[Federal Register Volume 76, Number 217 (Wednesday, November 9, 2011)]
[Rules and Regulations]
[Pages 70010-70032]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28880]
[[Page 70009]]
Vol. 76
Wednesday,
No. 217
November 9, 2011
Part VII
Department of Health and Human Services
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Administration for Children and Families
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45 CFR Part 1307
Head Start Program; Final Rule
Federal Register / Vol. 76 , No. 217 / Wednesday, November 9, 2011 /
Rules and Regulations
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1307
RIN 0970-AC44
Head Start Program
AGENCY: Office of Head Start (OHS), Administration for Children and
Families (ACF), Department of Health and Human Services (HHS).
ACTION: Final rule.
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SUMMARY: This final rule amends the Head Start Program regulations to
implement statutory provisions of the Improving Head Start for School
Readiness Act of 2007 to establish a system of designation renewal to
determine if Head Start and Early Head Start agencies are delivering
high-quality and comprehensive Head Start and Early Head Start programs
that meet the educational, health, nutritional, and social needs of the
children and families they serve and meet program and financial
management requirements and standards. This system of designation
renewal will determine which grantees must compete for on-going
funding. This final rule is consistent with Executive Order 13563 and
in particular its requirement, in section 6, of ``periodic review of
existing significant regulations.''
DATES: This regulation is effective on December 9, 2011.
FOR FURTHER INFORMATION CONTACT: Colleen Rathgeb, Office of Head Start,
(202) 205-7378 (not a toll-free call). Deaf and hearing impaired
individuals may call the Federal Dual Party Relay Service at 1-(800)
877-8339 between 8 a.m. and 7 p.m. Eastern time.
SUPPLEMENTARY INFORMATION:
I. Statutory Authority
This final rule is published under the authority granted to the
Secretary of Health and Human Services by sections 641, 645A(b)(12),
645A(d) and 644(c) of the Head Start Act (the Act) (42 U.S.C. 9801 et
seq.), as amended by the Improving Head Start for School Readiness Act
of 2007 (Pub. L. 110-134).
II. Background
The Head Start program is a national program administered by the
Office of Head Start (OHS), Administration for Children and Families
(ACF), Department of Health and Human Services (HHS), which promotes
school readiness of children from low-income families by enhancing
their cognitive, physical, social, and emotional development through
the provisions of health, educational, nutritional, social, and other
services determined necessary based on family needs assessments.
The Head Start program provides grants to local public and private
non-profit and for-profit agencies to provide comprehensive child
development services to economically disadvantaged children and
families, with a special focus on helping preschoolers develop the
necessary skills for school success. The Early Head Start program
established in FY 1995 serves families of economically disadvantaged
children from birth to three years of age and pregnant women from such
families based on the mounting evidence that indicate the great
importance of the early years of a child's growth and development.
On December 12, 2007, the Improving Head Start for School Readiness
Act of 2007 (Public Law 110-134) amended the Head Start Act (the Act)
to direct HHS to recompete certain Head Start grants. The Head Start
Act, as amended, establishes that Head Start grantees will be awarded
grants for a five-year period and only grantees delivering high-quality
services will be given additional five-year grants non-competitively.
Section 641 of the Act requires the Secretary of HHS to develop and
implement a system for designation renewal (e.g., Designation Renewal
System (DRS)) to determine if a Head Start agency is delivering a high-
quality and comprehensive Head Start program that meets the
educational, health, nutritional, and social needs of the children and
families it serves. This regulation defines, for purposes of the
Designation Renewal System, what comprises delivering a high quality
comprehensive Head Start program--if a program does not meet any of the
seven conditions, they are de facto a high quality program for purposes
of the Designation Renewal System.
Section 641(c)(1) of the Act requires that the DRS be developed to
determine whether a grantee is providing high-quality services and
meets the program and financial management requirements and standards
described in section 641A(a)(1) of the Act, based on:
(A) Annual budget and fiscal management data;
(B) Program review conducted under section 641A(c);
(C) Annual audits required under section 647;
(D) Classroom quality as measured under section 641A(c)(2)(F); and
(E) Program Information Reports.
The Act also requires that the system is fair, consistent and
transparent and that the Secretary periodically evaluate whether the
criteria of the system are being applied in a manner that is
transparent, reliable and valid.
This final rule responds to those requirements and was developed
after consideration of public comments received in response to the
Notice of Proposed Rulemaking (NPRM) issued September 22, 2010, in the
Federal Register [75 FR 57704]. This final rule is also consistent with
Executive Order 13563, section 6, which calls for ``periodic review of
existing significant regulations,'' and which directs agencies to
engage in ``retrospective analysis of rules'' in order to improve them
``in accordance with what has been learned.'' In brief, the NPRM
proposed seven conditions that would signal that a Head Start or Early
Head Start agency was not delivering high-quality and comprehensive
services and ``trigger'' the grant for competition. The conditions in
the NPRM were: one or more deficiencies under section 641A(c)(1)(A),
(C), or (D) of the Act; failure to establish school readiness goals;
failure to meet minimum thresholds on CLASS: Pre-K domains; revocation
of a license to operate a center or program; suspension from the
program; debarment from receiving Federal or State funds or
disqualified from the Child and Adult Care Food Program; or, one or
more material weaknesses or at risk for failing to function as a going
concern. The NPRM also proposed adding an eighth criterion to ensure
that a minimum threshold of 25 percent of grants would be subject to
competition.
Head Start is the largest federal investment in early childhood
education, serving nearly one million of our nation's most vulnerable
young children and their families. It is the federal government's
responsibility to make sure that these children and families get the
highest quality services possible. This final rule makes structural
changes in Head Start that will drive significant improvements in
program quality. Specifically, for the first time in the history of
Head Start, individual grantees whose programs fall short of certain
standards will be required to compete with other organizations to
continue receiving funding. Funds will be awarded to the organization
that can best meet the needs of Head Start children and families.
[[Page 70011]]
III. Summary Description of Regulatory Provisions
The following is a summary of the most significant regulatory
changes included in this final rule resulting from public comment. The
Section-by-Section Discussion of the Regulations (Section IV) provides
a detailed listing of the comments and responses. We considered each
comment and where appropriate made amendments in this final rule.
Specifically, changes include:
In Sec. 1307.3 of the NPRM, ACF proposed that a minimum of 25
percent of grantees reviewed in each cycle would be required to compete
and proposed adding an eighth condition to achieve this. In response to
comments, this threshold is replaced in the final rule. The final rule
retains the seven criteria for recompetition in section 1307.3 with
some modification, and adds a second sub-part to the CLASS: PreK
condition, but does not add an eighth criterion. Most significantly,
with respect to the third criterion at Sec. 1307.3(c), the final rule
provides that, in addition to grantees that will be required to compete
based on CLASS: Pre-K scores below minimum quality thresholds, those
grantees reviewed by ACF in the same year that score in the lowest
decile in any of the three domains of the Classroom Assessment Scoring
System: Pre-K (CLASS: Pre-K) will also be required to compete. Taken
together, these changes ensure rigorous competition in the Head Start
program and provide an approach that is transparent and based on the
most valid and reliable indicators of performance currently available
to ACF. Current data from Head Start monitoring and CLASS reviews
suggest that roughly a third of grantees would have been designated for
competition based on the revised criteria. While there are limitations
on the precision of estimates with current data, it is clear that this
approach will hold grantees to high standards and lead to rigorous
competition.
As discussed in the Section-by-Section Discussion that follows, in
response to comments this final rule also revises definitions included
in the NPRM; modifies the timeframe for the school readiness criteria;
and modifies reporting requirements.
IV. Section-by-Section Discussion of Comments and Regulatory Provisions
This section provides a detailed discussion of the comments
received on the proposed rule and describes changes made to the
proposed rule. We received approximately 16,000 comments on the NPRM
from Head Start grantees, parents, teachers and State associations;
national organizations; and some academic institutions and legal
entities. Most comments focused on: the proposed 25 percent minimum
requirement for recompetition; retrospective review criteria; proposed
conditions related to licensing, deficiencies, and audits; and, the
proposed timing and method for using CLASS: Pre-K. Many respondents
submitted comments in support of competition, stating that requiring
grantees to compete would ensure that Head Start and Early Head Start
children across the country receive high-quality services and that
dollars invested are spent well.
General Comments
Comments not attributable to specific sections of the regulation
are discussed below.
Concerns Over Competition
1. Comment: Many respondents endorsed the principle that grantees
not conducting high quality programs should be required to compete for
further funding. However, others opposed competition among Head Start
and Early Head Start grantees for a variety of reasons, including costs
vs. benefits; hardship and stress for staff resulting from the loss of
jobs and loss or disruption of employee benefits; disruption of
services; and the possibility that grantees required to compete will be
stigmatized. Some commenters stated that to avoid potential stigma it
would be better to compete all programs. Additionally, commenters
expressed concerns that recompetition could be a disincentive for
organizations to collaborate with Head Start because of the potential
instability of the funding.
Response: We appreciate the concerns expressed by commenters and
the suggestions provided (discussed more specifically later in this
section) to utilize alternative means of holding grantees accountable.
However, the 2007 reauthorization of the Head Start Act required the
establishment of five-year grants and a Designation Renewal System by
which grantees would compete for renewed funding if they were not
determined to be providing high quality services. We can assure
commenters that we intend to make every effort to ensure continuity of
services to children and families, although we acknowledge that it is
possible that some short-term disruption of services might occur if and
when service providers change.
We think it is important to note that requiring a Head Start or
Early Head Start grantee to compete for continued funding is not the
same as taking a grant away or defunding a grantee. Requiring a grantee
to compete means that if a grantee wants to continue to provide Head
Start or Early Head Start services to the community, it must apply,
along with any other entities that choose to do so, for on-going
funding and demonstrate that it is the most capable entity to do so.
Use of Retroactive Data
2. Comment: We received many comments regarding the provision that
most of the DRS conditions would be based on data regarding grantee
performance starting on June 12, 2009. Commenters claimed that by
considering pre-regulation events, ACF was imposing the DRS
retroactively and in a manner inconsistent with Congressional intent,
that ACF's delay in proposing the regulation should disqualify ACF from
imposing retroactive requirements, and that the statute did not require
ACF to consider events between June 12, 2009, and the effective date of
the regulation. Some commenters objected to the consideration of
performance beginning on June 12, 2009 for only certain conditions,
such as the establishment of school readiness goals.
Response: In the NPRM we proposed, with one exception, application
of data collected starting on June 12, 2009, because that is the date
specified in the Act before which the system for designation renewal
cannot apply. We have maintained in the final rule that data collected
beginning on June 12, 2009, may be considered for all of the
conditions, with the exception of the condition related to school
readiness goals, as discussed later in this preamble, and the CLASS:
Pre-K condition that we already proposed in the NPRM to apply after the
effective date of the rule. The five conditions for which data
collected prior to the effective date of the regulation will be
considered are based on Head Start requirements that pre-date this
regulation, and were known to grantees as requirements for which they
would be held accountable.
Failure to comply with these requirements, even before this
regulation was effective, could lead to adverse consequences, such as
termination or suspension. Specifically with respect to licensing,
Section 641A(a)(D)(i) requires that ``facilities used by Head Start
agencies for regularly scheduled * * * classroom activities shall meet
or exceed State and local requirements concerning licensing for such
facilities.'' These requirements to meet state and local licensing
[[Page 70012]]
standards are echoed in Head Start regulations 1306.30(c). Clearly the
revocation of a license to operate--a licensing entity actually
shutting down a center--is clear and direct evidence that a program is
not meeting or exceeding state and local licensing requirements. With
respect to disqualification from USDA to participate in the CACFP, Head
Start regulations at 1304.23(b)(i) require that all programs ``must use
funds from the USDA Food and Consumer Services Child Nutrition Programs
as the primary source of payment for meal services.'' A program
disqualified from CACFP would be unable to comply with this long
standing requirement. With respect to audit findings potentially
jeopardizing a Head Start grant pre-dating this regulation, the Act and
existing Head Start regulations at Sec. 1301.12 require an annual
audit of all programs to ensure that statements are accurate, that they
are complying with the terms and conditions of the grant and that
financial and administrative procedures and controls have been
installed and are operating effectively. On the ``one deficiency''
condition, the concept of a ``deficiency'' and the process for
correcting a deficiency have been part of the Head Start Act (section
641A(e)) and the Head Start Performance Standards (45 CFR 1304.60) for
many years. Deficiency was defined in Section 637 of the Act and a
process for identifying and correcting deficiencies clarified and
revised in Section 641A. Therefore, grantees reasonably had notice that
a deficiency finding was important and could jeopardize their grant.
Grantees also had notice before the adoption of the Designation Renewal
System regulation that both debarment and suspension were evidence of
programming that was not high quality because debarment is defined in
section 637(2) of the Head Start Act as a deficiency and suspension was
associated with violations of Head Start requirements under 45 CFR
1303.10(a). In addition, the Federal Uniform Administrative
Requirements at 45 CFR 74.13 clearly states that ``Federal agencies
shall not award assistance to applicants that are debarred or
suspended, or otherwise excluded from or ineligible for participation
in Federal assistance programs under Executive Order 12549.''
We also believe that the Act gave grantees clear and sufficient
notification of the potential consequences of failing to deliver a high
quality and comprehensive Head Start program and that their performance
beginning on June 12, 2009, could be considered under the DRS to
determine whether a grantee must recompete for a five-year grant. We
believe that not considering important performance data as soon as
allowable by the Act would delay this important mechanism for ensuring
grantee accountability and could result in re-awarding grants non-
competitively to entities that are not the best equipped to provide
high-quality services in that community.
Designation Renewal System Final Decision
3. Comment: A number of commenters also expressed concern that the
decision that a grantee must compete for renewal of funding would be
final and suggested that grantees should have the ability to appeal the
determination. Other commenters suggested that each condition should be
appealable or correctable. Other comments stated that the requirement
to compete could injure grantee's reputation which could result in a
loss of funding from other sources and therefore due process rights
should be afforded. (Condition-specific comments are discussed more in
the Section-by-Section Discussion below.)
Response: Congress did not require that grantees designated to
compete for further funding be given an opportunity to appeal. Congress
did require appeals for grantees that are terminated or suspended for
more than 30 days and for delegate agencies that are terminated or who
have their applications rejected. Because Congress did not require
appeal rights for grantees required to compete for further funding,
apparently Congress did not believe that the requirement that a grantee
compete for further funding was on a par with termination or other
actions for which Congress did require appeals.
Additionally, all eligible entities that have not been terminated
from providing Head Start or Early Head Start services in the preceding
five years--including the grantees designated for competition--are able
and encouraged to apply through that competition. Unlike a grant
termination, a requirement to compete provides a mechanism for a
current grantee to demonstrate its capacity to provide a high quality
program while providing ACF the ability to shift funding to more
capable entities if such entities exist in the community. Further, a
grantee that competed and lost a competition would remain eligible for
future competitions. Because of this the grantee that is required to
compete for further funding is one whose level of compliance is
sufficient to justify continuance in the Head Start program, provided
that there is no other organization in the same community that
establishes, via a competitive process that it is better able to
provide a high quality and comprehensive program. Thus the decision to
require competition cannot reasonably be expected to damage the
grantee's reputation in such a way as to deprive it of funding from
another source.
In response to the suggestions for training and technical
assistance for those grantees that meet one of the seven DRS
conditions, we note that all grantees already receive training and
technical assistance on a variety of related topics and grantees also
may request special assistance as needed.
Large Grantees and Delegate Agencies
4. Comment: A number of commenters raised concerns about
designation renewal as it relates to supergrantees (e.g., grantees that
serve over 5,000 children or administer grants that cover a large
geographic region) or large grantees that have a great number of
programs or agencies that provide Head Start services on behalf of the
grantee. Concerns were raised that large grantees are more likely to be
required to compete because they have more classrooms and provide
services to a greater number of families. Several commented that ACF
should limit competition to only the service area found to have met one
of the seven conditions, rather than requiring the grantee to recompete
for its entire service area. Concerns that the problems of a single
delegate agency would cause an entire grantee to compete were raised by
a number of respondents.
Response: All grantees are responsible for ensuring that all
children and families participating in the program receive high-quality
services, regardless of how many children are served, where the
children are served or by whom the children are directly served.
Section 1304.51(i)(2), a longstanding regulation, requires grantees to
establish and implement procedures for the on-going monitoring of their
programs, regardless of the size or structure of that grantee. A
grantee's failure to ensure high quality services are being provided to
children that are served in any of their locations indicates that the
grantee has failed to maintain a high-quality Head Start program
through their on-going monitoring. Thus, we have made no changes in
response to these comments.
Specifically with respect to deficiencies identified through Head
Start monitoring, a deficiency reflects a very serious program
violation. In a large grantee a deficiency would not be
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cited for an isolated incident unless it is very severe or was not
corrected when identified as a non-compliance. Since the statutory
definition includes that a deficiency is a ``systemic or substantial
material failure,'' it accounts for differences in the size of grantees
in that an issue that might be material or systemic in a very small
grantee may not meet the thresholds of material or systemic in a very
large grantee. For example, ten child health records being incomplete
in a program serving 20 children could indicate substantial material
and systemic problems; however, ten child health records being
incomplete in a program serving 10,000 children would not indicate
substantial material and systemic problems.
Migrant and Seasonal Head Start Programs
5. Comment: A number of comments mentioned that the NPRM was silent
on Migrant and Seasonal Head Start (MSHS) programs and questioned
whether the rule applied to MSHS. Some thought that MSHS programs
should be subject to competition under the same rules in place for non-
MSHS programs while others requested special considerations for MSHS
programs because of the unique challenges MSHS programs face delivering
services to children of migrant and seasonal farm workers.
Some respondents expressed concern with the reliability and clarity
of the seven conditions proposed in the NPRM for MSHS programs such as
whether the CLASS: Pre-K conditions are culturally and linguistically
appropriate for MSHS programs or other dual language learner children.
Response: The statute is clear that the length of all grants
awarded under the Act is five years and that all Head Start grants
should be subject to the DRS to determine if they are required to
compete for their grants. Congress did not include an exception for
MSHS programs. As a result, this entire rule applies to MSHS programs
and we have not established separate conditions or a different standard
for any program type. However, under Sec. 1307.3(b)(2)(i), we allow
programs operating less than 90 days, as many MSHS programs do, to
aggregate and analyze their child-level assessment data at least two
times within their operating program period, rather than at least three
times per year as is required for other Head Start programs. ACF
encourages programs facing difficulties with requirements where waivers
are authorized under statute or current regulations to submit a request
for a waiver.
Alternatives to the Proposed DRS
6. Comment: Some commenters offered alternative methods to
determine which grantees should be required to compete. For example,
several recommended an external review process similar to that used to
review hospitals and healthcare organizations by the Joint Commission
on Accreditation of Healthcare Organizations (JCAHO). Others
recommended alternative systems such as (1) Alternate criteria and an
alternate timeline over the five-year grant period, (2) using a tiered
system to rate grantees, (3) considering additional information such as
national accreditation and (4) randomly assigning some grantees to
competition.
Response: We appreciate the alternatives suggested by commenters.
However, ACF does not believe that any of the systems proposed could be
implemented in a fair, consistent and reliable manner within the
parameters of the Act. We continue to believe the system for
designation renewal proposed in the NPRM, with the adaptations made in
this final rule, provides a fair, transparent and evidence-based
approach for determining whether Head Start and Early Head Start
agencies are delivering high-quality and comprehensive programs that
meet the educational, health, nutritional, and social needs of the
children and families they serve and meet program and financial
management requirements and standards.
V. Section-by-Section Discussion of Comments and the Final Rule
Proposed Sec. 1307.1--Purpose and Scope
1. Comment: Some commenters questioned the authority to apply the
Designation Renewal System to Early Head Start grantees.
Response: HHS has the authority to establish requirements for the
scope and design of Early Head Start programs under section 645A(b)(12)
of the Act and to establish requirements for the time, manner, and
content of applications under section 645A(d) of the Act. ACF believes
that requiring Early Head Start grantees that are not providing high-
quality, comprehensive services to compete for further funding is
necessary to assure that all children receive high-quality services
under the program.
Proposed Sec. 1307.2--Definitions
1. Comment: A number of comments were received on definitions
proposed in the NPRM. Commenters requested modification of the proposed
definitions of ``agency'' and ``material weakness.'' Others requested
that we add new definitions including: ``aggregate child assessment
data,'' ``child-level assessment data,'' ``Migrant and Seasonal Head
Start,'' ``redesignation assessment,'' and ``school readiness goals.''
Response: Based on the comments received, we have added definitions
of the following terms to the rule: ``aggregate child-level assessment
data,'' ``child-level assessment data,'' and ``school readiness
goals.'' For the reasons explained below, we also have removed the
proposed terms: ``designated ACF official'' and ``material weakness.''
We also made a minor technical change to the definition of ``transition
period'' to conform to other changes in the final rule.
2. Comment: Commenters stated that the proposed definition of
``agency'' is inconsistent with the definitions of ``Head Start
agency'' in 45 CFR part 1301 and the definition of ``Head Start
agency'' in the proposed regulation. Commenters stated that ACF should
add the word ``local'' to the definition of ``agency'' to make it
correct.
Response: We have not modified this definition because the term
``agency'' is being adopted in part 1307 to refer to both Head Start
and Early Head Start grantees. Inserting the term ``local'' in the
definition would make the term inapplicable to Early Head Start
grantees. Under section 645A(d) of the Act, an organization does not
have to qualify as a ``local'' organization in order to be funded under
the Early Head Start program. The definition of ``agency'' in 45 CFR
part 1301 was adopted in 1979, before establishment of the Early Head
Start program in 1995. In future regulations, ACF will be proposing
changes to that definition and several other provisions of Part 1301
that are now obsolete.
3. Comment: Commenters suggested that, for the sake of consistency,
ACF use the term ``responsible HHS official,'' which is used in other
Head Start regulations, instead of ``designated ACF official.''
Response: As suggested, ACF has changed the term used throughout
this final rule to ``responsible HHS official'' to be consistent with
other regulations. As such, we also have deleted the definition of
``designated ACF official'' proposed in the NPRM.
4. Comment: Commenters suggested adopting the definition of
``material weakness'' in the Government Accountability Office
``Government Auditing Standards,'' in place of the definition proposed
in the NPRM.
[[Page 70014]]
Response: In the final rule, we are deleting the proposed
definition of material weakness since, as discussed below, we are
modifying Sec. 1307.3(g) to remove a finding of material weakness as a
condition for recompetition, as had been proposed in the NPRM.
5. Comment: Commenters also suggested that ``redesignation
assessment'' be a defined term in the final regulation. Commenters
expressed confusion about the process of the designation review or
assessment.
Response: We have modified Sec. 1307.7 to clarify what the
designation review entails, i.e., that it is a review by ACF of grantee
data to determine if one or more of the conditions specified under
Sec. 1307.3 were met by the agency's program during the relevant time
periods also described in that section.
6. Comment: Commenters asked for a definition of ``school readiness
goals'' as used under proposed Sec. 1307.3(b)(2).
Response: We have added a definition to the rule to specify that
``school readiness goals'' mean the expectations of children's status
and progress across domains of learning and literacy development,
cognition and general knowledge, approaches to learning, physical well-
being and motor development, and social and emotional development that
will improve their readiness for kindergarten. This definition is
consistent with guidance from the Office of Head Start, section 641A(g)
of the Act, and draws from comments.
7. Comment: Some commenters asked about what constituted ``child-
level assessment data'' as the term was used in proposed Sec.
1307.3(b)(2). Specifically, commenters asked if the term includes only
data gathered through direct standardized assessment of children.
Response: The definition added in the final rule clarifies that
``child-level assessment data'' means ``the data collected by an agency
on an individual child from one or more valid and reliable assessments
of a child's status and progress, including but not limited to direct
assessment, structured observations, checklists, staff- or parent-
report measures, and portfolio records or work samples.'' This
definition is intended to make it clear that we are not imposing a new
requirement to use only direct standardized assessment data; rather,
agencies may use any one of a number of different methods to gather
child-level assessment data (including but not limited to the methods
identified in the definition). This is consistent with long standing
Head Start regulations at Sec. 1304.20(b), (d) and (e) on on-going
assessment of children.
8. Comment: Some commenters requested that ``aggregate child-level
assessment data'' be defined to understand the term as it was used in
proposed Sec. 1307.3(b)(2).
Response: In response to comments, we have added a definition of
``aggregate child-level assessment data'' to mean ``the data collected
by an agency on the status and progress of the children it serves that
have been combined to provide summary information about groups of
children enrolled in specific classrooms, centers, home-based or other
options, groups, or setting, or other groups of children such as dual
language learners or to provide summary information by specific domains
of development.'' This definition will help programs understand how to
utilize this data to understand the status and progress of children in
their program and implement appropriate program improvements. It is
consistent with best practices in the early childhood education field.
9. Comment: Some respondents requested that ACF include a
definition of Migrant and Seasonal Head Start (MSHS) and proposed the
following definition: ``A MSHS agency is an entity of a local public or
private not-for-profit organization, which is designed by ACF to
operate programs that serve children from birth to compulsory school
age.''
Response: The term ``Migrant or Seasonal Head Start Program'' is
defined in section 637(17) of the Act and therefore we do not have the
authority to change the definition of this term through regulation.
Proposed Sec. 1307.3--Basis for determining whether a Head Start
agency will be subject to an open competition. (Note that proposed
Sec. 1307.3(a) and (c) have been removed in the final rule. As a
result, proposed Sec. 1307.3(b)(1) to (7) have been redesignated as
final Sec. 1307.3(a) to (g).)
Proposed Sec. 1307.3(a)--Minimum of 25 Percent
1. Comment: The vast majority of comments received on the NPRM
pertained to the proposed criterion to ensure that a minimum of 25
percent of grantees are required to compete each year. Respondents
stated that the 25 percent requirement is arbitrary, capricious, and
unfair. Many of these respondents claimed the minimum percent results
in an unfair quota system. Some expressed concern that the quota itself
rather than the quality of programs would drive decisions. Others
stated that quotas in almost any setting generally are perceived as
leading to unfair and inappropriate determinations and are inconsistent
with the intent to identify individual low-performing grantees for
competition. Respondents also stated that the approach is not
transparent because it fails to articulate a specific standard of
quality that programs can aim to meet. Some respondents stated that
they may be inclined to support the 25 percent or some minimum percent
if it was demonstrated using relevant data how this percent was
derived.
Other respondents expressed concern that the standards for running
a successful program could change during the school year to meet the 25
percent minimum. Commenters noted that Congress specifically required
the development of a merit-based system, and that competing 25 percent
of all grantees reviewed in a given year regardless of the quality of
those programs does not meet the statutory requirement for a program-
by-program determination of whether ``a Head Start grantee is
successfully delivering a high-quality and comprehensive Head Start
program.''
The most frequently expressed consequence of the 25 percent minimum
is that it could cause high-quality programs to be required to compete
for continued funding.
Other respondents requested more clarification on this provision.
Specifically, a number said it is not clear from the NRPM whether the
proposed 25 percent minimum is a national figure or whether it would be
applied equally across all twelve Federal regions. Others offered
alternatives to the minimum 25 percent provision. Some recommended ACF
use standard, objective, absolute measures only. Others suggested that
ACF establish a new review system that would recognize high quality and
innovation and ``weed out'' the lowest performing programs.
Respondents also offered suggestions if the 25 percent minimum
remains in the final rule. Some asked that high performers be exempt
from competition and that the remaining 25 percent of grantees be
chosen by lottery. Others suggested creating a tiered system of
quality, which would identify programs along a quality spectrum rather
than drawing a single line between high- and low-quality programs.
There were also a number of comments in favor of the 25 percent minimum
noting it would ensure robust levels of competition and drive all
programs to strive for excellence. A few commenters suggested a higher
percentage requirement.
Response: ACF carefully considered all the comments received and we
have
[[Page 70015]]
replaced the 25 percent minimum provision in the final rule with a
revised CLASS: Pre-K condition. The revised two-part condition will
ensure robust competition and guard against potential score inflation,
using this valid, evidence based classroom evaluation tool. As
discussed further below, under the final rule, in addition to those
programs that score below a minimum threshold, programs that score in
the bottom ten percent in any of the three domains of classroom quality
measured by CLASS: Pre-K will be required to compete for further
funding. This will ensure that standards remain high, but that grantees
are held to objective, meaningful standards. Furthermore, to respond to
comments received that the 25 percent provision could result in high-
performing programs being required to compete, the CLASS-based criteria
further stipulates that in the unlikely event that a program that
scores in the bottom decile in a domain but whose score in the domain
meets the ``standards of excellence'' will not be required to compete.
Taken together, the revised CLASS-based criteria and the other six
conditions meet the same goal of ensuring high standards and driving
continuous quality improvement, which was specified in the NPRM.
Namely, these criteria ensure robust competition and, based on
currently available data, will result in roughly a third of all
programs being designated for competition. Additionally these criteria
are transparent and guard against potential score inflation while
addressing legitimate concerns raised by commenters.
Proposed Sec. 1307.3(b)(1)--Deficiency (Note that proposed Sec.
1307.3(b)(1) has been changed to Sec. 1307.3(a) in the final rule.)
1. Comment: A significant number of comments received related to
the proposed condition that an agency that has been determined by ACF
to have one or more deficiencies on a single review conducted under
section 641A(c)(1)(A), (C), or (D) of the Act would be required to
compete. Some commenters shared support for the proposal, while other
respondents stated that there is insufficient data on monitoring
findings available to evaluate the merits of this condition.
Many respondents stated that the definition of deficiency is
unclear. A number of these respondents said ACF should publish a list
of deficiencies on its Web site annually.
Response: In response to concerns that there is insufficient data
on monitoring findings available and suggestions that ACF should
publish a list of deficiencies on an annual basis, we note that we
publish an annual report that provides a description of the monitoring
review process, a summary of findings of the monitoring reviews
conducted in each fiscal year (including a list showing the number of
noncompliances and deficiencies by Head Start requirement), the
outcomes of follow-up actions on grantees with required corrective
actions, and any recent steps taken regarding monitoring and program
integrity. The annual report on Head Start monitoring can be found at
the following link: http://eclkc.ohs.acf.hhs.gov/hslc/.
2. Comment: Other respondents noted that there are inconsistencies
in the OHS monitoring review system and process for determining
deficiencies. As a result, they believe the criteria for determining a
deficiency finding is subjective and varies among on-site monitoring
teams or the ACF official. ACF received nearly 5,000 comments related
to monitoring reviews. A number of Tribes noted that many reviewers do
not understand the concept of Tribal sovereignty.
Response: ACF stands behind the integrity of the monitoring review
process used for all Head Start and Early Head Start grantees. As
required by the Act, OHS consistently reviews and revises its
monitoring process and protocol. Each year, OHS makes some changes to
its monitoring protocol and trains all reviewers on the changes. In
order to ensure interrater reliability, OHS annually trains reviewers
before the monitoring year begins. The determination that a finding
constitutes a deficiency is not made on-site by monitoring review
teams, but rather is made after OHS and ACF experts and senior staff
conduct a deliberative and rigorous review of the evidence. The results
of the monitoring process are tested when grantees that have been
terminated based on a failure to correct deficiencies appeal their
terminations. In the overwhelming majority of these appeals, ACF's
judgment that a deficiency existed, and that the grantee had failed to
correct the deficiency, have been upheld by the Departmental Appeals
Board. These rulings have often been made without the necessity of
conducting a hearing because the grantee has not challenged ACF's
factual findings. When a program is cited for a deficiency, it is an
indication of a significant failure to meet program requirements. We
believe that when a program fails to meet these standards, it is
entirely appropriate to require them to compete for funding to
determine if children would be better served by a different entity.
3. Comment: Other comments objected to the standard of one
deficiency triggering competition. Some respondents stated that ACF has
not articulated clearly its rationale for using a single deficiency
condition.
Response: As stated in the preamble to the NPRM, ACF firmly
believes that a grantee determined to have one or more deficiencies in
a single review has demonstrated that it does not meet the requirement
of being a high-quality program. ACF believes it is a reasonable
standard that programs identified as having a deficiency, which, in
summary, is defined as a systemic or material failure to meet program
performance standards, a systemic or material failure of the governing
body of an agency to fully exercise its legal and fiduciary
responsibilities, or an unresolved area of noncompliance, should be
required to compete for funding to determine if they are the most
capable entity to provide Head Start or Early Head Start services to
that community. This condition also is grounded in the Secretary's
Advisory Committee's recommendations related to ``Key Quality
Indicators.'' It is important to note that as stated in the NPRM, ACF
will consider data from triennial reviews, follow-up reviews, and other
reviews--and not first-year reviews.
It is ACF's position that grantees should have systems in place to
avoid the types of failures that constitute deficiencies as defined in
the Act, including the ability to resolve a noncompliance in the
specified corrective action timeframe before it is considered a
deficiency.
4. Comment: Some respondents stated that different deficiencies do
not represent problems of equal severity; some are more serious or
systemic issues than others. These respondents argued that establishing
a specific number of deficiencies to trigger competition is
inappropriate because of differences in the severity of problems
identified as deficiencies. Some respondents stated that only matters
that present a systemic threat to health and safety or acts of
financial irresponsibility should be considered deficiencies for
purposes of competition.
Response: While it is true that deficiencies can reflect problems
of varying levels of severity, all deficiencies represent a significant
failure to provide services consistent with Head Start Program
Performance Standards and therefore it is appropriate to require a
competition to determine if
[[Page 70016]]
the current grantee or another entity is the most qualified provider in
that community.
5. Comment: A large number of respondents stated that grantees
should have the opportunity to appeal deficiencies before a grantee is
required to compete.
Response: The Act does not provide for an appeal of deficiency
findings, unlike terminations and suspensions lasting more than 30
days. Although there is no statutory right to an appeal, grantees
currently have the opportunity to discuss the progress of the
monitoring review while the review team is on site. Although the final
determination is not made during the on-site review, grantees
consistently are informed of the opportunity to provide additional
input when concerns are identified while the team is on-site.
6. Comment: Some respondents recommended that a weighting system be
applied for findings from unannounced visits versus those found during
announced monitoring reviews. Some respondents recommended that ACF
revise the condition to focus on a pattern of deficiencies,
deficiencies based on their severity, deficiencies that directly impact
services to children and families, or multiple deficiencies in a single
review.
Response: In 2007, Congress specifically added authority in section
641A(c)(1)(D) of the Act for ACF to conduct unannounced site
inspections and consistent with this the number of unannounced reviews
has increased as an added quality assurance measure. Programs should
always be following Program Performance Standards and be ready for a
review at any time. Grantees are always required to follow requirements
of the Act and regulations and can be cited for not complying with
regulations at any time during the year.
While we appreciate the comments received on this provision, the
final rule maintains the provision as proposed. As stated above, a
deficiency is by definition a ``substantial or systemic material
failure.'' ACF firmly stands behind the integrity of the monitoring and
review process through which deficiencies are established and this has
been consistently validated by rulings supporting ACF findings in the
appeals process. ACF strongly believes that a grantee found to have a
deficiency should compete to determine if it or another entity is the
strongest provider in the community.
Proposed Sec. 1307.3(b)(2)--School Readiness Goals (Note that proposed
Sec. 1307.3(b)(2) has been changed to Sec. 1307.3(b) in the final
rule.)
1. Comment: Many comments were received related to the
establishment of goals and utilization of data on children's school
readiness. While the majority of commenters expressed support for this
requirement, numerous commenters raised concerns about how the
condition will be implemented. For example, nearly all of the comments
received on this condition requested that ACF issue guidance to clarify
the requirements and explain how grantees' adherence to those
requirements will be measured (discussed in further detail below). Many
of the commenters also recommended that ACF not implement the condition
until after such guidance has been issued and training and technical
assistance has been provided to grantees.
Response: We agree with these concerns and have revised the date of
implementation of the condition to be after the effective date of the
final rule. Therefore, in evaluating whether a grantee has met this
condition, we will not rely on data beginning on June 12, 2009, as had
been proposed in the NPRM, but rather beginning on the effective date
of this final rule. In the NPRM, ACF proposed that grantees would be
evaluated on establishing school readiness goals (Sec. 1307.3(b)(1))
at the June 2009 date, and on the steps to achieve school readiness
(Sec. 1307.3(b)(2)) after the effective date of the regulation. We
have changed the final rule to reflect that all of Sec. 1307.3(b)
related to school readiness will be considered after the effective date
of this regulation. Since the publication of the NPRM in September
2010, there has been steady communication with Head Start grantees
about school readiness goals through webcasts, two national institutes
in February and October of 2011, training and technical assistance
materials (including The Guide to Resources for Developing School
Readiness Goals) and other material created by the National Center for
Quality Teaching and Learning (http://eckkc.ohs.acf.hhs.gov/hslc/tta-system/teaching). We also will continue to provide technical assistance
and other supports for implementation of this condition.
Establishing and using school readiness goals are central to
providing high-quality services to children and families, and the high
quality implementation of activities to meet this requirement will be
the focus of training, technical assistance and on-going oversight by
federal staff. However, compliance with the requirements and
determinations about whether grantees meet the school readiness goals
condition of the DRS will only be measured by evidence collected in
reviews conducted under section 641A(c) of the Head Start Act. Evidence
in these reviews is collected by monitoring teams, including regional
staff, but determinations regarding evidence collected in any reviews
are made only by the responsible HHS official.
2. Comment: Numerous commenters requested that ACF issue guidance
on the implementation of the requirement to establish and take steps to
achieve school readiness goals. For example, many of these comments
requested clarification on the definition of ``school readiness
goals,'' what they should look like, how to determine what they should
look like, and how to measure children's progress against them. Some
commenters suggested that ACF establish national goals and benchmarks
for children's school readiness that would be applied to all grantees.
Other commenters stated that there should not be a uniform definition
because what it means to be ready for school may vary by State,
community, or population.
Response: In response to these comments on the need for a
definition, we have added a definition of ``school readiness goals'' to
the final rule. The definition clarifies that school readiness goals
are expectations of children's status and progress across domains of
language and literacy development, cognition and general knowledge,
approaches to learning, physical well-being and motor development, and
social and emotional development that will improve their readiness for
kindergarten. This definition is consistent with section 641A(g) of the
Act and guidance provided by the Office of Head Start and draws on
comments received. With respect to comments on national goals, in
section 641A(g)(2)(A) the Act requires that school readiness goals be
``agency determined.''
3. Comment: Some commenters were unclear about whether the goals
for improving the school readiness of children were meant to be
individual plans for each child or global goals for all children in a
program. Some commenters misinterpreted this section in the NPRM as
requiring grantees to meet benchmarks for children's outcomes and
progress, rather than requiring grantees to demonstrate how child-level
assessment data is used to individualize children's experiences and
inform continuous quality improvement. Others asked for guidance
[[Page 70017]]
around how to analyze school readiness data and requested that training
and technical assistance be provided to increase grantees' capacity for
analyzing child-level assessment data. Some also asked for ACF to
provide a schedule that includes when grantees should analyze child-
level assessment data within the year (e.g., within the first 45 days
of the program year).
Response: In response to these comments on program or individual
child goals, we have clarified in the final rule that the School
Readiness Goals are for improving the school readiness of children in
their program and are global or program goals for all of their
children. We also reorganized the provision in the final rule to make
it clearer that individual child-level data is critical in how programs
take steps to help each individual child to make progress and to
achieve overall program school readiness goals. Specifically for
individual children, programs must analyze individual child-level data
in order to determine each child's status and progress on those goals
in order to individualize instruction for those children and to inform
parents and families. Furthermore, we clarify in the final rule that
aggregated child-level assessment data must be used to inform
curriculum, instruction, professional development, program design, and
other program decisions.
4. Comment: Some commenters requested guidance on the process for
aligning school readiness goals with the Head Start Child Outcomes
Framework (Framework). In particular, commenters were concerned about
the requirement to align with the Framework because, at the time the
NPRM was open for public comment, the Framework was undergoing revision
by ACF.
Response: ACF since has published the revised framework (now called
the Head Start Child Development and Early Learning Framework
(available at http://eclkc.ohs.acf.hhs.gov/hslc/tta-system/teaching/eecd/Assessment/Child%20Outcomes/HS_Revised_Child_Outcomes_Framework.pdf)). We also have addressed these concerns in the OHS
training and technical assistance, which discusses grantees'
responsibilities and processes for ensuring alignment between agency-
established school readiness goals and the revised framework.
5. Comment: Other commenters had concerns about using the Early
Head Start Performance Measures Framework in determining children's
status on the child competencies. In particular, there were questions
about whether grantees need to set goals and measure progress on
``parents as the primary nurturer'' and ``parent-child relationships''
as described in the Framework.
Response: In response to these comments, the final rule clarifies
that children's progress on the five essential domains is what should
be measured by both Head Start and Early Head Start grantees. While the
Framework is comprehensive and includes many elements, it is organized
so that all the elements fit under the five essential domains of child
development. Programs will continue to be instructed on using the
essential domains as a framework for their goals and assessment of
meeting the goals.
6. Comment: Some commenters misinterpreted the language in the NPRM
as requiring grantees to conduct a formal assessment of children three
times per year (or two times per year for programs operating less than
90 days), rather than requiring them to aggregate and examine child-
level assessment data regardless of the method of assessment three
times each year.
Response: In response to these concerns, ACF has added a definition
of ``child-level assessment data'' to the final regulation. We also
have addressed these comments in the training and technical assistance
ACF provides by including information about the methods and types of
assessment, assessment instruments, and other strategies for
understanding children's development and learning that grantees should
utilize in meeting the requirements to establish and take steps to
achieve school readiness goals. Training and technical assistance also
included a clear distinction between the process of child assessment
and the process for collecting, aggregating, and analyzing child-level
assessment data.
7. Comment: Numerous comments were received related to how programs
are to show compliance with the requirement to establish and take steps
to achieve school readiness goals and utilize data for
individualization and program improvement. Specifically, commenters
requested guidance on what information needs to be documented and
maintained to demonstrate compliance; how programs can self-assess; and
what criteria ACF will use to evaluate compliance.
Response: We appreciate these suggestions and drew on them in
preparing technical assistance for grantees, which includes information
regarding how grantees can self-assess, how they can examine school
readiness goals as part of ongoing monitoring and use that information
to guide program improvements to curricula and professional
development, and how grantees can document and demonstrate compliance
with these requirements for the triennial monitoring review. Additional
information is available to grantees in the monitoring protocol.
Proposed Sec. 1307.3(b)(3)--Classroom Assessment Scoring System
(CLASS): Pre-K (Note that proposed Sec. 1307.3(b)(3) has been changed
to Sec. 1307.3(c) in the final rule.)
Section 641A(c)(2)(F) of the Act requires the Secretary to include
as part of the Head Start monitoring review process ``a valid and
reliable research based observational instrument, implemented by
qualified individuals with demonstrated reliability, that assesses
classroom quality, including assessing multiple dimensions of teacher-
child interactions that are linked to positive child development and
later achievement.'' Section 641(c)(1)(D) requires that such an
instrument be used as part of the system for designation renewal.
CLASS: Pre-K, a system that uses observation to rate the interactions
between adults and children in the classroom as high-, middle- or low-
quality, meets the statutory requirements for ``a valid and reliable
research-based observational instrument.'' Before selecting an
instrument to fulfill this requirement, ACF consulted with leading
early childhood assessment experts who all advised that the CLASS: Pre-
K was the instrument that best met the statutory requirement. The
Conference Report accompanying the Act also suggested that ACF consider
using the CLASS: Pre-K (H.R. Conference Report No. 220-439 at 111
(2007), as reprinted in 2007 U.S.C.C.A.N. 442, 462). Ultimately, ACF
selected the CLASS: Pre-K instrument because, as discussed in the
``CLASS Implementation Guide: Measuring and Improving Classroom
Interactions in Early Childhood Settings'' CLASS: Pre-K has been
validated by over ten years of research in educational settings.
1. Comment: ACF received a large number of comments related to
CLASS: Pre-K. While there was general support for the tool, some
commenters raised a range of concerns related to using CLASS: Pre-K for
program accountability purposes.
Response: As discussed in the CLASS: Pre-K manual, the purpose of
CLASS: Pre-K is to measure ``the quality of the classroom environment''
and uses of CLASS: Pre-K include research, accountability efforts,
program planning and evaluation, and professional development and
supervision. ACF recognizes that while CLASS: Pre-K was developed for a
range of purposes, it has been used primarily for research and
professional development purposes. It is
[[Page 70018]]
also being used in some state accountability and quality improvement
efforts in Quality Rating and Improvement Systems, in which CLASS
scores are used as a measure in rating the quality of an early
childhood program. ACF is working closely with the developers to ensure
CLASS: Pre-K is used in ways that inform programs and accurately
reflect classroom quality.
2. Comment: A number of respondents requested that ACF delay the
inclusion of CLASS: Pre-K in the Designation Renewal System.
Respondents stated that CLASS: Pre-K has not been in use long enough
with Head Start grantees to elevate scores to such high importance and
that the science has not provided a basis yet for selecting the
threshold for competition. Others said it should not be implemented
until after the transition period in order to hold all grantees to the
same standard.
Response: While we appreciate the public comments received on the
timing for considering CLASS: Pre-K, ACF has decided not to delay the
inclusion of CLASS: Pre-K as a condition for designation renewal due to
the critical importance of classroom quality. As was included in the
NPRM, the CLASS: Pre-K condition will be implemented in the second year
of the transition period using data from observations conducted after
the effective date of the final rule. However, no grantees will be
awarded non-competitive extensions without being evaluated against the
two-part CLASS criterion. We based the decision to utilize CLASS in the
Designation Renewal System on the following: (1) Research has shown
that teacher-child interaction is critical for children's social and
academic development, (2) a measure of classroom quality is critical to
ensuring that children are in high quality programs, and (3) there is
an extensive research base for CLASS: Pre-K. ACF notified grantees in
August 2008 that CLASS: Pre-K would begin to be used in Head Start
monitoring reviews (see ACF-IM-HS-08-11). In addition, ACF has provided
all grantees the opportunity to be trained on the protocol and grantees
have been monitored on CLASS: Pre-K instrument for two years. Moreover,
ACF-IM-HS-08-21 provided further information regarding the importance
of child-teacher interaction. ACF also provides training resources to
each Head Start grantee as part of its annual funding, consistent with
requirements in the Act. Finally, ACF's inclusion of a relative
threshold, as well as a minimum threshold of quality and a standard of
excellence, are responsive to comments about the current state of the
science. While research has not yet identified a specific CLASS score
necessary to impact positive outcomes, research has shown, (1) That low
levels of quality are not related to children's outcomes, and (2) that
there is no ``good enough'' level of quality above which additional
quality improvements do not matter for children's outcomes (i.e.,
higher levels of quality are related to better outcomes for children)
(Burchinal, M., Xue, Y., Tien, H., Auger, A., & Mashburn, A. (March,
2011)).
3. Comment: A number of respondents raised concerns with the use
and reliability of CLASS: Pre-K with culturally and linguistically
diverse classrooms. Some respondents commented that CLASS: Pre-K is
inappropriate with specific populations or programs, such as American
Indian/Alaska Native, Migrant and Seasonal Head Start, or dual language
learners.
Response: Research consistently shows that children in classrooms
with higher CLASS: Pre-K scores demonstrate more positive social and
early academic development.(Burchinal, M., Vandergrift, N., Pianta, R.,
& Mashburn, A. (2010), and Burchinal, M., Xue, Y., Tien, H., Auger, A.,
& Mashburn, A. (March, 2011)). While the CLASS: Pre-K was not designed
to measure specific practices in multi-lingual classrooms, the tool has
been used in classrooms with diverse populations. For example, findings
from the National Center for Early Development and Learning (NCEDL)'s
research conducted in nearly 700 pre-kindergarten classrooms and 700
kindergarten classrooms, including linguistically diverse classrooms,
suggest that CLASS: Pre-K functions well as an assessment of the
quality of teacher-child interactions in classrooms with language
diversity, and that CLASS: Pre-K predicts gains in dual language
learners children's school readiness skills (Downer, 2011). ACF will
continue to examine concerns regarding the use of CLASS: Pre-K in
culturally and linguistically diverse classes. ACF is providing
additional cross-cultural training to CLASS: Pre-K reviewers to ensure
reviewers are familiar with the culture of the families served and that
they are fluent in the predominant teaching language used in the class
where they conduct observations.
4. Comment: Some respondents raised other concerns with the CLASS:
Pre-K instrument itself, aside from culture or language. Respondents
stated, for example, that CLASS: Pre-K scores are reliable within one
number above or below the actual score and that CLASS: Pre-K was
developed with a national norming sample and data primarily from State-
funded pre-kindergarten programs.
Response: ACF is confident of the reliability and appropriateness
of the CLASS: Pre-K tool for use in Head Start classrooms based on the
extensive and growing use of the instrument to assess a wide range of
early childhood programs (e.g., in numerous research studies as well as
State Quality Rating and Improvement Systems) and ACF's experience
using the instrument over the last 2 years. With respect to concerns
about the norming sample used for the development of CLASS: Pre-K, we
note that the developers included Head Start programs among the sample
of programs they tested.
5. Comment: ACF specifically requested comments on alternative
methods to the CLASS: Pre-K condition, including the use of an absolute
threshold versus a relative threshold that compares each grantee's
score to the scores of other grantees reviewed in the same year, or the
use of different absolute thresholds for each domain. A smaller subset
of respondents commented on these issues. Those in support of absolute
thresholds emphasized that identifying low-performing grantees is
achieved best by defining a minimum level of quality all grantees must
meet. Those recommending a relative threshold indicated that comparing
grantees to their peers is the most appropriate approach, particularly
absent clear research indicating what an absolute threshold should be.
Several respondents proposed using national averages to determine
scores to trigger competition or focusing on significant variances from
the national averages.
Some respondents asked for further clarification on what was meant
by ``low'' scores or requested a justification for why the proposed
scores were chosen. Other respondents commented that the proposed
scores for competition establish either unrealistic standards in some
domains or inadequate standards of quality in other domains.
Response: In response to comments, ACF has revised the proposed
CLASS: Pre-K condition from being solely an absolute threshold of
scores below a 3 on any of the three CLASS: Pre-K domains (Emotional
Support, Instructional Support, and Classroom Organization) during the
two most recent CLASS: Pre-K observations to a two-part criterion, that
consists of both a relative and an absolute threshold based on the most
recent CLASS: Pre-K observation for all three domains of CLASS: Pre-K.
Specifically, ACF will require grantees whose average scores across
[[Page 70019]]
classrooms fall in the lowest 10 percent on any of the three CLASS:
Pre-K domains in that year to compete. ACF will determine the lowest
deciles by comparing the scores in each of the three CLASS: Pre-K
domains of all grantees reviewed in the same year under section
641A(c)(1)(A), (C), and (D). If a program scores in the bottom 10
percent of all Head Start programs, this indicates that the vast
majority of organizations operating Head Start are providing a higher
quality program for children. For a program with an average score in
the lowest ten percent in the domain of Emotional Support, it means
that ninety percent of Head Start programs assessed were shown to be
doing a better job helping children develop positive relationships,
enjoyment of learning, and appropriate levels of independence. For a
program with an average score in the lowest ten percent in Classroom
Organization it means that ninety percent of Head Start programs
assessed were rated higher on how well teachers manage classrooms to
maximize learning and keep children engaged. And for a program with an
average score in the lowest ten percent in the domain of Instructional
Support, it means that ninety percent of Head Start programs were
assessed to be doing a better job promoting children's thinking and
problem solving, using feedback to deepen understanding and helping
children develop more complex language skills. If ninety percent of
Head Start programs are doing better in these areas, it is certainly
reasonable to require that these programs compete to determine if there
is another provider in that community that can provide children a
higher quality experience.
In addition, the final rule establishes a minimum quality
threshold, or ``floor,'' for each of the three domains under Sec.
1307.3(c)(1). Grantees will be required to compete if, in the most
recent CLASS: Pre-K observation, the average score across all
classrooms observed by ACF in any CLASS: Pre-K domain falls below the
minimum quality threshold for that domain established in the
regulations, even if it does not fall into the lowest 10 percent of
grantees assessed on that domain. For reasons described below, for the
Emotional Support domain, the minimum quality threshold is an average
score across all classrooms of a 4. For the Instructional Support
domain, the minimum quality threshold is an average score across all
classrooms of a 2. For the Classroom Organization domain, the minimum
quality threshold is an average score across all classrooms of a 3.
ACF sets a clear minimum quality threshold grantees must achieve,
consistent with research that demonstrates the lack of improvement in
child outcomes when the quality of child-teacher interactions measured
by the CLASS fell below certain levels in the different CLASS domains.
There is a growing body of research showing that at least moderate
quality is necessary in Instructional Support for improving children's
outcomes (i.e., there is no evidence demonstrating a link between CLASS
Instructional Support scores and children's outcomes when CLASS
Instructional Support scores fall below a 2). Conversely, research
suggests moderate to high-quality is necessary in Emotional Support for
improving children's outcomes. (See, for example, Burchinal, M.,
Vandergrift, N., Pianta, R., & Mashburn, A. (2010). Threshold analysis
of association between child care quality and child outcomes for low-
income children in pre-kindergarten programs. Early Childhood Research
Quarterly, 25(2), 166-176.) Based on this research, as well as comments
received on the NPRM, we consulted the CLASS manual to identify the
CLASS scores that most closely correspond to ``at least moderate
quality'' for the Instructional Support domain and ``moderate to high
quality'' for Emotional Support domain. As a result, we revised the
minimum thresholds for Instructional Support and Emotional Support
proposed in the NPRM (i.e., 2 for Instructional Support and 4 for
Emotional Support). The minimum threshold for Classroom Organization
stays at 3, the same as the NPRM.
Finally, ACF is establishing an exceptional level of quality to
ensure that the relative threshold does not result in exceptionally
high quality programs being required to compete. In the unlikely event
that a grantee's score in a domain falls in the lowest 10 percent but
the score equals or exceeds the exceptional level of quality, then the
grantee will not be required to compete on the basis of its score on
that domain. The exceptional level of -quality threshold or standard of
excellence for each three CLASS: Pre-K domains is an average score
across all classrooms of 6 or above. ACF selected this particular
threshold because the developers of the CLASS: Pre-K established these
scores on the instrument's seven point scale expressly to identify
those grantees functioning at the highest levels of quality (with
scores of 1 to two being in the low range; three to five in the mid-
range; and six to seven in the high range of quality). The following is
an example of how the absolute thresholds would work in conjunction
with the relative threshold in Emotional Support. The lowest 10 percent
of grantees as well as all grantees that have an average score below a
4 will be required to recompete based on their Emotional Support
average score. If more than 10 percent of grantees had an average score
in that domain below a 4, all of those grantees would have to compete.
If a grantee in the lowest 10 percent in that domain had an average
score of 6 or above, they would not be required to compete on the basis
of the Emotional Support score because they have achieved the
exceptional quality threshold in that domain. Grantees with an average
score between a 4 and a 6 on Emotional Support but that are not in the
lowest 10 percent would not be required to compete on the basis of
their Emotional Support score.
In summary, this revised CLASS condition combines the merits of
both the relative and absolute threshold concepts. It includes a
relative threshold, which is responsive to comments that research has
not yet identified the specific threshold of quality that is needed to
impact positive outcomes, while recognizing research showing that there
is no ``good enough'' level of quality (i.e., higher levels of quality
are related to better outcomes for children) (Burchinal, M., Xue, Y.,
Tien, H., Auger, A., & Mashburn, A. (March, 2011)). It also guards
against score inflation, which, if it occurred, would result in less
rigorous standards over time. The rule also sets a minimum quality
threshold based on research findings that show a minimum level of
quality must be achieved before positive changes can be made in
children's outcomes and it establishes a high-quality standard above
which grantees would be exempt from competition. In setting the minimum
quality thresholds and exceptionally high-quality standards ACF
compared CLASS: Pre-K scores for Head Start programs to national data
and to data on other early childhood programs, examined the CLASS: Pre-
K user manual, considered the Office of Head Start's expectations for
what should be taking place in early childhood classrooms, and embraced
the latest research findings.
As will be discussed in more detail in Section Sec. 1307.8, ACF is
implementing a significantly improved approach to each grantees' CLASS
assessment including even more rigorous training and reliability
assurance, a more rigorous random sampling of each grantee's classes to
determine which to observe, and more consistent protocols for
implementation. For these reason,
[[Page 70020]]
determinations for designation renewal will be made based on the most
recent CLASS: Pre-K observations, rather than the two most recent
CLASS: Pre-K observations as was proposed in the NPRM.
6. Comment: A number of respondents had questions about whether or
how the CLASS Pre-K would be implemented in Early Head Start programs
and/or in the Home-based program option.
Response: CLASS: Pre-K will not be used in Early Head Start
programs or in programs that operate the Home-based option only. ACF
will consider incorporating a valid and reliable measure of teacher-
child interaction in Early Head Start and in the Home-based program
option when such a tool becomes available. ACF would incorporate such a
tool only after soliciting public input through an NPRM.
7. Comment: Some commenters expressed concerns about how the
``negative climate'' dimension of the Emotional Support domain of the
CLASS Pre-K would be included in grantees' average scores in that
domain.
Response: The ``negative climate'' dimension high and low scores
have the opposite meaning than for all of the other CLASS dimensions.
Specifically, for negative climate a low score means that there is a
low level of negative climate in the classroom--which is good. For that
reason, the negative climate score is reversed when averaging dimension
scores to obtain a domain score, as is explained in the CLASS: Pre-K
manual--so that a grantee receiving a good negative climate score will
likewise receive a higher score on the overall domain of Emotional
Support of which negative climate is one part. ACF will use that
methodology for obtaining averaging as prescribed in the CLASS: Pre-K
manual to ensure that average domain scores are accurate.
Proposed Sec. 1307.3(b)(4)--License Revocation (Note that proposed
Sec. 1307.3(b)(4) has been changed to Sec. 1307.3(d) in the final
rule.)
1. Comment: ACF received a significant number of comments in
response to the proposed licensing condition described at Sec.
1307.3(b)(4). A number of commenters expressed support for licensing
revocation as a trigger for competition. Others raised concerns about
the trigger and what constitutes a license revocation as discussed in
Sec. 1307.3(b)(4).
A common theme among comments on this condition was that variations
among State licensing requirements would make it impossible to
implement it in an equitable manner across Head Start and Early Head
Start grantees. Many remarked that ACF should set a standard for all
Head Start programs rather than relying on separate State standards.
There were a number of comments that mentioned that the fate of an
entire grantee and all of its delegates would be in jeopardy when one
delegate agency loses its license. Many respondents noted that the
condition is duplicative since OHS already would learn about a
licensing revocation during an on-site monitoring review. Finally, a
common theme among commenters was a concern that the licensing
condition in particular could create challenges to collaborations
because of concerns over potential loss of funding due to loss of
individual center licenses.
Response: We would like to clarify that it is the revocation of a
license, not the suspension of a license, that will require a grantee
to compete. Revocation is a process that varies by State and local
standards. However, despite these variations, removing a licensing or
forbidding a center to continue operating is the final step in a series
of corrective actions for an agency in all jurisdictions. Revocation is
the removal of a license, meaning that a center no longer is allowed to
operate in caring for children in that jurisdiction. The revocation of
a license to operate is a serious indication of an agency's inability
to operate a high-quality program.
Section 641A(a)(1)(D)(i) of the Act and Head Start regulations
implemented at 45 CFR 1306.30(c) require that ``the facilities used by
Early Head Start and Head Start grantees and delegate agencies for
regularly scheduled center-based and combination program option
classroom activities or home-based group socialization activities must
comply with State and local requirements concerning licensing. In cases
where these licensing standards are less comprehensive or less
stringent than the Head Start regulations, or where no State or local
licensing standards are applicable, grantee and delegate agencies are
required to assure that their facilities are in compliance with the
Head Start Program Performance Standards related to health and safety
as found in 45 CFR 1304.53(a).'' ACF would be remiss if it did not
require a grantee whose license had been revoked to demonstrate its
fitness to continue to receive Head Start funding following such a
determination by State or local authorities. Given the serious nature
of revocation and given that the consequence for the grantee is not
termination from the program or even suspension, but only a requirement
to compete for further funding, it should not be necessary to require
exhaustion of appeal opportunities before ACF requires the grantee to
compete to prove through a competition they are the most qualified
entity in the community.
ACF will maintain this condition as laid out in the NPRM,
regardless of appeal status since it is such a serious condition with
one exception. It merits repeating here that requiring a grantee to
compete for continued funding is not equivalent to terminating the
grant. In the final rule ACF is allowing for a longer period to resolve
appeals than was proposed. The final rule would allow a grantee that
has had its license revoked to continue to receive further funding
without competing if the revocation was overturned or withdrawn any
time ``before the announcement of the competition in which the grantee
would be required to compete for renewed funding.'' If a decision on
appeal is not made by that point then ACF is justified in requiring the
grantee to compete since competitions have to be held within certain
time periods to ensure that either the existing grantee or a new
grantee has been selected by the time the existing grant expires. It
does not make sense to delay a competition based on the possibility
that a revocation of a license may be overturned or withdrawn sometime
in the indefinite future.
If the license of any center where a grantees is serving Head Start
or Early Head Start children is revoked, the grantee would be required
to compete. As mentioned previously, each grantee is responsible for
ensuring that every child it serves, no matter where or by whom,
receives high-quality early childhood services. Delegate agencies are
required to follow licensing regulations, and grantees should be aware
of issues that may jeopardize a delegate agency's license before that
license is revoked.
Proposed Sec. 1307.3(b)(5)--Suspended by ACF (Note that proposed Sec.
1307.3(b)(5) has been changed to Sec. 1307.3(e) in the final rule.)
1. Comment: Many commenters agreed that agencies that have been
suspended by ACF should have to compete for renewed funding. Other
commenters stated that the condition only should apply after an agency
has exercised all of its due process rights afforded under the appeals
process and after final decisions have been made in that appeal
process. A few commenters raised the concern that smaller entities may
not have adequate resources to appeal a suspension. One commenter
[[Page 70021]]
suggested that suspension should not be counted as meeting the
condition if a grantee was reinstated. One commenter stated that ACF
should ensure that the reason for the suspension was related to the
Head Start program. Another commented that suspension was already a
tool ACF could use in finding a grantee unsuited for maintaining
Federal funding.
Response: Under 45 CFR 1303.12(a), a grantee can be subject to
summary suspension if it is at ``[a] serious risk of: (1) Substantial
injury to property or loss of project funds; or (2) Violation of a
Federal, State or local criminal statute; or (3) If staff or
participants' health and safety are at risk.'' Suspension under 45 CFR
1303.11 only can be based on ``circumstances related to a particular
grant, such as ineffective or improper use of Federal funds or for
failure to comply with applicable laws, regulations, policies,
instructions, assurances, terms and conditions or, in accordance with
Part 1302 of this chapter, upon loss by the grantee of legal status or
financial viability.'' Regulations implemented at 45 CFR 1303.10(a)
specify that a suspension of either type involves a finding by ACF that
a grantee has either failed to live up to one or more standards
applicable to Head Start grantees or is at risk for misusing Head Start
funds, violating a criminal statute, or harming its staff or program
participants. The grounds for suspension and summary suspension are
also grounds for finding that the grantee is not conducting a high
quality program and should be required to compete for funding.
ACF considered all the comments submitted related to suspension and
is making one change in the final rule. We have modified the rule so
that if there is a pending appeal and the agency did not have an
opportunity to show cause as to why the suspension should not have been
imposed or why the suspension should have been lifted if it had already
been imposed under 45 CFR Part 1303, the agency will not be required to
compete based on this condition. If an agency has received an
opportunity to show cause, the condition will be implemented regardless
of appeal status, since the performance issues that would lead ACF to
suspend a grantee are so serious--and are exercised with such
infrequency--that to delay a competition in that service area would not
be in the best interest of the children and families in that community.
Proposed Sec. 1307.3(b)(6)--Debarred From Receiving Federal Funds or
Disqualified From CACFP (Note that proposed Sec. 1307.3(b)(6) has been
changed to Sec. 1307.3(f) in the final rule.)
1. Comment: In Sec. 1307.3(b)(6) of the NPRM, ACF proposed that a
grantee be required to compete that ``has been debarred from receiving
Federal or State funds from any Federal or State department or agency
or has been disqualified from the Child and Adult Care Food Program
(CACFP) any time during the period covered by the designated ACF
official's review under Sec. 1307.7 but has not yet been terminated or
denied refunding by ACF.'' A majority of respondents were supportive of
this condition. Some respondents raised questions about aspects of
debarment and disqualification and implementation of this condition
such as noting that the debarment condition is duplicative because an
agency that has been debarred from receiving Federal funds already
would have lost its Head Start grant. One commenter suggested that
programs disqualified from CACFP due to errors should not have to
recompete.
A number of respondents raised concerns that only a final debarment
or disqualification decision should be considered, allowing the grantee
to go through the entire appeal process and exercise all due process
rights. Several commenters recommended that if a delegate agency is
debarred, the grantees should terminate the delegate and the grantee
should not be required to compete.
Response: ACF considered the comments received and has not changed
the policy in the final rule. Debarment is grounds for a deficiency
finding under the statutory definition of that term, and indicates an
agency's failure to administer a high-quality program. Head Start
grantees are eligible to receive funding under the Department of
Agriculture's (USDA) Child and Adult Care Food Program (CACFP) for the
food served to children at the meals provided by the Head Start
program. If a grantee were disqualified from the USDA program, the
grantee would not receive funding for the food served to children in
the program. Under 45 CFR 1304.23(b)(1)(i), all grantees are required
to use CACFP funds as the first source of funding for program meals
under the regulations; therefore, disqualification would mean that the
grantee had lost a major funding source for the meals and snacks served
in the programs. In addition to requiring grantees to report on this
condition, ACF will work with USDA's Food and Nutrition Services (FNS)
to receive information about grantees that have been disqualified and
will check that information against grantee reporting.
Proposed Sec. 1307.3(b)(7)--Audit Findings (Note that proposed Sec.
1307.3(b)(7) has been changed to Sec. 1307.3(g) in the final rule.)
1. Comment: Commenters raised concerns about the performance of the
audits. Many focused on the issue of using A-133 audit findings or
State agency audit, review or investigation findings to trigger
recompetition automatically. Many commenters stated that ACF would be
delegating its statutory duties to third parties. Others stated that by
accepting the findings of outside sources, ACF would be denying the
grantee's due process. Although many agreed with the intent of this
condition, they recommended that qualified fiscal officers or Certified
Public Accountants within the Office of Head Start be tasked with
reviewing the outside audit results.
A small number of commenters expressed concerns that auditors could
lose some of their independence if they realized that their findings
could cause grantees to face competition.
Other commenters supported the need to have strong, financially
sound grantees. Some commenters were concerned with the idea of
allowing only one material weakness, which might be a minor problem, to
lead to a recompetition. They stated that ACF should instead look for a
pattern of problems indicating a grantee's financial weakness that
could place Federal funds at risk.
Response: In response to comments, ACF is removing the material
weakness component from the proposed condition. ACF has concluded that
while in many instances a single finding of material weakness
represents a serious issue, that there are instances where a material
weakness finding would not be adequate as a singular indicator of
program quality that would trigger competition.
Nevertheless, ACF takes audit findings seriously and for any year
in which an entity's audit as required by OMB Circular A-133 classifies
Head Start as a major program and the report to the Federal Audit
Clearinghouse (FAC) shows other than an unqualified (``clean'') opinion
(e.g., qualified opinion, adverse opinion, or disclaimer of opinion)
for the Head Start program, ACF will consider this as a ``red flag''
that will trigger additional fiscal oversight through on-going
monitoring and-additional targeted review, including unannounced on-
site
[[Page 70022]]
monitoring reviews, to make a determination (concurred in by program
officials and senior ACF management) as to whether the issue identified
raises to the level of a deficiency as defined in the Act. Failure to
complete the required audit under OMB Circular A-133 and submit the
results to the FAC will be considered a ``red flag'' in the same
manner. If the fiscal issue identified does lead to a deficiency in
Head Start monitoring, that deficiency finding would lead to
competition under Sec. 1307.3(a).
Since inability to continue to operate as a going concern is a more
serious problem, ACF is maintaining this part of the proposed condition
with the same definition and the same time frame as proposed in the
NPRM.
Aside from that modification, this condition remains unchanged. In
response to concerns commenters raised that ACF is impermissibly
delegating its responsibility to non-federal auditors, note that the
final regulation still requires that ACF review the auditor's findings
before making the final decision to require the grantee to compete
based upon an auditor's findings.
Proposed Sec. 1307.3(c)--Possible Eighth Condition
1. Comment: ACF received a significant number of comments related
to possible additional criteria (an eighth condition) that would be
utilized if the seven conditions outlined in proposed Sec.
1307.3(b)(1)-(7) of the NPRM did not result in 25 percent of grantees
competing in a given review cycle. Nearly all of the comments opposed,
the inclusion of additional criteria for the purpose of reaching a
minimum percent of grantees competing because of concerns about setting
a 25 percent quota for redesignation. These comments stated that a 25
percent quota does not reflect Congressional intent.
Response: As explained above in the discussion regarding proposed
Sec. 1307.3(a), we replaced the 25 percent minimum requirement with
the two-part CLASS criteria and have made a conforming change to Sec.
1307.3(c). A discussion of comments received on the proposed additional
criteria that were open for public comment and our responses to these
comments follows, although neither of these criteria was incorporated
into the final rule.
2. Comment: In the preamble text of the NPRM, ACF requested
comments on two possible approaches to defining additional criteria to
be met if needed to satisfy the 25 percent minimum standard. Commenters
stated that even though ACF described in general terms two approaches
under consideration for reaching the minimum requirement of grantees
competing (i.e., assigning values to noncompliances, using evidence-
based rating tools or some combination), the NPRM does not describe
adequately these criteria or how they would be used in the Designation
Renewal System.
Comments also were received specific to each of the two possible
approaches to defining additional criteria. The first approach would
use noncompliance findings from monitoring reviews by assigning a value
to each noncompliance, weighting more serious or problematic
noncompliances more heavily, and giving each grantee an overall score
for noncompliances. Many respondents objected to the inclusion of
noncompliances entirely, stating that the term ``noncompliance'' is
broad and captures such a continuum of violations--from minor
infractions to more serious health and safety issues--which respondents
stated might not be indicative of poor performance. Respondents
emphasized that using such a broad framework is inappropriate as a
basis for measuring program quality.
Many respondents stated that an approach that involves a ranking
system and complex scoring of noncompliances would be burdensome to ACF
and to grantees and contrary to the requirement that the Designation
Renewal System be reliable and transparent. Several comments questioned
why ACF would create a separate ranking system, in addition to the
existing review processes in place. ACF also requested public comment
specifically on the relative weighting of noncompliance findings,
whether some noncompliances should be weighted more heavily than
others, and whether the size of the grantee should be a factor taken
into consideration in the ranking system. In response, many respondents
stated that selecting which noncompliance findings should be included
and what their relative weighting should be is arbitrary and introduces
a high level of subjectivity that makes measuring quality consistently
across programs difficult. Respondents questioned how ACF would
distinguish between noncompliance findings and determine which are most
important. Other comments, while objecting generally to using
noncompliance findings, stated that weighting noncompliances would be a
logical step if noncompliances were used. These respondents stated that
some noncompliance should be weighted more heavily than others and
doing so would prevent minor issues from requiring grantees to compete.
Response: We appreciate the comments and recommendations
respondents offered regarding the use of noncompliances as an
additional criterion to reaching a 25 percent minimum of grantees
competing. While ACF believes that noncompliance findings as a category
are integral to the monitoring process and that such findings are
critical to understanding whether grantees are meeting the Head Start
Program Performance Standards, we are not using them for the purpose of
designation renewal, provided that grantees correct them in the
specified timeframes; uncorrected noncompliance findings that become
deficiencies still will be included in the Designation Renewal System
as part of the deficiency condition under Sec. 1307.3(a). We agree
that noncompliances represent a broad range of areas and believe that
assigning values for purposes of determining which grantees compete
would be difficult and imprecise. In response to comments and because
the deficiency condition already is inclusive of uncorrected
noncompliances, we have not added a condition related to noncompliance
in the final rule.
3. Comment: Many comments also were received related to the second
approach to defining additional criteria that would introduce the use
of evidence-based rating instruments (e.g., the Early Childhood
Environmental Rating Scale, Infant and Toddler Environment Rating
Scale, and the Family Child Care Environment Rating Scale) into the
Head Start monitoring review system. Some of the comments received
expressed a preference for use of the environment rating scales (ERS)
over noncompliance data if the proposed 25 percent minimum standard is
maintained in the final rule and one of the two proposed additional
criteria must be selected.
Although comments supporting the use of ERS were received and many
stated that they held the ERS instruments in high regard, the majority
of commenters expressed concerns and objected to the use of ERS as
criteria for determining whether grantees would have to compete for
renewed funding. Commenters viewed the ERS as primarily input driven
(e.g., focusing on furnishings, personal care, and the structure of
activities) and would not capture some of the central features of the
program, such as comprehensive services. A concern also was raised that
the ERS focuses on the classroom environment and does not give
attention to governance or administrative structures. Many commenters
also expressed concerns that the ERS does
[[Page 70023]]
not provide a thorough assessment of the central element of quality for
children under three--the relationship between caregiver, child, and
family.
We also received numerous comments expressing concerns about the
implementation of ERS in the monitoring review system and as a
condition for designation renewal. Some commenters expressed concerns
over the complexity of the administration of the ERS, noting that they
are sophisticated instruments, requiring reviewers to make subjective
judgments on some 40 different dimensions of classroom quality.
Concerns were raised around the cost and burden associated with the
need for appropriate training of teams of outside professional
reviewers and ongoing monitoring of inter-rater reliability.
Response: We appreciate the comments and suggestions received
regarding the proposed use of ERS as additional criteria to identify
grantees for competition if the 25 percent minimum standard is not met
through the seven conditions. We believe the ERS instruments are high
quality, research-based measures of the quality of the environment in
early childhood settings, including Head Start and Early Head Start.
However, we also agree with comments regarding the limitations of the
instruments (i.e., they are not able to capture some of the key
features of quality of Head Start and Early Head Start programs) and
view them as overlapping to some extent with existing measures, such as
the monitoring reviews. As a result, as indicated previously, we
replaced the proposed 25 percent threshold in this final rule and
modified the CLASS: Pre-K related criteria to have two subparts to
ensure that there is robust competition.
Proposed Sec. 1307.4--Grantee Reporting Requirements Concerning
Certain Conditions
1. Comment: In the NPRM, we proposed that Head Start agencies must
report in writing to the designated ACF official within 10 working days
of the occurrence any of the following events: (1) The agency has had a
revocation of a license to operate a center by a State or local
licensing entity; (2) the agency has filed for bankruptcy or agreed to
a reorganization plan as part of a bankruptcy settlement; (3) the
agency has been debarred from receiving Federal or State funds from any
Federal or State department or agency or has been disqualified from the
Child and Adult Care Food Program (CACFP); and (4) the agency has
received an audit, audit review, investigation or inspection report
from the agency's auditor, a State agency, or the cognizant Federal
audit agency containing a determination that the agency is at risk for
ceasing to be a going concern. Commenters raised concern that it is an
undue burden on programs to provide this information and that ACF
should be able to collect this information. In addition, some
commenters agreed that reporting this information was necessary but
that the 10-day time frame was not feasible.
Response: We are not making any changes to the requirement for
grantees to report to ACF on these four conditions. We believe that
each of these conditions indicates a serious problem and that ACF
should know about them as soon as possible so that appropriate action
can be taken. The most efficient method for ACF to learn of these
conditions is to require grantees to report them directly.
However, in response to comments, we have made a couple of changes
to the final reporting requirements. First, based on comments that
license revocation is a serious and problematic occurrence, we have
modified the reporting requirements for certain events based on whether
they occurred before or after the effective date of the Part.
Specifically, for licensing revocations, we require that Head Start
agencies must report in writing to the responsible HHS official within
30 working days of the effective date of this Part if the agency has
had a revocation of a license to operate a center by a State or local
licensing entity during the period between June 12, 2009, and the
effective date of this Part. This modification to the NPRM was made
since there is not a source of information for ACF to check to
determine whether a grantee had its license revoked.
Regarding reporting of debarment and disqualification from CACFP,
many commenters suggested that HHS use existing sources of information
rather than having grantees report. In the case of debarment from
Federal funds, there is a database that is publicly available. As
proposed in the NPRM, ACF still will still require grantees to report
on this condition. We also will check the information grantees provide
against the national List of Excluded Parties. Regarding CACFP
disqualification, the National Disqualified List is not part of the
other Federal funding database nor is the list publicly available or
available to other Federal agencies. Grantees will be required to
report CACFP disqualification and ACF will work with USDA
(administering agency for CACFP) to acquire this information as well.
While we appreciate comments asking for a longer timeframe to
report, we have retained the 10 day requirement due to the very serious
nature of these events. HHS believes that each of these conditions is
so serious that we should be notified as soon as possible. We believe
that it does not put an undue burden on programs to report within 10
working days.
Proposed Sec. 1307.5--Requirements To Be Considered for Designation
for a Five-year Period When the Existing Entity in a Community Is Not
Determined To Be Delivering a High-quality and Comprehensive Head Start
Program and Is Not Automatically Renewed
1. Comment: A few comments were received on the application process
described in this section for cases where the existing grantee in a
community is not determined to be delivering a high-quality program and
so there will be a competition in that community. Those comments
expressed confusion about the provision and asked for clarification in
the final rule. The commenters on this provision expressed strong
concern in all cases when there is a transition between grantees.
Commenters also asked whether grantees that voluntarily relinquished
their grant would be considered a terminated grantee and therefore
prohibited from applying from competition.
Response: This language is taken directly from the description of
DRS in the Act at section 641(d) but we have added additional language
for clarification. We also clarify that the criteria at section 641(d)
of the Act apply to Head Start.
As proposed in the NPRM, terminated grantees will be excluded from
competing for funding for the next five years. This provision applies
beginning with the effective date of the regulation and that exclusion
is for a five-year period beginning with the former grantee's
termination by ACF. We have clarified that this only applies to
grantees terminated for cause. ACF has made one modification to 1307.5,
however; similar to terminated grantees, a Head Start or Early Head
Start agency that has had a ``denial of refunding,'' defined in 45 CFR
1303.2, is also excluded from competing for the next five years. ACF
has added the reference to denials of refunding because denials of
refunding are made on the same grounds as terminations and have the
same effect under 45CFR 1303.15(c). A determination that a grantee will
not be awarded funding noncompetitively is not a denial of refunding
and in no way limits the ability of that grantee to apply for funding.
[[Page 70024]]
ACF acknowledges concerns about continuity of Head Start services
and always seeks to minimize disruption in services to children and
families. In cases in which a new grantee is selected as a result of
recompetition, ACF believes that the transition generally will proceed
without significant disruption of services to children and families in
the community served. If ACF determines that a particular transition
poses a risk of disruption of services, ACF may exercise its statutory
authority to appoint an interim grantee in exceptional circumstances.
Proposed Sec. 1307.6--Tribal Government Consultation Under the
Designation Renewal System for When an Indian Head Start Is Being
Considered for Competition
1. Comment: Many commenters expressed concern that there had not
been appropriate Tribal consultation on the proposed regulation. Some
commenters mentioned that all grantees should have the same process for
Tribal programs. Commenters said that MSHS grantees and rural grantees
especially should be allowed to comply with the same provisions as
described for Tribal programs.
Response: Because this rule simply implements the specific
redesignation provisions related to Tribes that are required by the
Act, the policies related to Tribal programs proposed in the NPRM are
maintained.
Regarding concerns about consultation, consistent with Executive
Order 13175, the Department of Health and Human Services (HHS) has
established a Tribal Consultation Policy (Policy).
This Policy affirms the authority of HHS to utilize notice and
comment rulemaking as one form of consultation. ACF consulted with
Tribes by raising the issues related to the Designation Renewal System
at OHS Tribal consultations in 2009 and 2010 and by providing the 90-
day opportunity to submit comments on this NPRM.
Proposed Sec. 1307.7--Designation Request and Review Process. (Note
that the proposed title of Sec. 1307.7 ``Designation request and
review process'' has been changed to ``Designation request, review and
notification process'' in the final rule.)
1. Comment: Commenters raised concerns that requiring grantees to
apply to have their funding renewed without competition is burdensome
to grantees and could result in programs not being considered if they
miss the deadline to submit the paperwork.
Response: While ACF appreciates the comments on this provision, we
are unable to change this provision because of the statutory
requirement at Section 641(b) entitled ``Application for Designation
Renewal'' which states ``to be considered for designation renewal, an
entity shall submit an application to the Secretary, at such time and
in such manner as the Secretary may require.'' ACF has tried to make
this requirement that grantees officially apply for designation renewal
as least burdensome as possible. We have modified the final rule to
only require that grantees submit their intent to be considered for
designation renewal once during the transition period and during the
period after the transition only once during the five year grant
period.
2. Comment: Commenters also expressed concern over the proposed
three-year transition period and suggested that the transition period
be lengthened to five years. Commenters suggested ACF make it clear
that reviews under the Designation Renewal System taking place after
the transition period focus on findings since the beginning of a
grantee's current grant.
Response: Since the transition period of three years is established
under section 641(c)(9) of the Act, we do not have the authority to
modify its length. Therefore, we have not made any changes to the
timeframe of the transition period in the final regulation. After the
transition period, the time periods for relevant data will be only
within that five-year grant period, as explained in final Sec.
1307.7(b)(3).
3. Comment: Some commenters were confused about whether the
designation review process was another on-site review separate from the
on-site monitoring reviews required under section 641A(c)(1) of the
Act.
Response: In response to comments, ACF has amended this section to
explain the process more clearly. We also note that the DRS review is
separate from the monitoring reviews required under section
641A(c)(1)(A), (C), or (D) of the Act. The language in final Sec.
1307.7(b) explains that the DRS reviews under Part 1307 consist of an
ACF review of data to determine if one or more of the conditions under
Sec. 1307.3 had been met by the Head Start and Early Head Start
agency's program. This DRS review is a review of all performance data
available on a grantee, and is consistent with the focus on continuous
program improvement by Head Start. It is not intended to comprise an
additional on-site review, data from the monitoring reviews required
under section 641A(c)(1)(A), (C), or (D) of the Act will be used in the
DRS determination.
Final Sec. 1307.7(b) also describes the data that will be reviewed
by ACF for three distinct time periods. First, Sec. 1307.7(b)(1)
explains that during the first year of the transition period, ACF will
review the data on each Head Start and Early Head Start agency to
determine if any of the conditions under final Sec. 1307.3(a) or (d)-
(g) (i.e., the five conditions excluding the school readiness goals and
CLASS: Pre-K conditions) were met by the agency's program since June
12, 2009. As explained previously, we have maintained the beginning
date of June 12, 2009, on which data will be considered for the
conditions described under final Sec. 1307.3(a) and (d)-(g) (proposed
Sec. 1307.3(b)(1) and (4)-(7)). However we will not consider the
school readiness condition described under Sec. 1307.3(b) (proposed
Sec. 1307.3(b)(2)) during the timeframe that had been proposed in the
NPRM. Instead, this condition will be applied using data beginning
after the effective date of this part during the second year of the
transition period, as explained below. We maintain the provision in the
NPRM that we will use data for the condition described under final
Sec. 1307.3(c) (proposed Sec. 1307.3(b)(3)) beginning on the
effective date of this part but have changed the timing of when this
will be used in the transition. In the final regulation, the results of
the CLASS: Pre-K Instrument obtained in on-site reviews under Section
641A of the Act after the effective date of the regulation will be used
to determine if grantees will have to compete for further funding. For
reasons already noted, we will use CLASS: Pre-K data in the second year
of the transition.
Then, during the remainder of the transition period, Sec.
1307.7(b)(2) explains that ACF will review the data on each Head Start
and Early Head Start agency still operating under grants with
indefinite project periods and for whom ACF has relevant data on the
conditions in Sec. 1307.3(a) through (g) to determine if any of the
conditions under Sec. 1307.3(a) or (d) through (g) were met by the
agency's program since June 12, 2009, or if the conditions under Sec.
1307.3(b) or (c) existed in the agency's program since the effective
date of this Part. This means, that over the course of the transition
period, no program will receive a Head Start or Early Head Start grant
automatically before being judged on all of the criteria. If a program
meets one or more of the criteria, the program will have to compete to
receive continued funding.
[[Page 70025]]
The table below is provided to illustrate which criteria will be
considered during the relevant periods.
----------------------------------------------------------------------------------------------------------------
1307.3 Conditions to be considered
(specific provisions in 1307.3 have been
Time period abbreviated in this table, see 1307.3 Designation renewal review
for full text of conditions)
----------------------------------------------------------------------------------------------------------------
Year 1 of Transition.................. (a) A deficiency on a review conducted Data on all grantees
under Section 641A. will be reviewed.
(d) Revocation of a License to Operate.. Those meeting any of
(e) Suspension by OHS................... the conditions of 1307.3(a),
(f) Debarred from receiving state or (d), (e), (f) or (g) from
federal funds or Disqualified from data collected since June 12,
CACFP.. 2009 will be required to
(g) Audit finding of being at risk of compete.
failing to continue functioning as a No grantees will be
Going Concern.. moved to five year grants non-
competitively this year.
Remainder of Transition............... (a) A deficiency on a review conducted All grantees still
under Section 641A. under continuous grants and
(b) Failure to establish program goals that ACF has complete data on
for improving the school readiness of the conditions of 1307.3(b)-
children and taking steps to achieve (c) will have their data
those school readiness goals.. reviewed to determine if they
(c) Low CLASS scores as described in meet those conditions since
1307.3(c).. the effective date of this
(d) Revocation of a License to Operate.. rule.
(e) Suspension by OHS................... All grantees still
(f) Debarred from receiving state or under continuous grants will
federal funds or Disqualified from have their data reviewed to
CACFP.. determine if they meet the
(g) Audit finding of being at risk of conditions of 1307.3(a), (c),
failing to continue functioning as a (d), (e), (f) or (g) since
Going Concern.. June 12, 2009.
Five Year Grant Period................ (a) A deficiency on a review conducted ACF will review the
under Section 641A. data on each Head Start and
(b) Failure to establish program goals Early Head Start agency in
for improving the school readiness of the fourth year of the grant
children and taking steps to achieve to determine if any of the
those school readiness goals.. conditions under Sec.
(c) Low CLASS scores as described in 1307.3 existed in the
1307.3(c).. agency's program during the
(d) Revocation of a License to Operate.. period of that grant.
(e) Suspension by OHS...................
(f) Debarred from receiving state or
federal funds or Disqualified from
CACFP..
(g) Audit finding of being at risk of
failing to continue functioning as a
Going Concern..
----------------------------------------------------------------------------------------------------------------
We explain in Sec. 1307.7(b)(3) that following the transition
period, ACF will review the data on each Head Start and Early Head
Start agency in the fourth year of the grant to determine if any of the
conditions under Sec. 1307.3 existed in the agency's program during
the period of that grant.
In final Sec. 1307.7(c), we explain the method ACF will follow to
provide notice to grantees on their Designation Renewal System status
during each of the time periods. We also note that this process does
not apply for Tribal Head Start programs; the process for those
grantees is described under Sec. 1307.6. In the NPRM, ACF proposed
sending grantees a preliminary notice 6 months prior to the ending of
their grant to indicate whether they would be required to recompete. In
response to public comment, this provision has been removed from the
final rule because it is not necessary and causes additional burden on
ACF and grantees.
In Sec. 1307.7(c)(1), we explain that during the first year of the
transition period, ACF will give written notice to all grantees meeting
any of the conditions under Sec. 1307.3(a) or (d)-(g) since June 12,
2009, by certified mail return receipt requested or other system that
establishes the date of receipt of the notice by the addressee, stating
that the agency will be required to compete for funding for an
additional five-year period. All other grantees that did not meet any
of the conditions under Sec. 1307.3(a) or (d)-(g) will remain under
indefinite project periods until the time period specified in Sec.
1307.7(c)(2).
In Sec. 1307.7(c)(2), we explain that during the remainder of the
transition period, ACF will give written notice to all grantees still
under grants with indefinite project periods on the conditions in Sec.
1307.3(a)-(g) by certified mail return receipt requested or other
system that establishes the date of receipt of the notice by the
addressee. This written notice will state either that the agency will
be required to compete for funding for an additional five-year period
because ACF finds that one or more conditions under Sec. 1307.3 has
been met during the relevant time period described in paragraph (b) of
this section, will identify the conditions ACF found, and will
summarize the basis for the finding or that such agency has been
determined on a preliminary basis to be eligible for renewed funding
for five years without competition because ACF finds that none of the
conditions under Sec. 1307.3 have been met during the relevant time
period described in paragraph (b) of this section. However, we specify
that if prior to the award of that grant, ACF determines that the
grantee has met one of the conditions, this determination will change
and the grantee will receive notice that it will be required to compete
for funding for an additional five-year period.
In Sec. 1307.7(c)(3), we explain that following the transition
period, ACF will give written notice to all grantees at least 12 months
before the expiration date of an agency's five year grant period by
certified mail return receipt requested or other system that
establishes the date of receipt of the notice by the addressee, stating
the same information described under Sec. 1307.7(b)(2). In addition,
we specify that if prior to the award of that grant, ACF determines
that the grantee has met one or more of the conditions, this
determination will change and the grantee will receive notice that it
will be required to compete for funding for an additional five-year
period.
[[Page 70026]]
Proposed Sec. 1307.8--Use of CLASS: Pre-K Instrument in the
Designation Renewal System
1. Comment: Section 1307.8 specifically addresses the
implementation of CLASS: Pre-K in the Designation Renewal System. Many
commenters raised concerns that OHS does not follow the University of
Virginia's protocol in its use of CLASS: Pre-K. These comments stated
that ACF must adhere strictly to the protocol with respect to the
number of observation cycles, length and frequency of observations and
timing, and training of reviewers in order to maintain the integrity of
the CLASS: Pre-K tool in monitoring.
Response: ACF has worked with the developers in determining the
most appropriate number of observations. Although the Classroom
Assessment Scoring System manual describes that the recommended
protocol for conducting CLASS observations is four cycles in each class
that are each 30 minutes (i.e., 20-minute observe, 10 minute record),
the University of Virginia (UVA) has advised ACF that four cycles with
a single teacher, while appropriate for research, is not the best use
of resources when ACF's objective is to get a picture of classroom
quality at the grantee level. Instead, UVA has recommended a protocol
that involves fewer cycles per teacher, but that includes more
teachers. Given the importance of observing more classes, rather than
fewer classes for a longer period of time, ACF will conduct two cycles
in each class in the sample.
Further, data from the HHS Family and Child Experiences Survey
(FACES) study, which provides descriptive data on a nationally
representative sample of three and four-year olds entering Head Start,
reinforced ACF's decision to conduct two rather than four CLASS
observations. FACES data indicates that four CLASS observations were
not consistently conducted of all grantees, even though that was the
intention in the study design. Attempting to conduct four observations
in every monitoring review when it could not be accomplished in FACES,
and doing so on a scale much larger than the FACES study, likely would
result in differential treatment of grantees since some grantees would
likely get four observations and others would get fewer. Given the
importance of observing more classrooms, rather than fewer classrooms
for a longer period of time, ACF will conduct two cycles in each
classroom in the sample.
2. Comment: A number of respondents also raised concerns regarding
inconsistencies in how CLASS: Pre-K is used in monitoring and how
reviewers conduct the observations. Grantees from a particular State
relayed their experiences with a reviewer who did not follow the
process specified in the CLASS: Pre-K protocol. Other respondents
raised concern with the reliability of the CLASS: Pre-K instrument when
it is used at different times during the day or year. These comments
expressed concerns that grantees would be treated differently depending
on the time of day or season of the review or observations at a certain
point in time would not be a fair representation of classroom quality.
These comments stated that CLASS: Pre-K scores were lower, for example,
for programs reviewed in the spring than those reviewed in the winter.
Others raised concerns about the continued reliability of the
reviewers.
Response: ACF has focused considerable attention on its
implementation of the CLASS: Pre-K in the monitoring review system to
ensure that CLASS: Pre-K observations are conducted consistently across
monitoring reviews. In addition to developing a random sampling
methodology, ACF has integrated ongoing training for CLASS: Pre-K
reviewers to ensure their continued reliability, as well as a reviewer
double coding process to assure the consistency of the implementation.
``Double coding'' is a technical term that refers to the process of
using two reviewers during observational measures to ensure that both
reviewers reach the same conclusion, and it offers evidence of
reliability and consistency. ACF also has made the determination that
reviews will not be conducted in the first two and last two weeks of
the program year, as well as the two weeks surrounding the winter
holidays because grantees' classrooms when the program is beginning and
concluding its year, and preparing for the winter break, is not
representative of the environment during the program year. While ACF
has made some adjustments for time of year, we believe strongly that
children need to be in high-quality early childhood settings for the
entire length of their day; thus, we will continue to conduct CLASS:
Pre-K observations at any time throughout the day with the exception of
naptime and outdoor unstructured free play. Since all programs will be
observed at all points when they are operating, with the exception of
nap time and outdoor free play, we are confident that this is a fair
standard that will yield consistent results.
3. Comment: Many respondents raised concerns about the sampling
methodology used to determine which classrooms would be observed.
Respondents requested clarification on the ``subset of classrooms''
referenced as the sample in the NPRM and urged that the sample be
statistically valid.
Response: ACF has worked with statisticians to develop a
statistically sound methodology for sampling the center-based preschool
classes of grantees that will be observed using CLASS: Pre-K. This
methodology will select a random sample (subset) of each grantee's
classes and that subset will be representative of the grantee. The
sampling methodology ensures that a sufficient number of classes are
selected from across the grantee's total classes; as a result, the
resulting score will be generalizable to the grantee's total classes
overall. This approach also was vetted through an external review
process. For more information on ACF's sampling methodology, please
reference the following link: http://eclkc.ohs.acf.hhs.gov/hslc. As
noted previously, since ACF is implementing a significantly improved
and more rigorous random sampling of each grantee's classes,
determinations for designation renewal will be made based on the most
recent CLASS: Pre-K observation, rather than the two most recent CLASS:
Pre-K observations as was proposed in the NPRM.
VI. Paperwork Reduction Act
This rule establishes new information collection requirements in
Sec. 1307.4. As required by the Paperwork Reduction Act of 1995,
codified at 44 U.S.C. 3507, ACF will submit a copy of these sections to
the Office of Management and Budget (OMB) for review and they will not
be effective until they have been approved and assigned a clearance
number.
[[Page 70027]]
----------------------------------------------------------------------------------------------------------------
Average burden per
Requirement Respondents Annual respondent Total burden
(hours) hours
----------------------------------------------------------------------------------------------------------------
Per Sec. 1307.4, Head Start 20-40 grantees.... 1 hour or less.... 1 hour or less.... 20-40 hours.
and Early Head Start agencies
must report in writing to the
responsible HHS official within
30 working days of the
effective date of this Part if
the agency has had a revocation
of a license to operate a
center by a State or local
licensing entity during the
period between June 12, 2009
and the effective date of this
Part.
Following the effective date of
this Part, Head Start and Early
Head Start agencies must report
to ACF within 10 working days
of occurrence of any of the
following:
(1) The agency has had a
license to operate a center
revoked by a State or local
licensing entity.
(2) The agency has filed for
bankruptcy or agreed to a
reorganization plan as part
of a bankruptcy settlement.
(3) The agency has been
debarred from receiving
Federal or State funds from
any Federal or State agency
or has been disqualified
from The Child and Adult
Care Food Program (CACFP).
(4) The agency has received
an audit, audit review,
investigation or inspection
report from the agency's
auditor, a State agency, or
the cognizant Federal audit
agency containing a
determination that the
agency is at risk of
failing to function as a
going concern.
Per section 1307.7(a) each Head 1,600 grantees.... 1 hour or less.... 1 hour or less.... 1,600 hours.
Start or Early Head Start
agency wishing to be renewed
for five years without
competition shall request that
status from ACF.
Agencies required to compete 480 grantees...... 40 hours.......... 40 hours.......... 19,200 hours.
will have to complete
applications consistent with
the criteria at 1307.5.
----------------------------------------------------------------------------------------------------------------
In the NPRM we estimated the costs of implementing these
requirements to be approximately $481,000 annually across all 1,600
grantees. This estimate includes approximately $1,000 across all
grantees and $480,000 across those grantees that are required to submit
competitive applications.
We do not anticipate that Head Start agencies will be gathering new
information to accomplish these changes. They only will be required to
inform ACF if one of four events specified in Sec. 1307.4 has
occurred.
In the NPRM, ACF asked for public comments on collection of
information in the following areas:
(a) Evaluating whether the proposed collection is necessary for the
proper performance of the functions of ACF, including whether the
information will have practical utility;
(b) Evaluating the accuracy of ACF's estimate of the proposed
collection of information, including the validity of the methodology
and the assumptions used;
(c) Enhancing the quality, usefulness, and clarity of the
information to be collected; and
(d) Minimizing the burden of the collection of information on those
who are to respond, including through the use of appropriate automated,
electronic, mechanical, or other technology, e.g., permitting
electronic submission of responses.
We received some comments regarding the reporting requirements
proposed in Sec. 1307.4, which explained the grantee reporting
requirements concerning certain conditions. In the NPRM, we had
proposed that Head Start agencies must report in writing to the
designated ACF official within 10 working days of the occurrence any of
the following events: (1) The agency has had a revocation of a license
to operate a center by a State or local licensing entity; (2) the
agency has filed for bankruptcy or agreed to a reorganization plan as
part of a bankruptcy settlement; (3) the agency has been debarred from
receiving Federal or State funds from any Federal or State department
or agency or has been disqualified from the Child and Adult Care Food
Program (CACFP); and (4) The agency has received an audit, audit
review, investigation or inspection report from the agency's auditor, a
State agency, or the cognizant Federal audit agency containing a
determination that the agency is at risk for ceasing to be a going
concern. The specific concerns with this
[[Page 70028]]
proposed provision included: That it was an undue burden on programs to
provide this information, that ACF had not made clear what it intends
to do with this information and why it requires agencies to report,
that ACF had underestimated the cost to grantees of the reporting
requirements, and that ACF should be able to collect this information.
ACF has considered these comments and will maintain this provision in
the final regulation requiring grantees to report to ACF on these four
conditions. ACF believes that each of these conditions is a serious
problem and that ACF should know about the occurrence as soon as
possible so that appropriate action can be taken. The most efficient
method for ACF to learn of these conditions is to require grantees to
report them directly. As stated in the preamble to Sec. 1307.4, the
reporting timelines remain unchanged.
Commenters also stated that requiring grantees to apply to have
their funding renewed without competition is burdensome to grantees and
could result in programs not being considered if they miss the deadline
to submit the paperwork. As indicated earlier in this preamble, while
ACF appreciates the comments on this provision, we are unable to change
this provision because of the statutory requirement at section 641(b)
which states ``to be considered for designation renewal, an entity
shall submit an application to the Secretary.'' ACF has tried to make
this as least burdensome as possible and has modified the final rule to
only require grantees to submit their intent once during the transition
period and once during the five year grant period. Consistent with
comments received on the burden of preparing applications for
competitions, ACF has added an estimate of 40 hours of burden for the
roughly one-third of grantees that will be required to compete. This
has increased the burden estimate significantly.
VII. Regulatory Flexibility Act
The Secretary certifies that, under 5 U.S.C. 605(b), as enacted by
the Regulatory Flexibility Act (Pub. L. 96-354), this rule will not
result in a significant economic impact on a substantial number of
small entities. The actions required of grantees to comply with the
reporting, recordkeeping, and other requirements of this rule do not
require significant expenditures of funds.
Specifically, as noted under the Paperwork Reduction Act section of
this preamble, we estimate the cost of implementing new reporting
requirements to be approximately $481,000 annually, which when applied
to all 1,600 grantees nationally, results in a cost per grantee of less
than $300. This reflects approximately $1,000 in reporting requirements
across all grantees for the unusual events such as debarment or license
revocation and the estimated 480,000 in costs associated with
competitive applications for those grantees required to compete. As in
the NPRM, this assumes that agencies would not be gathering any new
information, since such information would have to be known to grantees
in order to efficiently manage their programs. In addition, only a
subset of the 1,600 grantees will be required to compete for renewal of
a grant under these regulations. We estimate that roughly one-third of
grantees reviewed in a review cycle will be affected by the regulation.
Those grantees that need to compete for another five-year grant are
required to submit an application. Since all grantees currently are
required to submit a refunding application each year for their
noncompetitive grant, there only will be an incremental increase in
costs for grantees that must prepare and submit a competitive
application. We estimate those costs to be less than $3,000 for each
grantee submitting a competitive application. In developing this
estimate, we assumed that it would take 40 hours for two senior level
staff and one administrative staff person to complete a refunding
application. Further, we assumed that grantees could spend more than
twice as much time preparing this competitive application as they do on
their regular annual refunding application.
These rules primarily are intended to ensure accountability for
Federal funds consistent with the purposes of the Head Start Act, to
ensure that communities receive the highest quality services available,
and are not duplicative of other requirements. In developing this rule,
we sought to implement the new and expanded requirements of the Head
Start Act in a manner that does not impinge on a small entity's ability
to design and manage effective and responsive Head Start programs. At
the same time, we sought to focus renewed attention on strengthening
accountability for Head Start programs and increasing program quality
and improving outcomes for low-income families. We believe this rule
implements the aims of the Head Start Act, as amended, to improve the
effectiveness of Head Start programs while preserving Head Start
grantees' abilities to continue using creativity and innovation to
promote the school readiness of children from low-income families. In
the NPRM, we had requested public comments on whether we have
adequately considered all costs for small entities and achieved the
balance described above. We received comments that we under-estimated
the costs associated with the application. In response, we have
increased the estimate significantly to assure we are adequately
reflecting the potential costs.
VIII. Regulatory Impact Analysis
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 in particular emphasizes the importance of quantifying both
costs and benefits, of reducing costs, of harmonizing rules, and of
promoting flexibility. The Department has determined that this rule is
consistent with these priorities and principles.
These regulations primarily implement statutory changes to the Head
Start program enacted in the Improving Head Start for School Readiness
Act of 2007 (Pub. L. 110-134). ACF does not believe there will be a
significant economic impact from this regulatory action. We estimate
that roughly one-third of grantees reviewed in each review cycle will
be affected by the regulation. The costs of implementation of these
rules for the subset of grantees that would be required to compete in
any year (estimated to be no more than $1,500 for each grantee), the
total cost per year resulting from this regulation is well under $1
million. This rule has been designated a ``significant regulatory
action'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, the rule has been reviewed by the
Office of Management and Budget.
These regulations are also consistent with section 6 of Executive
Order 13563, which directs agencies to engage in ``periodic review of
existing significant regulations'' and to ``promote retrospective
analysis of rules.'' These regulations grow out of a careful process of
review and retrospective analysis, and hence are part of a general
effort, in HHS and government-wide, to improve regulatory programs as a
result of ``what has been learned.''
[[Page 70029]]
IX. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 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 $136 million or more in any one
year. If an agency must prepare a budgetary impact statement, section
205 requires that it select the most cost-effective and least
burdensome alternative that achieves the objectives of the rule
consistent with the statutory requirements. Section 203 requires a plan
for informing and advising any small government that may be
significantly or uniquely impacted. The Department has determined that
this rule, in implementing the new statutory requirements, would 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 $136 million in any one year.
X. Congressional Review
This regulation is not a major rule as defined in 5 U.S.C. chapter
8.
XI. Executive Order 13132
Executive Order 13132, Federalism, requires that Federal agencies
consult with State and local government officials in the development of
regulatory policies with federalism implications. This rule will not
have substantial direct impact on the States, on the relationship
between the National Government and the States, or on the distribution
of power and responsibilities among the various levels of government.
Therefore, in accordance with section 6 of Executive Order 13132, it is
determined that this rule does not have sufficient federalism
implications to warrant the preparation of a federalism summary impact
statement.
XII. Treasury and General Government Appropriations Act of 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a
Family Policymaking Assessment for any rule that may affect family
well-being. This rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, ACF has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
List of Subjects in 45 CFR Part 1307
Education of disadvantaged, Grant programs--social programs.
(Catalog of Federal Domestic Assistance Programs Number 93.600, Head
Start)
Dated: September 8, 2011.
George H. Sheldon,
Acting Assistant Secretary for Children and Families.
Approved: September 30, 2011.
Kathleen Sebelius,
Secretary.
For the reasons set forth in the preamble, we amend 45 CFR Chapter
XIII by adding part 1307 to read as follows:
PART 1307--POLICIES AND PROCEDURES FOR DESIGNATION RENEWAL OF HEAD
START AND EARLY HEAD START GRANTEES
Sec.
1307.1 Purpose and scope.
1307.2 Definitions.
1307.3 Basis for determining whether a Head Start agency will be
subject to an open competition.
1307.4 Grantee reporting requirements concerning certain conditions.
1307.5 Requirements to be considered for designation for a five-year
period when the existing grantee in a community is not determined to
be delivering a high-quality and comprehensive Head Start program
and is not automatically renewed.
1307.6 Tribal government consultation under the Designation Renewal
System for when an Indian Head Start grant is being considered for
competition.
1307.7 Designation request, review and notification process.
1307.8 Use of CLASS: Pre-K Instrument in the Designation Renewal
System.
Authority: 42 U.S.C. 9801 et seq.
Sec. 1307.1 Purpose and scope.
The purpose of this Part is to set forth policies and procedures
for the designation renewal of Head Start and Early Head Start
programs. It is intended that these programs be administered
effectively and responsibly; that applicants to administer programs
receive fair and equitable consideration; and that the legal rights of
current Head Start and Early Head Start grantees be fully protected.
The Designation Renewal System is established in this Part to determine
whether Head Start and Early Head Start agencies deliver high-quality
services to meet the educational, health, nutritional, and social needs
of the children and families they serve; meet the program and financial
requirements and standards described in section 641A(a)(1) of the Head
Start Act; and qualify to be designated for funding for five years
without competing for such funding as required under section 641(c) of
the Head Start Act with respect to Head Start agencies and pursuant to
section 645A(b)(12) and (d) with respect to Early Head Start agencies.
A competition to select a new Head Start or Early Head Start agency to
replace a Head Start or Early Head Start agency that has been
terminated voluntarily or involuntarily is not part of the Designation
Renewal System established in this Part, and is subject instead to the
requirements of part 1302.
Sec. 1307.2 Definitions.
As used in this Part--
ACF means the Administration for Children and Families in the
Department of Health and Human Services.
Act means the Head Start Act, 45 U.S.C. 9831 et seq.
Agency means a public or private non-profit or for-profit entity
designated by ACF to operate a Head Start or Early Head Start program.
Aggregate child-level assessment data means the data collected by
an agency on the status and progress of the children it serves that
have been combined to provide summary information about groups of
children enrolled in specific classrooms, centers, home-based or other
options, groups or settings, or other groups of children such as dual
language learners, or to provide summary information by specific
domains of development.
Child-level assessment data means the data collected by an agency
on an individual child from one or more valid and reliable assessments
of a child's status and progress, including but not limited to direct
assessment, structured observations, checklists, staff or parent report
measures, and portfolio records or work samples.
Early Head Start agency means a public or private non-profit or
for-profit entity designated by ACF to operate an Early Head Start
program to serve pregnant women and children from birth to age three,
pursuant to section 645A(e) of the Head Start Act.
Going concern means an organization that operates without the
threat of liquidation for the foreseeable future, a period of at least
12 months.
Head Start agency means a local public or private non-profit or
for-profit entity designated by ACF to operate a Head Start program to
serve children age three to compulsory school age, pursuant to section
641(b) and (d) of the Head Start Act.
School readiness goals mean the expectations of children's status
and
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progress across domains of language and literacy development, cognition
and general knowledge, approaches to learning, physical well-being and
motor development, and social and emotional development that will
improve their readiness for kindergarten.
Transition period means the three-year time period after December
9, 2011, on the Designation Renewal System during which ACF will
convert all of the current continuous Head Start and Early Head Start
grants into five-year grants after reviewing each grantee to determine
if it meets any of the conditions under section 1307.3 that require
recompetition or if the grantee will receive its first five-year grant
non-competitively.
Sec. 1307.3 Basis for determining whether a Head Start agency will be
subject to an open competition.
A Head Start or Early Head Start agency shall be required to
compete for its next five years of funding whenever the responsible HHS
official determines that one or more of the following seven conditions
existed during the relevant time period covered by the responsible HHS
official's review under Sec. 1307.7 of this part:
(a) An agency has been determined by the responsible HHS official
to have one or more deficiencies on a single review conducted under
section 641A(c)(1)(A), (C), or (D) of the Act in the relevant time
period covered by the responsible HHS official's review under section
1307.7.
(b) An agency has been determined by the responsible HHS official
based on a review conducted under section 641A(c)(1)(A), (C), or (D) of
the Act during the relevant time period covered by the responsible HHS
official's review under Sec. 1307.7 not to have:
(1) After December 9, 2011, established program goals for improving
the school readiness of children participating in its program in
accordance with the requirements of section 641A(g)(2) of the Act and
demonstrated that such goals:
(i) Appropriately reflect the ages of children, birth to five,
participating in the program;
(ii) Align with the Head Start Child Development and Early Learning
Framework, State early learning guidelines, and the requirements and
expectations of the schools, to the extent that they apply to the ages
of children, birth to five, participating in the program and at a
minimum address the domains of language and literacy development,
cognition and general knowledge, approaches toward learning, physical
well-being and motor development, and social and emotional development;
(iii) Were established in consultation with the parents of children
participating in the program.
(2) After December 9, 2011, taken steps to achieve the school
readiness goals described under paragraph (b)(1) of this section
demonstrated by:
(i) Aggregating and analyzing aggregate child-level assessment data
at least three times per year (except for programs operating less than
90 days, which will be required to do so at least twice within their
operating program period) and using that data in combination with other
program data to determine grantees' progress toward meeting its goals,
to inform parents and the community of results, and to direct
continuous improvement related to curriculum, instruction, professional
development, program design and other program decisions; and
(ii) Analyzing individual ongoing, child-level assessment data for
all children birth to age five participating in the program and using
that data in combination with input from parents and families to
determine each child's status and progress with regard to, at a
minimum, language and literacy development, cognition and general
knowledge, approaches toward learning, physical well-being and motor
development, and social and emotional development and to individualize
the experiences, instructional strategies, and services to best support
each child.
(c) An agency has been determined during the relevant time period
covered by the responsible HHS official's review under Sec. 1307.7:
(1) After December 9, 2011, to have an average score across all
classrooms observed below the following minimum thresholds on any of
the three CLASS: Pre-K domains from the most recent CLASS: Pre-K
observation:
(i) For the Emotional Support domain the minimum threshold is 4;
(ii) For the Classroom Organization domain, the minimum threshold
is 3;
(iii) For the Instructional Support domain, the minimum threshold
is 2;
(2) After December 9, 2011, to have an average score across all
classrooms observed that is in the lowest 10 percent on any of the
three CLASS: Pre-K domains from the most recent CLASS: Pre-K
observation among those currently being reviewed unless the average
score across all classrooms observed for that CLASS: Pre-K domain is
equal to or above the standard of excellence that demonstrates that the
classroom interactions are above an exceptional level of quality. For
all three domains, the ``standard of excellence'' is a 6.
(d) An agency has had a revocation of its license to operate a Head
Start or Early Head Start center or program by a State or local
licensing agency during the relevant time period covered by the
responsible HHS official's review under Sec. 1307.7 of this part, and
the revocation has not been overturned or withdrawn before a
competition for funding for the next five-year period is announced. A
pending challenge to the license revocation or restoration of the
license after correction of the violation shall not affect application
of this requirement after the competition for funding for the next
five-year period has been announced.
(e) An agency has been suspended from the Head Start or Early Head
Start program by ACF during the relevant time period covered by the
responsible HHS official's review under Sec. 1307.7 of this part and
the suspension has not been overturned or withdrawn. If there is a
pending appeal and the agency did not have an opportunity to show cause
as to why the suspension should not have been imposed or why the
suspension should have been lifted if it had already been imposed under
45 CFR part 1303, the agency will not be required to compete based on
this condition. If an agency has received an opportunity to show cause,
the condition will be implemented regardless of appeal status.
(f) An agency has been debarred from receiving Federal or State
funds from any Federal or State department or agency or has been
disqualified from the Child and Adult Care Food Program (CACFP) any
time during the relevant time period covered by the responsible HHS
official's review under Sec. 1307.7 of this part but has not yet been
terminated or denied refunding by ACF. (A debarred agency will only be
eligible to compete for Head Start funding if it receives a waiver
described in 2 CFR 180.135.)
(g) An agency has been determined within the twelve months
preceding the responsible HHS official's review under Sec. 1307.7 of
this part to be at risk of failing to continue functioning as a going
concern. The final determination is made by the responsible HHS
official based on a review of the findings and opinions of an audit
conducted in accordance with section 647 of the Act; an audit, review
or investigation by a State agency; a review by the National External
Audit Review (NEAR) Center; or an audit, investigation or inspection by
the Department of Health and Human Services Office of Inspector
General:
[[Page 70031]]
Sec. 1307.4 Grantee reporting requirements concerning certain
conditions.
(a) Head Start agencies must report in writing to the responsible
HHS official within 30 working days of December 9, 2011, if the agency
has had a revocation of a license to operate a center by a State of
local licensing entity during the period between June 12, 2009, and
December 9, 2011.
(b) Head Start agencies must report in writing to the responsible
HHS official within 10 working days of occurrence any of the following
events following December 9, 2011:
(1) The agency has had a revocation of a license to operate a
center by a State or local licensing entity.
(2) The agency has filed for bankruptcy or agreed to a
reorganization plan as part of a bankruptcy settlement.
(3) The agency has been debarred from receiving Federal or State
funds from any Federal or State department or agency or has been
disqualified from the Child and Adult Care Food Program (CACFP).
(4) The agency has received an audit, audit review, investigation
or inspection report from the agency's auditor, a State agency, or the
cognizant Federal audit agency containing a determination that the
agency is at risk for ceasing to be a going concern.
Sec. 1307.5 Requirements to be considered for designation for a five-
year period when the existing grantee in a community is not determined
to be delivering a high-quality and comprehensive Head Start program
and is not automatically renewed.
In order to compete for the opportunity to be awarded a five-year
grant, an agency must submit an application to the responsible HHS
official that demonstrates that it is the most qualified entity to
deliver a high-quality and comprehensive Head Start or Early Head Start
program. The application must address the criteria for selection listed
at section 641(d)(2) of the Act for Head Start. Any agency that has had
its Head Start or Early Head Start grant terminated for cause in the
preceding five years is excluded from competing in such competition for
the next five years. A Head Start or Early Head Start agency that has
had a denial of refunding, as defined in 45 CFR 1303.2, in the
preceding five years is also excluded from competing.
Sec. 1307.6 Tribal government consultation under the Designation
Renewal System for when an Indian Head Start grant is being considered
for competition.
(a) In the case of an Indian Head Start or Early Head Start agency
determined not to be delivering a high-quality and comprehensive Head
Start or Early Head Start program, the responsible HHS official will
engage in government-to-government consultation with the appropriate
Tribal government or governments for the purpose of establishing a plan
to improve the quality of the Head Start program or Early Head Start
program operated by the Indian Head Start or Indian Early Head Start
agency.
(1) The plan will be established and implemented within six months
after the responsible HHS official's determination.
(2) Not more than six months after the implementation of that plan,
the responsible HHS official will reevaluate the performance of the
Indian Head Start or Early Head Start agency.
(3) If the Indian Head Start or Early Head Start agency is still
not delivering a high quality and comprehensive Head Start or Early
Head Start program, the responsible HHS official will conduct an open
competition to select a grantee to provide services for the community
currently being served by the Indian Head Start or Early Head Start
agency.
(b) A non-Indian Head Start or Early Head Start agency will not be
eligible to receive a grant to carry out an Indian Head Start program,
unless there is no Indian Head Start or Early Head Start agency
available for designation to carry out an Indian Head Start or Indian
Early Head Start program.
(c) A non-Indian Head Start or Early Head Start agency may receive
a grant to carry out an Indian Head Start program only until such time
as an Indian Head Start or Indian Early Head Start agency in such
community becomes available and is designated pursuant to this Part.
Sec. 1307.7 Designation request, review and notification process.
(a) Grantees must apply to be considered for Designation Renewal
(1) For the transition period, each Head Start or Early Head Start
agency wishing to be considered to have their designation as a Head
Start or Early Head Start agency renewed for a five year period without
competition shall request that status from ACF within six months of
December 9, 2011.
(2) After the transition period, each Head Start or Early Head
Start agency wishing to be considered to have their designation as a
Head Start or Early Head Start agency renewed for another five year
period without competition shall request that status from ACF at least
12 months before the end of their five year grant period or by such
time as required by the Secretary.
(b) ACF will review the relevant data to determine if one or more
of the conditions under Sec. 1307.3 of this part were met by the Head
Start and Early Head Start agency's program:
(1) During the first year of the transition period, ACF shall
review the data on each Head Start and Early Head Start agency to
determine if any of the conditions under Sec. 1307.3(a) or (d) through
(g) of this part were met by the agency's program since June 12, 2009.
(2) During the remainder of the transition period, ACF shall review
the data on each Head Start and Early Head Start agency still under
grants with indefinite project periods and for whom ACF has relevant
data on all of the conditions in Sec. 1307.3(a) through (g) of this
part to determine if any of the conditions under Sec. 1307.3(a) or (d)
through (g) were met by the agency's program since June 12, 2009, or if
the conditions under Sec. 1307.3(b) or (c) existed in the agency's
program since December 9, 2011.
(3) Following the transition period, ACF shall review the data on
each Head Start and Early Head Start agency in the fourth year of the
grant to determine if any of the conditions under Sec. 1307.3 of this
partexisted in the agency's program during the period of that grant.
(c) ACF will give notice to grantees on Designation Renewal System
status, except as provided in Sec. 1307.6 of this part:
(1) During the first year of the transition period, ACF shall give
written notice to all grantees meeting any of the conditions under
Sec. 1307.3(a) or (d) through (g) of this part since June 12, 2009, by
certified mail return receipt requested or other system that
establishes the date of receipt of the notice by the addressee, stating
that the Head Start or Early Head Start agency will be required to
compete for funding for an additional five-year period, identifying the
conditions ACF found, and summarizing the basis for the finding. All
grantees that do not meet any of the conditions under Sec. 1307.3(a)
or (d) thorugh (g) will remain under indefinite project periods until
the time period described under Sec. 1307.7(b)(2).
(2) During the remainder of the transition period, ACF shall give
written notice to all grantees still under grants with indefinite
project periods and on the conditions in Sec. 1307.3(a) through (g) by
certified mail return receipt requested or other system that
establishes the date of receipt of the notice by the addressee stating
either:
(i) The Head Start or Early Head Start agency will be required to
compete for funding for an additional five-year period because ACF
finds that one or more conditions under Sec. 1307.3(a) through (g) has
been met during the
[[Page 70032]]
relevant time period described in paragraph (b) of this section,
identifying the conditions ACF found, and summarizing the basis for the
finding; or
(ii) That such agency has been determined on a preliminary basis to
be eligible for renewed funding for five years without competition
because ACF finds that none of the conditions under Sec. 1307.3 of
this part have been met during the relevant time period described in
paragraph (b) of this section. If prior to the award of that grant, ACF
determines that the grantee has met one of the conditions under Sec.
1307.3 during the relevant time period described in paragraph (b) of
this section, this determination will change and the grantee will
receive notice under paragraph (c)(2)(i) of this section that it will
be required to compete for funding for an additional five-year period.
(3) Following the transition period, ACF shall give written notice
to all grantees at least 12 months before the expiration date of a Head
Start or Early Head Start agency's then current grant by certified mail
return receipt requested or other system that establishes the date of
receipt of the notice by the addressee, stating:
(i) The Head Start or Early Head Start agency will be required to
compete for funding for an additional five-year period because ACF
finds that one or more conditions under Sec. 1307.3 of this part were
met by the agency's program during the relevant time period described
in paragraph (b) of this section, identifying the conditions ACF found,
and summarizing the basis for the finding; or
(ii) That such agency has been determined on a preliminary basis to
be eligible for renewed funding for five years without competition
because ACF finds that none of the conditions under Sec. 1307.3 have
been met during the relevant time period described in paragraph (b) of
this section. If prior to the award of that grant, ACF determines that
the grantee has met one of the conditions under Sec. 1307.3 during the
relevant time period described in paragraph (b) of this section, this
determination will change and the grantee will receive notice under
paragraph (c)(3)(i) of this section that it will be required to compete
for funding for an additional five-year period.
Sec. 1307.8 Use of CLASS: Pre-K Instrument in the Designation Renewal
System.
Except when all children are served in a single classroom, ACF will
conduct observations of multiple classes operated by the grantee based
on a random sample of all classes and rate the conduct of the classes
observed using the CLASS: Pre-K instrument. When the grantee serves
children in its program in a single class, that class will be observed
and rated using the CLASS: Pre-K instrument. The domain scores for that
class will be the domain scores for the grantee for that observation.
After the observations are completed, ACF will report to the grantee
the scores of the classes observed during the CLASS: Pre-K observations
in each of the domains covered by the CLASS: Pre-K instrument. ACF will
average CLASS: Pre-K instrument scores in each domain for the classes
operated by the agency that ACF observed to determine the agency's
score in each domain.
[FR Doc. 2011-28880 Filed 11-8-11; 8:45 am]
BILLING CODE 4184-01-P