[Federal Register Volume 84, Number 127 (Tuesday, July 2, 2019)]
[Rules and Regulations]
[Pages 31660-31679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12286]
[[Page 31659]]
Vol. 84
Tuesday,
No. 127
July 2, 2019
Part II
Department of Education
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34 CFR Parts 200 and 299
Title I--Improving the Academic Achievement of the Disadvantaged and
General Provisions; Technical Amendments; Final Rule
Federal Register / Vol. 84 , No. 127 / Tuesday, July 2, 2019 / Rules
and Regulations
[[Page 31660]]
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DEPARTMENT OF EDUCATION
34 CFR Parts 200 and 299
[Docket ID ED-2018-OESE-0106]
RIN 1810-AB47, 1810-AB55
Title I--Improving the Academic Achievement of the Disadvantaged
and General Provisions; Technical Amendments
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Final rule with request for comments.
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SUMMARY: The Secretary is issuing this rule to align the regulations
with the Elementary and Secondary Education Act of 1965 (ESEA), as
amended by the Every Student Succeeds Act (ESSA).
DATES:
Effective date: These regulations are effective July 1, 2019.
Comment due date: We must receive your comments on or before August
1, 2019.
Approval of information collection requests: As of July 1, 2019,
the information collection requests associated with Sec. Sec. 200.83,
200.85, and 200.89 have been approved by OMB (OMB Control Numbers 1810-
0662, 1810-0683, and 1810-0662, respectively).
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments submitted by fax or by email or those submitted after
the comment period. To ensure that we do not receive duplicate copies,
please submit your comments only once. In addition, please include the
Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to www.regulations.gov to
submit your comments electronically. Information on using
Regulations.gov, including instructions for accessing agency documents,
submitting comments, and viewing the docket, is available on the site
under ``How to use Regulations.gov.''
Postal Mail, Commercial Delivery, or Hand Delivery. If you
mail or deliver your comments about these final regulations, address
them to Melissa Siry, U.S. Department of Education, 400 Maryland Avenue
SW, Room 3W104, Washington, DC 20202-5900.
Privacy Note: The Department's policy for comments received from
members of the public is to make these submissions available for public
viewing in their entirety on the Federal eRulemaking Portal at
www.regulations.gov. Therefore, commenters should be careful to include
in their comments only information that they wish to make publicly
available.
FOR FURTHER INFORMATION CONTACT: Melissa Siry, U.S. Department of
Education, 400 Maryland Avenue SW, Room 3W104, Washington, DC 20202-
5900. Telephone: (202) 260-0926. Email: [email protected].
If you use a telecommunications device for the deaf (TDD) or text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Invitation to Comment: These regulations do not establish
substantive policy changes, but instead make technical changes to
existing regulations. However, we are interested in whether any
additional technical changes are necessary to align these regulations
with the ESEA, as amended by the ESSA, and thus we are inviting your
comments. We will consider these comments in determining whether to
make further technical changes to the regulations or engage in
additional rulemaking. To ensure that your comments have maximum
effect, we urge you to identify clearly the specific section or
sections of the regulations that each of your comments addresses and to
arrange your comments in the same order as the regulations. See
ADDRESSES for instructions on how to submit comments.
We invite you to assist us in complying with the specific
requirements of Executive Orders 12866, 13563, and 13771 and their
overall requirements of reducing regulatory burden that might result
from these regulations. Please let us know of any additional ways we
could reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the
Department's programs and activities.
During and after the comment period, you may inspect all public
comments about these regulations by accessing Regulations.gov. You may
also inspect the comments in person in Room 3W104, 400 Maryland Avenue
SW, Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m.,
Eastern time, Monday through Friday of each week except Federal
holidays. If you want to schedule time to inspect comments, please
contact the person listed under FOR FURTHER INFORMATION CONTACT.
Assistance to Individuals with Disabilities in Reviewing the
Rulemaking Record: On request, we will provide an appropriate
accommodation or auxiliary aid to an individual with a disability who
needs assistance to review the comments or other documents in the
public rulemaking record for these regulations. If you want to schedule
an appointment for this type of aid, please contact the person listed
under FOR FURTHER INFORMATION CONTACT.
Significant Regulations
Executive Summary
Purpose of This Regulatory Action: The Secretary is issuing this
final rule to align the regulations in 34 CFR part 200 relating to
Title I of the ESEA and part 299 relating to general provisions of the
ESEA with changes made to the ESEA by the ESSA. These regulations make
only technical changes to existing regulations to align them with
statutory changes in the amended ESEA, along with one additional change
to align Sec. 200.64(b)(3)(ii)(A) with the U.S. Constitution in light
of the Supreme Court's decision in Trinity Lutheran Church of Columbia,
Inc. v. Comer, 137 S. Ct. 2012 (2017).
Summary of the Major Provisions of This Regulatory Action: As
described fully in the Background section below, for each change, we
summarize the current regulation, describe the change in these final
regulations, and explain the reasons for the change.
Costs and Benefits: Through this final rule, we make only technical
changes to align Department regulations with current law; we do not
establish any substantive requirements or policies beyond those in the
authorizing statute. Accordingly, the regulations do not impose any
costs, nor generally confer any benefits, that are not attributable to
statute. The technical amendments in this document serve in some cases
to revise existing regulations to conform with minor language updates
in statute, and in others to add to the regulations substantially new
statutory provisions, albeit verbatim and without interpretation. The
Department expects that States and local educational agencies (LEAs)
will use ESEA program funds, including funds reserved for
administration, to cover the estimated costs, and that any costs that
cannot be met with Federal resources will generally be minimal.
Moreover, we believe that the costs of these technical amendments are
outweighed by their anticipated benefits, which include, among other
things, consistency between the authorizing statute and implementing
regulations; increased transparency in State and local implementation
of Title I and other
[[Page 31661]]
ESEA programs; greater flexibility in the use of Federal program funds
to address local educational needs and improve educational outcomes;
improved services for students, including for eligible students in
private schools; and better student preparedness for college and the
workforce.
We discuss the technical amendments under the sections of the
regulations to which they pertain. We do not discuss changes to correct
cross-references to regulatory provisions and citations that are no
longer accurate due to statutory changes in the ESEA. We also do not
discuss renumbered paragraphs that are necessary to reflect other
technical changes.
I. Title I--Improving the Academic Achievement of the Disadvantaged
Background: The regulations in 34 CFR part 200 establish the
regulatory requirements for Title I of the ESEA, as amended by the No
Child Left Behind Act of 2001 (NCLB). In December 2015, Congress
reauthorized the ESEA through the ESSA. As a result of the amendments
to the statute through the reauthorization, some of the part 200
regulatory requirements were superseded and were, therefore, rescinded
by a rule published in the Federal Register on August 22, 2018
(Outdated or Superseded Regulations: Title I, Parts A through C;
Christa McAuliffe Fellowship Program; and Empowerment Zone or
Enterprise Community-Priority, 83 FR 42438). Other requirements in part
200 need minor modification to remain aligned with the statute; we are
making those minor modifications through these technical amendments.
34 CFR Part 200
Cross-Cutting
Current Regulations: Multiple provisions in part 200 establish
requirements related to a State's ``challenging academic content
standards'' and ``student academic achievement standards'' or,
collectively, its ``challenging academic content and student academic
achievement standards.''
Final Regulations and Reasons: In multiple provisions in part 200,
we are revising references to a State's ``challenging academic content
standards'' and ``student academic achievement standards,'' or to its
``challenging academic content and student academic achievement
standards'' to refer to a State's ``challenging academic content
standards and aligned academic achievement standards'' or ``challenging
State academic standards.'' The ESEA, as amended by the ESSA, requires
that a State adopt ``challenging academic content standards and aligned
academic achievement standards'' (ESEA section 1111(b)(1)(A)). For
provisions that follow Sec. 200.2 and that establish requirements for
challenging academic content standards and aligned academic achievement
standards, collectively, we use ``challenging State academic
standards.'' Per Sec. 200.2(b)(3)(i)(A) and consistent with ESEA
section 1111(b)(1)(A), ``challenging State academic standards'' is the
regulatory shorthand (for all regulatory provisions after Sec.
200.2(b)(3)(i)(A)) for ``challenging academic content standards and
aligned academic achievement standards.'' We are making this change in
the following sections:
Sec. 200.25(a)(1);
Sec. 200.26(a)(1)(i) introductory text;
Sec. 200.26(a)(1)(i)(B);
Sec. 200.26(b);
Sec. 200.26(c)(2);
Sec. 200.61(c)(2)(ii)(C);
Sec. 200.79(b)(1)(ii);
Sec. 200.79(b)(1)(iii); and
Sec. 200.79(b)(2)(i).
Standards and Assessments
Sec. 200.1 State responsibilities for developing challenging academic
standards.
Current Regulations: Current Sec. 200.1 establishes a State's
responsibilities with respect to the development of academic content
and academic achievement standards.
Final Regulations and Reasons: We make the following changes to
Sec. 200.1:
(1) Revise the language in Sec. 200.1(a)(2) establishing the
requirement that, except as provided in Sec. 200.1(d), a State's
academic achievement standards include the same knowledge and skills
expected of all students and the same levels of achievement expected of
all students. We are revising this language to use the precise
statutory language in ESEA section 1111(b)(1)(B)(ii), which requires a
State's academic achievement standards to ``include the same knowledge,
skills, and levels of achievement expected of all public school
students in the State.''
(2) Delete the language in Sec. 200.1(a)(3) indicating that a
State's academic standards must include science ``beginning in the
2005-2006 school year,'' and in Sec. 200.1(b)(3) that a State's
academic content standards must define the knowledge and skills that
all high school students are expected to know and be able to do in
science ``beginning in the 2005-2006 school year.'' These references
are outdated; the amended ESEA does not include a reference to the
2005-2006 school year with respect to academic standards for science.
(3) Using the statutory language in ESEA section 1111(b)(1)(D)(i),
add language to Sec. 200.1(c)(1)(i) to clarify that a State's
challenging academic achievement standards must be aligned ``with
entrance requirements for credit-bearing coursework in the system of
public higher education in the State and relevant State career and
technical education standards.''
(4) Add language to Sec. 200.1(c)(1)(ii)(A) to clarify that a
State's academic achievement standards must include, for each content
area, ``[n]ot less than three'' achievement levels. ESEA section
1111(b)(1)(A) requires each State to adopt challenging academic content
standards and aligned academic achievement standards, ``which
achievement standards shall include not less than 3 levels of
achievement.''
(5) Delete Sec. 200.1(c)(3), which was related to the adoption of
achievement levels in science by the 2005-2006 school year and the
establishment of cut scores for science assessments no later than the
2007-2008 school year. These references are outdated; the amended ESEA
does not contain references to the 2005-2006 or 2007-2008 school year
in relation to standards or assessments in science.
(6) Revise Sec. 200.1(d)(2), using the statutory language in ESEA
section 1111(b)(1)(E)(i)(II), to clarify that a State's alternate
academic achievement standards must promote access to the general
curriculum ``consistent with the IDEA'' (Individuals with Disabilities
Education Act).
(7) Revise the language in Sec. 200.1(d)(3) to use the precise
statutory language in ESEA section 1111(b)(1)(E)(i)(III), which
requires alternate academic achievement standards to reflect
professional judgment as to the ``highest possible standards achievable
by such students.''
(8) Add Sec. 200.1(d)(4) and (5) to incorporate the requirements
in ESEA section 1111(b)(1)(E)(i)(IV) and 1111(b)(1)(E)(i)(V),
respectively. ESEA section 1111(b)(1)(E)(i)(IV) requires that a State's
alternate academic achievement standards be designated in the
individualized education program developed under section 614(d)(3) of
the IDEA for each such student as the academic achievement standards
that will be used for the student. ESEA section 1111(b)(1)(E)(i)(V)
requires that a State's alternate academic achievement standards be
aligned to ensure that a student who meets the alternate academic
achievement standards is on track to pursue
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postsecondary education or employment, consistent with the purposes of
the Rehabilitation Act of 1973, as amended by the Workforce Innovation
and Opportunity Act, as in effect on July 22, 2014. We also clarify
that this requirement is consistent with Sec. 200.2(b)(3)(ii)(B)(2),
which also incorporates the requirement of ESEA section
1111(b)(1)(E)(i)(V).
(9) Revise the reference to ``students with disabilities'' in Sec.
200.1(e) to refer to ``children with disabilities.'' ESEA section
1111(b)(1)(E)(ii), which prohibits the development and implementation
of alternate or modified academic achievement standards that do not
meet the requirements in section 1111(b)(1)(E)(i), refers to ``children
with disabilities.''
(10) Clarify in Sec. 200.1(e) that a State may not define ``or
implement for use under subpart A of this part any alternate or''
modified academic achievement standards for children with disabilities
``that are not alternate academic achievement standards that meet the
requirements of'' Sec. 200.1(d). The updates parallel the requirement
in ESEA section 1111(b)(1)(E)(ii) that a State shall not develop, or
implement for use under this part, any alternate academic achievement
standards for children with disabilities that are not alternate
academic achievement standards that meet the requirements of ESEA
section 1111(b)(1)(E)(i).
(11) Replace current Sec. 200.1(f) with a provision that
incorporates the requirements of ESEA section 1111(b)(1)(F) regarding
English language proficiency standards. ESEA section 1111(b)(1)(F)
requires that a State adopt English language proficiency standards that
``are derived from the 4 recognized domains of speaking, listening,
reading, and writing''; ``address the different proficiency levels of
English learners''; and ``are aligned with the challenging State
academic standards.'' The current Sec. 200.1(f), which establishes
requirements for State guidelines for alternate academic achievement
standards, is no longer necessary because those requirements have been
updated and incorporated into Sec. 200.6(d), which was revised in
December 2016.
(12) Revise Sec. 200.1(a) introductory text, (a)(1), (c)(1), and
(d)(1) with minor conforming edits to be consistent with the amended
ESEA.
Participation in National Assessment of Educational Progress (NAEP)
Sec. 200.11 Participation in NAEP.
Current Regulations: Current Sec. 200.11 establishes requirements
related to a State's and an LEA's responsibilities with respect to
participation in NAEP and with respect to reporting results on NAEP.
Final Regulations and Reasons: We make the following changes to
Sec. 200.11:
(1) Delete the language in Sec. 200.11(a) indicating that a State
must participate in NAEP ``[b]eginning in the 2002-2003 school year.''
This language is outdated; the amended ESEA does not contain a
reference to the 2002-2003 school year in relation to a State's
obligation to participate in NAEP.
(2) Revise Sec. 200.11(b) to update the statutory reference that
authorizes NAEP.
(3) Revise Sec. 200.11(c) to incorporate the statutory language in
ESEA section 1111(h)(1)(C)(xii) clarifying that a State and an LEA,
respectively, must report on its report card the most recent available
academic achievement results on the State's NAEP ``compared to the
national average of such results.''
(4) Revise the reference in Sec. 200.11(c)(1) to reporting NAEP
results in the aggregate and disaggregated for each subgroup described
in Sec. 200.13(b)(7)(ii) to instead refer to reporting disaggregated
NAEP results for each subgroup described in ESEA section 1111(c)(2).
Section 200.13 was rescinded on August 22, 2018; ESEA section
1111(c)(2) is the equivalent statutory reference.
(5) Revise Sec. 200.11(c)(2) to require that a State and an LEA
report the NAEP participation rates for ``children with disabilities''
and ``English learners.'' Current Sec. 200.11(c)(2) requires reporting
the participation rates of ``students with disabilities'' and ``limited
English proficient students.'' The amended ESEA uses the terms
``children with disabilities'' and ``English learners'' to refer to
these subgroups of students (ESEA section 1111(c)(2)).
Schoolwide Programs
Sec. 200.25 Schoolwide programs in general.
Current Regulations: Current Sec. 200.25 establishes general
requirements for schoolwide programs, including the purpose of a
schoolwide program and the requirements for a school to be eligible to
operate a schoolwide program.
Final Regulations and Reasons: We make the following changes to
Sec. 200.25 (in addition to the change previously described in the
Cross-Cutting section):
(1) Add Sec. 200.25(b)(1)(iii), and a reference to Sec.
200.25(b)(1)(iii) in Sec. 200.25(b)(1)(ii), to incorporate the
flexibility provided in ESEA section 1114(a)(1)(B) for a school that
does not meet the 40 percent poverty threshold established in ESEA
section 1114(a)(1)(A) and set forth in Sec. 200.25(b)(1)(ii) to
operate a schoolwide program if the school receives a waiver from the
State to do so. ESEA section 1114(a)(1)(B) provides that a school that
does not meet the 40 percent poverty threshold may operate a schoolwide
program if the school receives a waiver from the State educational
agency to do so, after taking into account how a schoolwide program
will best serve the needs of the students in the school served under
the part in improving academic achievement and other factors.
(2) Revise Sec. 200.25(c) to align with the language of ESEA
section 1114(a)(2)(A), which provides that no school participating in a
schoolwide program shall be required to identify ``(i) particular
children under this part as eligible to participate in a schoolwide
program; or (ii) individual services as supplementary.''
(3) Revise Sec. 200.25(d) to add the statutory language in ESEA
section 1114(a)(2)(B), which provides that a school operating a
schoolwide program must use funds available to carry out ESEA section
1114 to supplement non-Federal funds ``[i]n accordance with the method
of determination described in section 1118(b)(2).''
(4) Revise the reference in Sec. 200.25(d) to ``children with
limited English proficiency'' to refer, instead, to ``English
learners.'' ESEA section 1114(a)(2)(B) uses the term ``English
learners.''
(5) Delete, in Sec. 200.25(f), the language referring to the
``Even Start'' and ``Early Reading First'' programs. These programs are
no longer authorized under the ESEA.
200.26 Core elements of a schoolwide program.
Current Regulations: Current Sec. 200.26 establishes the
requirements for the core elements of a schoolwide program, including a
comprehensive needs assessment of the entire school, a comprehensive
plan based on data from the comprehensive needs assessment, and an
annual evaluation of the schoolwide program.
Final Regulations and Reasons: We make the following changes to
Sec. 200.26 (in addition to the changes described in the Cross-Cutting
section):
(1) Revise the language in Sec. 200.26(a)(1)(i) to align with ESEA
section 1114(b)(6), which provides that a schoolwide program plan must
be based on a comprehensive needs assessment of the school ``that takes
into account information on the academic
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achievement'' of students in the school ``in relation to the
challenging State academic standards'' and ``any other factors as
determined by the [LEA].''
(2) Revise the language in Sec. 200.26(a)(1)(i)(B) to align with,
and incorporate the language from, ESEA section 1114(b)(6), which
provides, in pertinent part, that a schoolwide program plan must be
based on a comprehensive needs assessment that takes into account
information on the academic achievement of students, particularly the
needs of those students ``who are failing, or are at-risk [sic] of
failing, to meet the challenging State academic standards and any other
factors as determined by the local educational agency.''
(3) Replace the reference to Sec. 200.28 in Sec. 200.26(a)(1)(ii)
with a reference to section 1114(b)(7) of the ESEA. Section 200.28 was
rescinded on August 22, 2018; section 1114(b)(7) of the ESEA includes
the equivalent plan requirements.
(4) Revise the language in Sec. 200.26(b) regarding a
comprehensive schoolwide plan that describes how the school will
improve academic achievement of ``students furthest away from
demonstrating proficiency'' to refer, instead, to ``all students in the
school, but particularly the needs of those students at risk of failing
to meet the challenging State academic standards,'' to align with the
language in ESEA section 1114(b)(6) and Sec. 200.26(a)(1)(i)(B).
(5) Revise the language in Sec. 200.26(c)(1) and (3) requiring
that a school operating a schoolwide program ``[a]nnually evaluate''
the schoolwide program and revise the plan, as necessary, based on the
results of the ``evaluation'' to align with the statutory language in
ESEA section 1114(b)(3). ESEA section 1114(b)(3) provides that a
schoolwide program plan must be ``regularly monitored and revised as
necessary.''
Sec. 200.29 Consolidation of funds in a schoolwide program.
Current Regulations: Current Sec. 200.29 establishes requirements
related to the consolidation of funds in a schoolwide program.
Final Regulations and Reasons: We make the following changes to
Sec. 200.29:
(1) Add to Sec. 200.29(c)(2) the statutory requirements in ESEA
section 6115(c). ESEA section 6115(c) provides that a school may
consolidate funds received under subpart 1 of part A of title VI of the
ESEA if (1) the parent committee established by the LEA under ESEA
section 6114(c)(4) approves the inclusion of these funds; (2) the
schoolwide program is consistent with the purpose described in section
6111; and (3) the LEA identifies in its application how the use of such
funds in a schoolwide program will produce benefits to Indian students
that would not be achieved if the funds were not used in a schoolwide
program.
(2) Delete Sec. 200.29(e)(1), which requires a State to encourage
schools to consolidate funds from other Federal, State, and local
sources in their schoolwide programs. This is no longer a requirement
in the ESEA.
(3) Add to Sec. 200.29(e) the statutory language from ESEA section
1111(g)(2)(E), which provides that a State must modify or eliminate
State fiscal and accounting barriers so that schools can easily
consolidate funds from other Federal, State, and local sources ``to
improve educational opportunities and reduce unnecessary fiscal and
accounting requirements.''
Sec. 200.61 Parents' right to know.
Current Regulations: Current Sec. 200.61 establishes requirements
regarding certain information to which parents are entitled, including
information regarding the professional qualifications of their child's
classroom teachers as well as information regarding their child's level
of achievement on the State academic assessments.
Final Regulations and Reasons: We make the following changes to
Sec. 200.61:
(1) Revise Sec. 200.61(a)(1), as redesignated, by providing that,
in notifying parents of their right to request certain information, an
LEA must inform parents that it will provide the information ``in a
timely manner.'' ESEA section 1112(e)(1)(A) provides that, at the
beginning of each school year, an LEA that receives funds under subpart
A of this part must notify parents of each student attending a Title I
school that the parents may request certain information regarding the
professional qualifications of their student's classroom teachers, and
the agency will provide the information on request ``and in a timely
manner.''
(2) Revise Sec. 200.61(a)(1)(iii), as redesignated, to align with
the statutory language in ESEA section 1112(e)(1)(A)(i)(III), which
provides that among the information parents may request and that an LEA
must provide upon such request is information regarding whether a
student's teacher ``is teaching in the field of discipline of the
certification of the teacher.''
(3) Revise Sec. 200.61(a)(2)(i), as redesignated, to clarify that,
in addition to providing information on a student's level of
achievement on the State academic assessments, a school that
participates under subpart A of this part must also provide information
on academic growth, if applicable and available. ESEA section
1112(e)(1)(B)(i) provides that, in addition to the information parents
may request, a school that participates under subpart A of this part
must provide to each parent ``information on the level of achievement
and academic growth of the student, if applicable and available,'' on
the State academic assessments.
(4) Revise Sec. 200.61(a)(2)(ii), as redesignated, to delete the
reference to a teacher ``who is not highly qualified'' and to align
that provision with ESEA section 1112(e)(1)(B)(ii). The ESEA no longer
uses the term ``highly qualified teacher.'' ESEA section
1112(e)(1)(B)(ii) provides that, in addition to the information parents
may request, a school that participates under subpart A of this part
must provide to each parent timely notice that the parent's child has
been assigned, or has been taught for four or more consecutive weeks
by, a teacher ``who does not meet applicable State certification or
licensure requirements at the grade level and subject area in which the
teacher has been assigned.''
(5) Remove current Sec. 200.61(c), which is related to the format
in which notice must be provided to parents. The information in current
paragraph (c) is contained in new paragraph (d), which applies to
current paragraph (a) and new paragraphs (b) and (c).
(6) Add a new paragraph (b) to align with section 1112(e)(2) of the
ESEA, which sets out notice requirements for parents regarding testing
transparency.
(7) Add a new paragraph (c) to align with section 1112(e)(3) of the
ESEA, which sets out requirements regarding notice to parents of
English learners who are identified for participation or participating
in a language instruction educational program supported with funds
under title I, part A or title III of the ESEA; and requirements for
outreach to parents of English learners, including regular parent
meetings.
(8) Add a new paragraph (d) to align with ESEA section 1112(e)(4)
and 34 CFR 200.2(e). Those provisions ensure that notice and
information to parents is provided in an understandable and uniform
format and, to the extent practicable, in a language that the parents
can understand.
Participation of Eligible Children in Private Schools
Sec. 200.62 Responsibilities for providing services to private school
children.
Current Regulations: Current Sec. 200.62 establishes an LEA's
responsibilities for
[[Page 31664]]
providing services to eligible private school children and establishes
which children constitute ``eligible private school children.''
Final Regulations and Reasons: We make the following changes to
Sec. 200.62:
(1) Add clarifying language to Sec. 200.62(a)(1) to incorporate
the statutory language in ESEA section 1117(a)(1)(A), which provides
that an LEA must, after timely and meaningful consultation with
appropriate private school officials, provide individually or in
combination, as requested by the private school officials to best meet
the needs of eligible children, special educational services,
instructional services (including evaluations to determine the progress
being made in meeting such students' academic needs), counseling,
mentoring, one-on-one tutoring, or other benefits under subpart A of
the part (such as dual or concurrent enrollment, educational radio and
television, computer equipment and materials, other technology, and
mobile educational services and equipment) that address their needs on
an equitable basis.
(2) Revise Sec. 200.62(a)(2) to align with the statutory language
in ESEA section 1117(a)(1)(B), which provides that an LEA must ensure
that teachers and families of participating private school children
participate, ``on an equitable basis, in services and activities
developed pursuant to section 1116'' of the ESEA.
Sec. 200.63 Consultation.
Current Regulations: Current Sec. 200.63 establishes requirements
for consultation with private school officials regarding equitable
services for eligible children who are enrolled in private schools,
including the topics on which an LEA must consult and the timing of the
consultation.
Final Regulations and Reasons: We make the following changes to
Sec. 200.63:
(1) Add to Sec. 200.63(a) language clarifying the goal of
consultation and implementing the requirement that the results of the
agreement reached between the LEA and private school officials must be
transmitted to the ombudsman, as newly added in ESEA section
1117(b)(1). ESEA section 1117(b)(1) provides that an LEA and private
school officials shall both have the goal of reaching agreement on how
to provide equitable and effective programs for eligible private school
children, the results of which agreement shall be transmitted to the
ombudsman. We incorporate the statutory requirement for the ombudsman
in Sec. 200.68, and discuss that change in greater detail under the
heading for that section.
(2) Add to Sec. 200.63(b)(6) the requirement that, among other
topics, an LEA must consult on how it determines the proportion of
funds that it will allocate for equitable services for eligible private
school children. This language is added to align with ESEA section
1117(b)(1)(E), which provides that an LEA must consult on the size and
scope of the equitable services to be provided to the eligible private
school children, the proportion of funds that is allocated for such
services, and how that proportion of funds is determined.
(3) Add Sec. 200.63(b)(8) to incorporate the statutory requirement
in ESEA section 1117(b)(1)(I). Section 1117(b)(1)(I) provides that an
LEA must consult on ``whether the agency shall provide services
directly or through a separate government agency, consortium, entity,
or third-party contractor.''
(4) Move current Sec. 200.64(a)(2)(ii) to new Sec. 200.63(b)(9)
to reflect its placement within the consultation requirements in the
statute and revise to incorporate the new statutory language in ESEA
section 1117(b)(1)(J). Section 1117(b)(1)(J) provides that an LEA must
consult on whether to provide equitable services to eligible private
school children: (i) By creating a pool or pools of funds with all of
the funds allocated under subsection (a)(4)(A) based on all the
children from low-income families in a participating school attendance
area who attend private schools; or (ii) in the agency's participating
school attendance area who attend private schools with the proportion
of funds allocated under subsection (a)(4)(A) based on the number of
children from low-income families who attend private schools.
(5) Add Sec. 200.63(b)(10) to incorporate the statutory
requirement in ESEA section 1117(b)(1)(K). Section 1117(b)(1)(K)
provides that an LEA must consult on ``when, including the approximate
time of day, services will be provided.''
(6) Add Sec. 200.63(b)(11) to incorporate the statutory
requirement in ESEA section 1117(b)(1)(L). Section 1117(b)(1)(L)
provides that an LEA must consult on whether to consolidate and use
funds provided under subsection (a)(4) in coordination with eligible
funds available for services to private school children under
applicable programs, as defined in section 8501(b)(1) to provide
services to eligible private school children participating in programs.
(7) Add Sec. 200.63(e)(1)(ii) to incorporate the requirement in
ESEA section 1117(b)(5) that an LEA's written affirmation that the
required consultation has occurred must provide the option for private
school officials to indicate such officials' belief that timely and
meaningful consultation has not occurred or that the program design is
not equitable with respect to eligible private school children.
(8) Add Sec. 200.63(f)(1)(iii) to incorporate the statutory
language in ESEA section 1117(b)(6)(A), providing that an official of a
private school has the right to complain to the State educational
agency (SEA) that an LEA did not ``make a decision that treats the
private school students equitably'' among the other topics about which
a private school official may file a complaint.
(9) Add Sec. 200.63(f)(2) to incorporate the requirements in ESEA
section 1117(b)(6)(B) related to the procedure for a private school
official to file a complaint with an SEA. ESEA section 1117(b)(6)(B)
provides that, if the private school official wishes to file a
complaint, the official shall provide the basis of the noncompliance by
the local educational agency to the State educational agency, and the
local educational agency shall forward the appropriate documentation to
the State educational agency.
(10) Add Sec. 200.63(f)(3) to incorporate the requirements in ESEA
section 1117(b)(6)(C) related to SEAs and the provision of equitable
services. ESEA section 1117(b)(6)(C) provides that an SEA shall provide
equitable services directly or through contracts with public or private
agencies, organizations, or institutions, if the appropriate private
school officials have: (i) Requested that the State educational agency
provide such services directly; and (ii) demonstrated that the local
educational agency involved has not met the requirements of this
section in accordance with the procedures for making such a request, as
prescribed by the State educational agency.
Sec. 200.64 Factors for determining equitable participation of private
school children.
Current Regulations: Current Sec. 200.64 sets forth the factors
for determining equitable participation of private school children,
including requirements for equal expenditures and equitable services.
Final Regulations and Reasons: We make the following changes to
Sec. 200.64:
(1) Revise Sec. 200.64(a)(1) to align with ESEA section
1117(a)(4)(A)(i), which requires that funds expended by an LEA for
equitable services be equal to the ``proportion'' of funds allocated to
[[Page 31665]]
participating school attendance areas based on the number of children
from low-income families who attend private schools. The current
regulations do not align precisely with the statute--neither the ESEA
as amended by the ESSA nor the ESEA as amended by NCLB. Although
``amount'' of funds generated by private school children from low-
income families is not incorrect, we revise the regulations to be more
precise, given the new proportional share requirement in ESEA section
1117(a)(4)(A)(ii).
(2) Revise Sec. 200.64(a)(1) to clarify that the private school
children who generate funds for equitable services are those ``who
reside in participating public school attendance areas'' consistent
with the statutory language in ESEA section 1117(a)(4)(A)(i) that
speaks to ``funds allocated to participating [public] school attendance
areas based on the number of children from low-income families who
attend private schools.''
(3) Replace current Sec. 200.64(a)(2)(i) with new Sec.
200.64(a)(2) to align with the new proportional share requirement in
ESEA section 1117(a)(4)(A)(ii), which states that the proportional
share of funds available for equitable services shall be determined
based on the total amount of funds received by the local educational
agency under title I, part A prior to any allowable expenditures or
transfers by the local educational agency.
(4) Move current Sec. 200.78(a)(2)(ii) to Sec. 200.64(a)(3)
because it now more appropriately fits in Sec. 200.64, which governs
factors for determining equitable participation of private school
children. Section 200.78 governs within-district allocations to public
school attendance areas and schools, which under NCLB included funds
based on the number of private school children from low-income families
who resided in participating school attendance areas. Those same
private school children are now counted to determine the new
proportional share for equitable services prior to an LEA's making
within-district allocations to public school attendance areas and
schools. Section 200.64(a)(3) does not include current Sec.
200.78(a)(2)(i) because it is no longer needed given the new
proportional share requirement.
(5) Add Sec. 200.64(a)(4) to incorporate ESEA section
1117(a)(4)(C), which requires each SEA to provide notice in a timely
manner to the appropriate private school officials in the State of the
allocation of funds for educational services and other benefits under
title I, part A, that the local educational agencies have determined
are available for eligible private school children.
(6) Add Sec. 200.64(a)(5) to incorporate ESEA section
1117(a)(4)(B), which states that funds allocated to a local educational
agency for educational services and other benefits to eligible private
school children shall be obligated in the fiscal year for which the
funds are received by the agency.
(7) Move current Sec. 200.64(a)(2)(ii) to Sec. 200.63(b)(9)
regarding consultation on pooling of funds to provide equitable
services consistent with ESEA section 1117(b)(1)(J) and revise, as
noted in the discussion under Sec. 200.63, to reflect the new
statutory language.
(8) Delete the phrase ``and of any religious organization'' in
Sec. 200.64(b)(3)(ii)(A). The Department, in consultation with the
U.S. Department of Justice, has determined that the statutory provision
in ESEA section 1117(d)(2)(B) and a similar provision in ESEA section
8501(d)(2)(B) requiring an equitable services provider be ``independent
of . . . any religious organization'' are unconstitutional because they
categorically exclude religious organizations (or affiliated persons)
based solely on their religious identity from providing equitable
services. These provisions therefore run afoul of the principles set
forth in the Supreme Court's decision in Trinity Lutheran Church of
Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), which held that, under
the Free Exercise Clause of the First Amendment of the U.S.
Constitution, otherwise eligible recipients cannot be disqualified from
a public benefit solely because of their religious character. As a
result, pursuant to 28 U.S.C. 530D, the Department has notified
Congress by letter (available at www.ed.gov/policy/elsec/guid/secletter/190311.html) that it is no longer implementing these
provisions. That means an LEA may enter into a contract with a
religious organization to provide equitable services on the same basis
as any other entity. Those services still must be secular, neutral, and
non-ideological under ESEA section 1117(a)(2).
Sec. 200.65 Determining equitable participation of teachers and
families of participating private school children.
Current Regulations: Section 200.65 contains provisions related to
determining the equitable participation of teachers and families of
participating private school children.
Final Regulations and Reasons: We make the following changes to
Sec. 200.65:
(1) Revise Sec. 200.65(a) to clarify that funds for equitable
services for teachers and families of participating private school
children come from the proportional share of funds calculated
consistent with ESEA section 1117(a)(4)(A)(ii), the requirements of
which are included in Sec. 200.64(a). Under NCLB, funds for such
equitable services came from required reservations for those purposes
at the LEA level and were determined in proportion to the number of
private school children from low-income families residing in
participating private school attendance areas.
(2) Revise Sec. 200.65(a) and (b) to align with the statutory
language in ESEA section 1117(a)(1)(B), which requires an LEA to
``ensure that teachers and families of the children participate, on an
equitable basis, in services and activities'' developed under title I,
part A.
(3) Delete Sec. 200.65(c) because it is no longer necessary to
clarify that private school teachers are not subject to highly
qualified teacher requirements. Public school teachers are also no
longer subject to those requirements under the amended ESEA.
Sec. 200.68 Ombudsman.
Current Regulations: None.
Final Regulations and Reasons: We add Sec. 200.68 to incorporate
the new requirement in ESEA section 1117(a)(3)(B) that to help ensure
such equity for such private school children, teachers, and other
educational personnel, the State educational agency involved shall
designate an ombudsman to monitor and enforce the requirements of title
I, part A. Given the importance of this new requirement, we incorporate
it in the regulations on equitable services for private school
children.
Allocations to LEAs
Sec. 200.73 Applicable hold-harmless provisions.
Current Regulations: Section 200.73 contains applicable hold-
harmless provisions that affect the allocation of title I, part A funds
to LEAs.
Final Regulations and Reasons: We make the following changes to
Sec. 200.73:
(1) In Sec. 200.73(a)(4) regarding the variable hold harmless
based on percentages of poverty, add a citation to the hold-harmless
provision for Education Finance Incentive Grants in ESEA section
1125A(f)(3), which is not new but was inadvertently omitted in the
current regulations.
(2) Add Sec. 200.73(e) to incorporate new ESEA section 4306(c),
which provides that, for purposes of implementing the hold harmless
protections in sections 1122(c) and 1125A(g)(3) for a newly opened or
significantly expanded
[[Page 31666]]
charter school under title IV, part C, a State educational agency shall
calculate a hold-harmless base for the prior year that, as applicable,
reflects the new or significantly expanded enrollment of the charter
school.
Sec. 200.77 Reservation of funds by an LEA.
Current Regulations: Section 200.77 contains both mandatory and
permissible reservations off the top of an LEA's title I, part A
allocation.
Final Regulations and Reasons: We make the following changes to
Sec. 200.77:
(1) Revise Sec. 200.77(a)(1) regarding homeless children and
youths to delete the phrase ``who do not attend participating schools''
to align with ESEA section 1113(c)(3)(A)(i), which does not include
that phrase.
(2) Add paragraph Sec. 200.77(a)(1)(ii) to incorporate new ESEA
section 1113(c)(3)(C), which specifies allowable uses of title I, part
A funds to serve homeless children and youths.
(3) Add paragraph Sec. 200.77(a)(4) to incorporate ESEA section
1113(c)(3)(B), which requires an LEA to determine the share of funds
reserved for homeless children and youths, children in local
institutions for neglected children, and, if appropriate, children in
local institutions for delinquent children and neglected or delinquent
children in community day programs ``based on the total allocation
received by the local educational agency; and . . . prior to any
allowable expenditures or transfers by the local educational agency.''
(4) Revise Sec. 200.77(b) to incorporate ESEA section 1113(c)(4),
which authorizes the use of title I, part A funds for incentives and
rewards for teachers in title I schools identified for comprehensive or
targeted support and improvement activities.
(5) Delete current paragraphs (c) and (d), which deal with required
reservations for choice-related transportation and supplemental
educational services and professional development, because those
reservations are no longer required under the amended ESEA.
(6) Add a new Sec. 200.77(d) to require a reservation for the
provision and administration of equitable services for private school
children, their teachers, and their families given the new proportional
share requirement in ESEA section 1117(a)(4)(A)(ii) and Sec.
200.64(a).
(7) Revise Sec. 200.77(e), as redesignated, to clarify that a
reservation for administrative expenses now pertains to programs for
public school children because funds for administration for equitable
services for private school children come from the reservation under
Sec. 200.77(d). We also revise Sec. 200.77(e), as redesignated, to
delete special capital expenses incurred in providing equitable
services. The list of expenses came from ESEA section 5595, as amended
by NCLB, which was part of a special grant program that is no longer
authorized under the amended ESEA. To the extent capital expenses are
needed to provide equitable services to eligible private school
children, they remain allowable absent the specific list in the
regulations.
(8) Revise Sec. 200.77(f), as redesignated, to add ``early
childhood education'' to align with ESEA section 1113(c)(5), which
authorizes an LEA to reserve funds ``to provide early childhood
education programs for eligible children.''
Sec. 200.78 Allocation of funds to school attendance areas and
schools.
Current Regulations: Section 200.78 sets forth regulations
governing the allocation of title I, part A funds to school attendance
areas and schools within an LEA.
Final Regulations and Reasons: We make the following changes to
Sec. 200.78:
(1) Consistent with ESEA sections 1113(c)(1) and 1117(a)(4)(A)(ii),
revise Sec. 200.78(a)(1) to clarify that allocations to school
attendance areas and schools take place after an LEA makes the
appropriate reservations, including reserving the proportional share
for equitable services for private school children, their teachers, and
their families. Because the proportional share for equitable services
is already reserved, allocations to school attendance areas and schools
under ESEA section 1113(c)(1) are then made on the ``basis of the total
number of public school children from low-income families in each area
or school.''
(2) Delete Sec. 200.78(a)(2). Paragraph (a)(2), which addresses
various ways to obtain a poverty count of private school children, has
been moved to Sec. 200.64(a)(2) where it more appropriately belongs in
light of the new proportional share requirement.
(3) Add a new Sec. 200.78(a)(2) to incorporate the provisions in
ESEA section 1113(a)(5)(B) and (C) regarding feeder patterns for
determining the poverty percentages in secondary schools.
Subpart C--Migrant Education Program
Sec. 200.81 Program definitions.
Current Regulations: Current Sec. 200.81 sets forth the
definitions that apply to programs and projects operated under title I,
part C.
Final Regulations and Reasons: We make the following changes to
Sec. 200.81:
(1) Revise Sec. 200.81(a) to add ``or employment'' to the defined
term ``Agricultural work'' to align with the definition of ``migratory
agricultural worker'' in ESEA section 1309(2), which refers to
``temporary or seasonal employment.'' We also add specific reference to
``raw agricultural products'' to align with the definition of
``Migratory agricultural worker'' in ESEA section 1309(2), which refers
to ``initial processing of raw agricultural products'' as an example of
temporary or seasonal employment in agriculture. We remove specific
reference to ``cultivation'' and ``harvesting'' of trees, as such
activities are considered production or initial processing of trees,
and trees are listed as one example of raw agricultural products.
(2) Revise Sec. 200.81(c) to add ``or employment'' to the defined
term ``Fishing work'' to align with the definition of ``Migratory
fisher'' in ESEA section 1309(4), which refers to ``temporary or
seasonal employment.''
(3) Revise Sec. 200.81(f) to add the definition of ``Migratory
agricultural worker'' in ESEA section 1309(2). The definition of
``Migratory agricultural worker'' in current Sec. 200.81(f) was
superseded by the amendments to the ESEA and therefore rescinded on
August 22, 2018.
(4) Revise Sec. 200.81(g) to add the definition of ``Migratory
child'' in ESEA section 1309(3). The definition of ``Migratory child''
in current Sec. 200.81(g) was superseded by the amendments to the ESEA
and therefore rescinded on August 22, 2018.
(5) Revise Sec. 200.81(h) to add the definition of ``Migratory
fisher'' in ESEA section 1309(4). The definition of ``Migratory
fisher'' in current Sec. 200.81(h) was superseded by the amendments to
the ESEA and therefore rescinded on August 22, 2018.
(6) Revise Sec. 200.81(k) to change the defined term from ``MSIX
Interconnection Agreement'' to ``MSIX Memorandum of Understanding
(MOU)'' to be consistent with current practice.
(7) Revise Sec. 200.81(l) to modify the reference to ``MSIX
Interconnection Agreement'' to refer to ``MSIX MOU.''
Sec. 200.83 Responsibilities of SEAs to implement projects through a
comprehensive needs assessment and a comprehensive State plan for
service delivery.
Current Regulations: Current Sec. 200.83 sets forth regulations
governing the comprehensive needs assessment and comprehensive State
plan for service delivery that SEA recipients of title I,
[[Page 31667]]
part C funding must conduct and develop.
Final Regulations and Reasons: We revise Sec. 200.83 to add ``for
service delivery'' after ``comprehensive State plan'' in paragraphs
(a), (b), and (c). As drafted, the regulatory language does not match
the title of the section. These additions make the regulatory language
consistent with the title and consistent with ESEA section 1306.
Sec. 200.85 Responsibilities of SEAs for the electronic exchange
through MSIX of specified educational and health information of
migratory children.
Current Regulations: Current Sec. 200.85 sets forth the
responsibilities of SEAs for the electronic exchange of specified
educational and health information of migratory children through the
Migrant Student Information Exchange (MSIX).
Final Regulations and Reasons: To be consistent with current
practice, we modify the reference to ``MSIX Interconnection Agreement''
in Sec. 200.85(f)(1) and (2) to refer to ``MSIX MOU.''
Sec. 200.89 Re-interviewing; Eligibility documentation; and Quality
control.
Current Regulations: Section 200.89 sets forth the responsibilities
of SEAs for re-interviewing to ensure eligibility of children under the
Migrant Education Program (MEP), the responsibilities of SEAs to
document the eligibility of migratory children, and the
responsibilities of SEAs to establish and implement a system of quality
controls for the proper identification and recruitment of eligible
migratory children.
Final Regulations and Reasons: We make the following changes to
Sec. 200.89:
(1) Revise Sec. 200.89(b)(1)(i) to remove the requirements for
SEAs based on timelines associated with the initial passage of the
regulation. The language is no longer applicable.
(2) Revise Sec. 200.89(b)(1)(iii)(C) to remove the reference to
Sec. 200.89(a), which was rescinded on August 22, 2018.
(3) Revise Sec. 200.89(c)(2) to include a reference to the
eligibility definitions in ESEA section 1309 in addition to the
regulatory eligibility definitions in Sec. 200.81.
Subpart D--Prevention and Intervention Programs for Children and Youth
Who Are Neglected, Delinquent, or At-Risk of Dropping Out
Sec. 200.90 Program definitions.
Current Regulations: Current Sec. 200.90 sets forth the
definitions that apply to programs and projects operated under title I,
part D.
Final Regulations and Reasons: We make the following changes to
Sec. 200.90:
(1) Revise Sec. 200.90(b) to change the reference to
``vocationally oriented subjects'' in the definition of ``Regular
program of instruction'' to ``career and technical education.'' The
amended ESEA uses the term ``career and technical education'' rather
than ``vocational'' education (see, e.g., ESEA section
1414(a)(1)(E)(ii)).
(2) Revise Sec. 200.90(c) to remove the definitions of ``Immigrant
children and youth and limited English proficiency'' and ``Migrant
youth.'' Part D, subpart 1 of the amended ESEA does not use these or
related terms. Thus, these definitions are no longer necessary.
Subpart E--General Provisions
Sec. 200.100 Reservation of funds for school improvement, State
administration, and direct student services.
Current Regulations: Current Sec. 200.100 sets out regulations
governing the required State reservation for school improvement in ESEA
section 1003 and permissive reservations for State administration in
ESEA section 1004 and for State academic achievement awards in ESEA
section 1117(c)(2), as amended by NCLB.
Final Regulations and Reasons: We make the following changes to
Sec. 200.100:
(1) Revise the section heading and the introductory language to
delete ``State academic achievement awards program'' because it is no
longer authorized in the amended ESEA and add ``direct student
services'' because it is a new permissible reservation in amended ESEA
section 1003A.
(2) Revise Sec. 200.100(a)(1) to incorporate statutory language in
ESEA section 1003(a). Section 1003(a) states that, to carry out the
State's school improvement activities and the State's ``statewide
system of technical assistance and support for local educational
agencies,'' a State must reserve the greater of (1) seven percent of
the amount the State receives under subpart 2 of part A of title I; or
(2) the sum of the amount the State reserved for fiscal year 2016 under
ESEA section 1003(a), as amended by NCLB, and the amount the State
received for fiscal year 2016 under ESEA section 1003(g), as amended by
NCLB.
(3) Revise Sec. 200.100(a)(2) to make clear that, in reserving
funds for school improvement activities under Sec. 200.100(a)(1), the
special rule in ESEA section 1003(h) applies beginning in fiscal year
2018 and subsequent years.
(4) Remove the language in current Sec. 200.100(c) regarding the
State academic achievement awards program, because it is no longer
authorized under the amended ESEA.
(5) Revise Sec. 200.100(c) to incorporate the authority for direct
student services in ESEA section 1003A. ESEA section 1003A provides
that a State, after meaningful consultation with geographically diverse
local educational agencies, may reserve not more than 3 percent of the
amount the State educational agency receives under subpart 2 of part A
for each fiscal year to carry out direct student services.
Sec. 200.103 Definitions.
Current Regulations: Current Sec. 200.103 contains definitions
that apply to programs operated under part 200.
Final Regulations and Reasons: We revise Sec. 200.103(c) to change
``Student with a disability'' to ``Child with a disability'' to align
with the definitions in ESEA section 8101(4) and section 602(3) of the
IDEA.
II. General Provisions
Background: The regulations in 34 CFR part 299 establish regulatory
requirements that apply to programs in the ESEA in general. As noted
earlier in this document, in December 2015, Congress reauthorized the
ESEA through the ESSA. As a result of the amendments to the statute
through the reauthorization, some of the regulations in part 299 need
minor modification to remain aligned with the statute; we are making
those minor modifications through these technical amendments.
34 CFR Part 299
Subpart A--Purpose and Applicability
Sec. 299.2 What general administrative regulations apply to ESEA
programs?
Current Regulations: Current Sec. 299.2 clarifies the
applicability of the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards (Uniform
Guidance) in 2 CFR part 200 to ESEA programs.
Final Regulations and Reasons: We make the following changes to
Sec. 299.2:
(1) Revise the introductory text in Sec. 299.2 to clarify that 2
CFR part 200 applies to all ESEA programs except for Impact Aid in
title VIII of the ESEA.
(2) Delete paragraph (a), which is no longer needed because
grantees under direct grant programs are covered in the change to the
introductory text.
(3) Delete paragraph (b) and the corresponding note to remove
language exempting, under certain circumstances, grantees from the
requirements of the Uniform Guidance. This flexibility is no longer
applicable following the
[[Page 31668]]
Department's repeal of 34 CFR part 80 and adoption of the Uniform
Guidance.
Subpart D--Fiscal Requirements
Sec. 299.5 What maintenance of effort requirements apply to ESEA
programs?
Current Regulations: Current Sec. 299.5 describes the maintenance
of effort requirement that applies to certain ESEA programs and
identifies the programs to which the requirement applies.
Final Regulations and Reasons: We revise Sec. 299.5(b) to align
with changes to the covered programs as defined in ESEA section
8101(11). We also add the formula grant program under title VI, because
the amended ESEA made the maintenance of effort requirement in ESEA
section 8521 applicable to that program. For title III, part A, we
exclude section 3112 from coverage, because under that section the
Department provides grants on a competitive basis directly to Indian
Tribes and certain other eligible entities. Only the formula grants to
States, which are described in the remainder of part A, subpart 1 of
title III, are covered by the maintenance of effort requirement in ESEA
section 8521, which requires SEAs to reduce payments to LEAs if they
fail to maintain effort. We also revise the example in paragraph (c) to
update the referenced years.
Subpart E--Services to Private School Students and Teachers
Sec. 299.6 What are the responsibilities of a recipient of funds for
providing services to children and teachers in private schools?
Current Regulations: Current Sec. 299.6 establishes an agency's,
consortium's, or entity's responsibilities for providing services to
eligible private school children, their teachers, and other educational
personnel. It also identifies the programs to which this subpart
applies.
Final Regulations and Reasons: We make the following changes to
Sec. 299.6:
(1) Revise Sec. 299.6(a) to replace the phrase ``agency or
consortium of agencies'' with ``agency, consortium, or entity,'' in
accordance with ESEA section 8501(a)(1), which, in addition to agencies
and consortia of agencies, refers to other entities receiving funds
under applicable programs. We make conforming changes, as applicable,
in Sec. Sec. 299.6 through 299.9.
(2) Revise Sec. 299.6(a) to include the phrase ``served by such
agency, consortium, or entity,'' in accordance with ESEA section
8501(a)(1), which states that equitable services must be provided in
areas served by an applicable agency, consortium, or entity.
(3) Revise Sec. 299.6(b) to align with changes to the applicable
programs under ESEA section 8501(b)(1).
Sec. 299.7 What are the factors for determining equitable
participation of children and teachers in private schools?
Current Regulations: Current Sec. 299.7 sets forth the factors for
determining equitable participation of private school children and
teachers, including requirements for equal expenditures and equitable
services.
Final Regulations and Reasons: We make the following changes to
Sec. 299.7:
(1) Add Sec. 299.7(a)(3) to incorporate the language of ESEA
section 8501(a)(4)(B), which requires that funds allocated to a local
educational agency for educational services and other benefits to
eligible private school children shall be obligated in the fiscal year
for which the funds are received by the agency.
(2) Add Sec. 299.7(a)(4) to incorporate the language of ESEA
section 8501(a)(4)(C), which requires each SEA to provide notice in a
timely manner to the appropriate private school officials in the State
of the allocation of funds for educational services and other benefits
under title VIII, part F, that the local educational agencies have
determined are available for eligible private school children.
(3) Delete Sec. 299.7(b)(2)(iv)(B) to align with the requirements
in ESEA section 8506. Under the statutory requirements, private school
children are not subject to challenging State academic standards.
Sec. 299.9 What are the requirements concerning property, equipment,
and supplies for the benefit of private school children and teachers?
Current Regulations: Current Sec. 299.9 sets forth the
requirements regarding property, equipment, and supplies an agency,
consortium, or other entity acquires in providing equitable services
under applicable ESEA programs.
Final Regulations and Reasons: We make the following changes to
Sec. 299.9:
(1) Revise Sec. 299.9(a) through (d) to replace the phrase
``public agency'' with ``agency, consortium, or entity,'' in accordance
with ESEA section 8501(a)(1) and to maintain consistency with
Sec. Sec. 299.6 through 299.8.
(2) Remove Sec. 299.9(f) because it is no longer necessary to
define ``public agency'' in light of the change described above.
Sec. 299.10 What are the requirements for a State ombudsman?
Current Regulations: None.
Final Regulations and Reasons: We add Sec. 299.10 to incorporate
the new requirement in ESEA section 8501(a)(3)(B) that to help ensure
equitable services are provided to private school children, teachers,
and other educational personnel under this section, the State
educational agency involved shall direct the ombudsman designated by
the agency under section 1117 to monitor and enforce the requirements
of this section. Given the importance of this new requirement, we
incorporate it in the regulations on equitable services for private
school students and teachers.
Subpart F--Complaint Procedures
Sec. 299.11 What complaint procedures shall an SEA adopt?
Current Regulations: Current Sec. 299.10 requires an SEA to adopt
written procedures for the receipt, resolution, appeal, and
investigation of complaints regarding the administration of certain
ESEA programs. It also establishes the programs to which such
procedures apply.
Final Regulations and Reasons: We redesignate current Sec. 299.10
as Sec. 299.11 and revise Sec. 299.11(b), as redesignated, to reflect
changes to the applicable programs under ESEA section 8304(a)(3)(C),
which requires an SEA to assure it will adopt written procedures for
the receipt and resolution of complaints for each program included in
its consolidated State plan. For title III, part A, we exclude section
3112 from coverage because under that section the Department provides
grants on a competitive basis directly to Indian Tribes and certain
other eligible entities. For title III, only the formula grants to
States, which are described in the remainder of part A, subpart 1 of
title III, are covered by the statutory requirements in ESEA section
8304.
Sec. 299.12 What items are included in the complaint procedures?
Current Regulations: Current Sec. 299.11 establishes what must be
included in an SEA's complaint procedures.
Final Regulations and Reasons: We redesignate current Sec. 299.11
as Sec. 299.12 and add Sec. 299.12(a)(2), as redesignated, to
incorporate the requirement in ESEA section 8503(a) that for complaints
involving the participation of private school children an SEA must
provide a written resolution within 45 days.
[[Page 31669]]
Waiver of Proposed Rulemaking and Delayed Effective Date
Under the Administrative Procedure Act (APA) (5 U.S.C. 553), the
Department generally offers interested parties the opportunity to
comment on proposed regulations. However, the APA provides that an
agency is not required to conduct notice and comment rulemaking when
the agency, for good cause, finds that the requirement is
impracticable, unnecessary, or contrary to the public interest. 5
U.S.C. 553(b)(B). There is good cause here for waiving rulemaking
because these regulations make technical changes only to align with
current law and do not establish substantive policy. However, the
Department is providing a 30-day comment period and invites interested
persons to participate in this rulemaking by submitting written
comments. The Department will consider the comments received and may
conduct additional rulemaking based on the comments.
The APA also generally requires that regulations be published at
least 30 days before their effective date, unless the agency has good
cause to implement its regulations sooner (5 U.S.C. 553(d)(3)). Again,
because these final regulations are merely technical, there is good
cause to make them effective on the day they are published.
Executive Orders 12866, 13563, and 13771
Regulatory Impact Analysis
Under Executive Order 12866, it must be determined whether this
regulatory action is ``significant'' and, therefore, subject to the
requirements of the Executive order and subject to review by the Office
of Management and Budget (OMB). Section 3(f) of Executive Order 12866
defines a ``significant regulatory action'' as an action likely to
result in a rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
Tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This final regulatory action is not a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only on a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these final regulations only on a reasoned
determination that their benefits justify their costs. In choosing
among alternative regulatory approaches, we selected those approaches
that maximize net benefits. Based on an analysis of anticipated costs
and benefits, the Department believes that these final regulations are
consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly
interfere with State, local, and Tribal governments in the exercise of
their governmental functions.
Under Executive Order 13771, for each new regulation that the
Department proposes for notice and comment or otherwise promulgates
that is a significant regulatory action under Executive Order 12866 and
that imposes total costs greater than zero, it must identify two
deregulatory actions. For Fiscal Year 2019, any new incremental costs
associated with a new regulation must be fully offset by the
elimination of existing costs through deregulatory actions. These final
regulations are not a significant regulatory action. Therefore, the
requirements of Executive Order 13771 do not apply.
Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action. As discussed elsewhere in this
document, through this action we make only technical changes to align
Department regulations with current law; we do not establish any
substantive requirements or policies beyond those in the authorizing
statute. Accordingly, the regulations do not impose any costs, nor
generally confer any benefits, that are not attributable to statute.
The technical amendments in this document serve in some cases to
revise existing regulations to conform with minor language updates in
statute, and in others to add to the regulations substantially new
statutory provisions, albeit verbatim and without interpretation. With
respect to the latter group of technical amendments, OMB Circular A-4
(available at www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf) requires the use of a pre-statutory baseline in
assessing costs and benefits--that is, it requires for these amendments
the estimation of costs and benefits that are attributable to statute.
We provide estimates of statute-attributable costs of these amendments
in the following paragraphs. The Department expects that States and
LEAs will use ESEA program funds, including funds reserved for
administration, to cover these estimated costs, and that any costs that
cannot be met with Federal resources will generally be minimal.
Moreover, we believe that the costs of these amendments are outweighed
by their anticipated benefits, which include, among other things,
consistency between the authorizing statute and implementing
regulations; increased transparency in State and local implementation
of title I and other
[[Page 31670]]
ESEA programs; greater flexibility in the use of Federal program funds
to address local educational needs and improve educational outcomes;
improved services for students, including for eligible students in
private schools; and better student preparedness for college and the
workforce.
Standards and Assessments
The amendments to Sec. 200.1 include two substantially new
statutory provisions regarding the alignment of State standards with
expectations for college- and career-readiness. Specifically, Sec.
200.1(c)(1)(i) implements the requirement in ESEA section
1111(b)(1)(D)(i) that a State's academic achievement standards be
aligned with entrance requirements for credit-bearing coursework in the
system of public higher education in the State and relevant State
career and technical education standards. Section 200.1(d)(5) similarly
implements the requirement in ESEA section 1111(b)(1)(E)(i)(V) that a
State's alternate academic achievement standards for students with the
most significant cognitive disabilities be aligned to ensure that a
student who meets the standards is on track to pursue postsecondary
education or employment.
Based on results of the Department's Assessment Peer Review and
other available information, we estimate that 37 of 52 States
(including the District of Columbia and Puerto Rico) can already
demonstrate alignment of their academic achievement standards with
entrance requirements for public higher education consistent with the
requirement in Sec. 200.1(c)(1)(i). For the remaining 15 States, we
estimate that each will need $250,000 to contract with a third party to
perform the requisite standards analysis and validation, for a total
estimated one-time cost of $3,750,000. We further anticipate that all
52 States will need to engage a contractor to analyze and validate
their alternate academic achievement standards for students with the
most significant cognitive disabilities in order to meet the
requirement in Sec. 200.1(d)(5). We estimate that States will need on
average $50,000 for this purpose, a total estimated one-time cost of
$2,600,000.
Participation of Eligible Children in Private Schools; Services to
Private School Students and Teachers
This action includes several regulations, in Sec. Sec. 200.63,
200.64, 200.68, 299.7, and 299.10, that implement substantially new
statutory provisions regarding the provision of equitable services to
students and teachers in private schools. Notable among these
regulations is Sec. 200.63(f)(3), which implements the requirement in
ESEA section 1117(b)(6)(C) that a State establish a process to consider
requests from private school officials that the State provide for
equitable services if the officials demonstrate that an LEA has not
carried out its equitable services responsibilities. A State should
need an average of 40 hours to establish such a process; assuming an
average cost of $40 an hour for State staff, we accordingly estimate a
one-time cost per State of $1,600 and a total estimated one-time cost
of $83,230. The Department further estimates that 17 States will need
to implement their established State provision of equitable services
request process in a given year and that such States will need 56 hours
for implementation, resulting in an estimated annual cost of $2,240 per
State and $38,080 in total.
In addition, Sec. Sec. 200.64(a)(4) and 299.7(a)(4) implement new
statutory requirements for each State to provide notice to private
school officials of each LEA's allocation of funds for equitable
services under title I, part A and other applicable programs. We
estimate that a State will need an average of 8 hours to provide such
notice, resulting in an estimated annual cost of $320 per State and
$16,640 across States.
The regulations also implement, in Sec. Sec. 200.68 and 299.10,
statutory requirements for States to designate an ombudsman to monitor
and enforce equitable services requirements under title I, part A and
other applicable programs. Insofar as States were required to monitor
and enforce equitable services requirements under the previous
authorization of the ESEA, the Department does not believe this
requirement imposes any new costs apart from the minimal costs
associated with designating an ombudsman.
Lastly, the regulations implement several new statutory equitable
services requirements for LEAs. We estimate the total burden associated
with these regulations to be at most 8 hours and, at $35 per hour for
LEA staff, $280 per LEA, a total maximum cost across an estimated
17,000 LEAs of $4,760,000. These regulations include--
(1) Section 200.63(a), which implements the requirement in ESEA
section 1117(b)(1) that an LEA transmit to the State ombudsman results
of whether it reaches agreement through consultation with private
school officials on the provision of equitable services;
(2) Section 200.63(b)(8) through (11), which add to the regulations
new statutorily required issues on which an LEA consults with private
school officials;
(3) Section 200.63(e)(1)(ii), which implements the requirement in
ESEA section 1117(b)(5) that an LEA include, in its written affirmation
to the State that consultation has occurred, the option for private
school officials to indicate their belief that timely and meaningful
consultation did not occur or that proposed services are not equitable;
and
(4) Section 200.64(a)(2), which implements the requirement in ESEA
section 1117(a)(4)(A)(ii) that an LEA calculate the proportional share
of funds available for equitable services based on the LEA's total
amount of title I, part A funds.
Other Provisions
This regulatory action includes several other amendments
implementing substantially new statutory requirements. These include
Sec. 200.11(c), which implements the requirement in ESEA section
1111(h)(1)(C)(xii) for States and LEAs to include in annual report
cards a comparison of their NAEP scores with national average scores.
This requirement adds minimal burden over prior law, which required
that States and LEAs provide NAEP scores with no national average
comparison. Also adding minimal burden is Sec. 200.29(c)(2), which
implements a new provision in ESEA section 6115(c) requiring an LEA
consolidating Indian Education funds in a title I schoolwide program to
identify in its application how the use of such funds in a schoolwide
program will produce benefits for Indian students that are not
achievable outside of a schoolwide program. In addition, Sec.
200.73(e) implements the requirement in ESEA section 4306(c) that in
allocating title I, part A funds to LEAs a State use a hold-harmless
base for newly opened or significantly expanded charter schools that
are LEAs that reflects the new or significantly expanded enrollment of
the charter school. This regulation should not impose any new burden,
insofar as States already had to use a hold-harmless base for all LEAs,
including charter school LEAs, in carrying out their allocation
responsibilities under the previous authorization of the ESEA.
Conformance with Trinity Lutheran
As discussed elsewhere in this document, the Department, in
consultation with the U.S. Department of Justice, determined that the
statutory provision in ESEA sections 1117(d)(2)(B) and 8501(d)(2)(B)
requiring an equitable services provider
[[Page 31671]]
be ``independent of . . . any religious organization'' is
unconstitutional because it categorically excludes religious
organizations (or affiliated persons) based solely on their religious
identity from providing equitable services and thus runs afoul of the
Supreme Court's decision in Trinity Lutheran Church of Columbia, Inc.
v. Comer. Accordingly, the Department is deleting the phrase ``and of
any religious organization'' from Sec. 200.64(b)(3)(ii)(A). That means
an LEA may enter into a contract with a religious organization to
provide equitable services on the same basis as any other entity. This
change should not impose any new costs or burdens on an LEA; it merely
expands the entities with which an LEA, at its discretion, may contract
to provide equitable services.
Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand. The Secretary invites comments
on how to make these regulations easier to understand, including
answers to questions such as the following:
Are the requirements in the regulations clearly stated?
Do the regulations contain technical terms or other
wording that interferes with their clarity?
Does the format of the regulations (grouping and order of
sections, use of headings, paragraphing, etc.) aid or reduce their
clarity?
Would the regulations be easier to understand if we
divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 200.1.)
Could the description of the regulations in the
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in
making the regulations easier to understand? If so, how?
What else could we do to make the regulations easier to
understand?
To send any comments that concern how the Department could make
these regulations easier to understand, see the instructions under FOR
FURTHER INFORMATION CONTACT.
Regulatory Flexibility Act Certification
The Regulatory Flexibility Act does not apply to this rulemaking
because there is good cause to waive notice and comment under 5 U.S.C.
553.
Paperwork Reduction Act of 1995
The final regulations do not create any new information collection
requirements.
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid OMB control
number. We display the valid OMB control number assigned to a
collection of information in final regulations at the end of the
affected section of the regulations.
Intergovernmental Review
The programs covered by the final regulations are not subject to
Executive Order 12372 and the regulations in 34 CFR part 79.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to the program contact person
listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. You may
access the official edition of the Federal Register and the Code of
Federal Regulations at www.govinfo.gov. At this site you can view this
document, as well as all other documents of this Department published
in the Federal Register, in text or Portable Document Format (PDF). To
use PDF you must have Adobe Acrobat Reader, which is available free at
the site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
List of Subjects
34 CFR Part 200
Education of disadvantaged, Elementary and secondary education,
Grant programs--education, Indians--education, Infants and children,
Juvenile delinquency, Migrant labor, Private schools, Reporting and
recordkeeping requirements.
34 CFR Part 299
Administrative practice and procedure, Elementary and secondary
education, Grant programs--education, Private schools, Reporting and
recordkeeping requirements.
Dated: June 6, 2019.
Betsy DeVos,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary amends
parts 200 and 299 of title 34 of the Code of Federal Regulations as
follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
0
1. The authority citation for part 200 is revised to read as follows:
Authority: 20 U.S.C. 6301 through 6576, unless otherwise noted.
Section 200.1 also issued under 20 U.S.C. 6311(b)(1).
Section 200.11 also issued under 20 U.S.C. 6311(c)(2),
(g)(2)(D), (h)(1)(C)(xii), (h)(2)(C), 6312(c)(3), 9622(d)(1).
Section 200.25 also issued under 20 U.S.C. 6314.
Section 200.26 also issued under 20 U.S.C. 6314.
Section 200.29 also issued under 20 U.S.C. 1413(a)(2)(D),
6311(g)(2)(E), 6314, 6396(b)(4), 7425(c), 7703(d).
Section 200.61 also issued under 20 U.S.C. 6312(e).
Section 200.62 also issued under 20 U.S.C. 6320(a).
Section 200.63 also issued under 20 U.S.C. 6320(b).
Section 200.64 also issued under 20 U.S.C. 6320.
Section 200.65 also issued under 20 U.S.C. 6320(a)(1)(B).
Section 200.68 also issued under 20 U.S.C. 6320(a)(3)(B).
Section 200.73 also issued under 20 U.S.C. 6332(c), 6336(f)(3),
7221e(c).
Section 200.77 also issued under 20 U.S.C. 6313(c)(3)-(5),
6318(a)(3), 6320; 42 U.S.C. 11432(g)(1)(J)(ii)-(iii), 11433(b)(1).
Section 200.78 also issued under 20 U.S.C. 6313(a)(5)(B), (c),
6333(c)(2).
Section 200.79 also issued under 20 U.S.C. 6313(b)(1)(D),
(c)(2)(B), 6321(d).
Section 200.81 also issued under 20 U.S.C. 6391-6399.
Section 200.83 also issued under 20 U.S.C. 6396.
Section 200.85 also issued under 20 U.S.C. 6398.
Section 200.87 also issued under 20 U.S.C. 7881(b)(1)(A).
Section 200.88 also issued under 20 U.S.C. 6321(d).
Section 200.90 also issued under 20 U.S.C. 6432, 6454, 6472.
Section 200.100 also issued under 20 U.S.C. 6303, 6303b, 6304.
Section 200.103 also issued under 20 U.S.C. 6315(c)(1)(A)(ii),
6571(a), 8101(4).
0
2. Section 200.1 is amended by:
0
a. Revising paragraphs (a), (b)(3), (c)(1) introductory text,
(c)(1)(i), and (c)(1)(ii)(A) introductory text;
0
b. Removing paragraph (c)(3);
0
c. In paragraph (d), adding ``(IDEA)'' after ``Individuals with
Disabilities Education Act'';
[[Page 31672]]
0
d. Revising paragraphs (d)(1) through (3);
0
e. Adding paragraphs (d)(4) and (5);
0
f. Revising paragraphs (e) and (f); and
0
g. Removing the parenthetical authority citation.
The revisions and additions read as follows:
Sec. 200.1 State responsibilities for developing challenging academic
standards.
(a) Academic standards in general. A State must adopt challenging
academic content standards and aligned academic achievement standards
that will be used by the State, its local educational agencies (LEAs),
and its schools to carry out this subpart. These academic standards
must--
(1) Be the same academic content standards and aligned academic
achievement standards that the State applies to all public schools and
public school students in the State, including the public schools and
public school students served under this subpart, except as provided in
paragraph (d) of this section, which applies only to the State's
academic achievement standards;
(2) With respect to the academic achievement standards, include the
same knowledge, skills, and levels of achievement expected of all
public school students in the State, except as provided in paragraph
(d) of this section; and
(3) Include at least mathematics, reading/language arts, and
science, and may include other subjects determined by the State.
(b) * * *
(3) At the high school level, the academic content standards must
define the knowledge and skills that all high school students are
expected to know and be able to do in at least reading/language arts,
mathematics, and science, irrespective of course titles or years
completed.
(c) Academic achievement standards. (1) The challenging academic
achievement standards required under paragraph (a) of this section
must--
(i) Be aligned with the State's challenging academic content
standards and with entrance requirements for credit-bearing coursework
in the system of public higher education in the State and relevant
State career and technical education standards; and
(ii) * * *
(A) Not less than three achievement levels that describe at least--
* * * * *
(d) * * *
(1) Are aligned with the State's challenging academic content
standards;
(2) Promote access to the general curriculum, consistent with the
IDEA;
(3) Reflect professional judgment as to the highest possible
standards achievable by such students;
(4) Are designated in the individualized education program
developed under section 614(d)(3) of the IDEA for each such student as
the academic achievement standards that will be used for the student;
and
(5) Are aligned to ensure that a student who meets the alternate
academic achievement standards is on track to pursue postsecondary
education or employment, consistent with the purposes of the
Rehabilitation Act of 1973, as amended by the Workforce Innovation and
Opportunity Act, as in effect on July 22, 2014, and Sec.
200.2(b)(3)(ii)(B)(2).
(e) Modified academic achievement standards. A State may not define
or implement for use under this subpart any alternate or modified
academic achievement standards for children with disabilities under
section 602(3) of the IDEA that are not alternate academic achievement
standards that meet the requirements of paragraph (d) of this section.
(f) English language proficiency standards. A State must adopt
English language proficiency standards that--
(1) Are derived from the four recognized domains of speaking,
listening, reading, and writing;
(2) Address the different proficiency levels of English learners;
and
(3) Are aligned with the State's challenging academic content
standards and aligned academic achievement standards.
0
3. Section 200.11 is revised to read as follows:
Sec. 200.11 Participation in NAEP.
(a) State participation. Each State that receives funds under this
subpart must participate in biennial State academic assessments of
fourth and eighth grade reading and mathematics under the State
National Assessment of Educational Progress (NAEP), if the Department
pays the costs of administering those assessments.
(b) Local participation. In accordance with section 1112(c)(3) of
the ESEA, and notwithstanding section 303(d)(1) of the National
Assessment of Educational Progress Authorization Act, an LEA that
receives funds under this subpart must participate, if selected, in the
State-NAEP assessments referred to in paragraph (a) of this section.
(c) Report cards. Each State and LEA must report on its annual
State and LEA report card, respectively, the most recent available
academic achievement results in grades four and eight on the State's
NAEP reading and mathematics assessments under paragraph (a) of this
section, compared to the national average of such results. The report
cards must include--
(1) The percentage of students at each achievement level reported
on the NAEP in the aggregate and, for State report cards, disaggregated
for each subgroup described in section 1111(c)(2) of the ESEA; and
(2) The participation rates for children with disabilities and for
English learners.
0
4. Section 200.25 is amended by:
0
a. Revising paragraphs (a)(1) and (b)(1)(ii) introductory text;
0
b. Adding paragraph (b)(1)(iii);
0
c. Revising paragraphs (b)(2), (c), (d), and (f); and
0
d. Removing the parenthetical authority citation.
The revisions and addition read as follows:
Sec. 200.25 Schoolwide programs in general.
(a) Purpose. (1) The purpose of a schoolwide program is to improve
academic achievement throughout a school so that all students,
particularly the lowest-achieving students, demonstrate proficiency
related to the challenging State academic standards under Sec. 200.1.
* * * * *
(b) * * *
(1) * * *
(ii) Except as provided under paragraph (b)(1)(iii) of this
section, for the initial year of the schoolwide program--
* * * * *
(iii) A school that does not meet the poverty percentage in
paragraph (b)(1)(ii) of this section may operate a schoolwide program
if the school receives a waiver from the State to do so, after taking
into account how a schoolwide program will best serve the needs of the
students in the school in improving academic achievement and other
factors.
(2) In determining the percentage of children from low-income
families under paragraph (b)(1) of this section, the LEA may use a
measure of poverty that is different from the measure or measures of
poverty used by the LEA to identify and rank school attendance areas
for eligibility and participation under this subpart.
(c) Participating students and services. A school operating a
schoolwide program is not required to identify--
(1) Particular children as eligible to participate; or
[[Page 31673]]
(2) Individual services as supplementary.
(d) Supplemental funds. In accordance with the method of
determination described in section 1118(b)(2) of the ESEA, a school
participating in a schoolwide program must use funds available under
this subpart and under any other Federal program included under
paragraph (e) of this section and Sec. 200.29 only to supplement the
total amount of funds that would, in the absence of the funds under
this subpart, be made available from non-Federal sources for that
school, including funds needed to provide services that are required by
law for children with disabilities and English learners.
* * * * *
(f) Prekindergarten program. A school operating a schoolwide
program may use funds made available under this subpart to establish or
enhance prekindergarten programs for children below the age of 6.
0
5. Section 200.26 is amended by revising paragraphs (a)(1)(i)
introductory text, (a)(1)(i)(B), (a)(1)(ii), (b), and (c)(1) through
(3) and removing the parenthetical authority citation to read as
follows:
Sec. 200.26 Core elements of a schoolwide program.
(a) * * *
(1) * * *
(i) Takes into account information on the academic achievement of
all students in the school, including all subgroups of students under
section 1111(c)(2) of the ESEA and migratory children as defined in
section 1309(3) of the ESEA, relative to the challenging State academic
standards under Sec. 200.1 and any other factors as determined by the
LEA to--
* * * * *
(B) Identify the specific academic needs of students and subgroups
of students who are failing, or are at risk of failing, to meet the
challenging State academic standards; and
(ii) Assesses the needs of the school relative to each of the
components of the schoolwide program under section 1114(b)(7) of the
ESEA.
* * * * *
(b) Comprehensive plan. Using data from the comprehensive needs
assessment under paragraph (a) of this section, a school that wishes to
operate a schoolwide program must develop a comprehensive plan, in
accordance with section 1114(b) of the ESEA, that describes how the
school will improve academic achievement for all students in the
school, but particularly the needs of those students who are failing,
or are at risk of failing, to meet the challenging State academic
standards and any other factors as determined by the LEA.
(c) * * *
(1) Regularly monitor the implementation of, and results achieved
by, the schoolwide program, using data from the State's annual
assessments and other indicators of academic achievement;
(2) Determine whether the schoolwide program has been effective in
increasing the achievement of students in meeting the challenging State
academic standards, particularly for those students who had been
furthest from achieving the standards; and
(3) Revise the plan, as necessary, based on the results of the
regular monitoring, to ensure continuous improvement of students in the
schoolwide program.
0
6. Section 200.29 is amended by revising paragraphs (c)(2), (c)(3)(iii)
and (iv), and (e) and removing the parenthetical authority citation to
read as follows:
Sec. 200.29 Consolidation of funds in a schoolwide program.
* * * * *
(c) * * *
(2) Indian education. The school may consolidate funds received
under subpart 1 of part A of title VI of the ESEA if--
(i) The parent committee established by the LEA under section
6114(c)(4) of the ESEA approves the inclusion of these funds;
(ii) The schoolwide program is consistent with the purpose
described in section 6111 of the ESEA; and
(iii) The LEA identifies in its application how the use of such
funds in a schoolwide program will produce benefits to Indian students
that would not be achieved if the funds are not used in a schoolwide
program.
(3) * * *
(iii) The school may also consolidate funds received under section
7003(d) of the ESEA (Impact Aid) for children with disabilities in a
schoolwide program.
(iv) A school that consolidates funds under part B of IDEA or
section 7003(d) of the ESEA may use those funds for any activities
under its schoolwide program plan but must comply with all other
requirements of part B of IDEA, to the same extent it would if it did
not consolidate funds under part B of IDEA or section 7003(d) of the
ESEA in the schoolwide program.
* * * * *
(e) Each State must modify or eliminate State fiscal and accounting
barriers so that schools can easily consolidate funds from other
Federal, State, and local sources in their schoolwide programs to
improve educational opportunities and reduce unnecessary fiscal and
accounting requirements.
0
7. Section 200.61 is revised to read as follows:
Sec. 200.61 Parents' right to know.
(a) Information for parents. (1) At the beginning of each school
year, an LEA that receives funds under this subpart must notify the
parents of each student attending a title I school that the parents may
request, and the LEA will provide the parents on request and in a
timely manner, information regarding the professional qualifications of
the student's classroom teachers, including, at a minimum, the
following:
(i) Whether the teacher has met State qualification and licensing
criteria for the grade levels and subject areas in which the teacher
provides instruction.
(ii) Whether the teacher is teaching under emergency or other
provisional status through which State qualification or licensing
criteria have been waived.
(iii) Whether the teacher is teaching in the field of discipline of
the certification of the teacher.
(iv) Whether the parent's child is provided services by
paraprofessionals and, if so, their qualifications.
(2) A school that participates under this subpart must provide to
each parent--
(i) Information on the level of achievement and academic growth, if
applicable and available, of the parent's child on each of the State
academic assessments required under section 1111(b)(2) of the ESEA; and
(ii) Timely notice that the parent's child has been assigned, or
has been taught for four or more consecutive weeks by, a teacher who
does not meet applicable State certification or licensure requirements
at the grade level and subject area in which the teacher has been
assigned.
(b) Testing transparency. (1) At the beginning of each school year,
an LEA that receives funds under this subpart must notify the parents
of each student attending a title I school that the parents may
request, and the LEA will provide the parents on request in a timely
manner, information regarding any State or LEA policy regarding student
participation in any assessments mandated by section 1111(b)(2) of the
ESEA and by the State or LEA, which must include a policy, procedure,
or parental right to opt the child out of such assessment, where
applicable.
(2) Each LEA that receives funds under this subpart must make
widely
[[Page 31674]]
available through public means (including by posting in a clear and
easily accessible manner on the LEA's website and, where practicable,
on the website of each school served by the LEA) for each grade served
by the LEA, information on each assessment required by the State to
comply with section 1111 of the ESEA, other assessments required by the
State, and, where such information is available and feasible to report,
assessments required districtwide by the LEA, consistent with section
1112(e)(2)(B)-(C) of the ESEA.
(c) Language Instruction for English learners--(1) Notice. (i) An
LEA using funds under this subpart or title III of the ESEA to provide
a language instruction educational program as determined under title
III must, not later than 30 days after the beginning of the school year
unless paragraph (c)(1)(ii) of this section applies, inform parents of
an English learner identified for participation or participating in
such a program of the information in section 1112(e)(3)(A) of the ESEA.
(ii) For a child who has not been identified as an English learner
prior to the beginning of the school year but is identified as an
English learner during such school year, an LEA must notify the child's
parents during the first two weeks of the child being placed in a
language instruction educational program consistent with paragraph
(c)(1)(i) of this section.
(2) Parental participation. An LEA receiving funds under this
subpart must implement an effective means of outreach, consistent with
paragraph (c)(3) of this section, to parents of English learners to
inform parents how the parents can--
(i) Be involved in the education of their children; and
(ii) Be active participants in assisting their children to--
(A) Attain English proficiency;
(B) Achieve at high levels within a well-rounded education; and
(C) Meet the challenging State academic standards expected of all
students.
(3) Parent meetings. Implementing an effective means of outreach
under paragraph (c)(2) of this section must include holding, and
sending notice of opportunities for, regular meetings for the purpose
of formulating and responding to recommendations from parents of
English learners assisted under this subpart or title III.
(4) Basis for admission or exclusion. A student may not be admitted
to, or excluded from, any federally assisted education program on the
basis of a surname or language-minority status.
(d) Notice and format. The notice and information provided to
parents under this section must meet the requirements in Sec.
200.2(e).
0
8. Section 200.62 is amended by revising paragraphs (a)(1) and (2) and
(b)(1)(ii) to read as follows:
Sec. 200.62 Responsibilities for providing services to private
school children.
(a) * * *
(1) In accordance with Sec. Sec. 200.62 through 200.67 and section
1117 of the ESEA, provide, individually or in combination, as requested
by private school officials to best meet the needs of eligible
children, special educational services, instructional services
(including evaluations to determine the progress being made in meeting
such students' academic needs), counseling, mentoring, one-on-one
tutoring, or other benefits under this subpart (such as dual or
concurrent enrollment, educational radio and television, computer
equipment and materials, other technology, and mobile educational
services and equipment) that address their needs, on an equitable basis
and in a timely manner, to eligible children who are enrolled in
private elementary and secondary schools; and
(2) Ensure that teachers and families of participating private
school children participate, on an equitable basis, in accordance with
Sec. 200.65 in services and activities developed pursuant to section
1116 of the ESEA.
(b) * * *
(1) * * *
(ii) Meet the criteria in section 1115(c) of the ESEA.
* * * * *
0
9. Section 200.63 is amended by:
0
a. Revising paragraphs (a) and (b)(6) and (7);
0
b. Redesignating paragraph (b)(8) as paragraph (b)(12);
0
c. Adding new paragraphs (b)(8) through (11);
0
d. Revising paragraphs (e)(1) and (f);
0
e. Removing the parenthetical authority citation.
The revisions and additions read as follows:
Sec. 200.63 Consultation.
(a) In order to have timely and meaningful consultation, an LEA
must consult with appropriate officials of private schools during the
design and development of the LEA's program for eligible private school
children, as well as their teachers and families under Sec. 200.65.
The goal of consultation is reaching agreement on how to provide
equitable and effective programs for eligible private school children,
and the results of that agreement must be transmitted to the ombudsman
designated under Sec. 200.68.
(b) * * *
(6) The size and scope of the equitable services that the LEA will
provide to eligible private school children, and, consistent with Sec.
200.64(a), the proportion of funds that the LEA will allocate for these
services, and how the LEA determines that proportion of funds.
(7) The method or sources of data that the LEA will use under Sec.
200.64(a) to determine the number of private school children from low-
income families residing in participating public school attendance
areas, including whether the LEA will extrapolate data if a survey is
used.
(8) Whether the LEA will provide services directly or through a
separate government agency, consortium, entity, or third-party
contractor.
(9) Whether to provide equitable services to eligible private
school children--
(i) By creating a pool or pools of funds with all of the funds
allocated under Sec. 200.64(a)(2) based on all the children from low-
income families in a participating school attendance area who attend
private schools; or
(ii) In a participating school attendance area who attend private
schools with the proportion of funds allocated under Sec. 200.64(a)(2)
based on the number of children from low-income families who attend
private schools.
(10) When, including the approximate time of day, the LEA will
provide services.
(11) Whether the LEA will consolidate and use funds under subpart A
of this part with eligible funds available for services to private
school children under applicable programs, as defined in section
8501(b)(1) of the ESEA, to provide services to eligible private school
children.
* * * * *
(e)(1)(i) The LEA must maintain in its records and provide to the
SEA a written affirmation, signed by officials of each private school
with participating children or appropriate private school
representatives, that the required consultation has occurred.
(ii) The LEA's written affirmation must provide the option for
private school officials to indicate their belief that timely and
meaningful consultation has not occurred or that the program design is
not equitable with respect to eligible private school children.
* * * * *
(f)(1) An official of a private school has the right to complain to
the SEA that the LEA did not--
[[Page 31675]]
(i) Engage in timely and meaningful consultation;
(ii) Consider the views of the official of the private school; or
(iii) Make a decision that treats the private school students
equitably.
(2) If a private school official wishes to file a complaint, the
official must provide the basis of the noncompliance by the LEA to the
SEA and the LEA must forward the appropriate documentation to the SEA.
(3) An SEA must provide equitable services directly or through
contracts with public or private agencies, organizations, or
institutions if the appropriate private school officials have--
(i) Requested that the SEA provide such services directly; and
(ii) Demonstrated that the LEA has not met the requirements of
Sec. Sec. 200.62 through 200.67 in accordance with the SEA's
procedures for making such a request.
0
10. Section 200.64 is amended by:
0
a. Revising paragraphs (a) and (b)(2)(ii);
0
b. In paragraph (b)(3)(ii)(A), removing the words ``and of any
religious organization''; and
0
c. Removing the parenthetical authority citation.
The revisions read as follows:
Sec. 200.64 Factors for determining equitable participation of
private school children.
(a) Equal expenditures. (1) Funds expended by an LEA under this
subpart for services for eligible private school children in the
aggregate must be equal to the proportion of funds generated by private
school children from low-income families who reside in participating
public school attendance areas under paragraph (a)(2) of this section.
(2) An LEA must determine the proportional share of funds available
for services for eligible private school children based on the total
amount of funds received by the LEA under subpart 2 of part A of title
I of the ESEA prior to any allowable expenditures or transfers by the
LEA.
(3)(i) To obtain a count of private school children from low-income
families who reside in participating public school attendance areas,
the LEA may--
(A) Use the same poverty data the LEA uses to count public school
children;
(B)(1) Use comparable poverty data from a survey of families of
private school students that, to the extent possible, protects the
families' identity; and
(2) Extrapolate data from the survey based on a representative
sample if complete actual data are unavailable;
(C) Use comparable poverty data from a different source, such as
scholarship applications;
(D) Apply the low-income percentage of each participating public
school attendance area to the number of private school children who
reside in that school attendance area; or
(E) Use an equated measure of low income correlated with the
measure of low income used to count public school children.
(ii) An LEA may count private school children from low-income
families every year or every two years.
(iii) After timely and meaningful consultation in accordance with
Sec. 200.63, the LEA shall have the final authority in determining the
method used to calculate the number of private school children from
low-income families.
(4) An SEA must provide notice in a timely manner to appropriate
private school officials in the State of the allocation of funds for
educational services and other benefits that LEAs have determined are
available for eligible private school children.
(5) An LEA must obligate funds generated to provide equitable
services for eligible private school children in the fiscal year for
which the funds are received by the LEA.
(b) * * *
(2) * * *
(ii) Meets the equal expenditure requirements under paragraph (a)
of this section; and
* * * * *
0
11. Section 200.65 is revised to read as follows:
Sec. 200.65 Determining equitable participation of teachers and
families of participating private school children.
(a) From the proportional share reserved for equitable services
under Sec. 200.77(d), an LEA shall ensure that teachers and families
of participating private school children participate on an equitable
basis in services and activities under this subpart.
(b) After consultation with appropriate private school officials,
the LEA must provide services and activities under paragraph (a) of
this section either--
(1) In conjunction with the LEA's services and activities for
teachers and families; or
(2) Independently.
0
12. Section 200.68 is added to read as follows:
Sec. 200.68 Ombudsman.
To help ensure equity for eligible private school children,
teachers, and other educational personnel, an SEA must designate an
ombudsman to monitor and enforce the requirements in Sec. Sec. 200.62
through 200.67.
0
13. Section 200.73 is amended by:
0
a. In paragraph (a)(4), removing the citation ``section 1122(c)'' and
adding in its place ``sections 1122(c) and 1125A(f)(3)'';
0
b. Adding paragraph (e); and
0
c. Removing the parenthetical authority citation.
The addition reads as follows:
Sec. 200.73 Applicable hold-harmless provisions.
* * * * *
(e) Hold-harmless protection for a newly opened or significantly
expanded charter school LEA. An SEA must calculate a hold-harmless base
for the prior year for a newly opened or significantly expanded charter
school LEA that, as applicable, reflects the new or significantly
expanded enrollment of the charter school LEA.
0
14. Section 200.77 is amended by:
0
a. Revising paragraph (a)(1);
0
b. Adding paragraph (a)(4);
0
c. Revising paragraph (b);
0
d. Removing paragraphs (c) and (d);
0
e. Redesignating paragraph (e) as paragraph (c) and revising newly
redesignated paragraph (c);
0
f. Adding a new paragraph (d);
0
g. Redesignating paragraphs (f) and (g) as paragraphs (e) and (f) and
revising newly redesignated paragraphs (e) and (f); and
0
h. Removing the parenthetical authority citation.
The revisions and additions read as follows:
Sec. 200.77 Reservation of funds by an LEA.
* * * * *
(a) * * *
(1)(i) Homeless children and youths, including providing
educationally related support services to children in shelters and
other locations where homeless children may live.
(ii) Funds reserved under paragraph (a)(1)(i) of this section may
be--
(A) Determined based on a needs assessment of homeless children and
youths in the LEA, taking into consideration the number and needs of
those children, which may be the same needs assessment as conducted
under section 723(b)(1) of the McKinney-Vento Homeless Assistance Act;
and
(B) Used to provide homeless children and youths with services not
ordinarily provided to other students under this subpart, including
providing--
[[Page 31676]]
(1) Funding for the liaison designated under section
722(g)(1)(J)(ii) of the McKinney-Vento Homeless Assistance Act; and
(2) Transportation pursuant to section 722(g)(1)(J)(iii) of that
Act;
* * * * *
(4) An LEA must determine the amount of funds reserved under
paragraphs (a)(1)(i) and (a)(2) and (3) of this section based on the
total allocation received by the LEA under subpart 2 of part A of title
I of the ESEA prior to any allowable expenditures or transfers by the
LEA;
(b) Provide, where appropriate under section 1113(c)(4) of the
ESEA, financial incentives and rewards to teachers who serve students
in title I schools identified for comprehensive support and improvement
activities or targeted support and improvement activities under section
1111(d) of the ESEA for the purpose of attracting and retaining
qualified and effective teachers;
(c) Meet the requirements for parental involvement in section
1116(a)(3) of the ESEA;
(d) Provide and administer equitable services in accordance with
Sec. 200.64(a);
(e) Administer programs for public school children under this
subpart; and
(f) Conduct other authorized activities, such as early childhood
education, school improvement and coordinated services.
0
15. Section 200.78 is amended by revising paragraphs (a)(1) and (2) to
read as follows:
Sec. 200.78 Allocation of funds to school attendance areas and
schools.
(a)(1) After reserving funds, as applicable, under Sec. 200.77,
including funds for equitable services for private school students,
their teachers, and their families, an LEA must allocate funds under
this subpart to school attendance areas and schools, identified as
eligible and selected to participate under section 1113(a) or (b) of
the ESEA, in rank order on the basis of the total number of public
school children from low-income families in each area or school.
(2) To determine the number of children from low-income families in
a secondary school, an LEA must use--
(i) The same measure of poverty it uses for elementary schools; or
(ii) An accurate estimate of the number of students from low-income
families by applying the average percentage of students from low-income
families in the elementary school attendance areas that feed into the
secondary school to the number of students enrolled in the secondary
school if--
(A) The LEA conducts outreach to secondary schools within the LEA
to inform the schools of the option to use this measure; and
(B) A majority of the secondary schools approve the use of this
measure.
* * * * *
0
16. Section 200.79 is amended by revising paragraphs (a), (b)(1)(ii)
and (iii), and (b)(2)(i) and removing the parenthetical authority
citation to read as follows:
Sec. 200.79 Exclusion of supplemental State and local funds from
supplement, not supplant and comparability determinations.
(a) For the purpose of determining compliance with the supplement
not supplant requirement in section 1118(b) and the comparability
requirement in section 1118(c) of the ESEA, a grantee or subgrantee
under this subpart may exclude supplemental State and local funds spent
in any school attendance area or school for programs that meet the
intent and purposes of title I of the ESEA.
(b) * * *
(1) * * *
(ii) Is designed to promote schoolwide reform and upgrade the
entire educational operation of the school to support students in their
achievement toward meeting the challenging State academic standards
that all students are expected to meet;
(iii) Is designed to meet the educational needs of all students in
the school, particularly the needs of students who are failing, or are
most at risk of failing, to meet the challenging State academic
standards; and
* * * * *
(2)(i) Serves only students who are failing, or are most at risk of
failing, to meet the challenging State academic standards;
* * * * *
0
17. Section 200.81 is amended by:
0
a. Revising the introductory text and paragraphs (a) and (c);
0
b. Adding paragraphs (f), (g), and (h);
0
c. Revising paragraphs (k) and (l); and
0
d. Removing the parenthetical authority citation.
The revisions read as follows:
Sec. 200.81 Program definitions.
The following definitions apply to programs and projects operated
under this subpart:
(a) Agricultural work or employment means the production or initial
processing of raw agricultural products such as crops, trees, dairy
products, poultry, or livestock. It consists of work performed for
wages or personal subsistence.
* * * * *
(c) Fishing work or employment means the catching or initial
processing of fish or shellfish or the raising or harvesting of fish or
shellfish at fish farms. It consists of work performed for wages or
personal subsistence.
* * * * *
(f) Migratory agricultural worker means an individual who made a
qualifying move in the preceding 36 months and, after doing so, engaged
in new temporary or seasonal employment or personal subsistence in
agriculture, which may be dairy work or the initial processing of raw
agricultural products. If an individual did not engage in such new
employment soon after a qualifying move, such individual may be
considered a migratory agricultural worker if the individual actively
sought such new employment and has a recent history of moves for
temporary or seasonal agricultural employment.
(g) Migratory child means a child or youth who made a qualifying
move in the preceding 36 months as a migratory agricultural worker or a
migratory fisher; or with, or to join, a parent or spouse who is a
migratory agricultural worker or a migratory fisher.
(h) Migratory fisher means an individual who made a qualifying move
in the preceding 36 months and, after doing so, engaged in new
temporary or seasonal employment or personal subsistence in fishing. If
the individual did not engage in such new employment soon after a
qualifying move, the individual may be considered a migratory fisher if
the individual actively sought such new employment and has a recent
history of moves for temporary or seasonal fishing employment.
* * * * *
(k) MSIX Memorandum of Understanding (MOU) means the agreement
between the Department and an SEA that governs the interconnection of
the State migrant student records system(s) and MSIX, including the
terms under which the agency will abide by the agreement based upon its
review of all relevant technical, security, and administrative issues.
(l) MSIX Interconnection Security Agreement means the agreement
between the Department and an SEA that specifies the technical and
security requirements for establishing, maintaining, and operating the
interconnection between the State migrant student records system and
MSIX. The MSIX Interconnection Security Agreement supports the MSIX MOU
and documents the requirements for connecting the two information
technology systems, describes the
[[Page 31677]]
security controls to be used to protect the systems and data, and
contains a topological drawing of the interconnection.
* * * * *
0
18. Section 200.83 is amended by:
0
a. Revising paragraphs (a) introductory text, (b), and (c); and
0
b. Removing the parenthetical authority citation.
The revisions read as follows:
Sec. 200.83 Responsibilities of SEAs to implement projects through a
comprehensive needs assessment and a comprehensive State plan for
service delivery.
(a) An SEA that receives a grant of MEP funds must develop and
update a written comprehensive State plan for service delivery based on
a current statewide needs assessment that, at a minimum, has the
following components:
* * * * *
(b) The SEA must develop its comprehensive State plan for service
delivery in consultation with the State parent advisory council or, for
SEAs not operating programs for one school year in duration, in
consultation with the parents of migratory children. This consultation
must be in a format and language that the parents understand.
(c) Each SEA receiving MEP funds must ensure that its local
operating agencies comply with the comprehensive State plan for service
delivery.
* * * * *
0
19. Section 200.85 is amended by revising paragraphs (f)(1) and (2) and
removing the parenthetical authority citation to read as follows:
Sec. 200.85 Responsibilities of SEAs for the electronic exchange
through MSIX of specified educational and health information of
migratory children.
* * * * *
(f) * * *
(1) Enter into and carry out its responsibilities in accordance
with an MSIX MOU, an MSIX Interconnection Security Agreement, and other
information technology agreements required by the Secretary in
accordance with applicable Federal requirements;
(2) Establish and implement written procedures to protect the
integrity, security, and confidentiality of Consolidated Student
Records, whether in electronic or print format, through appropriate
administrative, technical, and physical safeguards established in
accordance with the MSIX MOU and MSIX Interconnection Security
Agreement. An SEA's written procedures must include, at a minimum,
reasonable methods to ensure that--
* * * * *
Sec. 200.87 [Amended]
0
20. Section 200.87 is amended by:
0
a. Removing the words ``subpart C of this part'' and adding in their
place ``this subpart'';
0
b. Removing the citation ``section 9501'' and adding in its place the
citation ``section 8501''; and
0
c. Removing the parenthetical authority citation.
0
21. Section 200.88 is amended by revising paragraphs (a) and (c)(1) and
removing the parenthetical authority citation to read as follows:
Sec. 200.88 Exclusion of supplemental State and local funds from
supplement, not supplant and comparability determinations.
(a) For purposes of determining compliance with the comparability
requirement in section 1118(c) and the supplement, not supplant
requirement in section 1118(b) of the ESEA, a grantee or subgrantee
under part C of title I of the ESEA may exclude supplemental State and
local funds expended in any school attendance area or school for
carrying out special programs that meet the intent and purposes of part
C of title I.
* * * * *
(c) * * *
(1) The program is specifically designed to meet the unique
educational needs of migratory children, as defined in section 1309(3)
of the ESEA.
* * * * *
0
22. Section 200.89 is amended by revising paragraphs (b)(1)(i)
introductory text, (b)(1)(iii)(C), and (c)(2) to read as follows:
Sec. 200.89 Re-interviewing; eligibility documentation; and quality
control.
* * * * *
(b) * * *
(1) * * *
(i) As a condition for the continued receipt of MEP funds in FY
2006 and subsequent years, an SEA under a corrective action issued by
the Secretary under paragraph (b)(2)(vii) or (d)(7) of this section
must, as required by the Secretary--
* * * * *
(iii) * * *
(C) An acknowledgement that the Secretary may adjust the child
counts for 2000-2001 and subsequent years downward based on the defect
rate that the Secretary accepts;
* * * * *
(c) * * *
(2) In addition to the form required under paragraph (c)(1) of this
section, the SEA and its operating agencies must maintain any
additional documentation the SEA requires to confirm that each child
found eligible for this program meets all of the eligibility
definitions in section 1309 of the ESEA and Sec. 200.81.
* * * * *
0
23. Section 200.90 is amended by:
0
a. In paragraph (a), removing the words ``definitions apply'' and
adding in their place ``definition applies''.
0
b. In paragraph (b):
0
i. In the definitions for ``Institution for delinquent children and
youth'' and ``Institution for neglected children and youth''
redesignating paragraphs (1) and (2) as paragraphs (i) and (ii); and
0
ii. Revising the definition of ``Regular program of instruction''.
0
c. In paragraph (c):
0
i. Removing the words ``definitions apply'' and ``Title'' and adding in
their place ``definition applies'' and ``title'', respectively; and
0
ii. Removing the definitions of ``Immigrant children and youth and
limited English proficiency'' and ``Migrant youth''.
0
c. Removing the parenthetical authority citation.
The revision reads as follows:
Sec. 200.90 Program definitions.
* * * * *
(b) * * *
Regular program of instruction means an educational program (not
beyond grade 12) in an institution or a community day program for
neglected or delinquent children that consists of classroom instruction
in basic school subjects such as reading, mathematics, and career and
technical education, and that is supported by non-Federal funds.
Neither the manufacture of goods within the institution nor activities
related to institutional maintenance are considered classroom
instruction.
* * * * *
0
24. Section 200.100 is amended by:
0
a. Revising the section heading, introductory text, paragraphs (a)(1)
and (2), (b)(1) introductory text, (c), and (d)(2) and the
parenthetical OMB citation; and
0
b. Removing the parenthetical authority citation.
The revisions read as follows:
Sec. 200.100 Reservation of funds for school improvement, State
administration, and direct student services.
A State must reserve funds for school improvement, and may reserve
funds for State administration and direct student services as follows:
(a) School improvement. (1) To carry out school improvement
activities and
[[Page 31678]]
the State's statewide system of technical assistance and support for
LEAs authorized under sections 1003 and 1111(d) of the ESEA, an SEA
must reserve the greater of--
(i) Seven percent from the sum of the amounts allocated to the
State under section 1002(a) of the ESEA; or
(ii) The sum of the total amount that the State--
(A) Reserved for fiscal year 2016 under section 1003(a) of the ESEA
as in effect on December 9, 2015; and
(B) Received for fiscal year 2016 under section 1003(g) of the ESEA
as in effect on December 9, 2015.
(2) For fiscal year 2018 and subsequent years, in reserving funds
under paragraph (a)(1) of this section, a State may not reduce the sum
of the allocations an LEA receives under subpart 2 of part A of title I
of the ESEA below the sum of the allocations the LEA received under
subpart 2 for the preceding fiscal year.
* * * * *
(b) State administration. (1) An SEA may reserve for State
administrative activities authorized in sections 1004 and 1603 of the
ESEA no more than the greater of--
* * * * *
(c) Direct student services. To carry out direct student services
authorized under section 1003A of the ESEA, an SEA may, after
meaningful consultation with geographically diverse LEAs, reserve not
more than three percent of the amounts allocated to the State under
subpart 2 of part A of title I of the ESEA for each fiscal year.
(d) * * *
(2) Proportionately reduce each LEA's total allocation received
under subpart 2 of part A of title I of the ESEA even if an LEA's total
allocation falls below its hold-harmless percentage under Sec.
200.73(a)(4).
(Approved by the Office of Management and Budget under control
number 1810-0622)
0
25. Section 200.103 is amended by:
0
a. Removing paragraph (c);
0
b. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c);
0
c. Adding a new paragraph (a); and
0
d. Removing the parenthetical authority citation.
The addition and revision read as follows:
Sec. 200.103 Definitions.
* * * * *
(a) Child with a disability means child with a disability, as
defined in section 602(3) of the IDEA.
* * * * *
PART 299--GENERAL PROVISIONS
0
26. The authority citation for part 299 is revised to read as follows:
Authority: 20 U.S.C. 1221e-3, unless otherwise noted.
Section 299.1 also issued under 20 U.S.C. 1221e-3.
Section 299.2 also issued under 20 U.S.C. 1221e-3.
Section 299.4 also issued under 20 U.S.C. 7821 and 7823.
Section 299.5 also issued under 20 U.S.C. 7428(c), 7801(11),
7901.
Section 299.6 also issued under 20 U.S.C. 7881.
Section 299.7 also issued under 20 U.S.C. 7881.
Section 299.8 also issued under 20 U.S.C. 7881.
Section 299.9 also issued under 20 U.S.C. 7881.
Section 299.10 also issued under 20 U.S.C. 7881(a)(3)(B).
Section 299.11 also issued under 20 U.S.C. 1221e-3,
7844(a)(3)(C), 7883.
Section 299.12 also issued under 20 U.S.C. 1221e-3,
7844(a)(3)(C), 7883.
Section 299.13 also issued under 20 U.S.C. 1221e-3,
7844(a)(3)(C), 7883.
0
27. Section 299.1 is revised to read as follows:
Sec. 299.1 What are the purpose and scope of the regulations in this
part?
(a) This part establishes uniform administrative rules for programs
in titles I through VII of the Elementary and Secondary Education Act
of 1965, as amended (ESEA). As indicated in particular sections of this
part, certain provisions apply only to a specific group of programs.
(b) If an ESEA program does not have implementing regulations, the
Secretary implements the program under the authorizing statute and, to
the extent applicable, title VIII of the ESEA, the General Education
Provisions Act, the regulations in this part, EDGAR (34 CFR parts 75
through 99), and 2 CFR parts 180, as adopted at 2 CFR part 3485, and
200, as adopted at 2 CFR part 3474, that are not inconsistent with
specific statutory provisions of the ESEA.
0
28. Section 299.2 is revised to read as follows:
Sec. 299.2 What general administrative regulations apply to ESEA
programs?
Title 2 of the CFR, part 200, as adopted at 2 CFR part 3474,
applies to all ESEA programs except for title VII programs (Impact Aid)
(in addition to any other specific implementing regulations).
Note 1 to Sec. 299.2: 34 CFR 222.19 indicates which EDGAR
provisions apply to title VII programs (Impact Aid).
0
29. Section 299.4 is revised to read as follows:
Sec. 299.4 What requirements apply to the consolidation of State and
local administrative funds?
An SEA may adopt and use its own reasonable standards in
determining whether--
(a) The majority of its resources for administrative purposes comes
from non-Federal sources to permit the consolidation of State
administrative funds in accordance with section 8201 of the ESEA; and
(b) To approve an LEA's consolidation of its administrative funds
in accordance with section 8203 of the ESEA.
0
30. Section 299.5 is amended by:
0
a. Revising paragraph (b);
0
b. Designating the ``Example'' following paragraph (c) as paragraph
(c)(1) and revising newly designated paragraph (c)(1);
0
c. Adding reserved paragraph (c)(2); and
0
d. Removing the parenthetical authority citation.
The revision reads as follows:
Sec. 299.5 What maintenance of effort requirements apply to ESEA
programs?
* * * * *
(b) Applicable programs. This subpart is applicable to the
following programs:
(1) Part A of title I (Improving Basic Programs Operated by Local
Educational Agencies).
(2) Part D of title I (Prevention and Intervention Programs for
Children and Youth Who Are Neglected, Delinquent, or At Risk).
(3) Part A of title II (Supporting Effective Instruction).
(4) Part A, subpart 1 of title III (English Language Acquisition,
Language Enhancement, and Academic Achievement), except for section
3112.
(5) Part A of title IV (Student Support and Academic Enrichment
Grants).
(6) Part B of title IV (21st Century Community Learning Centers).
(7) Part B, subpart 2 of title V (Rural and Low-Income School
Program).
(8) Part A, subpart 1 of title VI (Indian Education Formula Grants
to Local Educational Agencies).
(c) * * *
(1) Example. For fiscal year 2018 funds that are first made
available on July 1, 2018, if a State is using the Federal fiscal year,
the ``preceding fiscal year'' is Federal fiscal year 2017 (which began
on October 1, 2016 and ended September 30, 2017) and the ``second
preceding fiscal year'' is Federal fiscal year 2016 (which began on
October 1, 2015). If a State is using a fiscal year that begins on July
1, 2018, the ``preceding fiscal year'' is the 12-month period ending on
June 30, 2017, and the
[[Page 31679]]
``second preceding fiscal year'' is the period ending on June 30, 2016.
* * * * *
0
31. Section 299.6 is amended by:
0
a. In paragraph (a), removing the words ``agency or consortium of
agencies'' and add in their place the words ``agency, consortium, or
entity'';
0
b. Revising (b)(2) through (6); and
0
c. Removing the parenthetical authority citation.
The revision reads as follows:
Sec. 299.6 What are the responsibilities of a recipient of funds for
providing services to children and teachers in private schools?
* * * * *
(b) * * *
(2) Part A of title II (Supporting Effective Instruction).
(3) Part A of title III (English Acquisition, Language Enhancement,
and Academic Achievement).
(4) Part A of title IV (Student Support and Academic Enrichment
Grants).
(5) Part B of title IV (21st Century Community Learning Centers).
(6) Section 4631 (Project SERV).
* * * * *
0
32. Section 299.7 is amended by:
0
a. Removing the words ``agency or consortium of agencies'' everywhere
they appear and adding in their place the words ``agency, consortium,
or entity'';
0
b. In paragraph (a)(2), removing the words ``agency's or consortium of
agencies''' and adding in their place the words ``agency's,
consortium's, or entity's'';
0
c. Adding paragraphs (a)(3) and (4);
0
d. Revising paragraph (b)(2)(iv); and
0
e. Removing the parenthetical authority citation.
The additions and revision read as follows:
Sec. 299.7 What are the factors for determining equitable
participation of children and teachers in private schools?
(a) * * *
(3) An agency, consortium, or entity must obligate funds allocated
for educational services and other benefits for eligible private school
children in the fiscal year for which the funds are received by the
agency, consortium, or entity.
(4) An SEA must provide notice in a timely manner to appropriate
private school officials in the State of the allocation of funds for
educational services and other benefits that an agency, consortium, or
entity has determined are available for eligible private school
children and their teachers and other educational personnel.
(b) * * *
(2) * * *
(iv) Provides private school children and their teachers and other
educational personnel with an opportunity to participate that is
equitable to the opportunity and benefits provided to public school
children and their teachers and other educational personnel.
* * * * *
Sec. 299.8 [Amended]
0
33. Section 299.8 is amended by:
0
a. Removing the words ``agency or consortium of agencies'' everywhere
they appear and adding in their place the words ``agency, consortium,
or entity''; and
0
b. Removing the parenthetical authority citation.
Sec. 299.9 [Amended]
0
34. Section 299.9 is amended by:
0
a. Removing the words ``public agency'' everywhere they appear and
adding in their place the words ``agency, consortium, or entity''; and
0
b. Removing paragraph (f) and the parenthetical authority citation.
Sec. Sec. 299.10 through 299.12 [Redesignated as Sec. Sec. 299.11
through 299.13]
0
35. Redesignate Sec. Sec. 299.10 through 299.12 as Sec. Sec. 299.11
through 299.13.
0
36. Section 299.10 is added to read as follows:
Sec. 299.10 Ombudsman.
To help ensure equity for eligible private school children,
teachers, and other educational personnel, an SEA must direct the
ombudsman designated under section 1117 of the ESEA and Sec. 200.68 to
monitor and enforce the requirements in Sec. Sec. 299.5 through 299.9.
0
37. Newly redesignated Sec. 299.11 is amended by revising paragraph
(b) and removing the parenthetical authority citation to read as
follows:
Sec. 299.11 What complaint procedures shall an SEA adopt?
* * * * *
(b) Applicable programs. This subpart is applicable to the
following programs:
(1) Part A of title I (Improving Basic Programs Operated by Local
Educational Agencies).
(2) Part C of title I (Education of Migratory Children).
(3) Part D of title I (Prevention and Intervention Programs for
Children and Youth Who Are Neglected, Delinquent, or At Risk).
(4) Part A of title II (Supporting Effective Instruction).
(5) Part A, subpart 1 of title III (English Language Acquisition,
Language Enhancement, and Academic Achievement), except for section
3112.
(6) Part A of title IV (Student Support and Academic Enrichment
Grants).
(7) Part B of title IV (21st Century Community Learning Centers).
(8) Part B, subpart 2 of title V (Rural and Low-Income School
Program).
(9) Subtitle B of title VII of the McKinney-Vento Homeless
Assistance Act, Education for Homeless Children and Youth Program.
* * * * *
0
38. Newly redesignated Sec. 299.12 is amended by:
0
a. Revising paragraphs (a), (b), and (c);
0
b. Removing the parenthetical OMB citation following paragraph (c);
0
c. Removing the parenthetical authority citation; and
0
d. Adding a parenthetical OMB citation at the end of the section.
The revisions read as follows:
Sec. 299.12 What items are included in the complaint procedures?
* * * * *
(a)(1) Except as provided in paragraph (a)(2) of this section, a
reasonable time limit after the SEA receives a complaint for resolving
the complaint in writing, including a provision for carrying out an
independent on-site investigation, if necessary.
(2) In matters involving violations of section 1117 or 8501 of the
ESEA (participation of private school children), an SEA must resolve,
in writing, a complaint within 45 days after receiving the complaint.
(b) An extension of the time limit under paragraph (a)(1) of this
section only if exceptional circumstances exist with respect to a
particular complaint.
(c)(1) The right for the complainant to request the Secretary to
review the final decision of the SEA, at the Secretary's discretion.
(2) In matters involving violations of section 1117 or 8501 of the
ESEA (participation of private school children), the Secretary will
follow the procedures in section 8503(b) of the ESEA.
* * * * *
(Approved by the Office of Management and Budget under OMB control
number 1810-0591)
Sec. 299.13 [Amended]
0
39. Newly redesignated Sec. 299.13 is amended by removing the
parenthetical authority citation.
[FR Doc. 2019-12286 Filed 7-1-19; 8:45 am]
BILLING CODE 4000-01-P