[Federal Register Volume 88, Number 48 (Monday, March 13, 2023)]
[Proposed Rules]
[Pages 15336-15343]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-04974]


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DEPARTMENT OF EDUCATION

34 CFR Chapter II

[Docket ID ED-2023-OESE-0038]


Proposed Priority and Requirements--National Technical Assistance 
Center on Positive Behavioral Interventions and Supports

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Proposed priority and requirements.

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SUMMARY: The Department of Education (Department) proposes a priority 
and requirements under the National Technical Assistance Center on 
Positive Behavioral Interventions and Supports (Center), Assistance 
Listing Number (ALN) 84.326S. The Center is funded jointly through the 
Technical Assistance and Dissemination to Improve Services and Results 
for Children with Disabilities and the School Safety National 
Activities programs. The priority and the requirements proposed in this 
document are specific to the work funded out of the School Safety 
National Activities program and are designed to improve student safety 
and well-being. We may use this priority or one or more of these 
requirements in fiscal year (FY) 2023 and later years.

DATES:  We must receive your comments on or before April 12, 2023.

ADDRESSES: Comments must be submitted via the Federal eRulemaking 
Portal at regulations.gov. However, if you require an accommodation or 
cannot otherwise submit your comments via regulations.gov, please 
contact the program contact person listed under FOR FURTHER INFORMATION 
CONTACT. The Department will not accept comments by fax or by email, or 
comments submitted after the comment period closes. To ensure that the 
Department does not receive duplicate copies, please submit your 
comments only once. Additionally, please include the Docket ID at the 
top of your comments.
    Federal eRulemaking Portal: Please go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for finding a notice on the 
site and submitting comments, is available on the site under ``FAQ.''
    Privacy Note: The Department's policy is to make all comments 
received from members of the public available for public viewing 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: Renee Bradley, U.S. Department of 
Education, 400 Maryland Avenue SW, Washington, DC 20202. Telephone: 
(202) 987-1128. Email: [email protected].
    If you are deaf, hard of hearing, or have a speech disability and 
wish to access telecommunications relay services, please dial 7-1-1.

SUPPLEMENTARY INFORMATION: 
    Invitation to Comment: We invite you to submit comments regarding 
the proposed priority and requirements. To ensure that your comments 
have maximum effect in developing the final priority and requirements, 
we urge you to clearly identify the specific section of the proposed 
priority and requirements that each comment addresses.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from the 
proposed priority and requirements. Please let us know of any further 
ways we could reduce potential costs or increase potential benefits 
while preserving the effective and efficient administration of the 
Department's programs and activities. Please also feel free to offer 
for our consideration any alternative

[[Page 15337]]

approaches to the subjects addressed by the proposed priority and 
requirements.
    During and after the comment period, you may inspect all public 
comments about the proposed priority and requirements by accessing 
Regulations.gov. You may also inspect the comments in person. Please 
contact the person listed under FOR FURTHER INFORMATION CONTACT to make 
arrangements to inspect the comments in person.
    Note: The Center is jointly funded under the Individuals with 
Disabilities Education Act (IDEA) and the Elementary and Secondary 
Education Act (ESEA). By combining funds from two separate programs, 
the Department is able to make a more comprehensive investment to 
address the purpose of the Center. The Department intends to publish a 
notice inviting applications later this fiscal year and applicants may 
be expected to address the priorities and requirements under both 
authorizing statutes. Under the Administrative Procedure Act (APA) (5 
U.S.C. 553), the Department generally offers interested parties the 
opportunity to comment on proposed priorities and requirements. Section 
681(d) of IDEA, however, makes the public comment requirements of the 
APA inapplicable to priorities from allowable activities specified in 
the statute (see sections 663 and 681(d) of IDEA) that may be included 
in a notice inviting applications for the Center. Therefore, we are 
only taking public comment on the proposed priority and requirements 
described in this document, which are to be funded under the ESEA.
    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 the proposed priority and requirements. If 
you want to schedule an appointment for this type of accommodation or 
auxiliary aid, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.
    Purpose of Program: The purpose of the Center is to enhance the 
capacity of States and local educational agencies (LEAs) to implement 
positive and safe school climates, and effectively support and respond 
to students' social, emotional, behavioral, and mental health needs to 
ensure participation and enhance learning, by implementing evidence-
based practices within a multi-tiered system of support (MTSS) 
framework.
    Program Authority: Section 4631(a)(1)(B) of the ESEA (20 U.S.C. 
7281).
    Proposed Priority:
    This document contains one proposed priority.
    Background:
    Many students need additional supports to address social, 
emotional, and behavioral challenges that impact their full access to 
and participation in learning (Chafouleas, 2020). These challenges, if 
not properly addressed, can lead to student responses that are 
inconsistent with school or program expectations. The COVID-19 global 
pandemic exacerbated these challenges, accelerating the need to provide 
school-based social, emotional, behavioral, and mental health supports 
and leverage the existing evidence base about how to provide nurturing 
educational environments to meet the needs of our nation's youth.
    MTSS frameworks such as positive behavioral interventions and 
supports (PBIS) \1\ have been validated by numerous randomized control 
trials (Bradshaw et al., 2012; Freeman et al., 2017). When implemented 
with fidelity, PBIS outcomes include reductions in removals of students 
from instruction; improved student exposure to and success in academics 
(grades and completion); improved educator satisfaction and retention; 
and improved overall ratings of school safety, belonging, and climate.
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    \1\ The term ``positive behavioral interventions and supports'' 
was first used in a priority published by the Department in 1997, 
and it is currently used in the IDEA (e.g., sections 601(c)(5)(F), 
611(e)(2)(C)(iii), 614(d)(3)(B)(i), 662(b)(2)(A)(v), and 665) and 
the ESEA (e.g., section 4631(a)(1)(B)). We do not use PBIS to mean 
any specific program or curriculum. Rather, we use the term 
generically to reference a multi-tiered framework used to improve 
the integration and implementation of social, emotional, behavioral 
and mental health practices, data-driven decision-making systems, 
professional development opportunities, school leadership, 
supportive SEA and LEA policies, and evidence-based instructional 
strategies. A PBIS framework helps to organize practices to improve 
social, emotional, behavioral, mental health and academic outcomes 
by improving school climate, promoting positive social skills, 
promoting effective strategies to support and respond to student 
needs, and increasing learning time.
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    Despite improved outcomes and knowledge from PBIS implementation 
efforts over the last two decades, data from the Office for Civil 
Rights Data Collection suggests students from underserved groups are 
more likely to experience exclusionary discipline (e.g., suspensions, 
expulsions) (U.S. Department of Education, Civil Rights Data Collection 
SY17-18, Office for Civil Rights, 2021). Disaggregated data shows that 
disproportionality in discipline grows when considering race, gender, 
and disability (Civil Rights Data Collection SY17-18, Office for Civil 
Rights, 2021). Research consistently shows that students of color, 
particularly Black students, Native students, and Black students with 
disabilities are significantly more likely than their non-disabled, or 
white peers to be subjected to exclusionary discipline practices, 
including office discipline referrals and suspensions (e.g., Gage et 
al., 2019; McIntosh et al., 2018; McIntosh et al., 2021; Civil Rights 
Data Collection SY17-18, Office for Civil Rights, 2021). While 
disproportionality with respect to Black boys has long been 
acknowledged, more recent data analysis indicates the 
disproportionality also exists for Black girls as compared to White 
girls (Hassan & Carter, 2021). Other studies show disproportionality 
based on gender, historically demonstrating boys receive suspensions 
and expulsions at higher rates than girls (Bradshaw et al., 2010). 
Higher rates of punitive discipline practices also exist for students 
who identify as LGBTQ and those with disabilities (Himmelstein and 
Br[uuml]ckner, 2011; Brobbey, 2018). When students are denied access to 
instruction and participation in school opportunities, they are more 
likely to experience negative outcomes in school and later in life, 
including poor academic outcomes, lower graduation rates, 
incarceration, and employment and relationship challenges (Hemez et 
al., 2020; Lansford et al., 2016).
    One of the most significant barriers to reducing exclusionary and 
aversive discipline practices for students, including students of color 
and students with disabilities, is the lack of culturally and 
linguistically inclusive pre-service and in-service training for 
teachers and leaders on effective practices for creating positive, safe 
learning environments to teach and support desired school behaviors and 
for responding to and mitigating behaviors that are inconsistent with 
school expectations and interfere with learning. The PBIS framework has 
provided an effective multi-tiered structure through the implementation 
and examination of systems, practices, and data to assist LEAs and 
schools in addressing inequities. When there is fidelity in 
implementing evidence-based practices (EBPs) to prevent, reduce, and 
mitigate interfering behaviors within a PBIS framework, studies have 
found the following statistically significant results: improved 
perception of school safety; reductions in overall behaviors that are 
inconsistent with classroom or school expectations and that interfere 
with

[[Page 15338]]

learning; and reduction of bullying behaviors, office discipline 
referrals, chronic absenteeism, and suspensions (Waasdorp et al., 
2012). The PBIS framework has solidified the importance of core 
strategies, including: implementing EBPs; providing the systems needed 
to support those practices; and data-based decision-making; to create 
and sustain positive, safe, and predictable learning environments. 
Fidelity in the implementation of the core strategies has also 
demonstrated the importance of adult responses, including effectively 
supporting and responding to student behavior (Horner, et al., 2020).
    Although prior Department investments have led to successful 
implementation of the PBIS framework and positive outcome data in over 
27,000 schools, based on persistent needs in the field, the Department 
has determined that additional and continued technical assistance (TA) 
is needed to focus on: (1) students with more intensive social, 
emotional, behavioral, and mental health needs and those most likely to 
be excluded from the learning environment due to behavior that 
interferes with learning; (2) pre-service and in-service training on 
culturally and linguistically inclusive practices that support students 
from underserved groups; (3) improving implementation fidelity; and (4) 
addressing other systemic inequities such as access to school funding, 
experienced educators, and advanced coursework opportunities. In 
addition, the Department has determined that State educational agencies 
(SEAs) and LEAs could benefit from further TA to develop, expand, and 
sustain school-wide frameworks and to build personnel capacity and 
expertise to promote safe, positive, predictable, and culturally and 
linguistically inclusive learning environments where students feel a 
sense of belonging. Such additional TA would be focused on increasing 
the use of EBPs to more effectively support and respond to student 
needs, such as teaching school and classroom expectations, building 
classroom cultures of respect and belonging, and implementing trauma-
informed practices. Such additional TA also would be focused on using 
EBPs to reduce the use of restraints seclusion and corporal punishment; 
chronic absenteeism; incidents of bullying; the disproportionate 
application of disciplinary procedures, such as suspension and 
expulsion, for students, including students of color and those with 
disabilities; unnecessary referrals of students to law enforcement; and 
violent and traumatic school incidents.
    The Center will support States and LEAs in implementing EBPs within 
a MTSS/PBIS framework that improves results for children, including 
children with disabilities. While PBIS is one evidence-based MTSS 
framework for addressing social, emotional, behavioral and mental 
health needs, the Department expects that the Center will stay abreast 
of developing frameworks and identify and incorporate a broad array of 
EBPs to support and respond to student needs, and tailor technical 
assistance in the settings established in the priority. This investment 
is aligned to the Secretary's Supplemental Priorities and Definitions 
for Discretionary Grant Programs published in the Federal Register on 
December 10, 2021 (86 FR 70612), in the areas of meeting student 
social, emotional, and academic needs, and promoting equity in student 
access to educational resources and opportunities.
    Proposed Priority:
    The Department proposes the following priority for this program. We 
may apply this priority in any year in which this program is in effect.
    Proposed Priority--Technical Assistance--School Safety National 
Activities Program--National Technical Assistance Center on Positive 
Behavioral Interventions and Supports.
    The purpose of this priority is to enhance the capacity of SEAs and 
LEAs to implement positive and safe school environments, and 
effectively support and respond to students' social, emotional, 
behavioral, and mental health needs to improve their learning, by 
implementing evidence- based practices (EBPs) \2\ within a Multi-Tiered 
System of Support (MTSS)/Positive Behavioral Interventions and Supports 
(PBIS) framework \3\ in one or more of the following settings:
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    \2\ For the purposes of this priority, ``evidence-based 
practices'' (EBPs) means, at a minimum, demonstrating a rationale 
(as defined in 34 CFR 77.1) based on high-quality research findings 
or positive evaluation that such activity, strategy, or intervention 
is likely to improve student outcomes or other relevant outcomes.
    \3\ PBIS is an evidence-based, tiered framework (Tier 1: 
Universal, Primary Prevention; Tier 2: Targeted, Secondary 
Prevention; and Tier 3: Intensive and Individualized, Tertiary 
Prevention) for supporting students' behavioral, academic, social, 
emotional, and mental health.
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    (i) Programs or schools serving high percentages of students from 
low-income families in the following settings:
    (1) Early learning programs.
    (2) Elementary schools.
    (3) Middle schools.
    (4) High schools.
    (5) Career and technical education programs.
    (6) Rural schools.
    (ii) Alternative schools and programs.
    (iii) Juvenile justice system or correctional facilities.
    (iv) Low-performing schools.
    (v) Schools with a high student-to-mental health provider ratio.
    (vi) Schools with high rates of chronic absenteeism, exclusionary 
discipline, referrals to the juvenile justice system, bullying/
harassment, community and school violence, or substance abuse.
    (vii) Schools in which students recently experienced a natural 
disaster, incident of violence, or traumatic event.
    (viii) Schools with high percentages of students with disabilities.
    To meet this priority, the applicant must propose to achieve, at a 
minimum, one or more of the following expected outcomes:
    (a) Improved systems and resources at the national, regional, 
State, and district levels to support, develop, align, and sustain 
local implementation of MTSS/PBIS efforts to organize EBPs to support 
positive school climates and respond to student social, emotional, 
behavioral, and mental health needs to improve access to and engagement 
in learning.
    (b) Improved capacity of SEA and LEA personnel to support the 
knowledge and skills development of school personnel to implement MTSS/
PBIS as a framework to organize EBPs to support and respond to student 
needs, particularly those from underserved, culturally and 
linguistically diverse backgrounds, and those whose behaviors may 
interfere with a student's ability to fully participate in, and benefit 
from, a high-quality learning environment.
    (c) Increased use by SEAs, LEAs, and school-based personnel of 
reliable and valid tools and processes for enhancing and assessing the 
fidelity of implementation of a MTSS/PBIS Framework and for measuring 
intended outcomes, including improvements in school climate; time spent 
on instruction; well-being and belonging; overall academic achievement; 
and reductions in absenteeism, discipline referrals, suspensions, 
expulsions, the use of restraints or seclusion, illegal use of drugs, 
and referrals to law enforcement.
    (d) Improved implementation of a MTSS/PBIS framework, EBPs, and 
assessment of SEA or LEA recipients of grant programs that focus on 
improving positive school climates and implementing EBPs to support and 
respond to students' social, emotional, behavioral, and mental health 
needs.

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    (e) Enhanced response and recovery assistance, as requested by and 
in collaboration with the Department, for violent or traumatic 
incidents that impact school communities, including intensive 
individualized support to facilitate recovery of the learning 
environment.
    (f) Increased body of knowledge and evidence to enhance 
implementation of PBIS and other emerging MTSS frameworks and EBPs to 
address the social, emotional, behavioral, and mental health needs of 
students in the settings established in the priority.
    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)).
    Proposed Requirements:
    The Department proposes the following eligible applicants and 
application requirements for this program. We may apply one or more of 
these requirements in any year in which the program is in effect.
    Eligible Applicants: SEAs; State lead agencies under Part C of the 
IDEA; LEAs, including public charter schools that are considered LEAs 
under State law; institutions of higher education; other public 
agencies; private nonprofit organizations; freely associated States and 
outlying areas; Indian Tribes or Tribal organizations; and for-profit 
organizations.
    Proposed Application Requirements:
    (a) Demonstrate how the proposed project will--
    (1) Improve SEAs' and LEAs' implementation, scaling, and sustaining 
of EBPs within a MTSS/PBIS framework and policies that are designed to 
improve school climate and, as needed, provide additional behavioral 
supports for students whose behavior impacts their ability to fully 
participate in, and benefit from, a high-quality learning environment, 
including students with disabilities. To meet this requirement, the 
applicant must--
    (i) Present applicable State, regional, or local data demonstrating 
SEAs' and LEAs' needs related to (A) implementation of EBPs and 
policies to improve school climate, student well-being and belonging; 
and (B) increasing students' ability to fully participate in, and 
benefit from, a high-quality learning environment;
    (ii) Demonstrate knowledge of current education issues and policy 
initiatives relating to MTSS/PBIS and school climate practices and 
policies and EBPs to effectively support and respond to student 
behavior that impacts learning; and
    (iii) Present information about the current level of implementation 
of MTSS/PBIS, EBPs, policies, best practices, and benefits for all 
students, especially underserved students and those from culturally and 
linguistically diverse backgrounds; and
    (2) Improve the implementation of EBPs within a MTSS/PBIS framework 
to effectively support and respond to student behaviors that impact 
access to and participation in learning.
    (b) Demonstrate 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 TA and information needs of the intended 
recipients; and
    (ii) Ensure that services and products meet the needs of the 
intended recipients of the TA;
    (2) Achieve its goals, objectives, and intended outcomes. To meet 
this requirement, the applicant must provide--
    (i) Measurable intended project outcomes; and
    (ii) The logic model \4\ 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;
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    \4\ As defined in 34 CFR 77.1, ``logic model'' (also referred to 
as a theory of action) means a framework that identifies key project 
components of the proposed project (i.e., the active ``ingredients'' 
that are hypothesized to be critical to achieving the relevant 
outcomes) and describes the theoretical and operational 
relationships among the key project components and relevant 
outcomes.
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    (3) Use a conceptual framework 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;
    (4) Be based on current research and make use of EBPs. To meet this 
requirement, the applicant must describe--
    (i) The current research on the assessment of the implementation of 
MTSS/PBIS frameworks and related EBPs;
    (ii) The current research about adult learning principles and 
implementation science that will inform the proposed TA; and
    (iii) How the proposed project will incorporate current and 
emerging research and practices 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 of 
PBIS;
    (ii) Its proposed approach to universal, general TA,\5\ which must 
identify the intended recipients, including the type and number of 
recipients, that will receive the products and services, a description 
of the products and services that the Center proposes to make 
available, and the expected impact of those products and services under 
this approach;
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    \5\ ``Universal, general TA'' means TA and information provided 
to independent users through their own initiative, resulting in 
minimal interaction with Center staff and including one-time, 
invited or offered conference presentations by Center staff. This 
category of TA also includes information or products, such as 
newsletters, guidebooks, or research syntheses, downloaded from the 
Center's website by independent users. Brief communications by 
Center staff with recipients, either by telephone or email, are also 
considered universal, general TA.
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    (iii) Its proposed approach to targeted, specialized TA,\6\ which 
must identify--
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    \6\ ``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 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.

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    (A) The intended recipients, including the type and number of 
recipients, that will receive the products and services, a description 
of the products and services that the Center proposes to make 
available, and the expected impact of those 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 systems, available resources, and ability to build capacity at 
the local level; and
    (iv) Its proposed approach to intensive, sustained TA,\7\ which 
must identify--
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    \7\ ``Intensive, sustained TA'' means TA services often provided 
on-site and requiring a stable, ongoing relationship between the 
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.
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    (A) The intended recipients, including the type and number of 
recipients from a variety of settings and geographic distribution, that 
will receive the products and services designed to improve school 
climate;
    (B) Its proposed approach to measure the readiness of the State- 
and local-level personnel to work with the project, including their 
commitment to the initiative, alignment of the initiative to their 
needs, current systems, available resources, and ability to build 
capacity at the local level;
    (C) Its proposed plan for assisting SEAs, LEAs, local Part C 
agencies, charter management organizations, and private school 
organizations to build or enhance training systems that include 
professional development based on adult learning principles and 
coaching; and
    (D) Its proposed plan for working with appropriate levels of the 
education system (e.g., SEAs, regional TA providers, LEAs, schools, 
families) to ensure that there is communication between each level and 
that there are systems in place to support the use of PBIS;
    (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; and
    (iii) How the proposed project will use non-project resources to 
achieve the intended project outcomes; and
    (7) Develop a dissemination plan that describes how the applicant 
will systematically distribute information, products, and services to 
varied intended audiences, using a variety of dissemination strategies, 
to promote awareness and use of the Center's products and services.
    (c) Include an evaluation plan for the project as described in the 
following paragraphs. The evaluation plan must describe measures of 
progress in implementation, including criteria for determining the 
extent to which the project's products and services have met the goals 
for reaching its target population; measures of intended outcomes or 
results of the project's activities in order to evaluate those 
activities; and how well the goals or objectives of the proposed 
project, as described in its logic model, have been met.
    The applicant must provide an assurance that, in designing the 
evaluation plan, it will--
    (1) Designate, with the approval of the Office of Special Education 
Programs (OSEP) project officer in consultation with Office of 
Elementary and Secondary Education (OESE) staff, a project liaison with 
sufficient dedicated time, experience in evaluation, and knowledge of 
the project to work in collaboration with the Center to Improve Program 
and Project Performance (CIPP),\8\ the project director, and the OSEP 
project officer on the following tasks:
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    \8\ The major tasks of CIPP are to guide, coordinate, and 
oversee the design of formative evaluations for every large 
discretionary investment (i.e., those awarded $500,000 or more per 
year and required to participate in the 3+2 process) in OSEP's 
Technical Assistance and Dissemination; Personnel Development; 
Parent Training and Information Centers; and Educational Technology, 
Media, and Materials programs. The efforts of CIPP are expected to 
enhance individual project evaluation plans by providing expert and 
unbiased TA in designing the evaluations with due consideration of 
the project's budget. CIPP does not function as a third-party 
evaluator.
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    (i) Revise the logic model submitted in the application, as 
appropriate, to provide for a more comprehensive measurement of 
implementation and outcomes and to reflect any changes or 
clarifications to the model discussed at the kickoff meeting;
    (ii) Refine the evaluation design and instrumentation proposed in 
the application, as appropriate, to be consistent with the revised 
logic model and using the most rigorous design suitable (e.g., prepare 
evaluation questions about significant program processes and outcomes; 
develop quantitative or qualitative data collections that permit both 
the collection of progress data, including fidelity of implementation, 
as appropriate, and the assessment of project outcomes; and identify 
analytic strategies); and
    (iii) Revise the evaluation plan submitted in the application such 
that it clearly--
    (A) Specifies the evaluation questions, measures, and associated 
instruments or sources for data appropriate to answer these questions, 
suggests analytic strategies for those data, provides a timeline for 
conducting the evaluation, and includes staff assignments for 
completing the evaluation activities;
    (B) Delineates the data expected to be available by the end of the 
second project year for use during the project's evaluation (3+2 
review) by OSEP for continued funding described under the heading 
Fourth and Fifth Years of the Project; and
    (C) Can be used to assist the project director and the OSEP project 
officer in consultation with OESE staff, with the assistance of CIPP, 
as needed, to specify the project performance measures to be addressed 
in the project's annual performance report;
    (2) Dedicate sufficient staff time and other resources during the 
first 6 months of the project to collaborate with CIPP staff, including 
regular meetings (e.g., weekly, biweekly, or monthly) with CIPP and the 
OSEP project officer, in order to accomplish the tasks described in 
paragraph (c)(1) of this section; and
    (3) Dedicate sufficient funds in each budget year to cover the 
costs of carrying out the tasks described in paragraphs (c)(1) and (2) 
of this section and revising and implementing the evaluation plan. 
Please note in your budget narrative the funds dedicated for this 
activity.
    (d) Demonstrate 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, language, 
sexual orientation, 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; and

[[Page 15341]]

    (4) The proposed costs are reasonable in relation to the 
anticipated results and benefits.
    (e) Demonstrate 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 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 policymakers, among others, in its development and 
operation.
    (f) Address the following application requirements. The applicant 
must--
    (1) Include 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 kickoff meeting in Washington, DC after 
receipt of the award, and an annual planning meeting in Washington, DC, 
with the OSEP project officer, OESE representative, 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' conference 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 or OESE; and
    (iv) A one-day intensive 3+2 review meeting in Washington, DC 
during the second year of the project period;
    (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 in consultation with OESE staff as appropriate. 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) Ensure that annual project progress toward meeting project 
goals is posted on the project website; and
    (6) Include 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 a new award at the end of 
this award period, as appropriate.
    Fourth and Fifth Years of the Project:
    In deciding whether to continue funding the project for the fourth 
and fifth years, the Secretary will consider the requirements of 34 CFR 
75.253(a), including--
    (a) The recommendations of a 3+2 review team consisting of experts 
who have experience and knowledge in PBIS. This review will be 
conducted during a one-day intensive meeting that will be held during 
the last half of the second year of the project period;
    (b) The timeliness with which, and how well, the requirements of 
the negotiated cooperative agreement have been or are being met by the 
project; and
    (c) The quality, relevance, and usefulness of the project's 
products and services and the extent to which the project's products 
and services are aligned with the project's objectives and likely to 
result in the project achieving its intended outcomes.
    References:

Bradshaw, C., Waasdorp, T., & Leaf, P. (2012). Effects of school-
wide positive behavioral interventions and supports on child 
behavior problems. Pediatrics, 130(5), 1136-1145. https://pediatrics.aappublications.org/content/130/5/e1136.
Bradshaw, C.P., Mitchell, M.M., O'Brennan, L.M., & Leaf, P.J. 
(2010). Multilevel exploration of factors contributing to the 
overrepresentation of Black students in office disciplinary 
referrals. Journal of Educational Psychology, 102, 508-520.
Brobbey, G. (2018). Punishing the vulnerable: Exploring suspension 
rates for students with learning disabilities. Intervention in 
School and Clinic, 53, 216-219.
Chafouleas, S. (2020, August). Four questions to ask now in 
preparing your child for school. Psychology Today. 
www.psychologytoday.com/us/blog/promoting-student-well-being/202008/4-questions-ask-now-in-preparing-your-child-school.
Freeman, J., Simonsen, B., Goodman, S., Mitchell, B., George, H.P., 
Swain-Bradway, J., Lane, K., Sprague, J., & Putnam, B. (2017). PBIS 
technical brief on systems to support teachers' implementation of 
positive classroom behavior support. PBIS Center. www.pbis.org/resource/pbis-technical-brief-on-systems-to-support-teachers-implementation-of-positive-classroom-behavior-support.
Gage, N.A., Grasley-Boy, N., George, H.P., Childs, K., & Kincaid, D. 
(2019). A quasi-experimental design analysis of the effects of 
school-wide positive behavior interventions and supports on 
discipline in Florida. Journal of Positive Behavior Interventions, 
21(1), 50-61. https://doi.org/10.1177%2F1098300718768208.
Hassan, H.H., & Carter, V.B. (2021). Black and White Female 
Disproportional Discipline K-12. Education and Urban Society, 53(1), 
23-41. https://doi.org/10.1177/0013124520915571.
Hemez P., Brent J.J., & Mowen T.J. (2020). Exploring the school-to-
prison pipeline: How school suspensions influence incarceration 
during young adulthood. Youth Violence and Juvenile Justice, 18(3), 
235-255. doi: 10.1177/1541204019880945.
Himmelstein, K.E., & Br[uuml]ckner, H. (2011). Criminal-justice and 
school sanctions against nonheterosexual youth: A national 
longitudinal study. Pediatrics, 127(1), 49-57.
Horner, R.H., Sugai, G., & Lewis, T.J. (2020). Is school-wide 
positive behavioral interventions and supports (PBIS) an evidence-
based practice? Center on PBIS, University of Oregon. www.pbis.org/resource/is-school-wide-positive-behavior-support-an-evidence-based-practice.
Jennifer E. Lansford, Kenneth A. Dodge, Gregory S. Pettit, John E. 
Bates, (2016). A Public Health Perspective on School Dropout and 
Adult Outcomes: A Prospective Study of Risk and Protective Factors 
From Age 5 to 27 Years, Journal of Adolescent Health, Volume 58, 
Issue 6, Pages 652-658.
McIntosh, K., Girvan, E.J., McDaniel, S.C., Santiago-Rosario, M.R., 
St. Joseph, S., Fairbanks Falcon, S., Izzard, S., Bastable, E. 
(2021). Effects of an equity-focused PBIS approach to school 
improvement on exclusionary discipline and school climate. 
Preventing School Failure: Alternative Education for Children and 
Youth, 65(4), 354-361.
McIntosh, K., Girvan, E.J., Fairbanks Falcon, S., McDaniel, S.C., 
Smolkowski, K., Bastable, E., Santiago-Rosario, M.R., Izzard, S., 
Austin, S.C., Nese, R.N.T., & Baldy, T.S. (2021). An equity-focused 
PBIS approach reduces racial inequities in school discipline: A 
randomized controlled trial. School Psychology, 36(6), 433-444. 
https://doi.org/10.1037/spq0000466.
McIntosh, K., Girvan, E.J., Horner, R.H., Smolkowski, K., & Sugai, 
G. (2018). A 5-point intervention approach for enhancing equity in 
school discipline. OSEP Technical Assistance Center on Positive 
Behavioral Interventions and Supports. www.pbis.org/resource/a-5-

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point-intervention-approach-for-enhancing-equity-in-school-
discipline.
U.S. Department of Education, Office for Civil Rights. (2021). 2017-
2018 Civil Rights Data Collection. https://ocrdata.ed.gov/estimations/2017-2018.
Waasdorp, T.E., Bradshaw, C.P., & Leaf, P.J. (2012). The impact of 
schoolwide positive behavioral interventions and supports on 
bullying and peer rejection: A randomized controlled effectiveness 
trial. Archives of Pediatrics and Adolescent Medicine, 166(2), 149-
56. doi: 10.1001/archpediatrics.2011.755.

    Final Priority and Requirements: We will announce the final 
priority and requirements in a document published in the Federal 
Register. We will determine the final priority and requirements after 
considering responses to the proposed priority and requirements and 
other information available to the Department. This document does not 
preclude us from proposing additional priorities, requirements, 
definitions, or selection criteria, subject to meeting applicable 
rulemaking requirements.
    Note: This document does not solicit applications. In any year in 
which we choose to use the priority and requirements, we invite 
applications through a notice inviting applications in the Federal 
Register.

Executive Orders 12866 and 13563

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 proposed 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 this proposed 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 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 the proposed priority and requirements only on a 
reasoned determination that their benefits would justify their costs. 
In choosing among alternative regulatory approaches, we selected those 
approaches that would maximize net benefits. Based on an analysis of 
anticipated costs and benefits, we believe that the proposed priority 
and requirements 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.
    In accordance with the 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.

Potential Costs and Benefits

    The Department believes that this proposed regulatory action would 
not impose significant costs on eligible entities, whose participation 
in our programs is voluntary, and costs can generally be covered with 
grant funds. As a result, the proposed priority and requirements would 
not impose any particular burden, except when an entity voluntarily 
elects to apply for a grant. The proposed priority and requirements 
would help ensure that the Center grant program selects a high-quality 
applicant to implement activities that meet the goals of the program. 
We believe these benefits would outweigh any associated costs.

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 the proposed priority 
and requirements easier to understand, including answers to questions 
such as the following:
     Are the requirements in the proposed priority and 
requirements clearly stated?
     Do the proposed priority and requirements contain 
technical terms or other wording that interferes with their clarity?
     Could the description of the proposed priority and 
requirements in the SUPPLEMENTARY INFORMATION section of the preamble 
be more helpful in making the proposed priority and requirements easier 
to understand? If so, how?
     What else could we do to make the proposed priority and 
requirements easier to understand?
    To send any comments on how the Department could make the proposed 
priorities and requirements easier to understand, see the instructions 
in the ADDRESSES section.
    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

[[Page 15343]]

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.

Regulatory Flexibility Act Certification

    The Secretary certifies that this proposed regulatory action would 
not have a significant economic impact on a substantial number of small 
entities. The U.S. Small Business Administration 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 proposed regulatory action would 
affect are LEAs. Of the impacts we estimate accruing to grantees or 
eligible entities, all are voluntary. Therefore, we do not believe that 
the proposed priority and requirements would significantly impact small 
entities beyond the potential for increasing the likelihood of their 
applying for, and receiving, a competitive grant from the Department.

Paperwork Reduction Act

    The proposed priority and requirements contain information 
collection requirements that do not require the Office of Management 
and Budget's approval for the information collection, since the 
Department anticipates less than 9 applicants for this targeted and 
specialized program. According to section 1320.3(c) of the Paperwork 
Reduction Act (PRA), ``the ``collection of information'' includes the 
obtaining of information by or for an agency by means of identical 
questions imposed on ten or more persons.''
    Accessible Format: On request to the program contact person listed 
under FOR FURTHER INFORMATION CONTACT, individuals with disabilities 
can obtain this document in an accessible format. The Department will 
provide the requestor with an accessible format that may include Rich 
Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, 
braille, large print, audiotape, or compact disc, or other accessible 
format.
    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 the 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.

James F. Lane,
Senior Advisor, Office of the Secretary, Delegated the Authority to 
Perform the Functions and Duties of the Assistant Secretary, Office of 
Elementary and Secondary Education.
[FR Doc. 2023-04974 Filed 3-10-23; 8:45 am]
BILLING CODE 4000-01-P