruption 
of service. The provider and parent together must develop contingency 
plans for emergencies. Such plans may include, but are not limited to, 
the use of alternate providers or the availability of substitute 
providers. Parents must be informed that they may need to pick the 
child up and arrange care if the child becomes ill or if an emergency 
arises.
    (d) Licensing requirements. Head Start programs offering the family 
child care option must ensure that family child care providers meet 
State, Tribal, and local licensing requirements and possess a license 
or other document certifying that those requirements have been met. 
When State, Tribal, or local requirements vary from Head Start 
requirements, the most stringent provision takes precedence.


Sec.  1306.36  Additional Head Start program option variations.

    In addition to the center-based, home-based, combination programs, 
and family child care options defined in this part, the Director of the 
Office of Head Start retains the right to fund alternative program 
variations to meet the unique needs of communities or to demonstrate or 
test alternative approaches for providing Head Start services.


Sec.  1306.37  Compliance waiver.

    An exception to one or more of the requirements contained in 
Sec. Sec.  1306.32, 1306.33, 1306.34, and 1306.35 will be granted only 
if the Director of the Office of Head Start determines, on the basis of 
supporting evidence, that the grantee made a reasonable effort to 
comply with the requirement but was unable to do so because of 
limitations or circumstances of a specific community or communities 
served by the grantee.

 [FR Doc. E7-25462 Filed 1-7-08; 8:45 am]
BILLING CODE 4184-01-P