[Federal Register: August 6, 2002 (Volume 67, Number 151)]
[Proposed Rules]
[Page 50985-51027]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au02-38]
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Part II
Department of Education
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34 CFR Part 200
Title I--Improving the Academic Achievement of the Disadvantaged;
Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1810-AA91
Title I--Improving the Academic Achievement of the Disadvantaged
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations governing the
programs administered under Title I of the Elementary and Secondary
Education Act of 1965, as amended (ESEA)--referred to in these proposed
regulations as the Title I programs. These proposed regulations are
needed to implement recent changes to Title I of the ESEA made by the
No Child Left Behind Act of 2001 (NCLB Act).
DATES: We must receive your comments on or before September 5, 2002.
ADDRESSES: Address all comments for subparts A, B, and D of part 200 in
these proposed regulations and all comments on information collection
requirements to Jacquelyn C. Jackson, Ed.D., Acting Director, Student
Achievement and School Accountability Programs, Office of Elementary
and Secondary Education, U.S. Department of Education, 400 Maryland
Avenue, SW., room 3W230, FB-6, Washington, DC 20202-6132. The Fax
number for submitting comments on subparts A, B, and D is (202) 260-
7764.
Address all comments for subpart C of part 200 in these proposed
regulations to Francisco Garcia, Director, Migrant Education Program,
Office of Elementary and Secondary Education, U.S. Department of
Education, 400 Maryland Avenue, SW., room 3E317, FB-6, Washington, DC
20202-6135. The Fax number for submitting comments on subpart C is
(202) 205-0089.
If you prefer to send your comments through the Internet, use the
following address: TitleIRulemaking@ed.gov.
FOR FURTHER INFORMATION CONTACT: For subparts A, B, D, and E, of part
200, Jackie Jackson, Student Achievement and School Accountability
Programs, Office of Elementary and Secondary Education, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3W202, FB-6, Washington,
DC 20202-6132. Telephone: (202) 260-0826.
For subparts C and E of part 200, James English, Migrant Education
Program, Office of Elementary and Secondary Education, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3E315, FB-6, Washington,
DC 20202-6135. Telephone (202) 260-1394.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum value in helping
us develop the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each
comment addresses and to arrange your comments in the same order as the
proposed regulations.
During and after the comment period, you may inspect all public
comments about subparts A, B, D, and E of part 200, as appropriate, of
these proposed regulations in room 3C147, FB-6, 400 Maryland Avenue,
SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern
time, Monday through Friday of each week except Federal holidays. You
may inspect all public comments about subparts C and E of part 200, as
appropriate, of these proposed regulations in room 3E315, FB-6, 400
Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m.
and 4 p.m., Eastern time, Monday through Friday of each week except
Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Background
The NCLB Act reauthorized the ESEA and incorporated the major
educational reforms proposed by President George W. Bush in his No
Child Left Behind initiative. These reforms included important changes
to Title I of the ESEA, which is designed to help disadvantaged
children meet high academic standards.
These proposed regulations would implement those changes in a
manner that respects State and local control over education while
ensuring strong accountability for results. On July 5, 2002, the
Secretary separately published in the Federal Register final
regulations for the standards and assessment provisions of Title I,
part A of the ESEA.
The Secretary intends to regulate only if absolutely necessary: for
example, if the statute requires regulations or if regulations are
necessary to provide flexibility or clarification for State educational
agencies (SEAs) and local educational agencies (LEAs). Rather than
regulating extensively, the Secretary intends to issue nonregulatory
guidance addressing particular legal and policy issues under the Title
I programs. This guidance will inform schools, parents, school
districts, States, and other affected parties about the flexibility
that exists under the statute, including different approaches they may
take to carry out the statute's requirements.
Significant Proposed Regulations
We group major issues according to subject. We discuss other
substantive issues under the sections of the proposed regulations to
which they pertain. Generally, we do not address proposed regulatory
provisions that are technical or otherwise minor in effect.
Subpart A--Improving Basic Programs Operated by Local Educational
Agencies
Section 200.11 Participation in NAEP
Statute: Section 1111(c)(2) of the NCLB Act requires each State to
participate in biennial State assessments of 4th and 8th grade reading
and mathematics under the National Assessment of Educational Progress
(NAEP). Similarly, section 1112(b)(1)(F) of the NCLB Act requires each
LEA participating under subpart A of this part to participate, if
selected, in the State NAEP.
Proposed Regulations: The proposed regulation would clarify that
LEAs receiving Title I funds must participate in NAEP if they are
selected.
Reasons: The proposed regulations make clear that a condition of
receiving Title I funds is that, if selected, the LEA must participate
in NAEP despite section 411(d)(1) of the National Education Statistics
Act of 1994, which provides for voluntary participation of LEAs.
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State Accountability System
Section 200.12 Single State Accountability System
Statute: Under section 1111(b)(2)(A) of the ESEA, each State must
develop and implement a single, statewide accountability system to
ensure that all LEAs and public schools in the State make adequate
yearly progress. The State's accountability system must be based on the
State's academic standards and assessment system and take into account
all public elementary and secondary school students; be the same
accountability system the State uses for all public schools and LEAs in
the State; and include rewards and sanctions the State will use to hold
LEAs and public schools accountable for student achievement. The
State's accountability system may, but is not required to, apply the
requirements in section 1116 of Title I relating to identifying schools
for improvement, corrective action, and restructuring to non-Title I
schools and non-Title I LEAs.
Proposed Regulations: Proposed Sec. 200.12 would implement the
statutory provisions requiring a single, statewide accountability
system. It would make clear that these provisions take effect beginning
with the 2002-2003 school year. Proposed Sec. 200.12 also would require
States to include, in their accountability system, guidelines for
identifying the students with disabilities who should take alternate
assessments and would require reporting on the number of students with
disabilities who take an alternate assessment.
Reasons: Proposed Sec. 200.12 reflects the Secretary's goal of
regulating only where necessary to provide clarity or flexibility. It
emphasizes the importance of a single, statewide accountability system
and sets the context for the subsequent regulations on adequate yearly
progress. By requiring States to establish guidelines governing
alternate assessments, it also ensures that only students with the most
significant disabilities take those assessments.
Adequate Yearly Progress
Sections 200.13 Through 200.20 Adequate Yearly Progress
Statute: Under section 1111(b)(2)(B), each State must demonstrate
what constitutes adequate yearly progress of the State, and of all
public elementary and secondary schools and LEAs in the State, toward
enabling all students to meet the State's student achievement
standards. ``Adequate yearly progress'' definitions must apply the same
high standards of academic achievement to all public elementary and
secondary school students in the State, be statistically valid and
reliable, and measure progress based primarily on the State's academic
assessments. The definition must include separate annual measurable
objectives for continuous and substantial improvement in both
mathematics and reading/language arts for all students and for each of
the following specific groups of students: students who are
economically disadvantaged, students from major racial and ethnic
groups, students with disabilities, and students with limited English
proficiency.
Adequate yearly progress must include a timeline that ensures that
all students in each subgroup meet or exceed the State's proficient
level of academic achievement no later than the 2013-2014 school year.
Using data from the 2001-2002 school year, each State must determine a
starting point for reading/language arts and mathematics for measuring
the percentage of students meeting or exceeding the State's proficient
level of academic achievement. The starting point must, at a minimum,
be based on the higher of two proficiency levels specified in the
statute. Adequate yearly progress must include intermediate goals that
increase in equal increments over the timeline; the first increment
must occur in not more than two years from the baseline year (2001-
2002) and the following increases must occur in not more than three
years. Adequate yearly progress must also include the graduation rate
for high schools and a similar academic indicator for elementary and
middle schools.
To make adequate yearly progress, a school must meet two criteria.
First, the school must meet or exceed the State's annual measurable
objectives with respect to all students and students in each subgroup.
If students in any subgroup fail to make the requisite progress,
however, the school can still make adequate yearly progress if the
percentage of students below proficient in that subgroup decreased by
at least 10 percent compared to the preceding year and that subgroup
made progress on one or more of the additional academic indicators.
Second, at least 95 percent of the students in each subgroup enrolled
in the school must take the assessment.
Current Regulations: The current regulations governing adequate
yearly progress (34 CFR 200.3) reflect provisions of section 1111 of
the ESEA that were superseded by the NCLB Act.
Proposed Regulations: The proposed regulations in Secs. 200.13
through 200.20 would implement the statutory provisions in section
1111(b)(2) that require each State to demonstrate what constitutes
adequate yearly progress. For the most part, the proposed regulations
would merely reorganize the statutory provisions to make them more
understandable, particularly the interrelationship among the timeline,
starting points, intermediate goals, and annual measurable objectives.
In several instances, the proposed regulations would clarify the
statutory provisions or provide flexibility. For example, proposed
Sec. 200.13(c)(1) permits a State to define achievement standards for
students with the most significant cognitive disabilities who take an
alternate assessment. Section 1111(b)(2)(I)(ii) of the ESEA provides
that children with disabilities who take an alternate assessment must
be included in the 95 percent of students who must participate in the
assessments in order for a school to make adequate yearly progress.
Under the Title 1 accountability system, alternate assessments are an
appropriate way to measure the progress of only that very limited
portion of students with the most significant cognitive disabilities
who will never be able to demonstrate progress on grade level academic
achievement standards even if provided the very best possible
education. Based on current prevalence rates of students with the most
significant cognitive disabilities, proposed Sec. 200.13(c)(2), would
set the number of students with disabilities who should be included in
accountability measures using alternate standards at not more than 0.5
percent of all students assessed in a State or LEA. For accountability
purposes, the performance of all other students with disabilities
(including any other students with disabilities who take an alternate
assessment) must be assessed against the academic content and
achievement standards established under Sec. 200.1.
Proposed Sec. 200.13(d) would make clear that a State must have a
way to hold accountable schools in which no grade level is assessed
under the State's academic assessment system or whose purpose is to
serve students for less than a full academic year. The proposed
regulations emphasize, however, that the State does not need to
administer a formal assessment to students in these schools. Similarly,
proposed Sec. 200.15(b) would clarify that, if a State changes its
academic assessment system or its definition of adequate yearly
progress, the State may not extend, beyond the 2013-2014 school year,
its timeline for enabling all students to reach proficiency. Proposed
Sec. 200.16 would make clear that a State must set separate starting
points for reading/language arts and mathematics, because the State
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must hold schools accountable for student achievement in each subject.
That section would permit a State to establish separate starting points
by grade span. Proposed Sec. 200.16(b)(2) also would clarify how a
State determines a starting point based on the percentage of students
at the proficient level in the ``school at the 20th percentile in the
State, based on enrollment.''
Section 1111(b)(2)(C)(vi) of the ESEA requires a State to include
the graduation rate in its determination of adequate yearly progress
for public secondary schools and defines graduation rate as ``the
percentage of students who graduate from secondary school with a
regular diploma in the standard number of years.'' Proposed
Sec. 200.19, which deals with other academic indicators, would rely on
language in the conference report to the NCLB Act to permit a State to
submit for the Secretary's approval another definition that accurately
measures the high school graduation rate. Proposed Sec. 200.19(c) would
make clear that a State may, but is not required to, increase the goals
of its other academic indicators over the course of its timeline.
Proposed Sec. 200.20, which would implement the statutory
provisions for how a school or LEA makes adequate yearly progress,
would clarify the statutory requirement that 95 percent of the students
enrolled in each subgroup in a school must take the State's academic
assessment in order for the school to make adequate yearly progress.
Proposed Sec. 200.20(c)(1)(ii) would make clear that the number of
students in a subgroup must be of sufficient size to produce
statistically reliable results for the 95 percent requirement to affect
adequate yearly progress. In other words, if the number of students in
a subgroup is too small to produce statistically reliable results, the
State need not, on the basis of the 95 percent requirement, identify
the school as failing to make adequate yearly progress if less than 95
percent of the students in that subgroup take the State's assessment.
This proposed provision would not, however, authorize a State to
exclude students in small subgroups from taking the assessment.
Finally, proposed Sec. 200.20(e) would permit a State to define ``full
academic year'' for the purpose of determining adequate yearly
progress.
Reasons: Proposed Secs. 200.13 through 200.20 reflect the
Secretary's goal of providing clarity where the statute is ambiguous
and reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements. These sections
also reflect the Secretary's goal to provide added flexibility wherever
possible.
In developing these proposed regulations, the Department has
carefully based them on the statutory provisions governing adequate
yearly progress. These requirements are designed to enhance the quality
systems of accountability that many States have already developed. At
the core of the NCLB Act's accountability pillar, the statutory
provisions require each State to implement a single statewide system
for annually holding all public schools and LEAs accountable. This
single system will ensure that all students, including students with
disabilities, limited English proficient students, economically
disadvantaged students, and students from major racial and ethnic
groups, will be proficient in reading/language arts and mathematics by
the 2013-2014 school year. We are aware that there are rigorous models
that States have already developed that may achieve the same
fundamental principles of the statute, although through different
approaches. For example, some models establish a growth trajectory for
each school based on the school's baseline performance. Other models,
in determining a school's performance, take into consideration the
school's progress in moving students from ``below basic'' to ``basic''
as well as from ``basic'' to ``proficient'' and from ``proficient'' to
``advanced.'' We specifically invite States that have been using
different models to comment on the statutory provisions that might
affect their use, and how these requirements could be incorporated into
their current systems.
Section 200.21 Adequate Yearly Progress of a State
Statute: Section 6161 of the ESEA requires the Secretary, beginning
with the 2004-2005 school year, to review whether each State that
receives funds under Title I, part A has made adequate yearly progress
with respect to each subgroup of students under section
1111(b)(2)(C)(v) of the ESEA. If a State also receives funds under
Title III, part A, subpart 1 of the ESEA, the Secretary must also
review whether the State has met its annual measurable achievement
objectives relating to the development and attainment of English
proficiency by limited English proficient students.
Proposed Regulations: Proposed Sec. 200.21 would implement this new
requirement. This section would emphasize that the Secretary will
review whether a State has made adequate yearly progress as defined in
proposed Secs. 200.13 through 200.20 for each subgroup of students as
well as has met its annual measurable achievement objectives relating
to the development and attainment of English proficiency by limited
English proficient students.
Reasons: Proposed Sec. 200.21 reflects the Secretary's goal of
regulating only where necessary to provide clarity or flexibility. It
is included to emphasize, for the first time, a State's responsibility
to make adequate yearly progress for each subgroup of students and meet
its goals for improving the English proficiency of its limited English
proficient students.
Schoolwide Programs
Statute: Section 1114 of the ESEA made three substantive changes to
the existing requirements governing schoolwide programs. Section
1114(a)(1) allows a school to operate a schoolwide program if the
school serves an eligible school attendance area in which at least 40
percent of the children are from low-income families, or if at least 40
percent of the children enrolled in the school are from such families.
Under the previous statute, the eligibility threshold was 50 percent.
Section 1114(b)(1)(A) requires the comprehensive needs assessment
for a schoolwide program to take into account the needs of migratory
children.
Section 1306(b)(4) of the ESEA made one additional substantive
change in the schoolwide program requirements. Under that provision, a
school must document that the special educational needs of migrant
students have been met before Title I, part C funds may be included in
a schoolwide program. Previously, a school was required only to address
those needs, not document that they had been met, before including
Title I, part C funds.
Current Regulations: Current Sec. 200.8 reflects the basic
statutory requirements for schoolwide programs. The regulations specify
(1) the eligibility requirements for a schoolwide program--including a
provision that permits an LEA to determine schoolwide eligibility using
a poverty measure that is different from the poverty measure used to
identify and rank school attendance areas; (2) requirements for and
restrictions on combining funds in a schoolwide program; (3) components
of a schoolwide program; (4) schoolwide program planning and needs
assessment; and (5) the effects of operating a schoolwide program in
relation to other Federal program requirements.
Proposed Regulations: The proposed regulations would not
substantively
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change the current regulations beyond conforming them to the new
statutory requirements. However, the proposed regulations would
reorganize the current regulations in a way that emphasizes the
fundamental purpose of a schoolwide program. The provisions of current
Sec. 200.8 would be divided into four new, smaller and simpler
sections--proposed Secs. 200.25 through 200.28.
Proposed Sec. 200.25 would clarify that the purpose of a schoolwide
program is to improve the academic achievement of all students,
especially those furthest from meeting the State's proficient academic
achievement standard. Proposed Sec. 200.25 would also contain the
eligibility requirements.
Proposed Sec. 200.26 would clarify that a schoolwide plan must
describe how the school will improve academic achievement so that all
students will meet the State's proficient academic achievement
standard, especially those furthest from meeting proficiency. The
proposed section would also clarify that the plan must be reviewed and
revised as necessary to reflect changes in the schoolwide program or in
the State's academic content standards and academic achievement
standards. The proposed section would also include the provisions
requiring the comprehensive needs assessment to take into account the
needs of migratory children.
Proposed Sec. 200.27 would reorganize the schoolwide components
into four primary categories: (1) Schoolwide reform strategies, (2)
instruction by highly qualified teachers, (3) parent involvement, and
(4) additional support. The proposed section also would emphasize that
reform strategies must address the needs of students in the school, but
particularly those furthest from meeting the State's proficient
academic achievement standard.
Proposed Sec. 200.28 would group together all the statutory
provisions addressing the uses of funds in a schoolwide program. These
provisions include the new provisions governing meeting the needs of
migrant students.
Reasons: The Department has found that school-level officials are
sometimes confused about the purpose of the schoolwide approach. Often,
schools do not use the flexibility offered by the schoolwide approach
as a means to improve achievement, particularly for those students
furthest from meeting the proficient standard. These regulations are
intended to help schools better understand that schoolwide flexibility
is a strategic approach, using scientifically based strategies, for
improving student achievement to ensure that no child is left behind.
LEA and School Improvement
Section 200.30 Local Review; and Sec. 200.31 Opportunity To Review
School Level Data
Statute: Under section 1116(a) and (b) of Title I, each
participating LEA must use the State academic assessments and other
indicators in the State plan, and, at the LEA's discretion, other
academic indicators described in the LEA's plan, to review the progress
of each school served under subpart A of this part to determine whether
the school is making adequate yearly progress. The LEA must publicize
the results of its review to parents, teachers, principals, schools,
and the community.
In general, the LEA's use of other academic indicators may not
reduce the number or change the identity of schools that would
otherwise be identified for improvement, corrective action, or
restructuring, but may result in the identification of additional
schools for improvement, corrective action, or restructuring. However,
the use of these indicators may permit a school to make adequate yearly
progress if the school reduces by at least 10 percent the percentage of
a student subgroup failing to meet the proficient level of academic
achievement.
Before identifying a school for improvement, corrective action, or
restructuring, an LEA must provide the school an opportunity to review
the school-level data, including academic assessment data, on which the
LEA has based the proposed identification.
Current Regulations: The current regulations governing LEA review
of school performance reflect provisions of section 1116 of the ESEA
that were superseded by the NCLB Act.
Proposed Regulations: Proposed Sec. 200.30 would repeat the
statutory requirement for LEAs to conduct an annual review of the
performance of all schools receiving funds under subpart A of this
part. The review would determine whether the schools are making
adequate yearly progress toward the goal of helping all students reach
proficiency in reading and mathematics within 12 years of enactment of
the NCLB Act.
Proposed Sec. 200.30 would further clarify the circumstances under
which an LEA could limit its review to the progress of only those
students served, or eligible for services, in a school operating a
targeted assistance program. The LEA could limit its review only if the
students selected for services under the targeted assistance program
are those with the greatest need for academic assistance.
Proposed Sec. 200.31 would repeat and reorganize the statutory
requirement that an LEA provide a school with the opportunity to review
the data on which an LEA has based a proposed identification of the
school for improvement, corrective action, or restructuring. The
proposed provision would make clear that this review must occur before
the LEA's final decision on identification.
Reasons: Proposed Secs. 200.30 and 200.31 would reflect the
Secretary's goal of clarifying and reorganizing the statutory
requirements to facilitate a better understanding of and compliance
with those requirements.
Section 200.32 Identification for School Improvement; Sec. 200.33
Identification for Corrective Action; Sec. 200.34 Identification for
Restructuring; and Sec. 200.35 Delay and Removal
Statute: Under section 1116(b) of Title I, an LEA must (1) identify
for school improvement any school that fails to make adequate yearly
progress for two consecutive years and (2) must make available public
school choice to all students enrolled in the school. If the school
fails to make adequate yearly progress for a third consecutive year,
the LEA must continue to offer public school choice and must also make
available supplemental educational services to students who remain in
the school.
In the case of a school that fails to make adequate yearly progress
after two years of improvement, the LEA must identify the school for
corrective action and continue to offer public school choice and
supplemental educational services to students enrolled in the school.
If a school fails to make adequate yearly progress after one year of
corrective action, the LEA must identify the school for restructuring
and must continue to offer public school choice and supplemental
educational services while it prepares a restructuring plan for the
school.
The statute also includes transition provisions governing schools
identified for improvement or corrective action before the enactment of
the NCLB Act:
An LEA must treat any school that was in improvement on
January 7, 2002 as a school that is in the first year of improvement
for the 2002-2003 school year.
An LEA must treat any school that was in improvement for
two or more consecutive years on January 7, 2002 as a school in its
second year of school improvement for the 2002-2003 school year.
An LEA must treat any school that was in corrective action
on January 7,
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2002 as a school that is in corrective action for the 2002-2003 school
year.
An LEA may delay for one year the requirements for any school under
the second year of improvement, under corrective action, or under
restructuring, if (1) the school makes adequate yearly progress for one
year or (2) if the school's failure to make adequate yearly progress is
due to exceptional or uncontrollable circumstances, such as a natural
disaster or a precipitous and unforeseen decline in the financial
resources of the LEA or school. However, the LEA may not take into
account this period of delay in determining the number of consecutive
years of failure to make adequate yearly progress for the purpose of
subjecting the school to further improvement actions.
If a school identified for improvement, corrective action, or
restructuring makes adequate yearly progress for two consecutive years,
the LEA may no longer subject the school to the requirements of
improvement, corrective action, or restructuring or identify the school
for improvement for the next school year.
Current Regulations: The current regulations governing LEA
identification of schools for improvement and corrective action reflect
provisions of section 1116 of the ESEA that were superseded by the NCLB
Act.
Proposed Regulations: In general, proposed Secs. 200.32, 200.33,
200.34, and 200.35 would restate and reorganize the statutory
provisions related to the LEA's identification of schools for
improvement, corrective action, and restructuring, as well as
provisions governing the delay or termination of requirements related
to identification.
Proposed Sec. 200.32 clarifies the statutory timeline for
identifying schools for improvement. The statute requires the
identification to take place ``before the beginning of the school year
following such failure to make adequate yearly progress.'' To clarify
the meaning of this deadline, proposed Sec. 200.32(a)(2) restates the
deadline so that it is clear that the identification must take place
``before the beginning of the school year following the year in which
the LEA administered the assessments that resulted in the school's
failure to make adequate yearly progress for a second consecutive
year.''
In addition, proposed Sec. 200.32(f) states that if the LEA misses
this deadline, the school is nevertheless subject to the requirements
of school improvement--including the provision of public school choice
options to all students enrolled in the school--upon identification and
that the LEA must count that school year as a full year of school
improvement for the purpose of subjecting the school to additional
improvement measures if it continues to fail to make adequate yearly
progress. This proposed regulation is intended to prevent the potential
delay of needed improvement measures for an additional year if States
and LEAs fail to make identification in accordance with the statutory
deadline.
Proposed Secs. 200.32 and 200.33 also address identification issues
related to schools that are not covered under the statutory transition
provisions. More specifically, the statute does not account for the
potential impact of the results of assessments administered during the
2001-2002 school year. Proposed Sec. 200.32(d) gives an LEA discretion
to remove from improvement status a school that, on the basis of the
2001-2002 assessments, makes adequate yearly progress for a second
consecutive year. Similarly, proposed Sec. 200.33(c) permits an LEA to
remove from corrective action a school that, on the basis of the 2001-
2002 assessments, makes adequate yearly progress for a second
consecutive year. Proposed Sec. 200.32(e) permits, but does not
require, an LEA to identify for improvement a school that, on the basis
of the 2001-2002 assessments, fails to make adequate yearly progress
for a second consecutive year.
Reasons: Proposed Secs. 200.32, 200.33, 200.34, and 200.35 reflect
the Secretary's goal of providing clarity where the statute is
ambiguous and reorganizing the statutory requirements to facilitate a
better understanding of and compliance with those requirements. In
particular, proposed Sec. 200.32(a)(2) clarifies the statutorily
ambiguous deadline for identifying schools for improvement and proposed
Sec. 200.32(f) ensures that the school improvement timeline is not
thwarted by the failure to meet this deadline.
In addition, proposed Sec. 200.32(d) and (e) and Sec. 200.33(c)
apply the statutory provisions for entering and exiting improvement
status--two consecutive years of failure to make adequate yearly
progress and two consecutive years of making adequate yearly progress,
respectively--to schools not covered under the transition provisions in
section 1116(f) of the NCLB Act.
Section 200.36 Communication With Parents; Sec. 200.37 Notice of
Identification for Improvement, Corrective Action, or Restructuring;
and Sec. 200.38 Information About Action Taken
Statute: Under section 1116 of Title I, SEAs and LEAs must keep
parents informed throughout the improvement process. In particular,
section 1116(b)(6) requires LEAs to provide the parents of each student
enrolled in a school identified for improvement, corrective action, or
restructuring an explanation of what the identification means, the
reasons for the identification, what the school, LEA, and SEA are doing
to address the achievement problems that led to the identification, how
parents can help the school improve, and the parents' option to
transfer their child to another public school or to obtain supplemental
educational services for their child.
Current Regulations: The current regulations governing LEA
notification of parents during the school improvement process reflect
provisions of section 1116 of the ESEA that were superseded by the NCLB
Act.
Proposed Regulations: Proposed Sec. 200.36 clarifies the manner in
which SEAs, LEAs, and schools must meet notification requirements under
section 1116 by providing guidelines for all communications with
parents. These guidelines include the use of an understandable and
uniform format for all required notices; the provision, to the extent
practicable, of all notices in a language that parents can understand;
the use of direct means of communication, such as mailing materials
home, as well as broader electronic means such as the Internet; and
assurances that all notices respect the privacy of students and their
families.
Proposed Sec. 200.37 repeats the statutory requirement to notify
parents when the school their child attends is identified for
improvement, corrective action, or restructuring. Proposed
Sec. 200.37(b)(4) would add to the statutory requirement for an
explanation of the public school choice option the inclusion of
information on the performance of the schools to which a student may
transfer. Proposed Sec. 200.37 also would require LEAs to include in
their annual notice of the availability of supplemental educational
services the identification of any providers of technology-based or
distance-learning services.
Proposed Sec. 200.38 restates the statutory requirement for LEA
notification to parents of action taken to
[[Page 50991]]
address the problems that led the LEA to identify the school for
improvement, corrective action, or restructuring.
Reasons: Proposed Secs. 200.36, 200.37, and 200.38 reflect the
Secretary's goal of providing clarity where the statute is ambiguous
and reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements. The proposed
regulations would help ensure that SEAs, LEAs, and schools develop a
uniform approach for communicating with parents throughout the school
improvement process.
Section 200.39 Responsibilities Resulting From Identification for
School Improvement; Sec. 200.40 Technical Assistance; and Sec. 200.41
School Improvement Plan
Statute: Under section 1116(b) of Title I, if an LEA identifies a
school for improvement, the LEA must provide all students enrolled in
the school with the option to transfer to schools served by the LEA
that have not been identified for improvement. The LEA also must ensure
that the school receives technical assistance in identifying and
addressing the problems that led to the identification for improvement.
The school must develop and implement a school improvement plan
covering a two-year period that specifies the responsibilities of the
school, the LEA, and the SEA under the plan; incorporates
scientifically based strategies for strengthening instruction in the
core academic subjects; includes annual measurable objectives for
helping all student groups make adequate yearly progress; and sets
aside 10 percent of the school's Title I allocation for professional
development that directly addresses the achievement problems that led
the LEA to identify the school for improvement.
The LEA must promptly review the school improvement plan, work with
the school to make any necessary revisions, and approve the plan within
45 days of receiving it from the school. The LEA may condition approval
of the plan on the inclusion of one of the corrective actions specified
in section 1116(b)(7)(C)(iv) of Title I or on feedback from parents and
community leaders.
If a school continues to fail to make adequate yearly progress
after one year of school improvement, the LEA must continue to offer a
public school choice option to students enrolled in the school,
continue to provide technical assistance, and make available
supplemental educational services to eligible students who remain in
the school.
Current Regulations: The current regulations governing LEA and
school-level responsibilities when the LEA identifies a school for
improvement reflect provisions of section 1116 of the ESEA that were
superseded by the NCLB Act.
Proposed Regulations: In general, proposed Secs. 200.39, 200.40,
and 200.41 restate the statutory requirements related to LEA and
school-level responsibilities under the school improvement process,
including the LEA's obligation to offer public school choice options
and to provide technical assistance and the school's responsibility to
develop and implement a comprehensive school improvement plan. Proposed
Sec. 200.41(c)(4) also clarifies that school improvement plans must
include measurable goals that address the specific reasons for the
school's failure to make adequate yearly progress. This proposal is
intended to eliminate possible confusion between the goals in the
improvement plan and the State-level annual measurable objectives
established under section 1111 for the purpose of determining adequate
yearly progress.
Proposed Sec. 200.41(c)(5) would increase flexibility in the use of
the 10 percent set-aside for professional development under the school
improvement plan by making instructional staff other than teachers and
principals eligible for these professional development activities.
Reasons: Proposed Secs. 200.39, 200.40, and 200.41 reflect the
Secretary's goal of providing clarity where the statute is ambiguous
and reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements.
Section 200.42 Corrective Action; and Sec. 200.43 Restructuring
Statute: Under section 1116(b)(7) of Title I, if an LEA identifies
a school for corrective action, it must continue to provide all
students enrolled in the school with the option to transfer to another
public school, continue to ensure that the school receives technical
assistance, continue to make available supplemental educational
services to students who remain in the school, and take at least one of
the corrective actions specified in the statute. These corrective
actions include replacing the school staff, implementing a new
curriculum, decreasing management authority at the school, appointing
an outside expert to advise the school, extending the school day or
year, and reorganizing the school internally.
If an LEA identifies a school for restructuring, it must continue
to provide a public school choice option and make available
supplemental educational services while preparing a plan to carry out
an alternative governance arrangement specified in the statute. These
alternative governance arrangements include reopening the school as a
public charter school, replacing all or most of the school staff,
entering into a contract with a private management company to operate
the school as a public school, turning over operation of the school to
the SEA, or any other major restructuring of a school's governance
arrangements.
If the school continues to fail to make adequate yearly progress,
the LEA must implement its restructuring plan no later than the
beginning of the school year following the year in which it identified
the school for restructuring.
Current Regulations: The current regulations governing corrective
action reflect provisions of section 1116 of the ESEA that were
superseded by the NCLB Act, and restructuring is a new requirement
under the NCLB Act.
Proposed Regulations: In general, Secs. 200.42 and 200.43 restate
the statutory requirements related to corrective action and
restructuring. Proposed Sec. 200.42(b)(4)(iv)(A) and (B) clarify that
the purpose of appointing an outside expert as a corrective action is
to help revise the school improvement plan developed under Sec. 200.41
and implement the revised plan.
Reasons: Proposed Secs. 200.42 and 200.43 reflect the Secretary's
goal of providing clarity where the statute is ambiguous and
reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements.
Section 200.44 Public School Choice
Statute: Under section 1116(b) of Title I, if an LEA identifies a
school for improvement, corrective action, or restructuring it must
provide each student enrolled in the school with the option to transfer
to another public school served by the LEA that is not identified for
improvement, corrective action, or restructuring, unless such an option
is prohibited by State law. The LEA must provide the option to transfer
no later than the first day of the school year following the
identification for improvement, corrective action, or restructuring,
and must provide or pay for the transportation of the student to the
school the student chooses to attend.
In providing students the option to transfer, the LEA must give
priority to the lowest-achieving students from low-income families. If
a student exercises
[[Page 50992]]
the option to transfer to another public school, the LEA must permit
the student to remain in that school until the student has completed
the highest grade in the school. However, the LEA's obligation to
provide transportation ends at the end of a school year if the school
from which the student transferred is no longer identified for
improvement, corrective action, or restructuring.
Current Regulations: The public school choice requirement is new
under the NCLB Act and not covered under current regulations.
Proposed Regulations: Proposed Sec. 200.44 restates and reorganizes
the statutory provisions in section 1116(b) related to public school
choice. The proposed regulations also clarify the statutory deadline by
requiring LEAs to provide a choice option not later than the first day
of the school year following the year in which the LEA administered the
assessments that resulted in the identification of the school for
improvement, corrective action, or restructuring.
In addition, proposed Sec. 200.44(a)(4) would require LEAs to offer
the parents of each eligible student a choice of more than one school,
if there is more than one school within the LEA that has not been
identified for improvement, corrective action, or restructuring, and to
take into account the parents' preferences in assigning students to a
new school.
Proposed Sec. 200.44(b) would clarify that the statutory exception
from the public school choice requirements where choice is prohibited
by State law applies only if the State law prohibits choice through
restrictions on public school assignments or the transfer of students
from one public school to another public school. Proposed
Sec. 200.44(c) clarifies that LEA implementation of a desegregation
plan does not exempt the LEA from the public school choice requirement
in section 1116(b) of Title I.
Proposed Sec. 200.44(f) and (h) would limit an LEA's obligation to
provide or pay for choice-related transportation due to insufficient
funding resulting from the application of Sec. 200.48.
Reasons: Proposed Sec. 200.44 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of and
compliance with those requirements. Proposed Sec. 200.44(a)(2)
clarifies the deadline for providing choice to be consistent with the
statutory requirement that identification for improvement, corrective
action, or restructuring occur prior to the beginning of the school
year.
Proposed Sec. 200.44(a)(4) would empower parents by ensuring,
wherever possible, that they have the option of choosing, from among
several options, the school that best meets the educational needs of
their child.
Proposed Sec. 200.44(b) and (c) are intended to prevent LEAs from
arbitrarily invoking either State law or desegregation plans in seeking
an exemption from the public school choice requirement. Proposed
Sec. 200.44(f) and (h) reflect the interpretation under Sec. 200.48
that the statute caps the set-aside for choice-related transportation
and supplemental educational services at an amount equal to 20 percent
of an LEA's allocation under subpart A of this part, thereby limiting
the LEA's obligation to satisfy all requests for choice-related
transportation.
Proposed Sec. 200.44(i) clarifies that for children with
disabilities, the public school choice option must provide a free and
appropriate public education.
Section 200.45 Supplemental Educational Services; Sec. 200.46 LEA
Responsibilities for Supplemental Educational Services; and Sec. 200.47
SEA Responsibilities for Supplemental Educational Services
Statute: Section 1116(e) of Title I defines supplemental
educational services as tutoring and other academic enrichment services
designed to increase the academic achievement of eligible students and
help them attain proficiency in meeting State academic achievement
standards. If an LEA has identified a school for a second year of
school improvement, for corrective action, or for restructuring, it
must arrange for supplemental educational services for each eligible
student from a State-approved provider selected by the student's
parents. Eligible students are defined in the statute as students from
low-income families, and if funding is insufficient to provide services
to all such students, LEAs must give priority to the lowest-achieving
eligible students.
SEAs must promote participation by as many providers as possible,
develop criteria for approval as a provider that are based on a
demonstrated record of effectiveness in increasing student achievement
in subjects relevant to meeting State academic content and achievement
standards, maintain an updated list of providers from which parents may
select, and monitor the quality and effectiveness of approved
providers.
An LEA making available supplemental educational services must,
funding permitting, continue to make available such services until the
end of the school year. An SEA may waive the requirement for an LEA to
provide supplemental educational services if none of the providers on
the State's list make services available within a reasonable distance
of the LEA and if the LEA itself is not able to provide the services.
Current Regulations: The requirement to provide supplemental
educational services is new under the NCLB Act and not covered under
current regulations.
Proposed Regulations: In general, proposed Secs. 200.45, 200.46,
and 200.47 repeat the statutory requirements for the provision of
supplemental educational services. Proposed Sec. 200.47 would modify
the standards for SEA approval of providers to clarify that
supplemental service providers may include a non-profit entity, a for-
profit entity, a public school, including a public charter school, a
private school, or an LEA. The proposed Sec. 200.47 also would prohibit
schools that are identified for improvement, corrective action, or
restructuring from being a provider.
Reasons: Proposed Secs. 200.45, 200.46, and 200.47 reflect the
Secretary's goal of providing clarity where the statute is ambiguous
and reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements.
Examples of evidence from a provider that may demonstrate
effectiveness include the following:
Significant improvement in student academic achievement as
measured by statewide assessments;
Successful use of instructional practices based on
research;
Successful and sustained remediation of reading/language
arts or math difficulties, such as bringing students up to grade-level
standards.
Section 200.48 Funding for Choice-Related Transportation and
Supplemental Educational Services
Statute: Section 1116(b)(10) of Title I requires LEAs to make
available funding to pay for transportation costs related to the
provision of public school choice options and for supplemental
educational services. In general, affected LEAs must spend an amount
equal to 20 percent of their allocation under subpart A of this part to
pay for choice-related transportation, supplemental educational
services, or a combination of the two. In reserving such funds, an LEA
may not reduce by more than 15 percent the allocation it provides to a
[[Page 50993]]
school identified for corrective action or restructuring.
LEAs must use, at a minimum, an amount equal to five percent of
their allocations under subpart A of this part to pay for supplemental
educational services, if parents request such services. SEAs may use
funds reserved for State-level activities under subpart A of this part
and under part A of Title V to assist LEAs that do not have sufficient
funds to satisfy all requests for supplemental educational services.
For each student receiving such services, the LEA must make available
the lesser of the LEA's per-child allocation under subpart A of this
part or the actual cost of services.
Current Regulations: The requirement to reserve funding for choice-
related transportation and supplemental educational services is new
under the NCLB Act and not covered under current regulations.
Proposed Regulations: Proposed Sec. 200.48 would clarify statutory
ambiguity regarding the reservation of funding to pay for choice-
related transportation and supplemental educational services.
Specifically, the proposed regulation would require LEAs to spend an
amount equal to 20 percent of their allocation under subpart A of this
part to provide or pay for the transportation of students exercising a
choice option, to satisfy all requests for supplemental educational
services, or a combination of the two. Proposed Sec. 200.48 clarifies
that LEAs may use funds allocated under subpart A of this part, from
other Federal education programs, or from State, local, or private
resources to satisfy this requirement.
Proposed Sec. 200.48 also clarifies that if the costs of satisfying
all requests for supplemental educational services exceed an amount
equal to 5 percent of an LEA's allocation under subpart A of this part,
the LEA may not spend less than this amount for supplemental
educational services. In addition, the proposed regulations would
permit--but not require--LEAs to exceed the 20 percent cap to pay all
choice-related transportation costs and to meet the demand for
supplemental educational services.
Reasons: Proposed Sec. 200.48 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of and
compliance with those requirements.
Section 200.49 SEA Responsibilities for School Improvement, Corrective
Action, and Restructuring
Statute: Sections 1003 and 1116 of Title I include various
provisions relating to SEA responsibilities in the school improvement
process. Section 1116(f) requires an SEA to ensure that LEAs serving
schools identified for improvement or corrective action prior to
enactment of the NCLB Act provide public school choice options and make
available supplemental educational services, as appropriate, not later
than the first day of the 2002-2003 school year.
Section 1003 requires SEAs to reserve two percent of the amounts
received under subpart A of this part, rising to four percent in fiscal
year 2004, to support local school improvement activities and to
provide technical assistance to schools that LEAs have identified for
improvement, corrective action, or restructuring and to LEAs that the
SEA has identified for improvement or corrective action. SEAs must
allocate not less than 95 percent of these funds directly to LEAs
serving schools identified for improvement, corrective action, and
restructuring, with a priority on LEAs serving the lowest-achieving
schools and demonstrating the greatest need for assistance.
SEAs also must ensure that the results of academic assessments in a
given school year are available to LEAs before the beginning of the
next school year, and that such results are provided to a school before
an LEA may identify the school for school improvement, corrective
action, or restructuring.
Current Regulations: The current regulations governing SEA
responsibilities related to school improvement reflect provisions of
section 1116 of the ESEA that were superseded by the NCLB Act.
Proposed Regulations: Proposed Sec. 200.49 repeats and reorganizes
the statutory requirements related to SEA responsibilities in the
school improvement process.
Reasons: Proposed Sec. 200.49 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of and
compliance with those requirements.
Section 200.50 SEA Review of LEA Progress
Statute: Under section 1116(c) of Title I, SEAs must annually
review the progress of each LEA receiving funds under subpart A of this
part to determine whether the LEA is making adequate yearly progress
toward meeting the State's student academic achievement standards and
whether the LEA is carrying out its responsibilities under subpart A of
this part with respect to technical assistance, parental involvement,
and professional development. After providing an LEA with the
opportunity to review academic assessment data, the SEA must identify
for improvement an LEA that has failed to make adequate yearly progress
for two consecutive years.
The SEA must identify for corrective action an LEA that fails to
make adequate yearly progress for two consecutive years following the
identification for improvement. The SEA may delay corrective action if
the LEA makes adequate yearly progress for one year or if the LEA's
failure to make adequate yearly progress is due to exceptional or
uncontrollable circumstances, such as a natural disaster or a
precipitous and unforeseen decline in the LEA's financial resources.
The SEA may remove from improvement or corrective action status an
LEA that makes adequate yearly progress for two consecutive years, and
may provide rewards to LEAs that exceed adequate yearly progress for
two consecutive years.
Current Regulations: The current regulations governing SEA review
of LEA progress reflect provisions of section 1116 of the ESEA that
were superseded by the NCLB Act.
Proposed Regulations: In general, proposed Sec. 200.50 repeats the
statutory requirements related to SEA review of LEA progress in helping
all students meet State academic achievement standards.
In addition, proposed Sec. 200.50 clarifies the circumstances under
which an SEA may include, in its review of an LEA serving schools
operating targeted assistance programs, only the progress of students
served or eligible for services under subpart A of this part. Proposed
Sec. 200.50(d)(2) clarifies the timeline for identifying LEAs for
corrective action to be consistent with the statutory requirement that
such identification occur prior to the beginning of the school year.
Proposed Sec. 200.50(d) and (e) also clarify SEA discretion in
identifying LEAs for improvement or removing LEAs from improvement or
corrective action status on the basis of assessments administered
during the 2001-2002 school year.
Reasons: Proposed Sec. 200.50 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of
[[Page 50994]]
and compliance with those requirements. Specifically, the proposed
regulation clarifies the identification timeline for LEA corrective
action and applies the statutory provisions for entering and exiting
improvement status--two consecutive years of failure to make adequate
yearly progress and two consecutive years of making adequate yearly
progress, respectively--to LEAs not covered by the transition language
in section 1116(f) of the NCLB Act.
Section 200.51 Notice of SEA Action
Statute: Under section 1116(c) of Title I, an SEA must publicize
and disseminate the results of its review of an LEA to the LEA,
teachers and other staff, parents, students, and the community. If an
SEA identifies an LEA for improvement or corrective action, it must
provide to the parents of each student enrolled in a school served by
the LEA the reasons for the identification and an explanation of how
the parents can participate in upgrading the LEA. The SEA also must
publish and disseminate to parents and the public information on any
corrective action it takes against an LEA.
Current Regulations: The current regulations governing SEA notice
requirements related to its review of LEA progress reflect provisions
of section 1116 of the ESEA that were superseded by the NCLB Act.
Proposed Regulations: In general, proposed Sec. 200.51 restates the
statutory notice requirements triggered when an SEA reviews the
progress of an LEA under Sec. 200.50. Proposed Sec. 200.51 also
clarifies the manner in which SEAs must meet these notification
requirements by providing guidelines for all communications with
parents. These guidelines include the use of an understandable and
uniform format for all required notices; the provision, to the extent
practicable, of all notices in a language that parents can understand;
the use of direct means of communication, such as sending materials
home with students, as well as broader electronic means such as the
Internet; and assurances that all notices respect the privacy of
students and their families.
Reasons: Proposed Sec. 200.51 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of and
compliance with those requirements. The proposed regulations would help
ensure that SEAs develop a uniform approach for communicating with
parents throughout the LEA review and improvement process.
Section 200.52 LEA Improvement; and Sec. 200.53 LEA Corrective Action
Statute: Under section 1116(c) of Title I, if an SEA identifies an
LEA for improvement, the LEA must develop or revise an LEA improvement
plan that incorporates scientifically based strategies to strengthen
instruction in core academic subjects in schools served by the LEA,
addresses the professional development needs of the LEA's instructional
staff by reserving for that purpose not less than 10 percent of the
funds received by the LEA under subpart A of this part, and includes
specific measurable goals and targets consistent with adequate yearly
progress requirements. The improvement plan also must incorporate
extended learning time strategies, specify LEA and SEA responsibilities
under the plan, and promote effective parental involvement. At the
request of the LEA, the SEA must provide or arrange for technical or
other assistance in developing and implementing the improvement plan.
The LEA must implement its improvement plan not later than the
beginning of the school year after the school year in which the SEA
identified the LEA for improvement.
If an SEA identifies an LEA for corrective action, it must continue
to make available technical assistance to the LEA and take at least one
of the corrective actions specified in the statute. These corrective
actions include deferring programmatic funds or reducing administrative
funds, instituting a new curriculum, replacing LEA personnel, removing
particular schools from the jurisdiction of the LEA and establishing
alternative governance for these schools, appointing a receiver or
trustee to administer the LEA in place of the superintendent and school
board, and abolishing or restructuring the LEA. In addition, in
conjunction with at least one of these actions, the SEA may authorize
students to transfer, with transportation provided, from a school
operated by the LEA to a higher-performing public school operated by
another LEA.
Current Regulations: The current regulations governing LEA
improvement and corrective action reflect provisions of section 1116 of
the ESEA that were superseded by the NCLB Act.
Proposed Regulations: In general, Secs. 200.52 and 200.53 restate
the statutory requirements for LEA improvement and corrective action.
Proposed Sec. 200.52(a)(4) also clarifies that an LEA must implement
its improvement plan not later than the beginning of the school year
following the year in which the LEA administered the assessments that
resulted in the SEA's identification of the LEA for improvement.
Reasons: Proposed Secs. 200.52 and 200.53 reflect the Secretary's
goal of providing clarity where the statute is ambiguous and
reorganizing the statutory requirements to facilitate a better
understanding of, and compliance with, those requirements. Proposed
Sec. 200.52(a)(4) clarifies the deadline for implementation of an LEA's
improvement plan to be consistent with the statutory requirement that
such implementation occur prior to the beginning of the school year
following the identification for improvement.
Section 200.54 Rights of School and School District Employees
Statute: Section 1116(d) of Title I provides that none of the
requirements concerning school and LEA improvement, corrective action,
and restructuring shall be construed to alter or otherwise affect the
rights, remedies, and procedures afforded school or LEA employees under
Federal, State, or local law (including applicable regulations or court
orders) or under the terms of collective bargaining agreements,
memoranda of understanding, or other agreements between the employers
and their employees.
Current Regulations: The current regulations do not address this
requirement.
Proposed Regulations: Section 200.54(a) implements the statutory
provision with respect to State or local laws or collective bargaining
agreements in effect on January 8, 2002--the day the NCLB Act was
signed into law. Section 200.54(b) makes clear, however, that any State
or local laws, regulations, or policies adopted after January 8, 2002
may not exempt an LEA from taking actions it may be required to take by
Secs. 200.30-200.53 with respect to school and LEA employees.
Similarly, Sec. 200.54(c) requires an LEA to ensure that any collective
bargaining agreements, memoranda of understanding or other similar
agreements negotiated after January 8, 2002 do not prohibit actions
that the LEA may be required to take with respect to school or school
district employees to implement Secs. 200.30-200.53.
Reasons: These proposed regulations are necessary to clarify that
the statutory provision applies to laws, regulations, and agreements in
effect on January 8, 2002. States and LEAs, however, have affirmative
responsibilities to ensure that laws, regulations, policies, and
agreements that take effect after January 8 do not prohibit actions
that an LEA or
[[Page 50995]]
State may be required to take to implement Secs. 200.30-200.53.
Qualifications of Teachers and Paraprofessionals
Sections 200.55 through 200.57 Highly Qualified Teachers
Statute: Under section 9101(23) of the ESEA, a highly qualified
teacher in any public elementary or secondary school must hold at least
a bachelor's degree and either (1) have obtained full State teacher
certification or (2) have passed the State teacher licensing
examination and hold a license to teach in that State. A teacher in a
public charter school may instead meet the certification or licensure
requirements of the State's public charter school law. No highly
qualified teacher may have his or her certification or licensure
requirements waived on an emergency, temporary, or provisional basis.
Section 9101(23) of the ESEA contains additional requirements for a
highly qualified teacher depending on which grade level the teacher
teaches and whether the teacher is new to the profession. An elementary
school teacher who is new to the profession must have demonstrated
subject knowledge and teaching skills in reading, writing, mathematics,
and other areas of the basic elementary school curriculum by passing a
rigorous State test. Passing a rigorous State test can mean passing a
State-required certification or licensing test or tests in reading,
writing, mathematics, and other areas of the basic elementary school
curriculum.
A middle or secondary school teacher who is new to the profession
must have demonstrated a high level of competency in each academic
subject that he or she teaches by (1) passing a rigorous State academic
subject test in each of those subjects or (2) successfully completing,
in each of those subjects, an academic major, coursework equivalent to
an undergraduate academic major, a graduate degree, or advanced
certification or credentialing. Passing the rigorous State test can
mean receiving a passing level of performance on a State-required
certification or licensing test or tests in each of the academic
subjects that the teacher teaches.
To be highly qualified, an elementary, middle, or secondary school
teacher who is not new to the profession must meet the applicable
requirements for a new teacher or must demonstrate competence in all
academic subjects that he or she teaches based on a high objective
uniform State standard of evaluation. To be considered a high objective
uniform standard of evaluation, the State standard may involve
multiple, objective measures of teacher competency and must satisfy
these six criteria:
Be set both for grade-appropriate academic subject matter
knowledge and for teaching skills.
Be aligned with challenging State academic content and
student academic achievement standards and developed through
consultation with core content specialists, teachers, principals, and
school administrators.
Provide objective and coherent information about the
teacher's attainment of the core content knowledge in the applicable
academic subject.
Be applied uniformly to all teachers in the same academic
subject and grade level throughout the State.
Take into consideration, although not primarily, the time
the teacher has been teaching the subject.
Be available to the public on request.
Under section 1119(a)(1) of the ESEA, beginning with the first day
of the 2002-2003 school year, each LEA receiving assistance under Title
I, part A is responsible for applying these requirements to any public
school teacher in a core academic subject supported by part A funds who
is hired after that day. The LEA also must have a plan to ensure that
all public school teachers teaching in core academic subjects in the
LEA meet these requirements by the end of the 2005-2006 school year.
At the State level, section 1119(a)(2) of the ESEA requires each
State to develop a plan to ensure that all teachers teaching in core
academic subjects in the State meet these requirements by the end of
the 2005-06 school year. The State plan must set annual measurable
objectives for each LEA and school. At a minimum, these objectives must
provide for an increase in the percentage of highly qualified teachers
in each LEA and school and an annual increase in the percentage of
teachers receiving high-quality professional development toward
becoming highly qualified and successful. The objectives may include
other appropriate measures to improve teacher qualifications.
Proposed Regulations: In addition to incorporating the statutory
provisions described above, proposed Secs. 200.55 through 200.57 would
clarify that the requirements for teacher qualifications apply to
teachers in core academic subjects. Proposed Sec. 200.55(a)(2) would
clarify that a teacher in a program supported by funds under subpart A
of this part is a teacher in a targeted assistance program paid with
Title I, part A funds and any teacher in a schoolwide program. Proposed
Sec. 200.56(a)(1)(iii) would clarify that a teacher meets the full
certification and licensure requirements applicable to the years of
experience the teacher possesses. For example, a first-year teacher
would meet this requirement if State law requires that teacher to work
on a probationary basis for a limited time. Proposed
Sec. 200.56(a)(1)(iii) would also clarify that a teacher meets the
alternate route certification program requirements if the State permits
the teacher to assume functions as a teacher and if the teacher is
making satisfactory progress toward full certification as prescribed by
the State and the program.
A teacher who does not teach a core academic subject, or an
employee of a third-party contractor or supplemental services provider,
would not be required to meet the teacher qualification requirements.
Reasons: Most of the provisions in proposed Secs. 200.55 through
200.57 would clarify unclear areas of the statute. Exempting teachers
who do not teach in core academic subjects from the teacher
qualification requirements, for example, would recognize and encourage
the traditional flexibility that States have exercised in setting
qualification standards in such areas as vocational education. Yet
extending this flexibility would not jeopardize the statute's overall
objective of ensuring that, through high-quality instruction, all
students reach proficient levels of State academic student achievement
standards.
Sections 200.58 through 200.59 Paraprofessionals
Statute: Section 1119(c) through (g) of the ESEA contains
requirements that apply to all paraprofessionals working in a program
supported with Title I, part A funds and specify how each LEA receiving
assistance under part A must ensure that those paraprofessionals meet
those requirements.
Under section 1119(a), each paraprofessional hired after January 8,
2002, must have--
(1) Completed at least two years of study at an institution of
higher education;
(2) Obtained an associate's or higher degree; or
(3) Met a rigorous standard of quality and be able to demonstrate,
through a formal State or local academic assessment, knowledge of, and
the ability to assist in instructing reading, writing, and mathematics
or, as appropriate, in reading readiness,
[[Page 50996]]
writing readiness, and mathematics readiness.
Section 1119(d) requires a paraprofessional hired before January 8,
2002, to meet these requirements within four years of that date.
Section 1119(e) excepts from these requirements a paraprofessional who
serves primarily as a translator, if the paraprofessional is proficient
in English and a language other than English. Section 1119(e) also
excepts a paraprofessional working solely on parental involvement
activities.
Section 1119(f) of the ESEA requires all paraprofessionals,
regardless of hiring date, to have earned a secondary school diploma or
the recognized equivalent.
Section 1119(g) of the ESEA specifies that a paraprofessional may
provide one-on-one tutoring for eligible students, provided the
tutoring is scheduled at a time when a student would not otherwise
receive instruction from a teacher; assist with classroom management,
such as organizing instructional and other materials; provide
assistance in a computer laboratory; conduct parental involvement
activities; provide support in a library or media center; act as a
translator; or provide, under the direct supervision of a teacher,
instructional services.
Section 1119(g)(3) allows a paraprofessional to assume limited
duties assigned to similar personnel who do not work in a program
supported with part A funds. Those duties may include duties beyond
classroom instruction or duties that do not benefit participating
children, if the paraprofessional spends the same proportion of time on
those duties that similar personnel in the school spend on the same
duties.
Proposed regulations: Proposed Secs. 200.58 and 200.59 would
incorporate the statutory provisions governing paraprofessionals. In
addition, proposed Sec. 200.58(a)(2) would clarify that the term
``paraprofessional'' applies to an individual performing instructional
support duties and not to an individual performing only non-
instructional duties. Proposed Sec. 200.58(a)(3) would clarify that a
paraprofessional in a program supported by funds under subpart A of
this part means a paraprofessional in a targeted assisted program paid
with those funds and any paraprofessional in a schoolwide program.
Proposed Sec. 200.59(b) would clarify the duties that
paraprofessionals may perform. Proposed Sec. 200.59(c)(2) would clarify
that a paraprofessional works under the direct supervision of a teacher
if the teacher plans the paraprofessional's instructional activities
and evaluates the achievement of the students with whom the
paraprofessional works. The paraprofessional also would be required to
work in close physical proximity of the teacher.
Reasons: The clarifications in proposed Secs. 200.58(a)(2) and
200.59(b) would reinforce the consistent application of the statutory
concept that paraprofessional qualification requirements apply to the
performance of instructional support duties. The clarification in
proposed Sec. 200.59(c)(2) on what would constitute working under the
direct supervision of a teacher is intended to reinforce the statutory
safeguards against the improper use of paraprofessionals to provide
actual instruction.
Section 200.60 Expenditures for Professional Development
Statute: Section 1119(h) allows an LEA to use funds under Title I,
part A for ongoing training and professional development to help
teachers and paraprofessionals meet the new statutory requirements
governing their qualifications.
Section 1119(l) requires the LEA, for each of fiscal years 2002 and
2003, to use a minimum of 5 percent and a maximum of 10 percent of its
part A funds for professional development aimed at ensuring that
teachers who are not qualified become highly qualified by the end of
the 2005-2006 school year. For each subsequent fiscal year, the LEA
must use a minimum of 5 percent of its part A funds for that purpose.
Section 1119(j) of the ESEA permits an LEA to combine part A funds used
for professional development with other Federal funds, including those
from Title II of the ESEA, and funds from other sources.
Section 1119(k) prohibits a State from mandating, beyond the
amounts specified in section 1119(l), the specific amount that an LEA,
other than an LEA identified for improvement, may spend for
professional development.
Proposed Regulations: Proposed Sec. 200.60(a) would clarify that
professional development funds may be used for paraprofessionals, as
well as teachers. It also would clarify that the statutory minimum
would not apply to an LEA, if most teachers and paraprofessionals in
the LEA's school district already meet the statutory qualification
requirements. Proposed Sec. 200.60(b) would clarify that an LEA may use
additional funds under subpart A of this part for ongoing training and
professional development to help teachers and paraprofessionals carry
out their subpart A activities.
Reasons: Proposed Sec. 200.60(a) is needed to ensure consistent
application of the requirements in section 1119 and elsewhere in the
ESEA that permit flexibility in the use of funds for professional
development. The requirements in section 1119 contemplate that an LEA
will give priority for the use of professional development expenditures
to helping teachers and paraprofessionals meet the requirements for
highly qualified teachers and the qualifications for paraprofessionals,
respectively. Nevertheless, in cases where that priority has been met,
and to help teachers and paraprofessionals carry out their activities
under subpart A, funds under subpart A remain available,
notwithstanding the mandated percentages in section 1119, to an LEA for
ongoing training and professional development.
Participation of Eligible Children in Private Schools
Statute: Section 1120 of Title I requires LEAs to provide on an
equitable basis educational services or other benefits (1) to eligible
children attending private schools; and (2) to the teachers and
families of these children in Title I--supported parent involvement and
professional development activities. It requires LEAs to develop these
services in consultation with officials of the private schools and
prescribes how an LEA determines that it is providing services on an
equitable basis.
Current Regulations: The current regulations governing equitable
participation of eligible children in private schools (34 CFR 200.10
through 200.13) implement provisions of section 1120 of the ESEA that
were superseded by the NCLB Act.
Proposed Regulations: Proposed Secs. 200.61 through 200.66 contain
several provisions to address changes in the statute from the previous
law and to clarify issues about which questions have arisen in the
past. The proposed regulations would--
Reiterate which children an LEA must serve;
Clarify the equal expenditure requirement for
instructional services;
Define equitable expenditures for teachers and families of
participating private school children;
Require consultation on specified topics and expand those
topics to include equitable services to teachers and families of
participating private school students; and
[[Page 50997]]
Clarify the flexibility that exists for private school
officials to appoint representatives for consultation and sign-off
purposes.
Additionally, the proposed regulations would remove regulations
governing capital expenses (currently contained in Secs. 200.15 through
200.17), because the authority for capital expenses expires October 1,
2003 and no funds were appropriated for fiscal year 2002.
Reasons: The existing regulations need to be updated to reflect the
changes made by the NCLB Act. The proposed regulations also facilitate
implementation of the requirements for providing services to eligible
private school students, their teachers, and their families by ensuring
that both public and private school officials have consistent and
accurate information to implement fully the requirements of this
section. Finally, the proposed regulations remove current provisions
that are no longer needed.
Allocations to LEAS
Statute: Title I, part A, subpart 2 establishes the formulas the
Secretary must use to determine LEA allocations for Basic Grants,
Concentration Grants, Targeted Grants, and Education Finance Incentive
Grants (EFIG). The Secretary makes allocations to LEAs for all four
programs using data that include children ages 5 through 17 in families
with incomes below the poverty line based on the most recent
satisfactory data available from the Census Bureau, in families not in
poverty but receiving assistance under the Temporary Assistance for
Needy Families program, in foster homes, and in locally operated
institutions for neglected children. These data are then adjusted to
account for each State's per-pupil expenditure for education. The
Targeted Grants program further requires that the Secretary adjust the
number of children counted in the formula to give greater weight to
those LEAs that have higher numbers or percentages of formula children.
The formula for EFIG, in addition to including the number of children
counted in the Title I formula and each State's per-pupil expenditure,
uses two other factors that measure (1) a State's effort to provide
financial support for education compared to its relative wealth based
on its per capita income (fiscal effort factor) and (2) the degree to
which education expenditures among school districts within a State are
equalized (equity factor). Once a State's EFIG allocation is determined
using all four of these factors, the Secretary distributes funds among
LEAs within a State using a process similar to Targeted Grants by
giving a greater weight to those LEAs that have higher numbers or
percentages of formula children. The weights used to determine EFIG
allocations for each LEA will vary for each State depending on its
equity factor. After initial LEA allocations are determined for all
four programs using the factors described, the Secretary must guarantee
that no LEA (depending on its formula child rate) receives less than
85, 90, or 95 percent of the amount allocated to it in the preceding
year and ensure that no State in total receives less than the minimum
amount prescribed in the statute.
Title I further authorizes States to use alternative data to
determine eligibility and redistribute allocations that the Secretary
determined for its ``small'' LEAs with fewer than 20,000 residents.
This provision in the law responds to concerns about the quality of
census poverty estimates for small LEAs, which account for roughly 79
percent of all districts nationally, but serve only 24 percent of all
school-age children. Under this provision, SEAs have the flexibility to
use alternative data, which the Secretary must approve, that better
reflect the location of poor children among small LEAs in a State.
Current Regulations: The current regulations (contained in 34 CFR
200.20 through 200.26) outline procedures that an SEA uses to sub-
allocate county Title I, part A allocations determined by the Secretary
to LEAs. Because the Secretary now makes Title I, part A allocations
directly to LEAs rather than to counties, these regulations are no
longer applicable and would be replaced by the proposed regulations.
Proposed Regulations: Proposed Secs. 200.70 through 200.75 would
outline procedures SEAs must follow to adjust allocations determined by
the Secretary to account for unique situations within their States.
Proposed Sec. 200.70 would outline the general process that the
Secretary follows to determine Title I, part A LEA allocations and
establish the principle that an SEA may change those allocations in
limited instances.
Proposed Sec. 200.71 would clarify the eligibility thresholds for
Basic Grants, Concentration Grants, Targeted Grants, and EFIG. For
Basic Grants, an LEA is eligible if the number of children counted for
allocation purposes is at least 10 and exceeds two percent of its
school-age population ages 5 through 17. An LEA is eligible for a
Concentration Grant if it is eligible for a Basic Grant and the number
of formula children exceeds 6,500 or 15 percent of its school-age
population. To be eligible for a Targeted Grant and EFIG, an LEA must
have at least 10 formula children and a formula child rate of at least
5 percent. Targeted Grant and EFIG eligibility is based on the raw
number of formula children without application of the weights provided
in the statute.
Proposed Sec. 200.72 would establish the general procedures an SEA
must follow to adjust allocations determined by the Secretary to
account for eligible ``new'' LEAs not on the Census list that the
Secretary used to calculate LEA allocations and to reflect changes in
district boundaries. Under this section, an SEA must first determine
the number of Title I formula children for new LEAs that are not on the
Secretary's list of LEAs, second determine the eligibility of these new
LEAs for a Basic, Concentration, Targeted, and EFIG based on that
number, and third provide the new LEAs with Title I funds based on the
number of formula children that they draw from the LEAs that are on the
Secretary's list for which the Department made allocations.
Proposed Sec. 200.73 would outline the statutory ``hold-harmless''
provisions more clearly. The hold-harmless protection limits the
maximum reduction in an LEA's allocation when compared to its prior
year's allocation. Under each program, an LEA is guaranteed at least
85, 90, or 95 percent of the amount received in the preceding year. The
hold-harmless percentage varies according to each LEA's formula child
rate. For Targeted Grants and EFIG, the hold-harmless percentage is
based on formula counts without application of the weights. Except when
an SEA is calculating LEA reductions to account for reserves for school
improvement, State administration, and the State academic achievement
awards program, the hold-harmless percentage is applied separately for
Basic Grants, Concentration Grants, Targeted Grants, and EFIG. With the
exception of Concentration Grants, an LEA must be eligible for Basic
Grants, Targeted Grants, and EFIG in order for the hold-harmless
protection to apply. For Concentration Grants an LEA is entitled to its
hold-harmless percentage based on its prior year amount for four
consecutive years even if it no longer meets the eligibility
thresholds.
Proposed Sec. 200.74 would clarify the statutory procedures an SEA
would follow if it chooses to use an alternative method to redistribute
Title I, part A grants to LEAs with fewer than 20,000 total residents.
Language in proposed Sec. 200.74(a) would extend this flexibility to
EFIG.
Proposed Sec. 200.75 would outline the flexibility available to
States in which their Title I formula count on January 8,
[[Page 50998]]
2002 makes up less than .25 percent of the national total. These
``small'' States may redistribute Concentration Grant allocations
determined by the Secretary to LEAs in which the number or percentage
of formula children equals or exceeds the Statewide average number or
percentage.
Reasons: The proposed regulations are needed to give guidance to
States on how to adjust the LEA allocations determined by the Secretary
to account for circumstances unique to each State. The Secretary
determines LEA allocations directly using a list of LEAs provided to us
by the Census Bureau, which is based on LEAs that existed in school
year 1999-2000. Because that list does not match the current universe
of LEAs in many States, SEAs must adjust the Secretary's LEA
allocations to account for newly created LEAs (e.g. charter schools and
LEA consolidations) and district boundary changes. An SEA must also
adjust our allocations to (1) reserve funds for school improvement,
State administration, and the State academic achievement awards
programs, (2) allow for the use of alternative data to redistribute
Title I allocations determined by the Secretary among districts with
fewer than 20,000 total residents, and (3) in the case of ``small''
States, redistribute Concentration Grant allocations determined by the
Secretary to LEAs in which the number or percentage of formula children
equal or exceed the Statewide average number or percentage of formula
children.
In outlining SEA procedures for adjusting our allocations in the
proposed regulations, we have tried to give SEAs as much flexibility as
possible. For example, in proposed Sec. 200.72 concerning a State's use
of alternative data to redistribute allocations determined by the
Secretary, we believe it appropriate to extend that flexibility to EFIG
even though the statute specifically authorizes this flexibility only
for Basic, Concentration, and Targeted Grants.
Section 200.78 Allocation of Funds to School Attendance Areas and
Schools
Statute: Section 1113 of the Title I statute lays out the
procedures an LEA must use to determine school-level Title I
allocations once it receives its final allocation from the State. In
calculating school-level allocations, an LEA must first determine which
school attendance areas or schools are eligible to participate in Title
I. As a general rule, a school attendance area is eligible if its
percentage of children from low-income families is above 35 percent
poverty or is at least as high as the percentage of children from low-
income families in the LEA as a whole. An LEA may also serve a school
in an ineligible area if the percentage of children from low-income
families enrolled in that school is equal to, or greater than, the
percentage of such children in a participating school attendance area.
The statute also allows an LEA to continue serving an attendance area
or school for one more year if it has become ineligible.
An LEA must serve eligible schools or attendance areas in rank
order according to their poverty percentage. An LEA must serve those
areas or schools above 75 percent poverty, including any middle or high
schools, before it serves any with a poverty percentage below 75
percent. Once all of the attendance areas or schools with a poverty
rate above 75 percent have been served, an LEA may serve lower-poverty
areas and schools either by continuing with the district-wide ranking
or by ranking its areas or schools below 75 percent poverty according
to grade-span groupings.
When calculating the total number of children from low-income
families, the LEA must include children from low-income families who
reside in a participating area and attend private schools. If the same
poverty data for public and private school children are not available,
an LEA may use comparable poverty data for private school children. If
complete actual poverty data are not available on private school
children, an LEA may extrapolate, from actual data on a representative
sample of private school children, the number of children from low-
income families who attend private schools. An LEA may also correlate
sources of data or apply the low-income percentage of each
participating public school attendance area to the number of private
school children who reside in that area. If an LEA selects a public
school to participate on the basis of enrollment, rather than because
it serves an eligible school attendance area, the LEA must determine an
equitable way to count poor private school children in order to
calculate the amount of Title I funds available to serve private school
children. In making this determination an LEA must consult with private
school officials.
If an LEA serves any attendance area with a poverty rate less than
35 percent, the LEA must allocate to all its participating school
attendance areas or schools an amount per poor child that equals at
least 125 percent of the LEA's part A allocation per poor child. If an
LEA serves only areas with a poverty rate greater than 35 percent, it
must allocate funds in rank order on the basis of the total number of
poor children in each area or school but is not required to allocate a
per-pupil amount of at least 125 percent.
Proposed Regulations: Proposed Secs. 200.77 and 200.78 would
clarify the within-district allocation procedures in section 1113 of
the statute. Because the section 1113 requirements in the new law are
largely the same as the old law, the proposed regulations change little
from the old regulations.
Proposed Sec. 200.77 would clarify what funds an LEA must reserve
before allocating funds to school attendance areas and schools. An LEA
must, for example, reserve funds needed to provide comparable services
to children in local institutions for neglected children and for
homeless children. An LEA is also required to reserve funds, as
appropriate, to meet the (1) transportation and supplemental services
requirements in Sec. 200.48, unless the LEA meets those requirements
with non-Title I funds, (2) the professional development requirements
for LEAs identified for improvement under section 1116(c)(7)(A)(iii),
(3) the professional development needs of teachers who are not highly
qualified under section 1119(l), and (4) the parental support and
involvement requirements in section 1118(a)(3)(A). An LEA may further
reserve funds to meet the needs of children in local institutions for
delinquent children and of neglected or delinquent children in
community day school programs, to provide financial incentives and
rewards (not to exceed 5 percent of the amount received by the LEA
under Title I, part A) for teachers who serve schools identified for
improvement, and to conduct other authorized activities such as school
improvement and coordinated services.
Reasons: The proposed regulations are needed to clarify statutory
provisions concerning how LEAs allocate Title I funds within school
districts.
Fiscal Requirements
Section 200.79 Exclusion of Supplemental State and Local Funds From
Supplement, Not Supplant and Comparability Determinations
Statute: Under section 1120A(d) of Title I, an LEA may exclude
supplemental State and local funds from supplement, not supplant and
comparability determinations if those supplemental funds meet the
intent and purposes of Title I.
Current Regulations: Section 200.63 of the current regulations
clarifies a similar provision in the old law by describing what
criteria a State or local program
[[Page 50999]]
must meet in order to be excluded from supplement, not supplant and
comparability determinations.
Proposed Regulations: Proposed Sec. 200.79 would continue the
provisions contained in Sec. 200.63 of the current regulations by
clarifying the criteria a State or local program must meet in order to
be excluded from supplement, not supplant and comparability
determinations. Section 200.79(b)(1)(i) reflects the change in the
poverty threshold for schoolwide programs under section 1114.
Reasons: Proposed Sec. 200.79 is needed to provide continued
guidance to LEAs on what criteria a State or local program must fulfill
in order to meet the intent and purposes of Title I.
Subpart C--Migrant Education Program
Subpart C of this part contains the program-specific regulations
for the Migrant Education Program (MEP) authorized under Title I, part
C of the statute. The proposed MEP regulations contained in
Secs. 200.81 through 200.88 are intended to clarify ambiguous or
unclear provisions of the statute and replace Secs. 200.40 through
200.45 of the current regulations.
Section 200.81 Program Definitions
Statute: Section 1309 of Title I provides a basic definition of a
``migratory child.''
Current Regulations: The current regulations (contained in 34 CFR
200.40) provide definitions of several additional terms that are
necessary to interpret the statutory definition of a ``migratory
child.''
Proposed Regulations: Proposed Sec. 200.81 would make no changes to
these additional program definitions included in the current
regulations.
Reasons: The program definitions are included in these proposed
regulations solely to provide, in one place, a complete set of the
regulations published for subpart C.
Section 200.82 Use of Program Funds for Unique Program Function Costs
Statute: Section 1302 of Title I provides the authority for SEAs to
operate the MEP either directly or though local operating agencies.
This authority means that the MEP, unlike the Title I, part A program,
is a State-operated, not simply a State-administered, program and, as
such, may carry out particular operational functions that are unique to
the program and beyond those usually carried out by SEAs under Title I,
part A.
Current Regulations: The current regulations (contained in 34 CFR
200.41) clarify that SEAs may use MEP funds to carry out ``other
administrative activities,'' beyond those normally paid for by the SEA
using its general Title I administrative set-aside funds. These ``other
administrative activities'' are those that are unique to the MEP,
including activities that are the same as, or similar to, those carried
out by an LEA under Title I, part A. The current regulations provide
several examples of such unique program costs.
Proposed Regulations: Proposed Sec. 200.82 would repeat the current
regulations, except that proposed Sec. 200.82(e) has been revised to
clarify that MEP funds may be used for the administrative aspects of
developing the statewide needs assessment and comprehensive State plan
that are required in section 1306(a) of the statute and proposed
Sec. 200.83.
Reasons: The revision to Sec. 200.82(e) is intended to emphasize
that SEAs may use MEP funds to conduct the statewide needs assessment
and develop the statewide service delivery plan required under section
1306(a) of the statute and proposed Sec. 200.83.
Section 200.83 Responsibilities of SEAs To Implement Projects Through
a Comprehensive Needs Assessment and a Comprehensive State Plan for
Service Delivery
Statute: Under section 1306(a) of Title I, each SEA receiving MEP
funds must identify and address the special educational needs of
migrant children in accordance with a comprehensive needs assessment
and service delivery plan.
Proposed Regulations: Proposed Sec. 200.83 would clarify the
responsibilities of an SEA receiving MEP funds regarding development of
a comprehensive needs assessment and service delivery plan. The
proposed regulations would clarify that SEAs must deliver and evaluate
MEP-funded services to migratory children based on a written plan that
reflects the results of a current statewide needs assessment and
identified performance targets. The proposed regulations would further
clarify that this plan must be developed in consultation with the
parents of migratory children, and that this requirement is applicable
to both SEAs and their local operating agency projects.
Reasons: The provisions in proposed Sec. 200.83 would outline to
grantees the minimum requirements the Secretary believes necessary for
the development of a comprehensive needs assessment and plan for
service delivery required by section 1306(a) of Title I.
Section 200.84 Responsibilities of SEAs for Evaluating the
Effectiveness of the MEP
Statute: Section 1304(c)(5) of Title I requires SEAs to provide an
assurance that the effectiveness of the State MEP be determined, where
feasible, using the same approaches and standards that will be used to
assess Title I, part A.
Current Regulations: The current regulations (contained in 34 CFR
200.42) define the responsibilities of SEAs and their local projects in
regard to assessing the effectiveness of their operations using the
content and performance standards and, where possible, the assessments
that the State has established for all children. The current
regulations also note that, where it is not feasible to use the
assessments the State has established for all children, e.g., in short-
term summer projects, the SEA and the local project still have a
responsibility to use a reasonable process for assessing the
effectiveness of the project.
Proposed Regulations: Proposed Sec. 200.84 renames and simplifies
the language of the regulatory requirements to clarify that SEAs have a
responsibility to evaluate the MEP in terms of the performance targets
established for migratory children in proposed Sec. 200.83.
Reasons: The provisions of proposed Sec. 200.84 simplify the
regulatory language and align it with the requirements of proposed
Sec. 200.83.
Section 200.85 Responsibilities of SEAs and Operating Agencies for
Improving Services to Migratory Children
Statute: Section 1304(b)(1)(D) of the new statute requires that
measurable goals and outcomes be used when planning and implementing
State and local MEP projects to address the needs of migratory
children.
Current Regulations: The current regulations (contained in 34 CFR
200.43) explain that, while the specific school improvement
requirements of section 1116 of the statute do not apply to the MEP,
SEAs and their local projects are required to use assessment results to
improve the design of services provided to migratory children.
Proposed Regulations: In proposed Sec. 200.85, a minor conforming
change has been made to the language of the current regulations that
would clarify that it is the results of the evaluations conducted under
proposed Sec. 200.84 that are to be used to improve the design of
services to migratory children.
Reasons: The minor conforming change is necessary to establish the
[[Page 51000]]
correct reference to the evaluations to be conducted under proposed
Sec. 200.84.
Section 200.86 Use of MEP funds in Schoolwide Projects
Statute: The new statute sets a new and higher threshold for
combining MEP funds with other funds in a schoolwide program. Section
1306(b)(4) of Title I now requires that a schoolwide program that
receives MEP funds must not only continue to ``address'' the identified
needs of migratory children (as was required under the prior statute)
but now must also ``meet'' these identified needs before it can combine
the MEP funds with other funds in the schoolwide program. This new
statutory requirement would be addressed in Sec. 200.28 of the proposed
subpart A regulations.
Current Regulations: The current regulations (contained in 34 CFR
200.44) note that a schoolwide program may combine MEP funds with other
funds subject to meeting the requirements found in current
Sec. 200.8(c)(3)(ii)(B)(1).
Proposed Regulations: In proposed Sec. 200.86, a minor conforming
change would be made to clarify that the requirements for combining MEP
funds are now to be found in proposed Sec. 200.28(c)(3)(i) of the
proposed subpart A regulations.
Reasons: The minor conforming change is necessary to establish the
correct reference to the requirements of proposed Sec. 200.28(c)(3)(i).
Section 200.87 Responsibilities for Participation of Children in
Private Schools
Statute: Section 1304(c)(2) of Title I eliminates the reference, in
the prior statute, to the applicability of section 1120 (Participation
of Children in Private Schools) of Title I to the MEP. Instead, section
9501(b) of the new statute makes the private school provisions of
section 9501 of the statute applicable to the MEP.
Current Regulations: The current regulations (contained in 34 CFR
200.45) note that the provisions of section 1120 regarding the
participation of private school children are applicable to the MEP.
Proposed Regulations: In proposed Sec. 200.87, a minor conforming
change has been made that would clarify that the provisions regarding
the participation of children in private schools contained in section
9501 of the new statute apply to the MEP.
Reasons: The minor conforming change is necessary to establish the
correct reference to the requirements of section 9501 of the new
statute.
Section 200.88 Exclusion of Supplemental State and Local Funds From
Supplement, not Supplant and Comparability Determinations
Statute: Section 1120A(b) and (c) of the statute define the
``comparability'' and ``supplement, not supplant'' requirements that
apply to Title I, part A. Subsection (d) of section 1120A provides an
exception to the ``comparability'' and ``supplement, not supplant''
requirements for State and local funds that are expended for programs
that meet the intent and purposes of Title I. The assurances in section
1304(c)(2) of Title I, in turn, adopt, by reference, the
``comparability'' and ``supplement, not supplant'' requirements in
section 1120A.
Current Regulations: The current regulations (contained in 34 CFR
200.63) implement the exclusion from both the ``comparability'' and
``supplement, not supplant'' requirements in section 1120A(d), and,
because of section 1304(c)(2), make that exclusion applicable, as a
general regulatory provision, to the MEP as well as to Title I, part A.
The exclusion is only for State and local funds spent for programs that
meet the intent and purposes of Title I. That is, under current
Sec. 200.63(b), a State or local program is considered to meet the
intent and purposes of Title I if it has basic aspects of the Title I,
part A program--e.g., if implemented in any schoolwide program or
school that: (1) serves only children failing or at risk of failing to
achieve to high standards, (2) provides supplementary educational
services to meet the special educational needs of participating
children, and (3) uses the State's system of assessments.
Proposed Regulations: Proposed Sec. 200.88 would clarify that, for
purposes of the MEP, only ``supplemental'' State or local funds that
are used for programs specifically designed to meet the unique needs of
migratory children may be excluded in terms of determining compliance
with the ``comparability'' and ``supplement, not supplant'' provisions
of the statute.
Reasons: In the past few years, the Department has learned of
situations in which, with State approval, one or more LEAs paid the
costs of their summer programs with a mixture of State compensatory
education program funds and MEP funds. While these programs served both
migratory and non-migratory children, they paid for a portion of
services available to migrant students out of their MEP funds,
excluding them from the level of services provided with the State
compensatory education program funds to non-migratory children. While
this arrangement is consistent with the letter of current Sec. 200.63
as written, the Department believes that it violates the intent of
section 1304(c)(2) of the statute.
The broad purpose of the section 1120A statutory exclusion is to
encourage States and LEAs to use their own funds to support
supplemental programs without concern for ``comparability'' and
``supplement, not supplant'' considerations. The Department believes
that the requirement in section 1304(c)(2), that the MEP be implemented
``in a manner consistent with the objectives of'' the section 1120A
``comparability'' and ``supplement, not supplant'' requirements, is
best interpreted, for purposes of the MEP, to exclude only State and
local funds used in programs that are specifically designed, like the
MEP itself, to serve migratory children. Proposed Sec. 200.88 would
serve to establish this reasonable interpretation through regulations.
Subpart D--Prevention Programs for Children and Youth Who Are
Neglected, Delinquent, or At-risk of Dropping Out
Statute: Title I, part D of the ESEA authorizes two programs that
address the needs of neglected, delinquent, and at-risk children and
youth. The basic provisions of this part of the new law are the same as
the old law. Subpart l of part D establishes the State agency Neglected
or Delinquent (N or D) program, which provides Federal financial
assistance to State agencies that operate educational programs for
children and youth in institutions or community day programs for N or D
children and for youth in adult correctional facilities. Subpart 2 of
part D authorizes a program that provides assistance to LEAs to serve
children and youths who are in locally operated correctional facilities
(including institutions for delinquent children) or are at risk of
dropping out of school. Funds for this program are generated by counts
of children, which the Department collects annually for Title I, part A
purposes, that live in locally operated institutions for delinquent
children or are in locally operated correctional facilities. States
award Subpart 2 funds to LEAs with high numbers or percentages of youth
residing in correctional facilities or institutions for delinquent
children to conduct programs that provide an array of services to meet
the special needs of at-risk children and youth.
Current Regulations: The current regulations in 34 CFR 200.50 and
200.51 contain several specific program
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definitions and set out requirements for SEAs to follow when providing
the Department with enrollment data used to determine State agency N or
D allocations.
Proposed Regulation: The proposed regulations would continue the
regulations with no change in policy.
Reasons: The Department needs the proposed regulations in order to
collect the annual data used for determining part D, Subpart 1
allocations, and to provide guidance and clarification about the
children, who are eligible for services under part D, subpart 2.
The definitions in proposed Sec. 200.90 would ensure that the data
used by the Secretary to allocate funds are based on common
definitions. For example, the definition of a regular program of
instruction is included to ensure that the children counted are
enrolled in actual educational programs that involve classroom
instruction supported by State funds. The definitions of institutions
for neglected or delinquent children and youth further require that the
average length of stay in the institution be at least 30 days. This
continues current policy and ensures that the children counted for
allocation purposes are in an institution for a sufficient length of
time so that educational services provided by the institution can be
effective.
Proposed Sec. 200.92, which outlines the requirements for an SEA in
providing the Department with enrollment data for use in determining
State Agency N or D allocations, clarifies, for example, how States
adjust their enrollment counts to account for the length of the school
year as required by the statute.
Subpart E--General Provisions Section 200.100 Reservation of Funds
for School Improvement, State Administration, and the State Academic
Achievement Award Program; and Sec. 200.103 Definitions
Statute: Section 1003 of Title I requires that an SEA reserve two
percent of its funds received under Title I, part A for school
improvement activities authorized in section 1116 and 1117 of the
statute. The amount reserved rises to four percent beginning in 2004.
Section 1004 authorizes an SEA to reserve up to the greater of one
percent or $400,000 from funds it receives under Title I, part A, part
C (Migrant Education program) and part D (State Agency Neglected or
Delinquent program) for State administration. Section 1117(c)(2)(A)
further authorizes the SEA to reserve up to five percent of the Title
I, part A amount received in excess of the prior-year amount for the
State academic awards program.
Current Regulations: The current regulations (contained in 34 CFR
200.60 through 200.65) outline procedures for how a State reserves
funds for State administration and school improvement activities,
provides guidance to an SEA on the use of funds reserved for State
administration, and defines certain terms that apply to all programs
covered by the regulations.
Proposed Regulations: Proposed Sec. 200.100 would clarify new
procedures an SEA must follow when reserving funds for school
improvement, State administration, and the State academic achievement
awards program. When reserving funds for these activities, the SEA must
first reserve funds for school improvement activities authorized under
sections 1116 and 1117 of the Title I statute. In reserving funds for
school improvement, an SEA may not reduce the sum of the Title I, part
A allocations each LEA would receive below the total amount the LEA
received in the preceding year. After reserving funds for school
improvement, an SEA may then reserve funds for State administration and
the State academic achievement awards program. In reducing LEA
allocations, the SEA has the flexibility of (1) ensuring that no LEA
receives, in total, less than 85, 90, or 95 percent, as applicable, of
the amount it received in the preceding year (depending on its
percentage of formula children) or (2) reducing each LEA at the same
rate even if that results in an LEA receiving less than its hold-
harmless amount.
In addition, proposed Secs. 200.100 and 200.103 would (1) address
the use of funds reserved for State administration and (2) provide
certain definitions that apply to all of the programs governed by the
proposed regulations.
Reasons: The provisions in proposed Sec. 200.100 work in
combination with the requirements outlined in proposed Secs. 200.70
through 200.75 for allocating Title I, part A funds to an LEA by
establishing the procedures that an SEA follows when reserving funds
for school improvement, State administration, and the State academic
achievement awards program. The key issue in proposed Sec. 200.100 is
whether the Department should give an SEA the flexibility to reduce an
LEA below its hold-harmless amount when reserving funds for State
administration and the State academic awards program so that all LEAs
would contribute proportionately to these activities.
In the past, an SEA has always followed Title I's hold-harmless
provisions when reserving funds for State administration, provided
there was enough money available to honor the hold-harmless
requirement. However, in ensuring that no LEA receives less than its
hold-harmless amount, any LEA that gained additional funds under the
Title I formula had to give up all or part of its gain in order to
bring any LEA falling below its hold-harmless amount up to that level.
As a result, any LEA that gained funds under the formula contributed a
disproportionately larger share of its Title I allocations to support
these Statewide activities, while an LEA funded at its hold-harmless
level contributed nothing.
In order to provide more equity in how each LEA contributes to the
reserve for State administration and the State academic achievement
award program, the language in proposed Sec. 200.100(d) would give a
State the option of proportionately reducing each LEA's total Title I
allocation even if the outcome results in some LEAs receiving less than
their hold-harmless amounts. If the SEA adopts this option, every LEA
would contribute an equal proportion of its Title I allocation to these
Statewide activities.
The language in proposed Sec. 200.103 is the same as in the current
regulations and would define certain terms that are used throughout the
proposed regulations.
Executive Order 12866
1. Potential Costs and Benefits
The proposed costs have been reviewed in accordance with Executive
Order 12866. Under the terms of the Order, the Department has assessed
the costs and benefits of this regulatory action.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Department has
determined that the benefits of the proposed regulations justify the
costs. The Department has also determined that this regulatory action
does not unduly interfere with State, local, and tribal governments in
the exercise of their governmental functions.
To assist the Department in complying with the requirements of
Executive Order 12866, the Secretary invites comment on whether there
may be further opportunities to reduce any potential costs or increase
potential benefits resulting from these proposed regulations without
impeding the effective and efficient administration of the programs.
Summary of Benefits and Costs
As noted elsewhere, most of the regulations the Secretary proposes
to
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issue through this notice would add clarity where the statute is
ambiguous or unclear or would reorganize statutory provisions to
facilitate a better understanding of their requirements. The proposed
regulations would not add significantly to the costs of implementing
the programs authorized by ESEA Title I or alter the benefits that the
Secretary believes will be obtained through successful implementation.
The vast majority of the implementation costs and benefits will stem
from the underlying legislation.
The programs authorized by Title I of the Elementary and Secondary
Education Act, as reauthorized by the No Child Left Behind Act of 2001,
have as their goal the education of all students, including students
who are economically disadvantaged, limited English proficient,
disabled, migrant, residing in institutions for neglected or delinquent
youth and adults, or members of other groups typically considered ``at
risk,'' so that they can achieve to challenging content and academic
achievement standards. Thus, the benefits that will be obtained through
the reauthorized Title I and its implementing regulations are those
primarily of a more educated society. National data sets and studies by
prominent researchers have demonstrated repeatedly that better
education has major benefits, both economic and non-economic, not only
for the individuals who receive it but for society as a whole. Nations
that invest in quality education enjoy higher levels of growth and
productivity, and a high-quality education system is an indispensable
element of a strong economy and successful civil society.
Data from the 1999 Current Population Survey, conducted by the
Census Bureau, indicate that adults with a high school diploma (but no
further education) had a median income of $23,061, compared to $17,015
for those with no diploma and $15,098 for those with less than 9 years
of education. High school graduates are more likely to continue their
education and receive the additional skills and knowledge necessary to
compete for jobs in a high-technology, knowledge-driven economy.
Scholars have also found strong, positive correlations between higher
levels of schooling and higher lifetime earnings, higher savings rates,
and reduced costs of job search.
Researchers have, in addition, found that more and better education
correlates with other outcomes that, while not directly related to
employment and earnings, have a major, positive benefit on society.
More educated individuals lead healthier lives and have lower mortality
rates. They are more likely to donate time and money to charity, and to
vote in elections. Researchers have demonstrated the intergenerational
impact of education, as the educational level of parents is a positive
predictor of children's health, cognitive development, education,
occupational status, and future earnings. In addition, education is
negatively correlated with criminal activity and incarceration, and
more educated mothers are less likely to have daughters who give birth
out of wedlock as teens.
The reauthorized Title I programs, and the regulations that the
Department is proposing for those programs, will also lead to
improvements in the qualifications of teachers, both in programs
supported by Title I and in schools generally. The Department believes
that the new teacher qualifications provisions will also convey major
benefits on students and on society generally. Research has found that
the academic success of children is more dependent on teacher quality
than on any other variable, with the exception of family background; it
is, in other words, the most important school-related determinant of
achievement.
The major costs to States and to LEAs imposed by the statute and
the proposed regulations are the costs of administering the Title I
programs: at the State level, distributing funds to LEAs, monitoring
LEA activities, providing technical assistance, and carrying out other
activities specified in the statute, and, at the local level,
administering programs in schools and classrooms, providing
professional development to teachers and other staff, and ensuring
program accountability, among other things. The Department believes
that these activities will be financed through the appropriations for
Title I and other Federal programs and that the responsibilities
encompassed in the law and regulations will not impose a financial
burden that States and LEAs will have to meet from non-Federal
resources. For purposes of the Unfunded Mandates Reform Act of 1995,
this rule does not include a Federal mandate that might result in
increased expenditures by State, local, and tribal governments, or
increased expenditures by the private sector of more than $100 million
in any one year.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential Memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 200.12 Single State accountability system.)
Could the description of the proposed regulations in the
``Supplementary Information'' section of this preamble be more helpful
in making the proposed regulations easy to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.
Initial Regulatory Flexibility Analysis
This Initial Regulatory Flexibility Analysis (IRFA) has been
prepared in accordance with the Regulatory Flexibility Act. It involves
proposed rules under Title I of the Elementary and Secondary Education
Act, as amended by the NCLB Act. Its provisions require LEAs, without
regard to size, to take certain actions to improve student academic
achievement.
1. Reasons for, and Objectives of, Proposed Rules
The purpose of the proposed rules is to implement recent changes to
Title I of the ESEA made by the NCLB Act.
2. Legal Basis
We are proposing the rules under the authority in section 1901(a)
of Title I.
3. Small Entities Subject to the Proposed Rules
The small entities that would be affected by these proposed
regulations are small LEAs receiving Federal funds under Title I
programs.
4. Reporti