[Federal Register Volume 84, Number 155 (Monday, August 12, 2019)]
[Rules and Regulations]
[Pages 39736-39744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17215]


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DEPARTMENT OF EDUCATION

34 CFR Chapter III

[Docket ID ED-2019-OSERS-0001]


Final Priority and Requirements--Technical Assistance on State 
Data Collection Program--National Technical Assistance Center To 
Improve State Capacity To Collect, Report, Analyze, and Use Accurate 
IDEA Part B Data

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

ACTION: Final priority and requirements.

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[Catalog of Federal Domestic Assistance (CFDA) Number: 84.373Y.]
SUMMARY: The Assistant Secretary for Special Education and 
Rehabilitative Services announces a priority and requirements under the 
Technical Assistance on State Data Collection Program. The Assistant 
Secretary may use this priority and these requirements for competitions 
in fiscal year (FY) 2019 and later years. We take this action to focus 
attention on an identified national need to provide technical 
assistance (TA) to improve the capacity of States to meet the data 
collection and reporting requirements under Part B of the Individuals 
with Disabilities Education Act (IDEA). This center, CFDA number 
84.373Y, will support States in collecting, reporting, and determining 
how to best analyze and use their data to establish and meet high 
expectations for each child with a disability and would customize its 
TA to meet each State's specific needs.

DATES: This priority and these requirements are effective September 11, 
2019.

FOR FURTHER INFORMATION CONTACT: Richelle Davis, U.S. Department of 
Education, 400 Maryland Avenue SW, Room 5025A, Potomac Center Plaza, 
Washington, DC 20202-5076. Telephone: (202) 245-7334. Email: 
[email protected].
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 
    Purpose of Program: Section 616 of the IDEA requires States to 
submit to the Department, and make available to the public, a State 
performance plan (SPP) and an annual performance report (APR) with data 
on how each State implements both Parts B and C of the IDEA to improve 
outcomes for infants, toddlers, children, and youth with disabilities. 
Section 618 of the IDEA requires States to submit to the Department, 
and make available to the public, quantitative data on infants, 
toddlers, children, and youth with disabilities who are receiving early 
intervention and special education services under IDEA. The purpose of 
the Technical Assistance on State Data Collection program is to improve 
the capacity of States to meet IDEA data collection and reporting 
requirements under Sections 616 and 618 of the IDEA to collect, 
analyze, and report the data used to prepare the SPP/APR. Funding for 
the program is authorized under section 611(c)(1) of IDEA, which gives 
the Secretary the authority to reserve up to \1/2\ of 1 percent of the 
amounts appropriated under Part B for each fiscal year to provide TA 
activities, where needed, to improve the capacity of States to meet the 
data collection and reporting requirements under Parts B and C of IDEA. 
The maximum amount the Secretary may reserve under this set-aside for 
any fiscal year is $25,000,000, cumulatively adjusted by the rate of 
inflation. Section 616(i) of IDEA requires the Secretary to review the 
data collection and analysis capacity of States to ensure that data and 
information determined necessary for implementation of section 616 of 
IDEA are collected, analyzed, and accurately reported to the Secretary. 
It also requires the Secretary to provide TA, where needed, to improve 
the capacity of States to meet the data collection requirements, which 
include the data collection and reporting requirements in sections 616 
and 618 of IDEA. Additionally, Division H of the

[[Page 39737]]

Consolidated Appropriations Act of 2018 gives the Secretary authority 
to use funds reserved under section 611(c) to ``carry out services and 
activities to improve data collection, coordination, quality, and use 
under Parts B and C of the IDEA.'' Consolidated Appropriations Act, 
2018; Div. H, Title III of Public Law 115-141; 132 Stat. 745 (2018).

    Program Authority:  20 U.S.C. 1411(c), 1416(i), 1418(c), 1442, 
and the Department of Education Appropriations Act, 2018; Div. H, 
Title III of Public Law 115-141, Consolidated Appropriations Act, 
2018; 132 Stat. 745 (2018).

    Applicable Program Regulations: 34 CFR 300.702.
    We published a notice of proposed priority and requirements for 
this program in the Federal Register on March 6, 2019 (84 FR 8054) (the 
NPP). The NPP contained background information and our reasons for 
proposing the particular priority and requirements.
    There are differences between the NPP and this notice of final 
priority and requirements (NFP) as discussed in the Analysis of 
Comments and Changes section of this notice. The most significant of 
these changes, as discussed below, is the addition of an indirect cost 
rate cap to the final requirements.
    Public Comment: In response to our invitation in the NPP, 12 
parties submitted comments on the proposed priority and requirements.
    Generally, we do not address technical and other minor changes. In 
addition, we do not address comments that raised concerns not directly 
related to the proposed priority and requirements.
    Analysis of Comments and Changes: An analysis of the comments and 
changes in the priority and requirements since publication of the NPP 
follows. OSERS received comments on a number of specific topics from 
the proposed cap on the maximum allowable indirect cost rate to the 
topics for technical assistance. Each topic is addressed below.

General Comments

    Comments: One commenter specifically expressed support for the 
proposed center, and a number of other commenters noted the positive 
impact of the valuable TA they received from centers previously funded 
under this program.
    Discussion: The Department appreciates the comments and agrees with 
the commenters. Centers, like the proposed center, funded under this 
program provide necessary and valuable TA to the States.
    Changes: None.
    Comments: None.
    Discussion: As discussed in the NPP, the Department is particularly 
concerned about maximizing the efficiency and effectiveness of this 
investment. Given the purpose of the program, we believe a critical 
lever to meeting this goal is to ensure that TA is appropriately 
targeted to recipients with a known and ongoing need for support in 
reporting, analyzing, and using high quality IDEA data. As such, the 
Department is adding a requirement that applicants describe their 
proposed approach to prioritizing TA recipients with a particular focus 
on meeting the needs of States with ongoing data quality issues.
    Changes: The final priority includes a requirement for applicants 
to describe their proposed approach to prioritizing TA recipients.

Indirect Cost Rate

    Comments: A number of commenters agreed with the purpose of the 
indirect cost cap, which is to maximize funds that go directly to 
provide TA to States to improve their capacity to meet the IDEA data 
collection and reporting requirements. These same commenters, however, 
believed that setting a cap on indirect costs would not achieve this 
goal and that it may negatively impact the program. They noted that 
indirect costs support a wide variety of purchases and activities, 
including, but not limited to, facilities, information technology (IT) 
services, and support personnel. Further, a subset of these commenters 
stated that a cap on indirect cost rates would limit competition, 
reduce the number of qualified applicants, and likely degrade the 
quality of TA services provided to States. Specifically, some of these 
commenters stated that a cap could make it cost prohibitive for small 
businesses to compete for the grant, as they could not absorb any 
unrecovered indirect costs. Additionally, it would make it harder for 
applicants to attract and retain qualified personnel, thus depressing 
the quality of services provided to States.
    Discussion: The Department appreciates the stakeholder input it 
received in response to the specific directed question on the indirect 
cost cap proposal but disagrees that it would have a negative impact on 
the program. Regarding potential impact, the Department has done an 
analysis of the indirect cost rates for all current technical 
assistance centers funded under the Technical Assistance and 
Dissemination and Technical Assistance on State Data Collection 
programs as well as other grantees that are large, midsize and small 
businesses and small nonprofit organizations and has found that, in 
general, total indirect costs charged on these grants by these entities 
were at or below 35 percent of total direct costs. We recognize that, 
dependent on the structure of the investment and activities, the 
modified total direct cost (MTDC) base could be much smaller than the 
total direct cost, which would imply a higher indirect cost rate than 
those calculated here. The Department arrived at a 40 percent rate to 
address some of that variation. Such a change accounts for a 12 percent 
variance between TDC and MTDC. However, we note that, in the absence of 
a cap, certain entities would likely charge indirect cost rates in 
excess of 40 percent of MTDC. Based on our review, it appears that 
those entities would likely be larger for-profit and nonprofit 
organizations, but these organizations appear to be outliers when 
compared to the majority of other large businesses as well as the 
entirety of OSEP's grantees. Setting an indirect cost rate cap of 40 
percent is in line with the majority of applicants' existing negotiated 
rates with the cognizant Federal agency. Therefore, we do not believe 
that the cap we are setting in these final requirements would 
negatively impact the majority of entities' ability to recover indirect 
costs.
    Regarding commenters' concerns that a cap on indirect costs would 
limit competition and reduce the number of qualified applicants, it is 
not clear how a cap would do so. The cap included in the final 
requirements does not limit the pool of eligible applicants because 
most entities' indirect cost rates are below the cap we are setting. 
Further, regarding the impact on the quality of TA services provided to 
States, we have no information indicating a direct correlation between 
an entity's negotiated indirect cost rate and its ability to attract 
and retain qualified personnel and thus their ability to provide high-
quality TA services to States. Based on our analysis, there are many 
OSEP grantees that are able to effectively carry out project activities 
required by their individual grants with negotiated indirect cost rates 
under the cap included in the final requirements. Further, the 
Department's peer review process is intended to assess the ability of 
various applicants to provide high-quality TA to States. Finally, we do 
not believe the cap we are setting in these final requirements would 
result in an amount of unrecovered costs that would deter most 
prospective applicants. The prospective applicants could look at the

[[Page 39738]]

indirect cost cap prior to applying and either choose to absorb 
unrecovered costs or opt not to apply.
    In light of these considerations, we have determined that placing 
an indirect cost cap that is the lesser of the percentage approved by 
the grantee's cognizant Federal agency and 40 percent for this priority 
is appropriate as it maximizes the availability of funds for the 
primary TA purposes of this priority, which is to improve the capacity 
of States to meet the data collection and reporting requirements under 
Parts B and C of IDEA and to ultimately benefit programs serving 
children with disabilities.
    Changes: Paragraph (d)(5) of the final requirements now includes an 
indirect cost cap that is the lesser of the percentage approved by the 
grantee's cognizant Federal agency and a cap of 40 percent on the 
reimbursement of indirect costs.
    Comments: A number of commenters expressed concerns that many of 
the most qualified organizations could not compete because once 
indirect cost rates are set by, and audited by, a cognizant agency, 
they cannot be lowered for a single project.
    Discussion: Our analysis of indirect cost rates took into account 2 
CFR 200.414(c)(1), which allows a Federal awarding agency to use an 
indirect cost rate different from the negotiated rate when required by 
Federal statute or regulation or when approved by a Federal awarding 
agency head based on documented justification when the Federal awarding 
agency implements, and makes publicly available, the policies, 
procedures, and general decision making criteria that their programs 
will follow to seek and justify deviations from negotiated rates. 
Federal discretionary grantees have historically been reimbursed for 
indirect costs at the rate that each grantee negotiates with its 
cognizant Federal agency, and we believe that use of the negotiated 
rate is appropriate for most grants in most circumstances. However, 
because funding for this program comes from funds reserved by the 
Department that would otherwise be allocated to States under Part B 
(which applies a restricted indirect cost rate to State grantees), we 
determined that using an indirect cost rate different from the 
negotiated rate was appropriate since it would maximize the funds 
available to provide TA to States to improve their capacity to meet the 
IDEA data collection and reporting requirements.
    Changes: None.
    Comments: Numerous commenters expressed concerns that the 
implementation of an indirect cost rate limit would not impact each 
vendor equally or result in equal savings to the government, as 
categories of indirect costs vary across vendors.
    Discussion: We appreciate the commenters' concerns and recognize 
that a cap on the indirect cost rate, although it would apply equally 
to all applicants, may be more difficult for particular entities to 
meet, particularly those with high negotiated indirect cost rates. 
However, as noted above, our analysis indicates that the rate 
established in the final requirements would not appear to create 
unreasonable burdens for many applicants. Further, it was not the 
Department's intention to institute a limit on the reimbursement of 
indirect costs by specific cost category, but rather to apply it as a 
percentage of MTDC. We have clarified in the final requirements that 
the limit applies to MTDC as defined in 2 CFR 200.68. As the MTDC is 
applied to the total direct costs of the grant, each grantee's MTDC 
will include direct salaries and wages, applicable fringe benefits, 
materials and supplies, services, travel, and up to the first $25,000 
of each subaward, thus ensuring equity across vendors.
    Changes: The final requirement clarifies that the 40 percent 
maximum indirect cost rate is applied to MTDC as defined in 2 CFR 
200.68.
    Comments: Two commenters provided alternatives to setting a cap. 
One commenter proposed gauging competitiveness based on a vendor's 
total price in combination with the proposed quality and level of 
effort. A second commenter suggested that the program add a cost share 
requirement in lieu of an indirect cost cap. The commenter suggested 
that a modest cost share may not impact vendor economics to the same 
degree as a cap on indirect costs.
    Discussion: The Department appreciates the commenters' suggestions. 
Regarding gauging competitiveness based on a vendor's total price in 
combination with the proposed quality and level of effort, this may 
represent a viable approach for contract procurement, but does not lend 
itself to making discretionary grant awards. Regarding the second 
commenter's recommendation to add a cost share requirement, the nature 
of the funding source for this program does not allow for a cost 
sharing requirement and, in addition, could have the unintended 
consequence of eliminating small businesses.
    Changes: None.
    Comments: One commenter advocated for the Department to provide 
clarification and guidance to States on what should be covered by 
indirect cost rates and how to determine appropriate indirect cost 
rates. Additionally, a second commenter suggested the Department allow 
States the flexibility to determine and justify funds allocated to 
indirect costs.
    Discussion: The Department appreciates the commenters' suggestions. 
We were not proposing a cap on the indirect cost rates for State 
formula grants. Clarification or guidance on what is or is not an 
indirect cost can be obtained from the indirect cost office of the 
applicant's cognizant Federal agency.
    Changes: None.

Data Collection Under IDEA

    Comments: A commenter recommended that the Department collect data 
on students who identify in a gender-neutral category, use a different 
language/communication system, or are born in the United States but do 
not speak English as their first language, and on their socioeconomic 
status, parental English fluency, and parents' highest educational 
level.
    Discussion: The Department appreciates the comment; however, this 
priority does not address the data collection and reporting 
requirements for States under IDEA. The EDFacts information collection 
package (OMB control number 1850-0925), which would more squarely 
address these issues, was published in the Federal Register on April 8, 
2019 (84 FR 13913). It addressed the IDEA Section 618 Part B data 
collection requirements and was open for public comment from April 8, 
2019 to May 8, 2019.
    Changes: None.

Significant Disproportionality

    Comments: Some commenters noted that the proposed center did not 
include anything in its scope or focus related to TA on significant 
disproportionality. Commenters spoke to the continued need for data-
related TA on significant disproportionality.
    Discussion: The Department appreciates the commenters' concerns. At 
this time, however, the Department does not wish to emphasize specific 
IDEA sections 618 and 616 Part B data collection and reporting 
requirements that the proposed center would be required to address. 
Applicants will be required to demonstrate knowledge of current 
educational issues and policy initiatives (e.g., significant 
disproportionality) about IDEA Part B data collection and reporting 
requirements and knowledge of State and local data collection systems, 
as appropriate. The Center would be expected to provide TA designed to

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meet the needs of States. Therefore, to the extent that particular TA 
recipients require support for any of the sections 618 and 616 Part B 
data collection or reporting requirements, the Center would provide the 
needed TA.
    Changes: None.

Involvement of the State Educational Agency (SEA) in TA Efforts

    Comments: Some commenters requested that we require the proposed 
center to work with the SEA when providing TA to local educational 
agencies (LEAs) within the State in order to ensure TA aligns with the 
State's requirements.
    Discussion: The Department agrees with commenters on the need to 
include SEAs when TA is provided to an LEA within a State. We added 
language to the priority to clarify that TA to LEAs must occur in 
collaboration with the SEA.
    Changes: We added language to paragraph (d) of the list of expected 
outcomes in the priority to require the Center to collaborate with the 
SEA in providing TA to LEAs.

Cross-State Collaboration

    Comments: A number of commenters requested further clarification 
about expectations for cross-State collaboration, and three commenters 
suggested the Department require the proposed center to support a State 
data manager advisory board.
    Discussion: The Department agrees with the commenters regarding the 
importance of cross-State collaboration. Expectations for such 
collaboration were already included in paragraph (c) in the list of 
expected outcomes in the proposed priority, which the Department 
believes fully addresses the commenters' concerns.
    Consequently, we do not believe an advisory board is necessary, and 
anticipate that the funded center would engage established data groups 
to determine the data manager needs as appropriate.
    Changes: None.

Targeted Technical Assistance

    Comment: One commenter recommended expanding the provision of 
targeted TA to States.
    Discussion: The Department agrees with the commenter regarding the 
continued need to provide additional targeted TA to States. Targeted TA 
to groups of States on specific data processes and data collections is 
not only valuable to the State but also an efficient way to provide TA.
    Changes: We revised what is now paragraph (f)(7) of the 
requirements to clarify that 50 percent of the grant award must go to 
support both targeted and intensive TA to States.

Division of Activities Between 84.373Y and 84.373Z

    Comment: Several commenters voiced a concern with splitting the 
responsibilities of providing TA on the IDEA Part B preschool special 
education data between the proposed center and the National Technical 
Assistance Center to Improve State Capacity to Collect, Report, 
Analyze, and Use Accurate Early Childhood IDEA Data, CFDA number 
84.373Z. The commenters stated that splitting the responsibilities 
regarding the IDEA Part B preschool special education data across the 
two centers may require Part B data managers to work with both centers 
in order to improve the quality of their IDEA Part B preschool special 
education data.
    Discussion: The Department appreciates the commenters' concerns. 
The Department believes that including IDEA Part B preschool special 
education data in the scope of this center makes sense for some of the 
IDEA data and including IDEA Part B preschool special education data in 
the scope of the National Technical Assistance Center to Improve State 
Capacity to Collect, Report, Analyze, and Use Accurate Early Childhood 
IDEA Data, CFDA number 84.373Z, is appropriate for other IDEA data.
    The Department believes that including the IDEA Part B preschool 
special education data required under IDEA section 618 (including the 
section 618, Part B Child Count and Educational Environments data) and 
those preschool data required under IDEA section 616 for indicators in 
the IDEA Part B State Performance Plan/Annual Performance Report (SPP/
APR) that solely use the EDFacts data as the source for reporting, such 
as Indicator B-5 (Preschool Least Restrictive Environment), within the 
scope of this center will allow a State to obtain TA on IDEA data 
submitted via EDFacts from a single center. This structure that 
specifies more distinct portfolios of the centers (i.e., less overlap) 
will make it easier for States to work with the two centers. Since a 
State Part B data manager plays a significant role in submitting the 
IDEA data on children with disabilities ages 3 through 5 and children 
with disabilities ages 6 through 21 via EDFacts, the data manager will 
be able to access TA on these data through a single center. Finally, 
this will allow States to receive TA on IDEA data-related topics and 
analyses that are supported by and use IDEA section 618 data submitted 
via EDFacts.
    The Department believes that including the IDEA Part B preschool 
special education data required under IDEA Section 616 for Indicators 
B-7 (Preschool Outcomes) and B-12 (Early Childhood Transition) within 
the scope for the National Technical Assistance Center to Improve State 
Capacity to Collect, Report, Analyze, and Use Accurate Early Childhood 
IDEA Data, CFDA number 84.373Z, is appropriate because it will 
facilitate better linkages between the Part C data and the IDEA Part B 
preschool special education data on children with disabilities and the 
inclusion of the Part C and IDEA Part B preschool special education 
data in the Early Childhood Integrated Data Systems (ECIDS). This will 
allow for enhanced opportunities to improve the quality of data States 
are collecting, reporting, analyzing, and using related to children's 
transition from the Part C early intervention program to the Part B 
preschool special education program. In addition, due to the 
similarities in the type of data required under IDEA section 616 for 
Indicator C-3 (Infant and Toddler Outcomes) in the Part C SPP/APR and 
Indicator B-7 (Preschool Outcomes) in the Part B SPP/APR, it is more 
efficient to have the center funded under CFDA number 373Z provide TA 
on these data.
    Changes: We have revised the purpose of the priority to include TA 
on the section 618, Part B Child Count and Educational Environments 
data for children with disabilities ages 3 through 5 and preschool data 
required under IDEA section 616 for indicators in the IDEA Part B SPP/
APR that solely use the EDFacts data as the source for reporting, such 
as Indicator B-5 (Preschool Least Restrictive Environment), in the 
scope of this center.

Definition of Evidence-Based Practices

    Comments: One commenter stated that the definition of evidence-
based practices (EBPs) used in the proposed requirements does not align 
with the highest level of available evidence, and that EBP is a dynamic 
process that requires ongoing evaluation.
    Discussion: We understood the commenter to be recommending a higher 
level of evidence than required in the proposed requirements. We agree 
with the commenter regarding the importance of ensuring the provision 
of effective TA to States; however, we do not agree that the definition 
of EBPs used in the proposed requirements is insufficient. We are 
continually reviewing the effectiveness of services provided by our 
federally funded TA

[[Page 39740]]

centers. We believe that the definition of EBPs used in the proposed 
requirements--the definition in 34 CFR 77.1--is well established and 
provides the necessary standards against which high-quality services 
may be judged for the purposes of making an award and monitoring the 
implementation of TA to improve the capacity of States to meet the data 
collection and reporting requirements under Part B of IDEA.
    Changes: None.
    Final Priority:
    Technical Assistance on State Data Collection--National Technical 
Assistance Center to Improve State Capacity to Collect, Report, 
Analyze, and Use Accurate IDEA Part B Data.
    Priority:
    The purpose of this priority is to fund a cooperative agreement to 
establish and operate the National Technical Assistance Center to 
Improve State Capacity to Collect, Report, Analyze, and Use Accurate 
IDEA Part B Data (Data Center).
    The Data Center will provide TA to help States better meet current 
and future IDEA Part B data collection and reporting requirements, 
improve data quality, and analyze and use section 616, section 618, and 
other IDEA data (e.g., State Supplemental Survey-IDEA) to identify and 
address programmatic strengths and areas for improvement. This Data 
Center will focus on providing TA on collecting, reporting, analyzing, 
and using Part B data on children with disabilities ages 3 through 21 
required under sections 616 and 618 of IDEA, including Part B data on 
children with disabilities ages 3 through 5 required under section 618 
of IDEA for the Part B Child Count and Educational Environments data 
collection and under section 616 for indicators in the IDEA Part B SPP/
APR that solely use the EDFacts data as the source for reporting, such 
as Indicator B-5 (Preschool Least Restrictive Environment). However, 
the Data Center will not provide TA on Part B data required under 
section 616 of IDEA for Indicators B7 (Preschool Outcomes) and B12 
(Early Childhood Transition); TA on collecting, reporting, analyzing, 
and using Part B data associated with children with disabilities ages 3 
through 5 for these indicators will be provided by the National IDEA 
Technical Assistance Center on Early Childhood Data Systems, CFDA 
number 84.373Z.
    The Data Center must be designed to achieve, at a minimum, the 
following expected outcomes:
    (a) Improved State data infrastructure by coordinating and 
promoting communication and effective data governance strategies among 
relevant State offices, including SEAs, LEAs, and schools to improve 
the quality of IDEA data required under sections 616 and 618 of IDEA;
    (b) Increased capacity of States to submit accurate and timely 
data, to enhance current State validation procedures, and to prevent 
future errors in State-reported IDEA Part B data;
    (c) Improved capacity of States to meet the data collection and 
reporting requirements under sections 616 and 618 of IDEA by addressing 
personnel training needs, developing effective tools (e.g., training 
modules) and resources (e.g., documentation of State data processes), 
and providing in-person and virtual opportunities for cross-State 
collaboration about data collection and reporting requirements that 
States can use to train personnel in schools, programs, agencies, and 
districts;
    (d) Improved capacity of SEAs and LEAs, in collaboration with SEAs, 
to collect, analyze, and use both SEA and LEA IDEA data to identify 
programmatic strengths and areas for improvement, address root causes 
of poor performance towards outcomes, and evaluate progress towards 
outcomes;
    (e) Improved IDEA data validation by using results from data 
reviews conducted by the Department to work with States to generate 
tools that can be used by States to lead to improvements in the 
validity and reliability of data required by IDEA and enable States to 
communicate accurate data to local consumers (e.g., parents, school 
boards, the general public); and
    (f) Increased capacity of States to collect, report, analyze, and 
use high-quality IDEA Part B data.
    Types of Priorities:
    When inviting applications for a competition using one or more 
priorities, we designate the type of each priority as absolute, 
competitive preference, or invitational through a notice in the Federal 
Register. The effect of each type of priority follows:
    Absolute priority: Under an absolute priority, we consider only 
applications that meet the priority (34 CFR 75.105(c)(3)).
    Competitive preference priority: Under a competitive preference 
priority, we give competitive preference to an application by (1) 
awarding additional points, depending on the extent to which the 
application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) 
selecting an application that meets the priority over an application of 
comparable merit that does not meet the priority (34 CFR 
75.105(c)(2)(ii)).
    Invitational priority: Under an invitational priority, we are 
particularly interested in applications that meet the priority. 
However, we do not give an application that meets the priority a 
preference over other applications (34 CFR 75.105(c)(1)).

Final Requirements

    The Assistant Secretary establishes the following requirements for 
this program. We may apply these requirements in any year in which this 
program is in effect.
    Requirements:
    Applicants must--
    (a) Demonstrate, in the narrative section of the application under 
``Significance,'' how the proposed project will--
    (1) Address the capacity needs of SEAs and LEAs to meet IDEA Part B 
data collection and reporting requirements and to increase their 
capacity to analyze and use section 616 and section 618 data as a means 
of both improving data quality and identifying programmatic strengths 
and areas for improvement. To meet this requirement the applicant 
must--
    (i) Demonstrate knowledge of current educational issues and policy 
initiatives about IDEA Part B data collection and reporting 
requirements and knowledge of State and local data collection systems, 
as appropriate;
    (ii) Present applicable national, State, and local data to 
demonstrate the capacity needs of SEAs and LEAs to meet IDEA Part B 
data collection and reporting requirements and use section 616 and 
section 618 data as a means of both improving data quality and 
identifying programmatic strengths and areas for improvement; and
    (iii) Describe how SEAs and LEAs are currently meeting IDEA Part B 
data collection and reporting requirements and using section 616 and 
section 618 data as a means of both improving data quality and 
identifying programmatic strengths and areas for improvement.
    (b) Demonstrate, in the narrative section of the application under 
``Quality of project services,'' how the proposed project will--
    (1) Ensure equal access and treatment for members of groups that 
have traditionally been underrepresented based on race, color, national 
origin, gender, age, or disability. To meet this requirement, the 
applicant must describe how it will--
    (i) Identify the needs of the intended recipients for TA and 
information; and
    (ii) Ensure that products and services meet the needs of the 
intended recipients of the grant;
    (2) Achieve its goals, objectives, and intended outcomes. To meet 
this requirement, the applicant must provide--

[[Page 39741]]

    (i) Measurable intended project outcomes; and
    (ii) In Appendix A, the logic model (as defined in 34 CFR 77.1) by 
which the proposed project will achieve its intended outcomes that 
depicts, at a minimum, the goals, activities, outputs, and intended 
outcomes of the proposed project;
    (3) Use a conceptual framework (and provide a copy in Appendix A) 
to develop project plans and activities, describing any underlying 
concepts, assumptions, expectations, beliefs, or theories, as well as 
the presumed relationships or linkages among these variables, and any 
empirical support for this framework;

    Note:
     The following websites provide more information on logic models 
and conceptual frameworks: www.osepideasthatwork.org/logicModel and 
www.osepideasthatwork.org/resources-grantees/program-areas/ta-ta/tad-project-logic-model-and-conceptual-framework.

    (4) Be based on current research and make use of evidenced-based 
\1\ practices (EBPs). To meet this requirement, the applicant must 
describe--
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    \1\ For the purposes of this priority, ``evidence-based'' means 
the proposed project component is supported, at a minimum, by 
evidence that demonstrates a rationale (as defined in 34 CFR 77.1), 
where a key project component included in the project's logic model 
is informed by research or evaluation findings that suggest the 
project component is likely to improve relevant outcomes.
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    (i) The current research on the capacity of SEAs and LEAs to report 
and use data, specifically section 616 and section 618 data, as a means 
of both improving data quality and identifying strengths and areas for 
improvement; and
    (ii) How the proposed project will incorporate current research and 
EBPs in the development and delivery of its products and services;
    (5) Develop products and provide services that are of high quality 
and sufficient intensity and duration to achieve the intended outcomes 
of the proposed project. To address this requirement, the applicant 
must describe--
    (i) How it proposes to identify or develop the knowledge base on 
the capacity needs of SEAs and LEAs to meet IDEA Part B data collection 
and reporting requirements and SEA and LEA analysis and use of sections 
616 and 618 data as a means of both improving data quality and 
identifying programmatic strengths and areas for improvement;
    (ii) Its proposed approach to universal, general TA,\2\ which must 
identify the intended recipients, including the type and number of 
recipients, that will receive the products and services under this 
approach;
---------------------------------------------------------------------------

    \2\ ``Universal, general TA'' means TA and information provided 
to independent users through their own initiative, resulting in 
minimal interaction with TA center staff and including one-time, 
invited or offered conference presentations by TA center staff. This 
category of TA also includes information or products, such as 
newsletters, guidebooks, or research syntheses, downloaded from the 
TA center's website by independent users. Brief communications by TA 
center staff with recipients, either by telephone or email, are also 
considered universal, general TA.
---------------------------------------------------------------------------

    (iii) Its proposed approach to targeted, specialized TA,\3\ which 
must identify--
---------------------------------------------------------------------------

    \3\ ``Targeted, specialized TA'' means TA services based on 
needs common to multiple recipients and not extensively 
individualized. A relationship is established between the TA 
recipient and one or more TA center staff. This category of TA 
includes one-time, labor-intensive events, such as facilitating 
strategic planning or hosting regional or national conferences. It 
can also include episodic, less labor-intensive events that extend 
over a period of time, such as facilitating a series of conference 
calls on single or multiple topics that are designed around the 
needs of the recipients. Facilitating communities of practice can 
also be considered targeted, specialized TA.
---------------------------------------------------------------------------

    (A) The intended recipients, including the type and number of 
recipients, that will receive of the products and services under this 
approach; and
    (B) Its proposed approach to measure the readiness of potential TA 
recipients to work with the project, assessing, at a minimum, their 
current infrastructure, available resources, and ability to build 
capacity at the local level; and
    (iv) Its proposed approach to intensive,\4\ sustained TA, which 
must identify--
---------------------------------------------------------------------------

    \4\ ``Intensive, sustained TA'' means TA services often provided 
on-site and requiring a stable, ongoing relationship between the TA 
center staff and the TA recipient. ``TA services'' are defined as 
negotiated series of activities designed to reach a valued outcome. 
This category of TA should result in changes to policy, program, 
practice, or operations that support increased recipient capacity or 
improved outcomes at one or more systems levels.
---------------------------------------------------------------------------

    (A) The intended recipients, including the type and number of 
recipients, that will receive the products and services under this 
approach; and
    (B) Its proposed approach to measure the readiness of SEA and LEA 
personnel to work with the project, including their commitment to the 
initiative, alignment of the initiative to their needs, current 
infrastructure, available resources, and ability to build capacity at 
the SEA and LEA levels;
    (C) Its proposed approach to prioritizing TA recipients with a 
primary focus on meeting the needs of States with known ongoing data 
quality issues, as measured by OSEP's review of the quality of the IDEA 
sections 616 and 618 data;
    (D) Its proposed plan for assisting SEAs (and LEAs, in conjunction 
with SEAs) to build or enhance training systems related to the IDEA 
Part B data collection and reporting requirements that include 
professional development based on adult learning principles and 
coaching;
    (E) Its proposed plan for working with appropriate levels of the 
education system (e.g., SEAs, regional TA providers, LEAs, schools, and 
families) to ensure that there is communication between each level and 
that there are systems in place to support the capacity needs of SEAs 
and LEAs to meet Part B data collection and reporting requirements 
under sections 616 and 618 of the IDEA; and
    (F) Its proposed plan for collaborating and coordinating with 
Department-funded TA investments and Institute of Education Sciences/
National Center for Education Statistics research and development 
investments, where appropriate, in order to align complementary work 
and jointly develop and implement products and services to meet the 
purposes of this priority;
    (6) Develop products and implement services that maximize 
efficiency. To address this requirement, the applicant must describe--
    (i) How the proposed project will use technology to achieve the 
intended project outcomes;
    (ii) With whom the proposed project will collaborate and the 
intended outcomes of this collaboration;
    (iii) How the proposed project will use non-project resources to 
achieve the intended project outcomes; and
    (c) In the narrative section of the application under ``Quality of 
the project evaluation,'' include an evaluation plan for the project 
developed in consultation with and implemented by a third-party 
evaluator.\5\ The evaluation plan must--
---------------------------------------------------------------------------

    \5\ A ``third-party'' evaluator is an independent and impartial 
program evaluator who is contracted by the grantee to conduct an 
objective evaluation of the project. This evaluator must not have 
participated in the development or implementation of any project 
activities, except for the evaluation activities, nor have any 
financial interest in the outcome of the evaluation.
---------------------------------------------------------------------------

    (1) Articulate formative and summative evaluation questions, 
including important process and outcome evaluation questions. These 
questions should be related to the project's proposed logic model 
required in paragraph (b)(2)(ii) of these requirements;
    (2) Describe how progress in and fidelity of implementation, as 
well as project outcomes, will be measured to answer the evaluation 
questions. Specify the measures and associated

[[Page 39742]]

instruments or sources for data appropriate to the evaluation 
questions. Include information regarding reliability and validity of 
measures where appropriate;
    (3) Describe strategies for analyzing data and how data collected 
as part of this plan will be used to inform and improve service 
delivery over the course of the project and to refine the proposed 
logic model and evaluation plan, including subsequent data collection;
    (4) Provide a timeline for conducting the evaluation and include 
staff assignments for completing the plan. The timeline must indicate 
that the data will be available annually for the APR and at the end of 
Year 2 for the review process; and
    (5) Dedicate sufficient funds in each budget year to cover the 
costs of developing or refining the evaluation plan in consultation 
with a third-party evaluator, as well as the costs associated with the 
implementation of the evaluation plan by the third-party evaluator.
    (d) Demonstrate, in the narrative section of the application under 
``Adequacy of resources and quality of project personnel,'' how--
    (1) The proposed project will encourage applications for employment 
from persons who are members of groups that have traditionally been 
underrepresented based on race, color, national origin, gender, age, or 
disability, as appropriate;
    (2) The proposed key project personnel, consultants, and 
subcontractors have the qualifications and experience to carry out the 
proposed activities and achieve the project's intended outcomes;
    (3) The applicant and any key partners have adequate resources to 
carry out the proposed activities;
    (4) The proposed costs are reasonable in relation to the 
anticipated results and benefits, and funds will be spent in a way that 
increases their efficiency and cost-effectiveness, including by 
reducing waste or achieving better outcomes; and
    (5) How the applicant will ensure that it will recover the lesser 
of (a) its actual indirect costs as determined by the grantee's 
negotiated indirect cost rate agreement with its cognizant Federal 
agency; and (b) 40 percent of its modified total direct cost (MTDC) 
base as defined in 2 CFR 200.68.

    Note: The MTDC is different from the total amount of the grant. 
Additionally, the MTDC is not the same as calculating a percentage 
of each or a specific expenditure category. If the grantee is 
billing based on the MTDC base, the grantee must make its MTDC 
documentation available to the program office and the Department's 
Indirect Cost Unit. If a grantee's allocable indirect costs exceed 
40 percent of its MTDC as defined in 2 CFR 200.68, the grantee may 
not recoup the excess by shifting the cost to other grants or 
contracts with the U.S. Government, unless specifically authorized 
by legislation. The grantee must use non-Federal revenue sources to 
pay for such unrecovered costs.

    (e) Demonstrate, in the narrative section of the application under 
``Quality of the management plan,'' how--
    (1) The proposed management plan will ensure that the project's 
intended outcomes will be achieved on time and within budget. To 
address this requirement, the applicant must describe--
    (i) Clearly defined responsibilities for key project personnel, 
consultants, and subcontractors, as applicable; and
    (ii) Timelines and milestones for accomplishing the project tasks;
    (2) Key project personnel and any consultants and subcontractors 
will be allocated to the project and how these allocations are 
appropriate and adequate to achieve the project's intended outcomes;
    (3) The proposed management plan will ensure that the products and 
services provided are of high quality, relevant, and useful to 
recipients; and
    (4) The proposed project will benefit from a diversity of 
perspectives, including those of families, educators, TA providers, 
researchers, and policy makers, among others, in its development and 
operation.
    (f) Address the following application requirements. The applicant 
must--
    (1) Include, in Appendix A, personnel-loading charts and timelines, 
as applicable, to illustrate the management plan described in the 
narrative;
    (2) Include, in the budget, attendance at the following:
    (i) A one and one-half day kick-off meeting in Washington, DC, 
after receipt of the award, and an annual planning meeting in 
Washington, DC, with the OSEP project officer and other relevant staff 
during each subsequent year of the project period.

    Note:  Within 30 days of receipt of the award, a post-award 
teleconference must be held between the OSEP project officer and the 
grantee's project director or other authorized representative;

    (ii) A two and one-half day project directors' meeting in 
Washington, DC, during each year of the project period;
    (iii) Three annual two-day trips to attend Department briefings, 
Department-sponsored conferences, and other meetings, as requested by 
OSEP.
    (3) Include, in the budget, a line item for an annual set-aside of 
5 percent of the grant amount to support emerging needs that are 
consistent with the proposed project's intended outcomes, as those 
needs are identified in consultation with, and approved by, the OSEP 
project officer. With approval from the OSEP project officer, the 
project must reallocate any remaining funds from this annual set-aside 
no later than the end of the third quarter of each budget period;
    (4) Maintain a high-quality website, with an easy-to-navigate 
design, that meets government or industry-recognized standards for 
accessibility;
    (5) Include, in Appendix A, an assurance to assist OSEP with the 
transfer of pertinent resources and products and to maintain the 
continuity of services to States during the transition to this new 
award period and at the end of this award period, as appropriate; and
    (6) Budget at least 50 percent of the grant award for providing 
targeted and intensive TA to States.
    This document does not preclude us from proposing additional 
priorities or requirements, subject to meeting applicable rulemaking 
requirements.

    Note: This document does not solicit applications. In any year 
in which we choose to use this priority and these requirements, we 
invite applications through a notice in the Federal Register.

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

[[Page 39743]]

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. 
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the 
Office of Information and Regulatory Affairs designated this rule as 
not a ``major rule,'' as defined by 5 U.S.C. 804(2).
    Under Executive Order 13771, for each new rule 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. Because the 
proposed regulatory action is not significant, the requirements of 
Executive Order 13771 do not apply.
    We have also reviewed this final regulatory action 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 upon 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 the final priority and requirements 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 the analysis that 
follows, the Department believes that this regulatory action is 
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.
    In accordance with these Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.

Discussion of Potential Costs and Benefits

    The Department believes that this regulatory action does not impose 
significant costs on eligible entities, whose participation in this 
program is voluntary. While this action does impose some requirements 
on participating grantees that are cost-bearing, the Department expects 
that applicants for this program will include in their proposed budgets 
a request for funds to support compliance with such cost-bearing 
requirements. Therefore, costs associated with meeting these 
requirements are, in the Department's estimation, minimal.
    The Department believes that these benefits to the Federal 
government outweigh the costs associated with this action.

Regulatory Alternatives Considered

    The Department believes that the priority and requirements are 
needed to administer the program effectively.

Paperwork Reduction Act of 1995

    The final priority and requirements contain information collection 
requirements that are approved by OMB under OMB control number 1894-
0006; the final priority and requirements do not affect the currently 
approved data collection.
    Regulatory Flexibility Act Certification: The Secretary certifies 
that this final regulatory action would not have a significant economic 
impact on a substantial number of small entities. The U.S. Small 
Business Administration (SBA) Size Standards define proprietary 
institutions as small businesses if they are independently owned and 
operated, are not dominant in their field of operation, and have total 
annual revenue below $7,000,000. Nonprofit institutions are defined as 
small entities if they are independently owned and operated and not 
dominant in their field of operation. Public institutions are defined 
as small organizations if they are operated by a government overseeing 
a population below 50,000.
    The small entities that this final regulatory action will affect 
are SEAs; LEAs, including charter schools that operate as LEAs under 
State law; institutions of higher education (IHEs); other public 
agencies; private nonprofit organizations; freely associated States and 
outlying areas; Indian Tribes or Tribal organizations; and for-profit 
organizations. We believe that the costs imposed on an applicant by the 
final priority and requirements will be limited to paperwork burden 
related to preparing an application and that the benefits of this final 
priority and these final requirements will outweigh any costs incurred 
by the applicant.
    Participation in the Technical Assistance on State Data Collection 
program is voluntary. For this reason, the final priority and 
requirements will impose no burden on small entities unless they 
applied for funding under the program. We expect that in determining 
whether to apply for Technical Assistance on State Data Collection 
program funds, an eligible entity would evaluate the requirements of 
preparing an application and any associated costs, and weigh them 
against the benefits likely to be achieved by receiving a Technical 
Assistance on State Data Collection program grant. An eligible entity 
would probably apply only if it determines that the likely benefits 
exceed the costs of preparing an application.
    We believe that the final priority and requirements will not impose 
any additional burden on a small entity applying for a grant than the 
entity would face in the absence of the final action. That is, the 
length of the applications those entities would submit in the absence 
of the final regulatory action and the time needed to prepare an 
application will likely be the same.

[[Page 39744]]

    This final regulatory action will not have a significant economic 
impact on a small entity once it receives a grant because it would be 
able to meet the costs of compliance using the funds provided under 
this program.
    Intergovernmental Review: This program is subject to Executive 
Order 12372 and the regulations in 34 CFR part 79. One of the 
objectives of the Executive order is to foster an intergovernmental 
partnership and a strengthened federalism. The Executive order relies 
on processes developed by State and local governments for coordination 
and review of proposed Federal financial assistance.
    This document provides early notification of our specific plans and 
actions for this program.
    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.

Johnny W. Collett,
Assistant Secretary for Special Education and Rehabilitative Services.
[FR Doc. 2019-17215 Filed 8-7-19; 4:15 pm]
 BILLING CODE 4000-01-P