[Federal Register Volume 90, Number 242 (Friday, December 19, 2025)]
[Rules and Regulations]
[Pages 59397-59400]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-23452]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1302
RIN 0970-AD17
COVID-19 Mitigation Policy Requirement in Head Start Programs;
Recission
AGENCY: Office of Head Start (OHS), Administration for Children and
Families (ACF), Department of Health and Human Services (HHS).
ACTION: Direct final rule; request for comments.
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SUMMARY: This direct final rule (DFR) removes the requirement that Head
Start programs have a COVID-19 mitigation policy. This requirement was
included in the final rule titled ``Mitigating the Spread of COVID-19
in Head Start Programs,'' which ACF published on January 6, 2023.
Specifically, this rescission removes the requirement from the Head
Start Program Performance Standards (Performance Standards) that Head
Start programs have a COVID-19 mitigation policy developed in
consultation with their Health and Mental Health Services Advisory
Committee (HMHSAC), formerly the Health Services Advisory Committee
(HSAC). This DFR meets the deregulatory requirements of Executive Order
14192, Unleashing Prosperity Through Deregulation, and is aligned with
Executive Order 14148, Initial Rescissions of Harmful Executive Orders
and Actions.
DATES: This DFR is effective on February 17, 2026 unless significant
adverse comments are received by January 20, 2026. If significant
adverse comments are received, notice will be published in the Federal
Register before the effective date either withdrawing the rule or
issuing a new final rule that responds to significant adverse comments.
ADDRESSES: You may submit comments, identified by [docket number and/or
RIN number] by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Office of Head Start, Attention: Director of Policy
and Planning, 330 C Street SW, 4th Floor, Washington, DC 20201.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
rulemaking. All comments received will be posted without change to
http://www.regulations.gov, including any personal information
provided.
FOR FURTHER INFORMATION CONTACT: Shawna Pinckney, Office of Head Start,
1-866-763-6481, [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Statutory Authority To Issue DFR
III. Discussion of Changes
Rescinding the Requirement for a COVID-19 Mitigation Policy
(Sec. 1302.47(b)(9))
[[Page 59398]]
Waiver of Notice and Comment Process
IV. Regulatory Process Matters
Regulatory Flexibility Act
Unfunded Mandates Reform Act of 1995
Federalism Assessment Executive Order 13132
Treasury and General Government Appropriations Act of 1999
Paperwork Reduction Act of 1995
I. Background
Since its inception in 1965, Head Start has been a leader in
supporting children from low-income families to enter kindergarten
healthy, prepared, and ready to thrive in school and life. Decades of
evidence continue to affirm the positive outcomes for children and
families who participate in and graduate from Head Start programs.\1\
The program was founded on research demonstrating that health and well-
being are essential prerequisites for optimal learning and improved
short- and long-term outcomes. OHS recognizes health as the cornerstone
of school readiness, underscoring its critical role in the program's
mission.
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\1\ Deming, D. (2009). Early Childhood Intervention and Life-
Cycle Skill Development: Evidence from Head Start. American Economic
Journal: Applied Economics, 1:3, 111-134.; Lipscomb, S.T., Pratt,
M.E., Schmitt, S.A., Pears, K.C., & Kim, H.K. (2013). School
readiness is children living in non-parental care: Impacts of Head
Start. Journal of Applied Developmental Psychology, 31 (1), 28-37.
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To ensure the safety and well-being of all children, families, and
staff, the Head Start program prioritizes creating environments that
are safe and conducive to learning. Section 1302.47 of the Performance
Standards establishes comprehensive health and safety requirements for
Head Start programs (45 CFR 1302.47). This section sets forth
expectations for programs to implement policies and practices that
safeguard children during program hours and maintain facilities and
equipment in safe and sanitary conditions. Importantly, the
requirements within Sec. 1302.47 are designed with flexibility,
enabling programs to address a wide range of health and safety
considerations--including communicable disease prevention--tailored to
their community's specific needs.
In response to the Biden Administration's COVID-19 Action Plan,
``Path out of the Pandemic,'' ACF published an interim final rule with
comment period (IFC), Vaccine and Mask Requirements to Mitigate the
Spread of COVID-19 in Head Start Programs, on November 30, 2021.\2\ The
IFC required (1) universal masking for individuals 2 years of age and
older, subject to some exceptions; and (2) vaccination by January 31,
2022 for Head Start staff, contractors whose activities involve contact
with or providing direct services to children and families, and
volunteers working in classrooms or directly with children. Soon after
the publication of the IFC, several court decisions placed a
preliminary injunction on the IFC, meaning Head Start grant recipients
in those states were not required to comply with the requirements in
the IFC. Specifically, on December 31, 2021, the court placed a
preliminary injunction on the IFC in Texas, and on January 1, 2022, the
court placed a preliminary injunction on 24 other states.\3\ On January
6, 2023, ACF published a final rule in the Federal Register removing
the universal masking requirement, and instead requiring Head Start
programs to adopt an evidence-based COVID-19 mitigation policy,
developed in consultation with their HMHSAC, formerly Health Services
Advisory Committee (HSAC). On March 31, 2023, the court vacated the
IFC, which took effect April 7, 2023, removing the requirement for
vaccination and testing.\4\
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\2\ U.S. Department of Health and Human Services, Administration
for Children and Families, Office of Head Start. ``Vaccine and Mask
Requirements To Mitigate the Spread of COVID-19 in Head Start
Programs.'' Interim Final Rule with Comment Period. Federal Register
86, no. 228 (November 30, 2021): 68052-68101.
\3\ Texas et al. v. Becerra, et al., No. 21-cv-00300, 2021 WL
6198109 (N.D. Tex. Dec. 31, 2021) and Louisiana, et al. v. Becerra,
et al., 21-cv-04370, 2022 WL 16571 (Jan. 1, 2022 W.D. La.).
\4\ State of Texas v. Becerra, 577 F. Supp. 3d 527 (N.D. Tex.
2021).
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On April 10, 2023, President Biden signed legislation ending the
COVID-19 national emergency declared under the National Emergencies
Act.\5\ Subsequently, on May 11, 2023, the COVID-19 public health
emergency expired. In response to the court vacating the IFC and the
end to the public health emergency, on June 26, 2023, ACF issued a
final rule to remove the vaccine and testing requirements, rescinding
those requirements from the IFC issued on November 30, 2021, and
removing them from the Performance Standards.\6\
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\5\ H.J. Res. 7, 118th Cong. (2023), Public Law 118-3 (Apr. 10,
2023).
\6\ U.S. Department of Health and Human Services, Administration
for Children and Families, Office of Head Start. ``Removal of the
Vaccine Requirements for Head Start Programs.'' Final Rule. Federal
Register 86, no. 41326 (June 26, 2023): 41326-41334.
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II. Statutory Authority To Issue DFR
We publish this direct final rule (DFR) under the authority granted
to the Secretary of Health and Human Services by sections 641A of the
Act (42 U.S.C. 9836a), as amended by the Improving Head Start for
School Readiness Act of 2007 (Public Law 110-134). Under these
sections, the Secretary is required to establish performance standards
and other regulations for Head Start and Early Head Start programs.
Specifically, sections 641A(a)(1) and (2) of the Act requires the
Secretary to ``modify, as necessary, program performance standards by
regulation applicable to Head Start agencies and programs.'' \7\ This
rule meets the statutory requirements Congress put forth in its 2007
bipartisan reauthorization of the Head Start program and addresses
Congress's mandate that called for the Secretary to review and revise
the Performance Standards.\8\ The Secretary has determined that the
removal of this requirement in the Performance Standards contained in
this regulation is necessary, given there is no longer a COVID-19
pandemic, and the associated Public Health Emergency ended.
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\7\ See section 641A(a)(1) and (2) of the Act.
\8\ See section 641(A)(a)(2)(C)(i) of the Act.
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III. Discussion of Change
Rescinding the Requirement for a COVID-19 Mitigation Policy (Sec.
1302.47(b)(9))
Section 1302.47 establishes expectations for Head Start programs to
ensure basic health and safety measures are taken for the protection of
all children. We propose to remove Sec. 1302.47(b)(9), which requires
programs specifically to have an evidence-based COVID-19 mitigation
policy developed in consultation with their HMHSAC, formerly HSAC.
ACF's proposal to rescind these requirements is informed by three
key factors: (1) the termination of the national emergency concerning
COVID-19 on April 10, 2023, following the enactment of Public Law 118-
3, and the subsequent expiration of the COVID-19 Public Health
Emergency on May 11, 2023, as declared by the Secretary of Health and
Human Services under the Public Health Service Act; \9\ (2) the
determination that this requirement is duplicative of existing safety
practice provisions outlined in Sec. 1302.47(b)(7)(iii); and (3)
alignment with the Administration's policies, as articulated in
Executive Order 14148.
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\9\ U.S. Department of Health and Human Services (2023).
Retrieved at: https://www.hhs.gov/coronavirus/covid-19-public-health-emergency/index.html.
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First, the termination of the national emergency concerning COVID-
19 and expiration of the COVID-19 Public Health Emergency reflect a
significant
[[Page 59399]]
shift in the federal government's approach to managing the pandemic,
signaling that the acute phase of the public health crisis has passed.
Since January 2021, the United States has seen a sustained and
substantial decline in COVID-19 transmission and severe outcomes.\10\
We are no longer in a pandemic. With these emergency declarations no
longer in effect, there is no reason to require specific COVID-19
mitigation requirements of Head Start grant recipients.
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\10\ Centers for Disease Control and Prevention. COVID Data
Tracker. Atlanta, GA: U.S. Department of Health and Human Services,
CDC; 2025, July 09. Retrieved from: https://covid.cdc.gov/covid-data-tracker/#trends_weeklydeaths_testpositivity_00.
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Second, Sec. 1302.47(b)(7)(iii) of the Performance Standards
requires programs to establish, follow, and practice procedures for
``protection from contagious disease, including appropriate inclusion
and exclusion policies for when a child is ill, and from an infectious
disease outbreak, including appropriate notifications of any reportable
illness.'' This provision establishes the longstanding and
comprehensive expectation that Head Start programs implement policies
and procedures to prevent and control the spread of communicable
diseases. These procedures are intended to be evidence-based,
responsive to public health guidance, and adaptable to the specific
conditions within a program and its community.
With the expiration of the COVID-19 public health emergency and the
significant reduction in COVID-19-related risks, this standalone
requirement has become duplicative of the broader health and safety
provisions already required under Sec. 1302.47(b)(7)(iii). Programs
continue to be responsible for developing and implementing communicable
disease policies, including measures to address COVID-19, when
necessary, but the specific regulatory requirement is no longer needed
to achieve that objective. Moreover, the requirement in Sec.
1302.47(b)(7)(iii) provides programs with the necessary flexibility to
tailor communicable disease policies to their unique circumstances,
taking into account current public health conditions, local health
department guidance, and the needs of their enrolled children and
families. Retaining a COVID-19-specific mitigation policy requirement
in regulation is therefore redundant. Maintaining the separate
regulatory requirement may also create confusion or suggest a
regulatory distinction between COVID-19 and other communicable diseases
that no longer reflects current public health guidance. The removal of
Sec. 1302.47(b)(9) aligns the standards with ACF's efforts to provide
flexibility and reduces unnecessary regulatory burden on programs while
maintaining critical protections for child health and safety.
Third, the rescission of this requirement aligns with the
Administration's policies, as articulated in Executive Order 14148.
Specifically, the proposal to remove this requirement specific to
COVID-19 is consistent with the revocation of Executive Order 13987,
Organizing and Mobilizing the United States Government to Combat COVID-
19 and To Provide United States Leadership on Global Health and
Security, issued on January 20, 2021.
Waiver of Notice and Comment Process
When engaging in rulemaking, HHS will ordinarily publish a notice
of proposed rulemaking in the Federal Register to provide a period for
public comment before the provisions of a rule take effect in
accordance with the Administrative Procedure Act (APA), 5 U.S.C.
553(b).\11\ Under the APA,\12\ an agency is not required to provide
notice and public comment prior to issuing a direct final rule when it
determines, for good cause, that such procedures are impracticable,
unnecessary, or contrary to the public interest. In such instances, the
agency must include in the rule a statement of its findings and the
reasons supporting its determination that the notice and public comment
procedure generally required under the APA are impracticable,
unnecessary, or contrary to the public interest.
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\11\ https://www.govinfo.gov/link/uscode/5/553.
\12\ 5 U.S.C. 553(b)(B).
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At this point in time, when the pandemic is over, ACF finds that it
is unnecessary to provide a public comment period before issuing this
DFR. Courts have found ``good cause'' that notice and comment is
unnecessary when changes are considered ``a routine determination,
insignificant in nature and impact, and inconsequential to the industry
and to the public.'' Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C.
Cir. 2012) (quoting Utility Solid Waste Activities Grp. v. EPA, 236
F.3d 749, 755 (D.C. Cir. 2001)); accord Nat. Res. Def. Council v. Nat'l
Highway Traffic Safety Admin., 894 F.3d 95, 114 (2d Cir. 2018); N.C.
Growers' Ass'n, Inc. v. United Farm Workers, 702 F.3d 755, 766-67 (4th
Cir. 2012); see Attorney General's APA MANUAL 31 (`` `Unnecessary'
refers to the issuance of a minor rule in which the public is not
particularly interested.''); APA LEGISLATIVE HISTORY 200 (``
`Unnecessary' means unnecessary so far as the public is concerned, as
would be the case if a minor or merely technical amendment in which the
public is not particularly interested were involved.'').
The rescission of the requirement to have an evidence-based COVID-
19 mitigation plan is a minor rule change that is not of interest to
the public to provide comment on because the COVID-19 pandemic is no
longer a public health emergency and because the Performance Standards
already have broad health and safety provisions in effect under Sec.
1302.47(b)(7)(iii) that relate to implementing communicable disease
policies. Duplicating other requirements in the Performance Standards
creates additional regulatory burden for Head Start programs,and
rescinding the outdated requirement specific to COVID-19 poses no harm
or burden to programs or the public.
Compliance With Sec 641A(a)(2) of the Act
ACF will consider comments on the changes in this DFR from the
public, including experts in the fields of child development, early
childhood education, child health care, family services,
administration, and financial management, and from persons with
experience in the operation of Head Start programs. We also welcome
feedback from Indian Tribes. Note that a DFR will become permanent
unless we receive adverse comments on this proposed rescission that
requires us to withdraw the DFR, but, regardless, OHS values input from
programs regarding service delivery.
IV. Regulatory Process Matters
We have examined the impacts of the direct final rule under
Executive Order 12866, Executive Order 13563, Executive Order 14192,
the Regulatory Flexibility Act (5 U.S.C. 601-612), the Congressional
Review Act (5 U.S.C. 801, Pub. L. 104-121), and the Unfunded Mandates
Reform Act of 1995 (Pub. L. 104-4).
Executive Orders 12866 and 13563 direct us to assess all benefits
and costs of available regulatory alternatives and, when regulation is
necessary, to select regulatory approaches that maximize net benefits.
This rule was determined to be significant under Section 3(f) of
Executive Order 12866 and is subject to review by the Office of
Management and Budget (OMB). Executive Order 14192 requires that any
new incremental costs associated with significant new regulations
``shall, to the extent permitted by law, be offset by the elimination
of existing costs associated
[[Page 59400]]
with at least ten prior regulations.'' Our analysis indicates, and the
Office of Information and Regulatory Affairs (OIRA) has determined,
that this direct final rule does not meet the criteria set forth in 5
U.S.C. 804(2) under the Congressional Review Act.
This direct final rule is considered an E.O. 14192 deregulatory
action. We estimate that this action will generate about $17,312 in
savings per year. This estimate is consistent with the planned
discontinuation of an OMB-approved information collection with control
number 0970-0148, associated with the recordkeeping requirement of
updating program policies and procedures. We pair the existing 320-hour
annual time-burden estimate with a fully loaded wage rate of $54.10
based on the median wage of Education and Childcare Administrators,
Preschool and Daycare.\13\ The present value of these cost savings is
$0.23 million, or $0.02 million in annualized terms, reported in
constant 2024 dollars at a 7 percent discount rate, discounted relative
to year 2024, over a perpetual time horizon.
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\13\ Bureau of Labor Statistics. May 2024 Occupational
Employment and Wage Statistics. https://data.bls.gov/oes/#/industry/000000. Median wage for Education and Childcare Administrators,
Preschool and Daycare (11-9031) of $27.05 doubled to account for
costs associated with labor other than wages.
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The Regulatory Flexibility Act (RFA) requires agencies to consider
the impact of their regulatory proposals on small entities. The impacts
to small entities attributable to the final rule are cost savings from
eliminating a recordkeeping requirement. We certify that the direct
final rule will not have a significant economic impact on a substantial
number of small entities.
The Unfunded Mandates Reform Act of 1995 (UMRA) generally requires
that each agency conduct a cost-benefit analysis; identify and consider
a reasonable number of regulatory alternatives; and select the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule before promulgating any proposed or
final rule that includes a Federal mandate that may result in
expenditures of more than $100 million (adjusted for inflation) in at
least one year by State, local, and tribal governments, in the
aggregate, or by the private sector. Each agency issuing a rule with
relevant effects over that threshold must also seek input from State,
local, and tribal governments. The current threshold after adjustment
for inflation is $187 million, using the most current (2024) Implicit
Price Deflator for the Gross Domestic Product. This direct final rule
will not result in an unfunded mandate that exceeds this monetary
threshold in any year.
Federalism Assessment Executive Order 13132
Executive Order 13132 requires federal agencies to consult with
State and local government officials if they develop regulatory
policies with federalism implications. Federalism is rooted in the
belief that issues that are not national in scope or significance are
most appropriately addressed by the level of government close to the
people. This rule would not have substantial direct impact on the
states, on the relationship between the federal government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this action does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Treasury and General Government Appropriations Act of 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires federal agencies to determine whether a policy or
regulation may negatively affect family well-being. If the agency
determines a policy or regulation negatively affects family well-being,
then the agency must prepare an impact assessment addressing seven
criteria specified in the law. ACF believes it is not necessary to
prepare a family policymaking assessment (see Pub. L. 105-277) because
the action it takes in this rule would not have any impact on the
autonomy or integrity of the family as an institution.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501 et seq.,
minimizes government-imposed burden on the public. In keeping with the
notion that government information is a valuable asset, it also is
intended to improve the practical utility, quality, and clarity of
information collected, maintained, and disclosed.
The PRA requires that agencies obtain OMB approval, which includes
issuing an OMB number and expiration date, before requesting most types
of information from the public. Regulations at 5 CFR part 1320
implemented the provisions of the PRA and Sec. 1320.3 defines a
``collection of information,'' ``information,'' and ``burden.'' PRA
defines ``information'' as any statement or estimate of fact or
opinion, regardless of form or format, whether numerical, graphic, or
narrative form, and whether oral or maintained on paper, electronic, or
other media (5 CFR 1320.3(h)). This includes requests for information
to be sent to the Government, such as forms, written reports and
surveys, recordkeeping requirements, and third-party or public
disclosures (5 CFR 1320.3(c)). ``Burden'' means the total time, effort,
or financial resources expended by persons to collect, maintain, or
disclose information.
When this requirement was first established, OHS modified the OMB-
approved information collection with control number 0970-0148,
associated with the recordkeeping requirement of updating program
policies and procedures. At that time, OHS assumed 320 burden hours and
this was approved as part of modifications to OMB 0970-0148. With the
publication of this rule, OHS will remove the estimated burden from OMB
0970-0148 upon renewal.
List of Subjects in 45 CFR Part 1302
Early education, Grant programs, Head Start, COVID-19, Safety
practices, Evidence-based COVID-19 mitigation policy.
For the reasons stated in the preamble, ACF amends 45 CFR part 1302
as follows:
PART 1302--PROGRAM OPERATIONS
0
1. The authority for part 1302 continues to read as follows:
Authority: 42 U.S.C. 9801 et seq.
Sec. 1302.47 [Amended]
0
2. Amend Sec. 1302.47 by removing paragraph (b)(9) and redesignating
paragraph (b)(10) as paragraph (b)(9).
Robert F. Kennedy, Jr.,
Secretary, Department of Health and Human Services.
[FR Doc. 2025-23452 Filed 12-18-25; 8:45 am]
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