[Federal Register: December 2, 2002 (Volume 67, Number 231)]
[Rules and Regulations]
[Page 71709-71771]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02de02-25]
[[Page 71709]]
-----------------------------------------------------------------------
Part IV
Department of Education
-----------------------------------------------------------------------
34 CFR Part 200
Title I--Improving the Academic Achievement of the Disadvantaged; Final
Rule
[[Page 71710]]
-----------------------------------------------------------------------
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: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary amends the regulations governing the programs
administered under Title I, parts A, C, and D of the Elementary and
Secondary Education Act of 1965 (ESEA), as amended (hereinafter
referred to as the Title I programs.) These 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: These regulations are effective January 2, 2003.
FOR FURTHER INFORMATION CONTACT: For subparts A, D, and E of part 200,
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
3W202, FB-6, Washington, DC 20202-6132. Telephone: (202) 260-0826.
For subparts B and C of part 200, Francisco Garcia, Director,
Migrant Education Program, Office of Elementary and Secondary
Education, U.S. Department of Education, 400 Maryland Avenue, SW., room
3E217, FB-6, Washington, DC 20202-6135. Telephone: (202) 260-0089.
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 persons listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: These regulations implement changes to Title
I of the ESEA, as amended by the NCLB Act (Public Law 107-110), enacted
January 8, 2002. On August 6, 2002, the Secretary published a notice of
proposed rulemaking (NPRM) for these programs in the Federal Register
(67 FR 50986).
In the preamble to the NPRM, the Secretary discussed on pages 50986
through 51001 the major revisions proposed in that document to
implement changes in the provisions of Title I made by the NCLB Act.
These included the following:
[sbull] Clarifying in Sec. 200.11 that a condition of receiving
Title I funds is that, if selected, the local educational agency (LEA)
must participate in the National Assessment for Educational Progress
(NAEP).
[sbull] Specifying in Sec. 200.12 that the implementation of the
statutory provisions requiring a single, statewide accountability
system take effect beginning with the 2002-2003 school year.
[sbull] Requiring in Sec. 200.12 that States include, in their
accountability systems, guidelines for identifying the students with
disabilities who should take alternate assessments and that States
report on the number of students who take an alternate assessment.
[sbull] Clarifying in Sec. Sec. 200.13 through 200.20 statutory
provisions in section 1111(b)(2) of the NCLB Act requiring each State
to demonstrate what constitutes adequate yearly progress (AYP),
particularly the interrelationship among the timeline, starting points,
intermediate goals, and annual measurable objectives that are part of
AYP.
[sbull] Clarifying in Sec. 200.13(c)(1) and (2) that States can
define achievement standards for students with the most significant
cognitive disabilities who take an alternate assessment, but that the
percentage of students with disabilities included in accountability
measures using alternate standards cannot be more than .5 percent of
all students assessed in a State or LEA.
[sbull] Specifying in Sec. 200.16 that a State must set separate
starting points for reading/language arts and mathematics, and
permitting the establishment of separate starting points by grade span.
[sbull] Clarifying in Sec. 200.20 the statutory requirement that
95 percent of the students enrolled in each subgroup must take the
State's academic assessment for the school to make AYP.
[sbull] Requiring in Sec. 200.21 that the Secretary review both a
State's AYP and its annual measurable achievement objectives relating
to the English proficiency of limited English proficient students.
[sbull] Reorganizing in Sec. Sec. 200.25 through 200.28 schoolwide
program regulations to emphasize the fundamental purpose of a
schoolwide program and to create smaller and simpler sections.
[sbull] Clarifying in Sec. Sec. 200.30 and 200.31 the statutory
requirement that an LEA conduct an annual review of the performance of
all schools receiving funds under subpart A of the ESEA and provide
schools with the data on which it has based a proposed identification
for improvement, corrective action, or restructuring.
[sbull] Clarifying in Sec. Sec. 200.32 through 200.35 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.
[sbull] Clarifying in Sec. Sec. 200.36 through 200.38 the manner
in which State educational agencies (SEAs), LEAs, and schools must meet
notification requirements under section 1116 of the ESEA.
[sbull] Restating in Sec. Sec. 200.39 through 200.41 the statutory
requirements related to both LEA and school-level responsibilities
under the school improvement process.
[sbull] Clarifying in Sec. Sec. 200.42 and 200.43 the statutory
requirements related to corrective action and restructuring.
[sbull] Restating and reorganizing in Sec. 200.44 the statutory
provisions related to the public school choice option and clarifying
the statutory deadline to provide this option.
[sbull] Specifying in Sec. Sec. 200.45 through 200.47 requirements
for the provision of supplemental services.
[sbull] Clarifying in Sec. 200.48 statutory provisions regarding
the reservation of funds to pay for choice-related transportation and
supplemental educational services.
[sbull] Clarifying in Sec. Sec. 200.49 through 200.51 statutory
provisions related to SEA responsibilities in the school improvement
process, including SEA review of LEA progress and notice requirements.
[sbull] Including in Sec. Sec. 200.52 and 200.53 the statutory
requirements for LEA improvement and corrective action.
[sbull] Incorporating in Sec. 200.54 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.
[sbull] Incorporating in Sec. Sec. 200.55 through 200.57 the
statutory provisions regarding qualifications of teachers, and
clarifying that the requirements apply to teachers of the core academic
subjects and do not apply to teachers who do not teach core subjects,
employees of third-party contractors, or supplemental services
providers.
[sbull] Incorporating in Sec. Sec. 200.58 and 200.59 statutory
provisions governing paraprofessionals, clarifying that the term
applies to individuals performing instructional support duties and to
paraprofessionals in both targeted assistance and schoolwide program
[[Page 71711]]
schools supported by funds under subpart A of this part.
[sbull] Clarifying in Sec. 200.60 that professional development
funds may be used for paraprofessionals as well as teachers.
[sbull] Incorporating in Sec. Sec. 200.61 through 200.66 statutory
changes from the previous law governing the participation of eligible
children in private schools and clarifying provisions in this area
about which questions have arisen in the past.
[sbull] Specifying in Sec. Sec. 200.70 through 200.75 procedures
that SEAs must follow in adjusting allocations determined by the
Secretary to account for unique situations within their states.
[sbull] Clarifying in Sec. Sec. 200.77 and 200.78 within-district
allocation procedures as specified in section 1113 of the ESEA.
[sbull] Restating in Sec. 200.79 the criteria a State or local
program must meet in order to be excluded from ``supplement not
supplant'' and ``comparability'' determinations, and incorporating a
change in the poverty threshold for schoolwide programs.
[sbull] Clarifying in Sec. Sec. 200.81 through 200.88 program
specific regulations for subpart C--Migrant Education Program (MEP).
[sbull] Specifying that the regulations for subpart D--Prevention
Programs for Children and Youth Who Are Neglected, Delinquent, or At-
risk of Dropping Out have not changed.
[sbull] Clarifying in Sec. Sec. 200.100 through 200.103 new
procedures an SEA must follow when reserving funds for school
improvement, State administration, and the State academic achievement
awards program, addressing the use of funds reserved for State
administration, and providing certain definitions that apply to all of
the programs governed by the regulations.
The final regulations reflect these provisions, modified as noted
in the analysis of comments and changes in the appendix.
Significant Changes From the NPRM
[sbull] AYP Requirements: Numerous comments were received from
states requesting information on potential flexibility in determining
AYP. One of the cornerstones of the NCLB is its strong emphasis on
accountability for results. Only if we hold schools and LEAs
accountability for the improved achievement of all students will we
meet the goal of leaving no child behind. As a result, the NCLB Act
included very specific, rigorous requirements that States must
implement to determine the AYP of each public school, LEA, and the
State itself. In preparing the final regulations, the Secretary has
faithfully implemented the statutory provisions governing AYP,
addressing additional flexibility wherever possible. The Secretary
realizes that the accountability systems currently in place in many
States may not fully meet the statutory and regulatory requirements. To
meet the requirements in NCLB and these final regulations, a State may
continue to use its current State accountability system, consistent
with Secretary's July 24, 2002 Dear Colleague letter, if that system
integrates AYP, as defined in the statute and regulations, into its
system. A State must submit evidence to the Secretary, for peer review,
that thoroughly describes the State's accountability system and
demonstrates how it has integrated the AYP provisions required by the
statute and regulations.
[sbull] AYP for students with the most significant cognitive
disabilities: Section 200.13 of the NPRM would have allowed the use of
alternate achievement standards for students with the most significant
cognitive disabilities for determining the AYP of states and LEAs,
provided that use did not exceed 0.5 percent of all students. Numerous
comments were received on this proposal, with many of them indicating
that commenters misunderstood this proposal as limiting the number of
students with disabilities who could take an alternate assessment,
rather than providing flexibility by allowing the use of alternate
achievement standards to determine proficiency for calculating AYP for
a limited group of students with disabilities. Because the Secretary
believes that the policy may need further clarification, the Secretary
will be seeking public comment in an NPRM to be published shortly on a
proposed policy regarding the appropriate use of alternate achievement
standards in determining AYP for students with the most significant
cognitive disabilities.
However, because it is critical to ensure that students with
disabilities are not excluded from state accountability systems, the
final regulations provide that the same grade level academic content
and achievement standards that apply to all public schools and public
school students in the State will be applied to alternate assessments.
The Secretary anticipates that the separate NPRM will propose an
exception to this policy for a small group of students with
disabilities.
[sbull] Graduation Rates and Other Indicators: Section 200.19 of
the NPRM required States to include in their definition of AYP
graduation rates and one other academic indicator for elementary and
middle schools. The final regulation clarifies that States are required
to use the other indicators to determine whether or not a school or LEA
has made AYP.
[sbull] Restructuring: Section 200.34 of the NPRM did not address
school status after implementation of restructuring. The final
regulations modify the NPRM by clarifying that a school in
restructuring must continue to provide supplemental educational
services and choice, and to implement its restructuring plan, until it
has made AYP for two consecutive years.
[sbull] School choice and capacity: Numerous commenters requested
clarification of the NPRM on the issue of a school district's capacity
to provide choice for all students. Section 200.44(d) of the final
regulation clarifies that an LEA may not use lack of capacity to deny
an eligible student the opportunity to transfer to another school not
identified for improvement.
[sbull] LEA responsibility for supplemental educational services.
Sections 200.46(a)(4) and 200.47(a)(5) of the NPRM did not address the
responsibility of LEAs and SEAs to ensure that limited English
proficient students receive appropriate educational services and
language assistance in the provision of supplemental services. The
final regulation clarifies that both the LEA and SEA are required to
ensure that students with limited English proficiency receive
appropriate supplemental educational services and language assistance
in the provision of those services.
[sbull] Providers of supplemental educational services: Section
200.47(b)(3) of the NPRM stated: ``A private provider may not, on the
basis of disability, exclude a qualified student with disabilities or a
student covered under Section 504 if the student can, with minor
adjustments, be provided supplemental educational services designed to
meet the individual educational needs of the student unless otherwise
provided by law.'' NPRM provisions Sec. Sec. 200.46(a)(4) and
200.47(a)(5) provided that LEAs and SEAs must ensure that eligible
students with disabilities and students covered by Section 504 receive
appropriate supplemental educational services and accommodations in the
provision of those services. The final regulation is amended to
eliminate the ``minor adjustments'' standard for private providers of
supplemental services.
[sbull] Scientifically Based Research and Supplemental Services
Providers: Section 200.47(b)(4)(ii) of the NPRM prohibited states from
requiring
[[Page 71712]]
providers to demonstrate that their instructional strategies were based
on scientifically based research as a condition of approval. The final
regulation removes this restriction.
[sbull] Alternate Certification: The NPRM specified that one of the
requirements of being a ``highly qualified teacher'' is having obtained
full State certification as a teacher--which may include certification
obtained through alternative routes to certification. The final
regulation adds language that requires teachers who are enrolled in
alternative route programs to receive high-quality professional
development before and while teaching, to participate in a program of
intensive supervision or a teacher mentoring program, to assume the
functions of a teacher while in the alternative route program only for
a specified period of time not to exceed three years, and to
demonstrate satisfactory progress toward full certification as
prescribed by the State. The regulations have been further amended by
requiring the State to ensure, through its certification and licensure
process, that these provisions are met.
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM,
approximately 140 parties submitted comments. An analysis of the
comments and of the changes in the regulations since publication of the
NPRM is published as an appendix at the end of these final regulations.
We group major issues according to subject. We discuss other
substantive issues under the sections of these regulations to which
they pertain. Generally, we do not address regulatory provisions that
are technical or otherwise minor in effect.
Waiver of Rulemaking
In response to comments, the Secretary has added Sec. 200.61 in
these final regulations regarding parents' right to know the
qualifications of their child's teachers. This section merely
incorporates statutory requirements in section 1111(h)(6) of Title I.
The Secretary has included it, however, to emphasize the important
responsibility of LEAs to notify parents of students in Title I schools
that they have a right to request information regarding the
professional qualifications of their child's teachers. Under the
Administrative Procedure Act (5 U.S.C. 553), the Department generally
offers interested parties the opportunity to comment on proposed
regulations. However, these regulations merely reflect statutory
provisions and do not establish or affect substantive policy.
Therefore, under 5 U.S.C. 553(b)(B), the Secretary has determined that
proposed regulations are unnecessary.
Executive Order 12866
We have reviewed these final regulations in accordance with
Executive Order 12866. Under the terms of the order, we have assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with the final regulations are those
resulting from statutory requirements, and those we have determined to
be necessary for administering this program effectively and
efficiently. Based on our assessment of the regulatory burden on
States, LEAs, and schools, we estimate that the total cost of
administering these regulations is $52 million. In deriving this cost
estimate, we calculated the burden hours at the SEA level to be 55,952
hours. Using a cost rate of $25 per hour at the SEA level, we estimated
the administrative burden cost to States to be $1.4 million. At the LEA
and school levels, we calculated the burden hours to be 2,530,476
hours. Based on a cost rate of $20 per hour, the estimated
administrative burden cost at the local level is $50.6 million. The
section of this preamble on the Paperwork Reduction Act of 1995
discusses the burden that the statutory requirements of the NCLB Act
impose on States, LEAs, and schools in more detail. The fiscal year
(FY) 2002 appropriation for Title I, part A provided a $1.6 billion (18
percent) increase in funds. This increase in funding will enable
States, LEAs, and schools to meet the administrative costs associated
with the requirements of the NCLB Act at the State, LEA, and school
levels.
In assessing the potential costs of implementing these regulations
compared to the $10.6 billion in Title I, Part A, Part C, and Part D,
subpart 1 funds received by the States and LEAs, we have determined
that the benefits of the regulations justify the costs. The FY 2002
appropriation of $10.6 billion for these programs, which represents an
18 percent increase over the prior year appropriation, will provide
enough resources for States, LEAs, and schools to carry out the
requirements of the statute. The NCLB Act represents a sweeping
overhaul of Federal efforts to support elementary and secondary
education in the United States and is a landmark in education reform
designed to improve student achievement and change the culture of our
nation's schools. The new law is based on four basic principles--
stronger accountability for results; greater flexibility for States,
school districts, and schools in the use of Federal funds; more choices
for parents of children from disadvantaged backgrounds; and an emphasis
on teaching methods that have been demonstrated to work.
We have also determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
Most of the final regulations would add clarity where the statute
is ambiguous or unclear or would reorganize statutory provisions to
facilitate a better understanding of their requirements. These
regulations would not add significantly to the costs of implementing
the Title I programs authorized by the Elementary and Secondary
Education Act (ESEA) 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 ESEA, 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, migratory, 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.
[[Page 71713]]
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 final regulations 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 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, these regulations do 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.
Regulatory Flexibility Act
This Final Regulatory Flexibility Analysis (FRFA) has been prepared
in accordance with the Regulatory Flexibility Act. It involves final
regulations under Title I of the ESEA, as amended by the NCLB Act. Its
provisions require LEAs, without regard to size, to take certain
actions to improve student academic achievement.
1. Need for, Objectives of, and Legal Basis for Final Regulations
The purpose of the final regulations is to implement recent changes
to Title I of the ESEA made by the NCLB Act. We are issuing final
regulation under the authority in section 1901(a) of Title I.
2. Summary of Significant Issues Raised in Response to the Initial
Regulatory Flexibility Analysis (IRFA)
We have received no comments concerning the cost implications of
these regulations on small entities as result of our request for
comments to the IRFA published in the NPRM on August 6, 2002. However,
there was one comment on the proposed regulation regarding the impact
of particular provisions on small LEAs.
Comment: One commenter recommended that the final regulations
provide flexibility in defining AYP for small school districts, and
single-school LEAs in particular, that may find it difficult to
implement the subgroup-based accountability requirements of the Act.
Discussion: The intent of the law is to ensure that all schools and
districts are held accountable for student achievement. In those
instances where schools and districts are too small to include any
subgroups, the school and district will need to make a decision about
AYP at least on the basis of all its students who were within the
school or district for a full academic year. The Department of
Education will issue nonregulatory guidance to advise States about
particular methodologies for handling this issue. The regulations
clarify at Sec. 200.7(d) that subgroups too small to be reported or
identified at one level must be included at the next higher level,
assuming the subgroup reaches the appropriate size.
3. A Description of the Small Entities to Which These Regulations Will
Apply
The small entities that would be affected by these final
regulations are small LEAs receiving Federal funds under Title I
programs. Based on the Small Business Administration's (SBA) standards,
which defines ``small entities'' as those jurisdictions serving a
population of less than 50,000, 13,231 LEAs out of a total of 13,335
LEAs that receive Title I, part A funds would be considered small. As
noted earlier, the FY 2002 appropriation provides a $1.6 billion
increase in the Title I, part A amount available for school year 2002-
03 to States and to all LEAs, both large and small.
4. Reporting, Recordkeeping and Other Compliance Requirements
Under these regulations, an LEA must: (1) Publicize and disseminate
the results of its annual progress review, (2) notify parents and
teachers of any school identified for improvement or subject to
corrective action or restructuring, (3) publicize and disseminate
information regarding any action taken by the school and LEA to address
the problems that led to the identification, and (4) for schools
subject to restructuring, prepare a plan to carry out alternative
governance arrangements. An LEA also must maintain in its records, and
provide to the SEA, a written affirmation, signed by officials of each
private school with participating children or appropriate private
school representatives, that the required consultation has occurred.
The potential costs and benefits of associated with these regulations
are discussed in the section on Executive Order 12866.
5. Agency Action To Minimize Effect on Small Entities
The Regulatory Flexibility Act directs us to consider significant
alternatives that would accomplish the stated objectives, while
minimizing any significant adverse impact on small entities. Although
the NCLB Act makes no special provisions for ``small'' LEAs that serve
fewer than 50,000 students, which account for 99 percent of all school
districts receiving Title I part A funds, the Department has, to the
extent allowable under the statute accommodated small LEAs in these
regulations. For example, Sec. 200.74 of the regulations outlines
procedures a State must use in using alternative poverty data, which it
believes better reflect where poor children are located, to determine
final Title I allocations for LEAs with a total population of less than
20,000. This provision potentially applies to roughly 80 percent of all
LEAs nationally that meet this criteria. LEAs with fewer than 1,000
students enrolled are exempt from the within-district allocation
requirements outlined
[[Page 71714]]
in Sec. 200.78. More than 4,060 LEAs receiving Title I Part A funds
are affected by this policy. Moreover, activities required under these
regulations would be financed through the appropriations for Title I
programs, which have increased by $1.6 billion for FY 2002, and the
responsibilities encompassed in the law and regulations would not
impose a financial burden that small entities would have to meet from
non-Federal resources.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid Office of
Management and Budget (OMB) control number. We display the valid OMB
control numbers assigned to the collections of information in these
final regulations at the end of the affected sections of the
regulations.
Title I, part A of the Elementary and Secondary Education, as
amended by the No Child Left Behind Act, contains several provisions
that require SEAs, LEAs, or schools to collect or disseminate
information. They are: Sections 200.26, 200.27, 200.28, 200.30, 200.31,
200.34, 200.36, 200.37, 200.38, 200.39, 200.41, 200.42, 200.43, 200.45,
200.46, 200.47, 200.49, 200.50, 200.51, 200.52, 200.57, 200.61, and
200.62. Section 200.61 was added to the final regulation to incorporate
statutory language requiring LEAs to notify parents that they may
request information about the professional qualifications of their
child's classroom teacher. All these sections relate to OMB control
number 1810-0581. Sections 200.12, 200.13, and 200.33 are covered under
OMB control number 1810-0576. Section 200.53 is covered under OMB
control number 1810-0516. Sections 200.70 through 200.75 and 200.100
are covered under OMB control numbers 1810-0620 and 1810-0622. Section
200.83, 200.84, and 200.88 are covered under OMB control number 1810-
0659. Section 200.91 is covered under OMB control number 1810-0060.
SEAs must: (1) Provide annual notice to potential supplemental
service providers of the opportunity to provide such services, (2)
maintain an updated list of approved providers from which parents may
select, and (3) publicly report on standards and techniques for
monitoring the quality and effectiveness of the services offered by
each approved provider and for withdrawing approval from a provider
that fails, for two consecutive years, to contribute to increasing the
academic proficiency of students receiving supplemental services. As
part of their responsibility to annually review the progress of each
LEA to determine whether schools are making AYP, SEAs must: (1)
Provide, before the beginning of the next school year, the results of
academic assessments administered as part of the State assessment
system in a given school year to LEAs, (2) publicize and disseminate
the results of the State review, (3) notify parents when LEAs are
identified for improvement or corrective action, including providing
information on the corrective action, and (4) notify the Secretary of
Education of major factors that have significantly affected student
academic achievement in schools identified for improvement.
Additionally, under Title I, part D, States must submit a count of
children and youth under the age of 21 enrolled in a regular program of
instruction operated or supported by State agencies in institutions or
community day programs for neglected children and youth and adult
correctional institutions.
As part of their responsibility to annually review the progress of
schools to determine whether they are making AYP, each LEA must (1)
publicize and disseminate the results of its annual progress review,
(2) notify parents and teachers of any school identified for
improvement or subject to corrective action or restructuring, (3)
publicize and disseminate information regarding any action taken by the
school and LEA to address the problems that lead to the identification,
and (4) for schools subject to restructuring, prepare a plan to carry
out alternative governance arrangements. LEAs also must maintain in
their records, and provide to the SEA, written affirmation signed by
officials of each private school with participating children, or
appropriate private school representatives, that the required
consultation has occurred.
At the school level, an eligible school choosing to operate a
schoolwide program must develop a comprehensive schoolwide plan and
maintain records demonstrating that it addresses the intent and purpose
of each Federal program included.
The total estimated burden hours for SEA activities covered by the
paperwork requirements are 55,952 across 52 SEAs. The total estimated
burden hours for LEA activities covered by the paperwork requirements
are 1,119,500 hours across 13,335 LEAs. The total estimated burden
hours for school-level activities is 1,410,976 hours. Almost all the
burden hours at the LEA and school level result from statutory
requirements that require: (1) LEAs to prepare restructuring plans for
schools that do not make AYP after one full year in corrective action,
and (2) schools seeking to operate schoolwide programs to develop
schoolwide program plans. The actual impact on an individual LEA or
school will vary depending on whether the LEA or school is subject to
these specific requirements. The estimate of the burden hours at the
LEA level includes an estimate of additional hours that result from
adding a new Sec. 200.61 to the final regulations, which requires an
LEA to notify parents that they can request information about the
professional qualifications of their child's classroom teacher.
Section 200.83 outlines an SEA's responsibility to implement its
State Title I, part C (Migrant Education) program through a
comprehensive needs assessment and a comprehensive State plan for
service delivery. Section 200.84 outlines an SEA's responsibility for
evaluating the effectiveness of its Title I, part C (Migrant Education)
program. The yearly estimated public reporting burden for the
collection of information to implement these two regulatory
requirements is 19,925 hours. The Department requested that the Office
of Management and Budget (OMB)review the information collections, 1810-
0581 and 1810-0659, on an emergency basis. Although these information
collections have been approved on an emergency basis, we continue to
invite your comments through January 31, 2003. We request those wishing
to comment to send their comments to the individual identified in the
FOR FURTHER INFORMATION CONTACT section of this notice.
Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA)
establishes requirements for Federal agencies to assess the effect of
their regulatory actions on State, local and tribal government and the
private sector. These regulations contain no Federal mandates (under
the regulatory provisions of Title II of the UMRA) for State, local,
and tribal governments or the private sector. As noted in the cost/
benefit analysis, the fiscal year 2002 appropriation for Title I, part
A provided a $1.6 billion (18 percent) increase in funds for States to
use in implementing the changes mandated by the NCLB Act. Therefore,
these regulations are not subject to the requirements of sections 202
and 205 of UMRA.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the
[[Page 71715]]
development of regulatory policies that have federalism implications.
``Federalism implications'' means substantial direct effects on the
States, on the relationship between the National Government and the
States, or on the distribution of power and responsibilities among the
various levels of government. Although we did not believe our NPRM
would have federalism implications, we encouraged State and local
elected officials to review the NPRM for federalism implications and to
provide comments. We did not receive any comments on federalism
implications. We also consulted extensively with Chief State School
Officers, other State representatives, Superintendents, and leaders of
various education organizations. In May of 2002, we hosted a series of
regional meetings to share important information about the proposed
regulations during the public comment period. We also conducted
numerous teleconferences with State Chiefs and their staff to learn
more about the implications of these regulations.
These regulations implement various statutory changes to Title I of
the ESEA made by the NCLB Act. We do not believe that these regulations
have federalism implications as defined in Executive Order 13132 or
that they preempt State law. Accordingly, the Secretary has determined
that these regulations do not contain policies that have federalism
implications.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/legislation/FedRegister.
To use PDF you must have Adobe Acrobat Reader, which is available
free at this site. If you have questions about using PDF, call the U.S.
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in
the Washington, DC, area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at: http://www.access.gpo.gov/nara/index.html
.
(Catalog of Federal Domestic Assistance Numbers: 84.010 Improving
Programs Operated by Local Educational Agencies, 84.011 Education of
Migrant Children, 84.013, Prevention and Intervention Programs for
Children and Youth Who Are Neglected, Delinquent, or At-Risk of
Dropping Out, 84.214A Even Start--Migrant Education)
List of Subjects in 34 CFR Part 200
Administrative practice and procedure, Adult education, Children,
Coordination, Education of children with disabilities, Education of
disadvantaged children, Elementary and secondary education,
Eligibility, Family, Family-centered education, Grant programs-
education, Indians education, Institutions of higher education,
Interstate coordination, Intrastate coordination, Juvenile delinquency,
Local educational agencies, Migratory children, Migratory workers,
Neglected, Nonprofit private agencies, Private schools, Public
agencies, Reporting and recordkeeping requirements, State-administered
programs, State educational agencies, Subgrants.
Dated: November 25, 2002.
Rod Paige,
Secretary of Education.
The Secretary amends part 200 of title 34 of the Code of Federal
Regulations as follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
1-2. The authority citation for part 200 is revised to read as
follows:
Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.
Subpart A--Improving Basic Programs Operated by Local Educational
Agencies
3. In Sec. 200.6, revise paragraph (a)(2) to read as follows:
Sec. 200.6 Inclusion of all students.
(a) * * *
(2) Alternate assessments. (i) The State's academic assessment
system must provide for one or more alternate assessments for a child
with a disability as defined under section 602(3) of the Individuals
with Disabilities Education Act (IDEA) whom the child's IEP team
determines cannot participate in all or part of the State assessments
under paragraph (a)(1) of this section, even with appropriate
accommodations.
(ii) Alternate assessments must yield results for the grade in
which the student is enrolled in at least reading/language arts,
mathematics, and, beginning in the 2007-2008 school year, science.
* * * * *
4. In Sec. 200.7, add new paragraphs (c) and (d) to read as
follows:
Sec. 200.7 Disaggregation of data.
* * * * *
(c) Inclusion of subgroups in assessments. If a subgroup under
Sec. 200.2(b)(10) is not of sufficient size to produce statistically
reliable results, the State must still include students in that
subgroup in its State assessments under Sec. 200.2.
(d) Disaggregation at the LEA and State. If the number of students
in a subgroup is not statistically reliable at the school level, the
State must include those students in disaggregations at each level for
which the number of students is statistically reliable--e.g., the LEA
or State level.
5. In subpart A to part 200, remove the undesignated center
headings ``Participation of Eligible Children in Private Schools'',
``Capital Expenses'', ``Schoolwide Programs'', Procedures for the
Within-State Allocation of LEA Program Funds'', and ``Procedures for
the Within-District Allocation of LEA Program Funds''.
6. Add a new undesignated center heading to subpart A of part 200
and place it after Sec. 200.10 to read as follows:
Participation in National Assessment of Educational Progress (NAEP)
7. Revise Sec. 200.11 and place it under the new undesignated
center heading ``Participation in National Assessment of Educational
Progress (NAEP)'' in subpart A of part 200 to read as follows:
Sec. 200.11 Participation in NAEP.
(a) State participation. Beginning in the 2002-2003 school year,
each State that receives funds under subpart A of this part must
participate in biennial State academic assessments of fourth and eighth
grade reading and mathematics under the State National Assessment of
Educational Progress (NAEP), if the Department pays the costs of
administering those assessments.
(b) Local participation. In accordance with section 1112(b)(1)(F)
of the Elementary and Secondary Education Act of 1965 (ESEA), and
notwithstanding section 411(d)(1) of the National Education Statistics
Act of 1994, an LEA that receives funds under subpart A of this part
must participate, if selected, in the State-NAEP assessments referred
to in paragraph (a) of this section.
(Authority: 20 U.S.C. 6311(c)(2); 6312(b)(1)(F), 9010(d)(1))
8. Add a new undesignated center heading to subpart A of part 200
and place it after revised Sec. 200.11 to read as follows:
[[Page 71716]]
State Accountability System
9. Revise Sec. 200.12 and place it under the new undesignated
center heading ``State Accountability System'' in subpart A of part 200
to read as follows:
Sec. 200.12 Single State accountability system.
(a)(1) Each State must demonstrate in its State plan that the State
has developed and is implementing, beginning with the 2002-2003 school
year, a single, statewide accountability system.
(2) The State's accountability system must be effective in ensuring
that all public elementary and secondary schools and LEAs in the State
make adequate yearly progress (AYP) as defined in Sec. Sec. 200.13
through 200.20.
(b) The State's accountability system must--
(1) Be based on the State's academic standards under Sec. 200.1,
academic assessments under Sec. 200.2, and other academic indicators
under Sec. 200.19;
(2) Take into account the achievement of all public elementary and
secondary school students;
(3) Be the same accountability system the State uses for all public
elementary and secondary schools and all LEAs in the State; and
(4) Include sanctions and rewards that the State will use to hold
public elementary and secondary schools and LEAs accountable for
student achievement and for making AYP, except that the State is not
required to subject schools and LEAs not participating under subpart A
of this part to the requirements of section 1116 of the ESEA. (Approved
by the Office of Management and Budget under control number 1810-0576)
(Authority: 20 U.S.C. 6311(b)(2)(A))
10. Add a new undesignated center heading to subpart A of part 200
and place it after revised Sec. 200.12 to read as follows:
Adequate Yearly Progress (AYP)
11. Revise Sec. Sec. 200.13 through 200.18 and place them under
the new undesignated center heading ``Adequate Yearly Progress (AYP)''
in subpart A of part 200 to read as follows:
Sec. 200.13 Adequate yearly progress in general.
(a) Each State must demonstrate in its State plan what constitutes
AYP of the State and of all public schools and LEAs in the State--
(1) Toward enabling all public school students to meet the State's
student academic achievement standards; while
(2) Working toward the goal of narrowing the achievement gaps in
the State, its LEAs, and its public schools.
(b) A State must define, in accordance with Sec. Sec. 200.14
through 200.20, in a manner that--
(1) Applies the same high standards of academic achievement to all
public school students in the State;
(2) Is statistically valid and reliable;
(3) Results in continuous and substantial academic improvement for
all students;
(4) Measures the progress of all public schools, LEAs, and the
State based primarily on the State's academic assessment system under
Sec. 200.2;
(5) Measures progress separately for reading/language arts and for
mathematics;
(6) Is the same for all public schools and LEAs in the State; and
(7) Consistent with Sec. 200.7, applies the same annual measurable
objectives under Sec. 200.18 separately to each of the following:
(i) All public school students.
(ii) Students in each of the following subgroups:
(A) Economically disadvantaged students.
(B) Students from major racial and ethnic groups.
(C) Students with disabilities, as defined in section 9101(5) of
the ESEA.
(D) Students with limited English proficiency, as defined in
section 9101(25) of the ESEA.
(c) The State must establish a way to hold accountable schools in
which no grade level is assessed under the State's academic assessment
system (e.g., K-2 schools), although the State is not required to
administer a formal assessment to meet this requirement.
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 6311(b)(2))
Sec. 200.14 Components of Adequate Yearly Progress.
A State's definition of AYP must include all of the following:
(a) A timeline in accordance with Sec. 200.15.
(b) Starting points in accordance with Sec. 200.16.
(c) Intermediate goals in accordance with Sec. 200.17.
(d) Annual measurable objectives in accordance with Sec. 200.18.
(e) Other academic indicators in accordance with Sec. 200.19.
(Authority: 20 U.S.C. 6311(b)(2))
Sec. 200.15 Timeline.
(a) Each State must establish a timeline for making AYP that
ensures that, not later than the 2013-2014 school year, all students in
each group described in Sec. 200.13(b)(7) will meet or exceed the
State's proficient level of academic achievement.
(b) Notwithstanding subsequent changes a State may make to its
academic assessment system or its definition of AYP under Sec. Sec.
200.13 through 200.20, the State may not extend its timeline for all
students to reach proficiency beyond the 2013-2014 school year.
(Authority: 20 U.S.C. 6311(b)(2))
Sec. 200.16 Starting points.
(a) Using data from the 2001-2002 school year, each State must
establish starting points in reading/language arts and in mathematics
for measuring the percentage of students meeting or exceeding the
State's proficient level of academic achievement.
(b) Each starting point must be based, at a minimum, on the higher
of the following percentages of students at the proficient level:
(1) The percentage in the State of proficient students in the
lowest-achieving subgroup of students under Sec. 200.13(b)(7)(ii).
(2) The percentage of proficient students in the school that
represents 20 percent of the State's total enrollment among all schools
ranked by the percentage of students at the proficient level. The State
must determine this percentage as follows:
(i) Rank each school in the State according to the percentage of
proficient students in the school.
(ii) Determine 20 percent of the total enrollment in all schools in
the State.
(iii) Beginning with the lowest-ranked school, add the number of
students enrolled in each school until reaching the school that
represents 20 percent of the State's total enrollment among all
schools.
(iv) Identify the percentage of proficient students in the school
identified in paragraph (iii).
(c)(1) Except as permitted under paragraph (c)(2) of this section,
each starting point must be the same throughout the State for each
school, each LEA, and each group of students under Sec. 200.13(b)(7).
(2) A State may use the procedures under paragraph (b) of this
section to establish separate starting points by grade span.
(Authority: 20 U.S.C. 6311(b)(2))
Sec. 200.17 Intermediate goals.
Each State must establish intermediate goals that increase in equal
[[Page 71717]]
increments over the period covered by the timeline under Sec. 200.15
as follows:
(a) The first incremental increase must take effect not later than
the 2004-2005 school year.
(b) Each following incremental increase must occur in not more than
three years.
(Authority: 20 U.S.C. 6311(b)(2))
Sec. 200.18 Annual measurable objectives.
(a) Each State must establish annual measurable objectives that--
(1) Identify for each year a minimum percentage of students that
must meet or exceed the proficient level of academic achievement on the
State's academic assessments; and
(2) Ensure that all students meet or exceed the State's proficient
level of academic achievement within the timeline under Sec. 200.15.
(b) The State's annual measurable objectives--
(1) Must be the same throughout the State for each school, each
LEA, and each group of students under Sec. 200.13(b)(7); and
(2) May be the same for more than one year, consistent with the
State's intermediate goals under Sec. 200.17.
(Authority: 20 U.S.C. 6311(b)(2))
12. Add Sec. 200.19 and place it under the new undesignated center
heading ``Adequate Yearly Progress (AYP)'' in subpart A of part 200 to
read as follows:
Sec. 200.19 Other academic indicators.
(a) Each State must use the following other academic indicators to
determine AYP:
(1) High schools. (i) The graduation rate for public high schools,
which means--
(A) The percentage of students, measured from the beginning of high
school, who graduate from high school with a regular diploma (not
including an alternative degree that is not fully aligned with the
State's academic standards, such as a certificate or a GED) in the
standard number of years; or
(B) Another definition, developed by the State and approved by the
Secretary in the State plan, that more accurately measures the rate of
students who graduate from high school with a regular diploma as
defined in paragraph (a)(1)(i)(A) of this section.
(ii) In defining graduation rate, the State must avoid counting a
dropout as a transfer.
(2) Elementary and middle schools. At least one academic indicator
for public elementary schools and at least one academic indicator for
public middle schools, such as those under paragraph (b) of this
section.
(b) The State may include additional academic indicators determined
by the State, including, but not limited to, the following:
(1) Additional State or locally administered assessments not
included in the State assessment system under Sec. 200.2.
(2) Grade-to-grade retention rates.
(3) Attendance rates.
(4) Percentages of students completing gifted and talented,
advanced placement, and college preparatory courses.
(c) A State must ensure that its other academic indicators are--
(1) Valid and reliable;
(2) Consistent with relevant, nationally recognized professional
and technical standards, if any; and
(3) Consistent throughout the State within each grade span.
(d)(1) A State may, but is not required to, increase the goals of
its other academic indicators over the course of the timeline under
Sec. 200.15.
(2) The State--
(i) Must disaggregate its other academic indicators by each group
in Sec. 200.13(b)(7) for purposes of Sec. 200.20(b)(2) and section
1111(h) of the ESEA; but
(ii) Need not disaggregate those indicators for determining AYP
except as required under section 1111(b)(2)(C)(vii) of the ESEA.
(e) Except as provided in Sec. 200.20(b)(2), a State--
(1) May not use the indicators in paragraphs (a) and (b) of this
section to reduce the number, or change the identity, of schools that
would otherwise be subject to school improvement, corrective action, or
restructuring if those indicators were not used; but
(2) May use the indicators to identify additional schools for
school improvement, corrective action, or restructuring.
(Authority: 20 U.S.C. 6311(b)(2), (h))
13. Revise Sec. Sec. 200.20 and 200.21 and place them under the
new undesignated center heading ``Adequate Yearly Progress (AYP)'' in
subpart A of part 200 to read as follows:
Sec. 200.20 Making adequate yearly progress.
A school or LEA makes AYP if it complies with paragraph (c) and
with either paragraph (a) or (b) of this section separately in reading/
language arts and in mathematics.
(a)(1) A school or LEA makes AYP if--
(i) Each group of students under Sec. 200.13(b)(7) meets or
exceeds the State's annual measurable objectives under Sec. 200.18;
and
(ii) The school or LEA, respectively, meets or exceeds the State's
other academic indicators under Sec. 200.19.
(2) For a group under Sec. 200.13(b)(7) to be included in the
determination of AYP for a school or LEA, the number of students in the
group must be sufficient to yield statistically reliable information
under Sec. 200.7(a).
(b) If students in any group under Sec. 200.13(b)(7) in a school
or LEA do not meet the State's annual measurable objectives under Sec.
200.18, the school or LEA makes AYP if--
(1) The percentage of students in that group below the State's
proficient achievement level decreased by at least 10 percent from the
preceding year; and
(2) That group made progress on one or more of the State's academic
indicators under Sec. 200.19 or the LEA's academic indicators under
Sec. 200.30(c).
(c)(1) A school or LEA makes AYP if--
(i) Not less than 95 percent of the students enrolled in each group
under Sec. 200.13(b)(7) takes the State assessments under Sec. 200.2;
and
(ii) The group is of sufficient size to produce statistically
reliable results under Sec. 200.7(a).
(2) The requirement in paragraph (c)(1) of this section does not
authorize a State, LEA, or school to systematically exclude 5 percent
of the students in any group under Sec. 200.13(b)(7).
(3) If a student takes the State assessments for a particular
subject or grade level more than once, the State must use the student's
results from the first administration to determine AYP.
(d) For the purpose of determining whether a school or LEA has made
AYP, a State may establish a uniform procedure for averaging data that
includes one or more of the following:
(1) Averaging data across school years. (i) A State may average
data from the school year for which the determination is made with data
from one or two school years immediately preceding that school year.
(ii) If a State averages data across school years, the State must--
(A) Implement, on schedule, the assessments in reading/language
arts and mathematics in grades 3 through 8 and once in grades 10
through 12 required under Sec. 200.5(a)(2);
(B) Report data resulting from the assessments under Sec.
200.5(a)(2);
(C) Determine AYP under Sec. Sec. 200.13 through 200.20, although
the State may base that determination on data only from the reading/
language arts and mathematics assessments in the three grade spans
required under Sec. 200.5(a)(1); and
(D) Implement the requirements in section 1116 of the ESEA.
[[Page 71718]]
(iii) A State that averages data across years must determine AYP on
the basis of the assessments under Sec. 200.5(a)(2) as soon as it has
data from two or three years to average. Until that time, the State may
use data from the reading/language arts and mathematics assessments
required under Sec. 200.5(a)(1) to determine adequate yearly progress.
(2) Combining data across grades. Within each subject area and
subgroup, the State may combine data across grades in a school or LEA.
(e)(1) In determining the AYP of an LEA, a State must include all
students who were enrolled in schools in the LEA for a full academic
year, as defined by the State.
(2) In determining the AYP of a school, the State may not include
students who were not enrolled in that school for a full academic year,
as defined by the State.
(Authority: 20 U.S.C. 6311(b)(2), (b)(3)(C)(xi))
Sec. 200.21 Adequate yearly progress of a State.
For each State that receives funds under subpart A of this part and
under subpart 1 of part A of Title III of the ESEA, the Secretary must,
beginning with the 2004-2005 school year, annually review whether the
State has--
(a)(1) Made AYP as defined by the State in accordance with
Sec. Sec. 200.13 through 200.20 for each group of students in Sec.
200.13(b)(7); and
(2) Met its annual measurable achievement objectives under section
3122(a) of the ESEA relating to the development and attainment of
English proficiency by limited English proficient students.
(b) A State must include all students who were enrolled in schools
in the State for a full academic year in reporting on the yearly
progress of the State.
(Authority: 20 U.S.C. 7325)
14. Remove and reserve Sec. Sec. 200.22 through 200.24 and place
them under the new undesignated center heading ``Adequate Yearly
Progress (AYP)'' in subpart A of part 200.
15. Add a new undesignated center heading to subpart A of part 200
and place it after Sec. 200.24 to read as follows:
Schoolwide Programs
16. Revise Sec. 200.25 and place it under the undesignated center
heading ``Schoolwide Programs'' in subpart A of part 200 to read as
follows:
Sec. 200.25 Schoolwide programs in general.
(a) Purpose. (1) The purpose of a schoolwide program is to improve
academic achievement throughout a school so that all students,
particularly the lowest-achieving students, demonstrate proficiency
related to the State's academic standards under Sec. 200.1.
(2) The improved achievement is to result from improving the entire
educational program of the school.
(b) Eligibility. (1) A school may operate a schoolwide program if--
(i) The school's LEA determines that the school serves an eligible
attendance area or is a participating school under section 1113 of the
ESEA; and
(ii) For the initial year of the schoolwide program--
(A) The school serves a school attendance area in which not less
than 40 percent of the children are from low-income families; or
(B) Not less than 40 percent of the children enrolled in the school
are from low-income families.
(2) In determining the percentage of children from low-income
families under paragraph (b)(1)(ii) of this section, the LEA may use a
measure of poverty that is different from the measure or measures of
poverty used by the LEA to identify and rank school attendance areas
for eligibility and participation under subpart A of this part.
(c) Participating students and services. A school operating a
schoolwide program is not required to--
(1) Identify particular children as eligible to participate; or
(2) As required under section 1120A(b) of the ESEA, provide
services that supplement, and do not supplant, the services
participating children would otherwise receive if they were not
participating in a program under subpart A of this part.
(d) Supplemental funds. A school operating a schoolwide program
must use funds available under subpart A of this part and under any
other Federal program included under paragraph (e) of this section and
Sec. 200.29 only to supplement the total amount of funds that would,
in the absence of the Federal funds, be made available from non-Federal
sources for that school, including funds needed to provide services
that are required by law for children with disabilities and children
with limited English proficiency.
(e) Consolidation of funds. An eligible school may, consistent with
Sec. 200.29, consolidate and use funds or services under subpart A of
this part, together with other Federal, State, and local funds that the
school receives, to operate a schoolwide program in accordance with
Sec. Sec. 200.25 through 200.29.
(f) Prekindergarten program. A school operating a schoolwide
program may use funds made available under subpart A of this part to
establish or enhance prekindergarten programs for children below the
age of 6, such as Even Start programs or Early Reading First programs.
(Authority: 20 U.S.C. 6314)
17. Add a new Sec. 200.26 and place it under the undesignated
center heading ``Schoolwide Programs'' in subpart A of part 200 to read
as follows:
Sec. 200.26 Core elements of a schoolwide program.
(a) Comprehensive needs assessment. (1) A school operating a
schoolwide program must conduct a comprehensive needs assessment of the
entire school that--
(i) Is based on academic achievement information about all students
in the school, including all groups under Sec. 200.13(b)(7) and
migratory children as defined in section 1309(2) of the ESEA, relative
to the State's academic standards under Sec. 200.1 to--
(A) Help the school understand the subjects and skills for which
teaching and learning need to be improved; and
(B) Identify the specific academic needs of students and groups of
students who are not yet achieving the State's academic standards; and
(ii) Assesses the needs of the school relative to each of the
components of the schoolwide program under Sec. 200.28.
(2) The comprehensive needs assessment must be developed with the
participation of individuals who will carry out the schoolwide program
plan.
(3) The school must document how it conducted the needs assessment,
the results it obtained, and the conclusions it drew from those
results.
(b) Comprehensive plan. Using data from the comprehensive needs
assessment under paragraph (a) of this section, a school that wishes to
operate a schoolwide program must develop a comprehensive plan, in
accordance with Sec. 200.27, that describes how the school will
improve academic achievement throughout the school, but particularly
for those students furthest away from demonstrating proficiency, so
that all students demonstrate at least proficiency on the State's
academic standards.
(c) Evaluation. A school operating a schoolwide program must--
(1) Annually evaluate the implementation of, and results achieved
by, the schoolwide program, using data from the State's annual
assessments and other indicators of academic achievement;
[[Page 71719]]
(2) Determine whether the schoolwide program has been effective in
increasing the achievement of students in meeting the State's academic
standards, particularly for those students who had been furthest from
achieving the standards; and
(3) Revise the plan, as necessary, based on the results of the
evaluation, to ensure continuous improvement of students in the
schoolwide program.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6314)
18. Revise Sec. Sec. 200.27 and 200.28 and place them under the
undesignated center heading ``Schoolwide Programs'' in subpart A of
part 200 to read as follows:
Sec. 200.27 Development of a schoolwide program plan.
(a)(1) A school operating a schoolwide program must develop a
comprehensive plan to improve teaching and learning throughout the
school.
(2) The school must develop the comprehensive plan in consultation
with the LEA and its school support team or other technical assistance
provider under section 1117 of the ESEA.
(3) The comprehensive plan must--
(i) Describe how the school will carry out each of the components
under Sec. 200.28;
(ii) Describe how the school will use resources under subpart A of
this part and from other sources to carry out the components under
Sec. 200.28; and
(iii) Include a list of State and local programs and other Federal
programs under Sec. 200.29 that the school will consolidate in the
schoolwide program.
(b)(1) The school must develop the comprehensive plan, including
the comprehensive needs assessment, over a one-year period unless--
(i) The LEA, after considering the recommendations of its technical
assistance providers under section 1117 of the ESEA, determines that
less time is needed to develop and implement the schoolwide program; or
(ii) The school was operating a schoolwide program on or before
January 7, 2002, in which case the school may continue to operate its
program, but must amend its existing plan to reflect the provisions of
Sec. Sec. 200.25 through 200.29 during the 2002-2003 school year.
(2) The school must develop the comprehensive plan with the
involvement of parents, consistent with the requirements of section
1118 of the ESEA, and other members of the community to be served and
individuals who will carry out the plan, including--
(i) Teachers, principals, and administrators, including
administrators of programs described in other parts of Title I of the
ESEA;
(ii) If appropriate, pupil services personnel, technical assistance
providers, and other school staff; and
(iii) If the plan relates to a secondary school, students from the
school.
(3) If appropriate, the school must develop the comprehensive plan
in coordination with other programs, including those carried out under
Reading First, Early Reading First, Even Start, the Carl D. Perkins
Vocational and Technical Education Act of 1998, and the Head Start Act.
(4) The comprehensive plan remains in effect for the duration of
the school's participation under Sec. Sec. 200.25 through 200.29.
(c)(1) The schoolwide program plan must be available to the LEA,
parents, and the public.
(2) Information in the plan must be--
(i) In an understandable and uniform format, including alternative
formats upon request; and
(ii) To the extent practicable, provided in a language that the
parents can understand.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6314)
Sec. 200.28 Schoolwide program components.
A schoolwide program must include the following components:
(a) Schoolwide reform strategies. The schoolwide program must
incorporate reform strategies in the overall instructional program.
Those strategies must--
(1) Provide opportunities for all students to meet the State's
proficient and advanced levels of student academic achievement;
(2)(i) Address the needs of all students in the school,
particularly the needs of low-achieving students and those at risk of
not meeting the State's student academic achievement standards who are
members of the target population of any program included in the
schoolwide program; and
(ii) Address how the school will determine if those needs have been
met;
(3) Use effective methods and instructional practices that are
based on scientifically based research, as defined in section 9101 of
the ESEA, and that--
(i) Strengthen the core academic program;
(ii) Provide an enriched and accelerated curriculum;
(iii) Increase the amount and quality of learning time, such as
providing an extended school year and before- and after-school and
summer programs and opportunities;
(iv) Include strategies for meeting the educational needs of
historically underserved populations; and
(v) Are consistent with, and are designed to implement, State and
local improvement plans, if any.
(b) Instruction by highly qualified teachers. A schoolwide program
must ensure instruction by highly qualified teachers and provide
ongoing professional development. The schoolwide program must--
(1) Include strategies to attract highly qualified teachers, as
defined in Sec. 200.56;
(2)(i) Provide high-quality and ongoing professional development in
accordance with sections 1119 and 9101(34) of the ESEA for teachers,
principals, paraprofessionals and, if appropriate, pupil services
personnel, parents, and other staff, to enable all students in the
school to meet the State's student academic standards; and
(ii) Align professional development with the State's academic
standards;
(3) Devote sufficient resources to carry out effectively the
professional development activities described in paragraph (b)(2) of
this section; and
(4) Include teachers in professional development activities
regarding the use of academic assessments described in Sec. 200.2 to
enable them to provide information on, and to improve, the achievement
of individual students and the overall instructional program.
(c) Parental involvement. (1) A schoolwide program must involve
parents in the planning, review, and improvement of the schoolwide
program plan.
(2) A schoolwide program must have a parental involvement policy,
consistent with section 1118(b) of the ESEA, that--
(i) Includes strategies, such as family literacy services, to
increase parental involvement in accordance with sections 1118(c)
through (f) and 9101(32) of the ESEA; and
(ii) Describes how the school will provide individual student
academic assessment results, including an interpretation of those
results, to the parents of students who participate in the academic
assessments required by Sec. 200.2.
(d) Additional support. A schoolwide program school must include
activities to ensure that students who experience difficulty attaining
the proficient or advanced levels of academic achievement standards
required by Sec. 200.1 will be provided with effective, timely
additional support, including measures to--
[[Page 71720]]
(1) Ensure that those students' difficulties are identified on a
timely basis; and
(2) Provide sufficient information on which to base effective
assistance to those students.
(e) Transition. A schoolwide program in an elementary school must
include plans for assisting preschool students in the successful
transition from early childhood programs, such as Head Start, Even
Start, Early Reading First, or a preschool program under IDEA or a
State-run preschool program, to the schoolwide program.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6314)
19. Add Sec. 200.29 and place it under the undesignated center
heading ``Schoolwide Programs'' in subpart A of part 200 to read as
follows:
Sec. 200.29 Consolidation of funds in a schoolwide program.
(a) In addition to funds under subpart A of this part, a school may
consolidate and use in its schoolwide program Federal funds from any
program administered by the Secretary that is included in the most
recent notice published for this purpose in the Federal Register.
(2) For purposes of Sec. Sec. 200.25 through 200.29, the authority
to consolidate funds from other Federal programs also applies to
services provided to the school with those funds.
(b)(1) Except as provided in paragraphs (b)(2) and (c) of this
section, a school that consolidates and uses in a schoolwide program
funds from any other Federal program administered by the Secretary--
(i) Is not required to meet the statutory or regulatory
requirements of that program applicable at the school level; but
(ii) Must meet the intent and purposes of that program to ensure
that the needs of the intended beneficiaries of that program are
addressed.
(2) A school that chooses to consolidate funds from other Federal
programs must meet the requirements of those programs relating to--
(i) Health;
(ii) Safety;
(iii) Civil rights;
(iv) Student and parental participation and involvement;
(v) Services to private school children;
(vi) Maintenance of effort;
(vii) Comparability of services;
(viii) Use of Federal funds to supplement, not supplant non-Federal
funds in accordance with Sec. 200.25(d); and
(ix) Distribution of funds to SEAs or LEAs.
(c) A school must meet the following requirements if the school
consolidates and uses funds from these programs in its schoolwide
program:
(1) Migrant education. Before the school chooses to consolidate in
its schoolwide program funds received under part C of Title I of the
ESEA, the school must--
(i) Use these funds, in consultation with parents of migratory
children or organizations representing those parents, or both, first to
meet the unique educational needs of migratory students that result
from the effects of their migratory lifestyle, and those other needs
that are necessary to permit these students to participate effectively
in school, as identified through the comprehensive Statewide needs
assessment under Sec. 200.83; and
(ii) Document that these needs have been met.
(2) Indian education. The school may consolidate funds received
under subpart 1 of part A of Title VII of the ESEA if the parent
committee established by the LEA under section 7114(c)(4) of the ESEA
approves the inclusion of these funds.
(3) Special education. (i) The school may consolidate funds
received under part B of the IDEA.
(ii) However, the amount of funds consolidated may not exceed the
amount received by the LEA under part B of IDEA for that fiscal year,
divided by the number of children with disabilities in the jurisdiction
of the LEA, and multiplied by the number of children with disabilities
participating in the schoolwide program.
(iii) The school may also consolidate funds received under section
8003(d) of the ESEA (Impact Aid) for children with disabilities in a
schoolwide program.
(iv) A school that consolidates funds under part B of IDEA or
section 8003(d) of the ESEA may use those funds for any activities
under its schoolwide program plan but must comply with all other
requirements of part B of IDEA, to the same extent it would if it did
not consolidate funds under part B of IDEA or section 8003(d) of the
ESEA in the schoolwide program.
(d) A school that consolidates and uses in a schoolwide program
funds under subpart A of this part or from any other Federal program
administered by the Secretary--
(1) Is not required to maintain separate fiscal accounting records,
by program, that identify the specific activities supported by those
particular funds; but
(2) Must maintain records that demonstrate that the schoolwide
program, as a whole, addresses the intent and purposes of each of the
Federal programs whose funds were consolidated to support the
schoolwide program.
(e) Each State must--
(1) Encourage schools to consolidate funds from other Federal,
State, and local sources in their schoolwide programs; and
(2) Modify or eliminate State fiscal and accounting barriers so
that schools can easily consolidate funds from other Federal, State,
and local sources in their schoolwide programs.
(Authority: 20 U.S.C. 6314, 1413(a)(s)(D), 6396(b), 7703(d),
7815(c))
20. Add a new undesignated center heading to subpart A of part 200
and place it after Sec. 200.29 to read as follows:
LEA and School Improvement
21. Transfer Sec. Sec. 200.30 through 200.69 to subpart A of part
200.
22. Revise Sec. 200.30 and place it under the new undesignated
center heading ``LEA and School Improvement'' in subpart A of part 200
to read as follows:
Sec. 200.30 Local review.
(a) Each LEA receiving funds under subpart A of this part must use
the results of the State assessment system described in Sec. 200.2 to
review annually the progress of each school served under subpart A of
this part to determine whether the school is making AYP in accordance
with Sec. 200.20.
(b)(1) In reviewing the progress of an elementary or secondary
school operating a targeted assistance program, an LEA may choose to
review the progress of only the students in the school who are served,
or are eligible for services, under subpart A of this part.
(2) The LEA may exercise the option under paragraph (b)(1) of this
section so long as the students selected for services under the
targeted assistance program are those with the greatest need for
special assistance, consistent with the requirements of section 1115 of
the ESEA.
(c)(1) To determine whether schools served under subpart A of this
part are making AYP, an LEA also may use any additional academic
assessments or any other academic indicators described in the LEA's
plan.
(2)(i) The LEA may use these assessments and indicators--
(A) To identify additional schools for school improvement or in
need of corrective action or restructuring; and
[[Page 71721]]
(B) To permit a school to make AYP if, in accordance with Sec.
200.20(b), the school also reduces the percentage of a student group
not meeting the State's proficient level of academic achievement by at
least 10 percent.
(ii) The LEA may not, with the exception described in paragraph
(c)(2)(i)(B) of this section, use these assessments and indicators to
reduce the number of, or change the identity of, the schools that would
otherwise be identified for school improvement, corrective action, or
restructuring if the LEA did not use these additional indicators.
(d) The LEA must publicize and disseminate the results of its
annual progress review to parents, teachers, principals, schools, and
the community.
(e) The LEA must review the effectiveness of actions and activities
that schools are carrying out under subpart A of this part with respect
to parental involvement, professional development, and other activities
assisted under subpart A of this part.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(a) and (b))
23. Add new Sec. Sec. 200.31 through 200.39 and place them under
the new undesignated center heading ``LEA and School Improvement'' in
subpart A of part 200 to read as follows:
Sec. 200.31 Opportunity to review school-level data.
(a) Before identifying a school for school improvement, corrective
action, or restructuring, an LEA must provide the school with an
opportunity to review the school-level data, including academic
assessment data, on which the proposed identification is based.
(b)(1) If the principal of a school that an LEA proposes to
identify for school improvement, corrective action, or restructuring
believes, or a majority of the parents of the students enrolled in the
school believe, that the proposed identification is in error for
statistical or other substantive reasons, the principal may provide
supporting evidence to the LEA.
(2) The LEA must consider the evidence referred to in paragraph
(b)(1) of this section before making a final determination.
(c) The LEA must make public a final determination of the status of
the school with respect to identification not later than 30 days after
it provides the school with the opportunity to review the data on which
the proposed identification is based.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(b)(2))
Sec. 200.32 Identification for school improvement.
(a)(1) An LEA must identify for school improvement any elementary
or secondary school served under subpart A of this part that fails, for
two consecutive years, to make AYP as defined under Sec. Sec. 200.13
through 200.20.
(2) The LEA must make the identification described in paragraph
(a)(1) of this section 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 AYP for a second consecutive
year.
(b)(1) An LEA must treat any school that was in the first year of
school improvement status on January 7, 2002 as a school that is in the
first year of school improvement under Sec. 200.39 for the 2002-2003
school year.
(2) Not later than the first day of the 2002-2003 school year, the
LEA must, in accordance with Sec. 200.44, provide public school choice
to all students in the school.
(c)(1) An LEA must treat any school that was identified for school
improvement for two or more consecutive years on January 7, 2002 as a
school that is in its second year of school improvement under Sec.
200.39 for the 2002-2003 school year.
(2) Not later than the first day of the 2002-2003 school year, the
LEA must--
(i) In accordance with Sec. 200.44, provide public school choice
to all students in the school; and
(ii) In accordance with Sec. 200.45, make available supplemental
educational services to eligible students who remain in the school.
(d) An LEA may remove from improvement status a school otherwise
subject to the requirements of paragraphs (b) or (c) of this section
if, on the basis of assessments the LEA administers during the 2001-
2002 school year, the school makes AYP for a second consecutive year.
(e)(1) An LEA may, but is not required to, identify a school for
improvement if, on the basis of assessments the LEA administers during
the 2001-2002 school year, the school fails to make AYP for a second
consecutive year.
(2) An LEA that does not identify such a school for improvement,
however, must count the 2001-2002 school year as the first year of not
making AYP for the purpose of subsequent identification decisions under
paragraph (a) of this section.
(f) If an LEA identifies a school for improvement after 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 AYP for a second consecutive year--
(1) The school is subject to the requirements of school improvement
under Sec. 200.39 immediately upon identification, including the
provision of public school choice; and
(2) The LEA must count that school year as a full school year for
the purposes of subjecting the school to additional improvement
measures if the school continues to fail to make AYP.
(Authority: 20 U.S.C. 6316)
Sec. 200.33 Identification for corrective action.
(a) If a school served by an LEA under subpart A of this part fails
to make AYP by the end of the second full school year after the LEA has
identified the school for improvement under Sec. 200.32(a) or (b), or
by the end of the first full school year after the LEA has identified
the school for improvement under Sec. 200.32(c), the LEA must identify
the school for corrective action under Sec. 200.42.
(b) If a school was subject to corrective action on January 7,
2002, the LEA must--
(1) Treat the school as a school identified for corrective action
under Sec. 200.42 for the 2002-2003 school year; and
(2) Not later than the first day of the 2002-2003 school year--
(i) In accordance with Sec. 200.44, provide public school choice
to all students in the school;
(ii) In accordance with Sec. 200.45, make available supplemental
educational services to eligible students who remain in the school; and
(iii) Take corrective action under Sec. 200.42.
(c) An LEA may remove from corrective action a school otherwise
subject to the requirements of paragraphs (a) or (b) of this section
if, on the basis of assessments administered by the LEA during the
2001-2002 school year, the school makes AYP for a second consecutive
year.
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 6316)
Sec. 200.34 Identification for restructuring.
(a) If a school continues to fail to make AYP after one full school
year of corrective action under Sec. 200.42, the LEA must prepare a
restructuring plan for the school and make arrangements to implement
the plan.
(b) If the school continues to fail to make AYP, the LEA must
implement the
[[Page 71722]]
restructuring plan no later than the beginning of the school year
following the year in which the LEA developed the restructuring plan
under paragraph (a) of this section.
(Approved by the Office of Management and Budget under control
number 1810-0576)
(Authority: 20 U.S.C. 6316(b)(8))
Sec. 200.35 Delay and removal.
(a) Delay. (1) An LEA may delay, for a period not to exceed one
year, implementation of requirements under the second year of school
improvement, under corrective action, or under restructuring if--
(i) The school makes AYP for one year; or
(ii) The school's failure to make AYP 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.
(2) The LEA may not take into account a period of delay under
paragraph (a) of this section in determining the number of consecutive
years of the school's failure to make AYP.
(3) Except as provided in paragraph (b) of this section, the LEA
must subject the school to further actions as if the delay never
occurred.
(b) Removal. If any school identified for school improvement,
corrective action, or restructuring makes AYP for two consecutive
school years, the LEA may not, for the succeeding school year--
(1) Subject the school to the requirements of school improvement,
corrective action, or restructuring; or
(2) Identify the school for improvement.
(Authority: 20 U.S.C. 6316(b))
Sec. 200.36 Communication with parents.
(a) Throughout the school improvement process, the State, LEA, or
school must communicate with the parents of each child attending the
school.
(b) The State, LEA, or school must ensure that, regardless of the
method or media used, it provides the information required by
Sec. Sec. 200.37 and 200.38 to parents--
(1) In an understandable and uniform format, including alternative
formats upon request; and
(2) To the extent practicable, in a language that parents can
understand.
(c) The State, LEA, or school must provide information to parents--
(1) Directly, through such means as regular mail or e-mail, except
that if a State does not have access to individual student addresses,
it may provide information to the LEA or school for distribution to
parents; and
(2) Through broader means of dissemination such as the Internet,
the media, and public agencies serving the student population and their
families.
(d) All communications must respect the privacy of students and
their families.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316)
Sec. 200.37 Notice of identification for improvement, corrective
action, or restructuring.
(a) If an LEA identifies a school for improvement or subjects the
school to corrective action or restructuring, the LEA must, consistent
with the requirements of Sec. 200.36, promptly notify the parent or
parents of each child enrolled in the school of this identification.
(b) The notice referred to in paragraph (a) of this section must
include the following:
(1) An explanation of what the identification means, and how the
school compares in terms of academic achievement to other elementary
and secondary schools served by the LEA and the SEA involved.
(2) The reasons for the identification.
(3) An explanation of how parents can become involved in addressing
the academic issues that led to identification.
(4)(i) An explanation of the parents' option to transfer their
child to another public school, including the provision of
transportation to the new school, in accordance with Sec. 200.44.
(ii) The explanation of the parents' option to transfer must
include, at a minimum, information on the academic achievement of the
school or schools to which the child may transfer.
(iii) The explanation may include other information on the school
or schools to which the child may transfer, such as--
(A) A description of any special academic programs or facilities;
(B) The availability of before- and after-school programs;
(C) The professional qualifications of teachers in the core
academic subjects; and
(D) A description of parental involvement opportunities.
(5)(i) If the school is in its second year of improvement or
subject to corrective action or restructuring, a notice explaining how
parents can obtain supplemental educational services for their child in
accordance with Sec. 200.45.
(ii) The annual notice of the availability of supplemental
educational services must include, at a minimum, the following:
(A) The identity of approved providers of those services available
within the LEA, including providers of technology-based or distance-
learning supplemental educational services, and providers that make
services reasonably available in neighboring LEAs.
(B) A brief description of the services, qualifications, and
demonstrated effectiveness of the providers referred to in paragraph
(b)(5)(ii)(A) of this section.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316)
Sec. 200.38 Information about action taken.
(a) An LEA must publish and disseminate to the parents of each
student enrolled in the school, consistent with the requirements of
Sec. 200.36, and to the public information regarding any action taken
by a school and the LEA to address the problems that led to the LEA's
identification of the school for improvement, corrective action, or
restructuring.
(b) The information referred to in paragraph (a) of this section
must include the following:
(1) An explanation of what the school is doing to address the
problem of low achievement.
(2) An explanation of what the LEA or SEA is doing to help the
school address the problem of low achievement.
(3) If applicable, a description of specific corrective actions or
restructuring plans.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(b))
Sec. 200.39 Responsibilities resulting from identification for school
improvement.
(a) If an LEA identifies a school for school improvement under
Sec. 200.32--
(1) The LEA must--
(i) Not later than the first day of the school year following
identification, with the exception described in Sec. 200.32(f),
provide all students enrolled in the school with the option to
transfer, in accordance with Sec. 200.44, to another public school
served by the LEA; and
(ii) Ensure that the school receives technical assistance in
accordance with Sec. 200.40; and
(2) The school must develop or revise a school improvement plan in
accordance with Sec. 200.41.
(b) If a school fails to make AYP by the end of the first full
school year after the LEA has identified it for improvement under Sec.
200.32, the LEA must--
(1) Continue to provide all students enrolled in the school with
the option
[[Page 71723]]
to transfer, in accordance with Sec. 200.44, to another public school
served by the LEA;
(2) Continue to ensure that the school receives technical
assistance in accordance with Sec. 200.40; and
(3) Make available supplemental educational services in accordance
with Sec. 200.45.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(b))
24. Revise Sec. Sec. 200.40 through 200.45 and place them under
the new undesignated center heading ``LEA and School Improvement'' in
subpart A of part 200 to read as follows:
Sec. 200.40 Technical assistance.
(a) An LEA that identifies a school for improvement under Sec.
200.32 must ensure that the school receives technical assistance as the
school develops and implements its improvement plan under Sec. 200.41
and throughout the plan's duration.
(b) The LEA may arrange for the technical assistance to be provided
by one or more of the following:
(1) The LEA through the statewide system of school support and
recognition described under section 1117 of the ESEA.
(2) The SEA.
(3) An institution of higher education that is in full compliance
with all of the reporting provisions of Title II of the Higher
Education Act of 1965.
(4) A private not-for-profit organization, a private for-profit
organization, an educational service agency, or another entity with
experience in helping schools improve academic achievement.
(c) The technical assistance must include the following:
(1) Assistance in analyzing data from the State assessment system,
and other examples of student work, to identify and develop solutions
to problems in--
(i) Instruction;
(ii) Implementing the requirements for parental involvement and
professional development under this subpart; and
(iii) Implementing the school plan, including LEA- and school-level
responsibilities under the plan.
(2) Assistance in identifying and implementing professional
development and instructional strategies and methods that have proved
effective, through scientifically based research, in addressing the
specific instructional issues that caused the LEA to identify the
school for improvement.
(3) Assistance in analyzing and revising the school's budget so
that the school allocates its resources more effectively to the
activities most likely to--
(i) Increase student academic achievement; and
(ii) Remove the school from school improvement status.
(d) Technical assistance provided under this section must be based
on scientifically based research.
(Authority: 20 U.S.C. 6316(b)(4))
Sec. 200.41 School improvement plan.
(a)(1) Not later than three months after an LEA has identified a
school for improvement under Sec. 200.32, the school must develop or
revise a school improvement plan for approval by the LEA.
(2) The school must consult with parents, school staff, the LEA,
and outside experts in developing or revising its school improvement
plan.
(b) The school improvement plan must cover a 2-year period.
(c) The school improvement plan must--
(1) Specify the responsibilities of the school, the LEA, and the
SEA serving the school under the plan, including the technical
assistance to be provided by the LEA under Sec. 200.40;
(2)(i) Incorporate strategies, grounded in scientifically based
research, that will strengthen instruction in the core academic
subjects at the school and address the specific academic issues that
caused the LEA to identify the school for improvement; and
(ii) May include a strategy for implementing a comprehensive school
reform model described in section 1606 of the ESEA;
(3) With regard to the school's core academic subjects, adopt
policies and practices most likely to ensure that all groups of
students described in Sec. 200.13(b)(7) and enrolled in the school
will meet the State's proficient level of achievement, as measured by
the State's assessment system, not later than the 2013-2014 school
year;
(4) Establish measurable goals that--
(i) Address the specific reasons for the school's failure to make
adequate progress; and
(ii) Promote, for each group of students described in Sec.
200.13(b)(7) and enrolled in the school, continuous and substantial
progress that ensures that all these groups meet the State's annual
measurable objectives described in Sec. 200.18;
(5) Provide an assurance that the school will spend not less than
10 percent of the allocation it receives under subpart A of this part
for each year that the school is in school improvement status, for the
purpose of providing high-quality professional development to the
school's teachers, principal, and, as appropriate, other instructional
staff, consistent with section 9101(34) of the ESEA, that--
(i) Directly addresses the academic achievement problem that caused
the school to be identified for improvement;
(ii) Is provided in a manner that affords increased opportunity for
participating in that professional development; and
(iii) Incorporates teacher mentoring activities or programs;
(6) Specify how the funds described in paragraph (c)(5) of this
section will be used to remove the school from school improvement
status;
(7) Describe how the school will provide written notice about the
identification to parents of each student enrolled in the school;
(8) Include strategies to promote effective parental involvement at
the school; and
(9) As appropriate, incorporate activities before school, after
school, during the summer, and during any extension of the school year.
(d)(1) Within 45 days of receiving a school improvement plan, the
LEA must--
(i) Establish a peer-review process to assist with review of the
plan;
(ii) Promptly review the plan;
(iii) Work with the school to make any necessary revisions; and
(iv) Approve the plan if it meets the requirements of this section.
(2) The LEA may condition approval of the school improvement plan
on--
(i) Inclusion of one or more of the corrective actions specified in
Sec. 200.42; or
(ii) Feedback on the plan from parents and community leaders.
(e) A school must implement its school improvement plan immediately
on approval of the plan by the LEA.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(b)(3))
Sec. 200.42 Corrective action.
(a) Definition. ``Corrective action'' means action by an LEA that--
(1) Substantially and directly responds to--
(i) The consistent academic failure of a school that led the LEA to
identify the school for corrective action; and
(ii) Any underlying staffing, curriculum, or other problems in the
school;
(2) Is designed to increase substantially the likelihood that each
group of students described in Sec. 200.13(b)(7) and enrolled in the
school will meet or exceed the State's proficient levels of achievement
as
[[Page 71724]]
measured by the State assessment system; and
(3) Is consistent with State law.
(b) Requirements. If an LEA identifies a school for corrective
action, in accordance with Sec. 200.33, the LEA must do the following:
(1) Continue to provide all students enrolled in the school with
the option to transfer to another public school in accordance with
Sec. 200.44.
(2) Continue to ensure that the school receives technical
assistance consistent with the requirements of Sec. 200.40.
(3) Make available supplemental educational services in accordance
with Sec. 200.45.
(4) Take at least one of the following corrective actions:
(i) Replace the school staff who are relevant to the school's
failure to make AYP.
(ii) Institute and fully implement a new curriculum, including the
provision of appropriate professional development for all relevant
staff, that--
(A) Is grounded in scientifically based research; and
(B) Offers substantial promise of improving educational achievement
for low-achieving students and of enabling the school to make AYP.
(iii) Significantly decrease management authority at the school
level.
(iv) Appoint one or more outside experts to advise the school on--
(A) Revising the school improvement plan developed under Sec.
200.41 to address the specific issues underlying the school's continued
failure to make AYP and resulting in identification for corrective
action; and
(B) Implementing the revised improvement plan.
(v) Extend for that school the length of the school year or school
day.
(vi) Restructure the internal organization of the school.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(b)(7))
Sec. 200.43 Restructuring.
(a) Definition. ``Restructuring'' means a major reorganization of a
school's governance arrangement by an LEA that--
(1) Makes fundamental reforms, such as significant changes in the
school's staffing and governance, to improve student academic
achievement in the school;
(2) Has substantial promise of enabling the school to make AYP as
defined under Sec. Sec. 200.13 through 200.20; and
(3) Is consistent with State law.
(b) Requirements. If the LEA identifies a school for restructuring
in accordance with Sec. 200.34, the LEA must do the following:
(1) Continue to provide all students enrolled in the school with
the option to transfer to another public school in accordance with
Sec. 200.44.
(2) Make available supplemental educational services in accordance
with Sec. 200.45.
(3) Prepare a plan to carry out one of the following alternative
governance arrangements:
(i) Reopen the school as a public charter school.
(ii) Replace all or most of the school staff, which may include the
principal, who are relevant to the school's failure to make AYP.
(iii) Enter into a contract with an entity, such as a private
management company, with a demonstrated record of effectiveness, to
operate the school as a public school.
(iv) Turn the operation of the school over to the SEA, if permitted
under State law and agreed to by the State.
(v) Any other major restructuring of a school's governance
arrangement consistent with this section.
(4) Provide to parents and teachers--
(i) Prompt notice that the LEA has identified the school for
restructuring; and
(ii) An opportunity for parents and teachers to--
(A) Comment before the LEA takes any action under a restructuring
plan; and
(B) Participate in the development of any restructuring plan.
(c) Implementation. (1) If a school continues to fail to make AYP,
the LEA must--
(i) Implement the restructuring plan no later than the beginning of
the school year following the year in which the LEA developed the
restructuring plan under paragraph (b)(3) of this section; and
(ii) Continue to offer public school choice and supplemental
educational services in accordance with Sec. Sec. 200.44 and 200.45.
(2) An LEA is no longer required to carry out the requirements of
paragraph (c)(1) of this section if the restructured school makes AYP
for two consecutive school years.
(d) Rural schools. On request, the Secretary will provide technical
assistance for developing and carrying out a restructuring plan to any
rural LEA--
(1) That has fewer than 600 students in average daily attendance at
all of its schools; and
(2) In which all of the schools have a School Locale Code of 7 or
8, as determined by the National Center for Education Statistics.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(b)(8))
Sec. 200.44 Public school choice.
(a) Requirements. (1) In the case of a school identified for school
improvement under Sec. 200.32, for corrective action under Sec.
200.33, or for restructuring under Sec. 200.34, the LEA must provide
all students enrolled in the school with the option to transfer to
another public school served by the LEA.
(2) The LEA must offer this option not later than the first day of
the school year following the year in which the LEA administered the
assessments that resulted in its identification of the school for
improvement, corrective action, or restructuring.
(3) The schools to which students may transfer under paragraph
(a)(1) of this section--
(i) May not include schools that--
(A) The LEA has identified for improvement under Sec. 200.32,
corrective action under Sec. 200.33, or restructuring under Sec.
200.34; or
(B) Are persistently dangerous as determined by the State; and
(ii) May include one or more public charter schools.
(4) If more than one school meets the requirements of paragraph
(a)(3) of this section, the LEA must--
(i) Provide to parents of students eligible to transfer under
paragraph (a)(1) of this section a choice of more than one such school;
and
(ii) Take into account the parents' preferences among the choices
offered under paragraph (a)(4)(i) of this section.
(5) The LEA must offer the option to transfer described in this
section unless it is prohibited by State law in accordance with
paragraph (b) of this section.
(6) Except as described in Sec. Sec. 200.32(d) and 200.33(c), if a
school was in school improvement or subject to corrective action before
January 8, 2002, the State must ensure that the LEA provides a public
school choice option in accordance with paragraph (a)(1) of this
section not later than the first day of the 2002-2003 school year.
(b) Limitation on State law prohibition. An LEA may invoke the
State law prohibition on choice described in paragraph (a)(5) of this
section 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.
(c) Desegregation plans. (1) If an LEA is subject to a
desegregation plan, whether that plan is voluntary, court-
[[Page 71725]]
ordered, or required by a Federal or State administrative agency, the
LEA is not exempt from the requirement in paragraph (a)(1) of this
section.
(2) In determining how to provide students with the option to
transfer to another school, the LEA may take into account the
requirements of the desegregation plan.
(3) If the desegregation plan forbids the LEA from offering the
transfer option required under paragraph (a)(1) of this section, the
LEA must secure appropriate changes to the plan to permit compliance
with paragraph (a)(1) of this section.
(d) Capacity. An LEA may not use lack of capacity to deny students
the option to transfer under paragraph (a)(1) of this section.
(e) Priority. (1) In providing students the option to transfer to
another public school in accordance with paragraph (a)(1) of this
section, the LEA must give priority to the lowest-achieving students
from low-income families.
(2) The LEA must determine family income on the same basis that the
LEA uses to make allocations to schools under subpart A of this part.
(f) Status. Any public school to which a student transfers under
paragraph (a)(1) of this section must ensure that the student is
enrolled in classes and other activities in the school in the same
manner as all other students in the school.
(g) Duration of transfer. (1) If a student exercises the option
under paragraph (a)(1) of this section 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.
(2) The LEA's obligation to provide transportation for the student
may be limited under the circumstances described in paragraph (i) of
this section and in Sec. 200.48.
(h) No eligible schools within an LEA. If all public schools to
which a student may transfer within an LEA are identified for school
improvement, corrective action, or restructuring, the LEA--
(1) Must, to the extent practicable, establish a cooperative
agreement for a transfer with one or more other LEAs in the area; and
(2) May offer supplemental educational services to eligible
students under Sec. 200.45 in schools in their first year of school
improvement under Sec. 200.39.
(i) Transportation. (1) If a student exercises the option under
paragraph (a)(1) of this section to transfer to another public school,
the LEA must, consistent with Sec. 200.48, provide or pay for the
student's transportation to the school.
(2) The limitation on funding in Sec. 200.48 applies only to the
provision of choice-related transportation, and does not affect in any
way the basic obligation to provide an option to transfer as required
by paragraph (a) of this section.
(3) The LEA's obligation to provide transportation for the student
ends at the end of the school year in which the school from which the
student transferred is no longer identified by the LEA for school
improvement, corrective action, or restructuring.
(j) Students with disabilities and students covered under Section
504 of the Rehabilitation Act of 1973 (Section 504). For students with
disabilities under the IDEA and students covered under Section 504, the
public school choice option must provide a free appropriate public
education as that term is defined in section 602(8) of the IDEA or 34
CFR 104.33, respectively.
(Authority: 20 U.S.C. 6316)
Sec. 200.45 Supplemental educational services.
(a) Definition. ``Supplemental educational services'' means
tutoring and other supplemental academic enrichment services that are--
(1) In addition to instruction provided during the school day;
(2) Specifically designed to--
(i) Increase the academic achievement of eligible students as
measured by the State's assessment system; and
(ii) Enable these children to attain proficiency in meeting State
academic achievement standards; and
(3) Of high quality and research-based.
(b) Eligibility. (1) Only students from low-income families are
eligible for supplemental educational services.
(2) The LEA must determine family income on the same basis that the
LEA uses to make allocations to schools under subpart A of this part.
(c) Requirement. (1) If an LEA identifies a school for a second
year of improvement under Sec. 200.32, corrective action under Sec.
200.33, or restructuring under Sec. 200.34, the LEA must arrange,
consistent with paragraph (d) of this section, for each eligible
student in the school to receive supplemental educational services from
a State-approved provider selected by the student's parents.
(2) Except as described in Sec. Sec. 200.32(d) and 200.33(c), if a
school was in school improvement status for two or more consecutive
school years or subject to corrective action on January 7, 2002, the
State must ensure that the LEA makes available, consistent with
paragraph (d) of this section, supplemental educational services to all
eligible students not later than the first day of the 2002-2003 school
year.
(3) The LEA must, consistent with Sec. 200.48, continue to make
available supplemental educational services to eligible students until
the end of the school year in which the LEA is making those services
available.
(4)(i) At the request of an LEA, the SEA may waive, in whole or in
part, the requirement that the LEA make available supplemental
educational services if the SEA determines that--
(A) None of the providers of those services on the list approved by
the SEA under Sec. 200.47 makes those services available in the area
served by the LEA or within a reasonable distance of that area; and
(B) The LEA provides evidence that it is not otherwise able to make
those services available.
(ii) The SEA must notify the LEA, within 30 days of receiving the
LEA's request for a waiver under paragraph (c)(4)(i) of this section,
whether it approves or disapproves the request and, if it disapproves,
the reasons for the disapproval, in writing.
(iii) An LEA that receives a waiver must renew its request for that
waiver on an annual basis.
(d) Priority. If the amount of funds available for supplemental
educational services is insufficient to provide services to each
student whose parents request these services, the LEA must give
priority to the lowest-achieving students.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316)
25. Add new Sec. Sec. 200.46 through 200.49 and place them under
the new undesignated center heading ``LEA and School Improvement'' in
subpart A of part 200 to read as follows:
Sec. 200.46 LEA responsibilities for supplemental educational
services.
(a) If an LEA is required to make available supplemental
educational services under Sec. 200.39(b)(3), Sec. 200.42(b)(3), or
Sec. 200.43(b)(2), the LEA must do the following:
(1) Provide the annual notice to parents described in Sec.
200.37(b)(5).
(2) If requested, assist parents in choosing a provider from the
list of approved providers maintained by the SEA.
(3) Apply fair and equitable procedures for serving students if the
number of spaces at approved providers is not sufficient to serve all
eligible
[[Page 71726]]
students whose parents request services consistent with Sec. 200.45.
(4) Ensure that eligible students with disabilities under IDEA and
students covered under Section 504 receive appropriate supplemental
educational services and accommodations in the provision of those
services.
(5) Ensure that eligible students who have limited English
proficiency receive appropriate supplemental educational services and
language assistance in the provision of those services.
(6) Not disclose to the public, without the written permission of
the student's parents, the identity of any student who is eligible for,
or receiving, supplemental educational services.
(b)(1) In addition to meeting the requirements in paragraph (a) of
this section, the LEA must enter into an agreement with each provider
selected by a parent or parents.
(2) The agreement must--
(i) Require the LEA to develop, in consultation with the parents
and the provider, a statement that includes--
(A) Specific achievement goals for the student;
(B) A description of how the student's progress will be measured;
and
(C) A timetable for improving achievement;
(ii) Describe procedures for regularly informing the student's
parents and teachers of the student's progress;
(iii) Provide for the termination of the agreement if the provider
is unable to meet the goals and timetables specified in the agreement;
(iv) Specify how the LEA will pay the provider; and
(v) Prohibit the provider from disclosing to the public, without
the written permission of the student's parents, the identity of any
student who is eligible for, or receiving, supplemental educational
services.
(3) In the case of a student with disabilities under IDEA or a
student covered under Section 504, the provisions of the agreement
referred to in paragraph (b)(2)(i) of this section must be consistent
with the student's individualized education program under section
614(d) of the IDEA or the student's individualized services under
Section 504.
(4) The LEA may not pay the provider for religious worship or
instruction.
(c) If State law prohibits an SEA from carrying out one or more of
its responsibilities under Sec. 200.47 with respect to those who
provide, or seek approval to provide, supplemental educational
services, each LEA must carry out those responsibilities with respect
to its students who are eligible for those services.
(Authority: 20 U.S.C. 6316(e))
(Approved by the Office of Management and Budget under control
number 1810-0581)
Sec. 200.47 SEA responsibilities for supplemental educational
services.
(a) If one or more LEAs in a State are required to make available
supplemental educational services under Sec. 200.39(b)(3), Sec.
200.42(b)(3), or Sec. 200.43(b)(2), the SEA for that State must do the
following:
(1)(i) In consultation with affected LEAs, parents, teachers, and
other interested members of the public, promote participation by as
many providers as possible.
(ii) This promotion must include annual notice to potential
providers of--
(A) The opportunity to provide supplemental educational services;
and
(B) Procedures for obtaining the SEA's approval to be a provider of
those services.
(2) Consistent with paragraph (b) of this section, develop and
apply to potential providers objective criteria.
(3) Maintain by LEA an updated list of approved providers,
including any technology-based or distance-learning providers, from
which parents may select.
(4) Develop, implement, and publicly report on standards and
techniques for--
(i) Monitoring the quality and effectiveness of the services
offered by each approved provider; and
(ii) Withdrawing approval from a provider that fails, for two
consecutive years, to contribute to increasing the academic proficiency
of students receiving supplemental educational services from that
provider.
(5) Ensure that eligible students with disabilities under IDEA and
students covered under Section 504 receive appropriate supplemental
educational services and accommodations in the provision of those
services.
(6) Ensure that eligible students who have limited English
proficiency receive appropriate supplemental educational services and
language assistance in the provision of those services.
(b) Standards for approving providers. (1) As used in this section
and in Sec. 200.46, ``provider'' means a non-profit entity, a for-
profit entity, an LEA, an educational service agency, a public school,
including a public charter school, or a private school that--
(i) Has a demonstrated record of effectiveness in increasing the
academic achievement of students in subjects relevant to meeting the
State's academic content and student achievement standards described
under Sec. 200.1;
(ii) Is capable of providing supplemental educational services that
are consistent with the instructional program of the LEA and with the
State academic content standards and State student achievement
standards described under Sec. 200.1;
(iii) Is financially sound; and
(iv) In the case of--
(A) A public school, has not been identified under Sec. Sec.
200.32, 200.33, or 200.34; or
(B) An LEA, has not been identified under Sec. 200.50(d) or (e).
(2) In order for the SEA to include a provider on the State list,
the provider must agree to--
(i)(A) Provide parents of each student receiving supplemental
educational services and the appropriate LEA with information on the
progress of the student in increasing achievement; and
(B) This information must be in an understandable and uniform
format, including alternative formats upon request, and, to the extent
practicable, in a language that the parents can understand;
(ii) Ensure that the instruction the provider gives and the content
the provider uses--
(A) Are consistent with the instruction provided and the content
used by the LEA and the SEA;
(B) Are aligned with State student academic achievement standards;
and
(C) Are secular, neutral, and nonideological; and
(iii) Meet all applicable Federal, State, and local health, safety,
and civil rights laws.
(3) As a condition of approval, a State may not require a provider
to hire only staff who meet the requirements under Sec. Sec. 200.55
and 200.56.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(e))
Sec. 200.48 Funding for choice-related transportation and
supplemental educational services.
(a) Amounts required. (1) To pay for choice-related transportation
and supplemental educational services required under section 1116 of
the ESEA, an LEA may use--
(i) Funds allocated under subpart A of this part;
(ii) Funds, where allowable, from other Federal education programs;
and
(iii) State, local, or private resources.
(2) Unless a lesser amount is needed, the LEA must spend an amount
equal to 20 percent of its allocation under subpart A of this part to--
(i) Provide, or pay for, transportation of students exercising a
choice option under Sec. 200.44;
(ii) Satisfy all requests for supplemental educational services
under Sec. 200.45; or
[[Page 71727]]
(iii) Pay for both paragraph (a)(2)(i) and (ii) of this section,
except that--
(A) The LEA must spend a minimum of an amount equal to 5 percent of
its allocation under subpart A of this part on transportation under
paragraph (a)(2)(i) of this section and an amount equal to 5 percent of
its allocation under subpart A of this part for supplemental
educational services under paragraph (a)(2)(ii) of this section, unless
lesser amounts are needed to meet the requirements of Sec. Sec. 200.44
and 200.45; and
(B) The LEA may not include costs for administration or
transportation incurred in providing supplemental educational services,
or administrative costs associated with the provision of public school
choice options under Sec. 200.44, in the amounts required under
paragraph (a)(2) of this section.
(3) If the amount specified in paragraph (a)(2) of this section is
insufficient to pay all choice-related transportation costs, or to meet
the demand for supplemental educational services, the LEA may make
available any additional needed funds from Federal, State, or local
sources.
(4) To assist an LEA that does not have sufficient funds to make
available supplemental educational services to all students requesting
these services, an SEA may use funds that it reserves under part A of
Title I and part A of Title V of the ESEA.
(b) Cap on school-level reduction. (1) An LEA may not, in applying
paragraph (a) of this section, reduce by more than 15 percent the total
amount it makes available under subpart A of this part to a school it
has identified for corrective action or restructuring.
(c) Per-child funding for supplemental educational services. For
each student receiving supplemental educational services under Sec.
200.45, the LEA must make available the lesser of--
(1) The amount of its allocation under subpart A of this part,
divided by the number of students from families below the poverty
level, as counted under section 1124(c)(1)(A) of the ESEA; or
(2) The actual costs of the supplemental educational services
received by the student.
(Authority: 20 U.S.C. 6316)
Sec. 200.49 SEA responsibilities for school improvement, corrective
action, and restructuring.
(a) Transition requirements for public school choice and
supplemental educational services. (1) Except as described in
Sec. Sec. 200.32(d) and 200.33(c), if a school was in school
improvement or subject to corrective action on January 7, 2002, the SEA
must ensure that the LEA for that school provides public school choice
in accordance with Sec. 200.44 not later than the first day of the
2002-2003 school year.
(2) Except as described in Sec. Sec. 200.32(d) and 200.33(c), if a
school was in school improvement status for two or more consecutive
school years or subject to corrective action on January 7, 2002, the
SEA must ensure that the LEA for that school makes available
supplemental educational services in accordance with Sec. 200.45 not
later than the first day of the 2002-2003 school year.
(b) State reservation of funds for school improvement. (1) In
accordance with Sec. 200.100(a), an SEA must reserve 2 percent of the
amount it receives under this part for fiscal years 2002 and 2003, and
4 percent of the amount it receives under this part for fiscal years
2004 through 2007, to--
(i) Support local school improvement activities;
(ii) Provide technical assistance to schools identified for
improvement, corrective action, or restructuring; and
(iii) Provide technical assistance to LEAs that the SEA has
identified for improvement or corrective action in accordance with
Sec. 200.50.
(2) Of the amount it reserves under paragraph (b)(1) of this
section, the SEA must--
(i) Allocate not less than 95 percent directly to LEAs serving
schools identified for improvement, corrective action, and
restructuring to support improvement activities; or
(ii) With the approval of the LEA, directly provide for these
improvement activities or arrange to provide them through such entities
as school support teams or educational service agencies.
(3) In providing assistance to LEAs under paragraph (b)(2) of this
section, the SEA must give priority to LEAs that--
(i) Serve the lowest-achieving schools;
(ii) Demonstrate the greatest need for this assistance; and
(iii) Demonstrate the strongest commitment to ensuring that this
assistance will be used to enable the lowest-achieving schools to meet
the progress goals in the school improvement plans under Sec. 200.41.
(c) Technical assistance. The SEA must make technical assistance
available, through the statewide system of support and improvement
required by section 1117 of the ESEA, to schools that LEAs have
identified for improvement, corrective action, or restructuring.
(d) LEA failure. If the SEA determines that an LEA has failed to
carry out its responsibilities with respect to school improvement,
corrective action, or restructuring, the SEA must take the actions it
determines to be appropriate and in compliance with State law.
(e) Assessment results. (1) The SEA must ensure that the results of
academic assessments administered as part of the State assessment
system in a given school year are available to LEAs before the
beginning of the next school year and in such time as to allow for the
identification described in Sec. 200.32(a)(2).
(2) The SEA must provide the results described in paragraph (e)(1)
of this section to a school before an LEA may identify the school for
school improvement under Sec. 200.32, corrective action under Sec.
200.33, or restructuring under Sec. 200.34.
(f) Accountability for charter schools. The accountability
provisions under section 1116 of the ESEA must be overseen for charter
schools in accordance with State charter school law.
(g) Factors affecting student achievement. The SEA must notify the
Secretary of Education of major factors that have been brought to the
SEA's attention under section 1111(b)(9) of the ESEA that have
significantly affected student academic achievement in schools and LEAs
identified for improvement within the State.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6311 and 6316)
26. Revise Sec. Sec. 200.50 and 200.51 and place them under the
new undesignated center heading ``LEA and School Improvement'' in
subpart A of part 200 to read as follows:
Sec. 200.50 SEA review of LEA progress.
(a) State review. (1) An SEA must annually review the progress of
each LEA in its State that receives funds under subpart A of this part
to determine whether--
(i) The LEA's schools served under this part are making AYP, as
defined under Sec. Sec. 200.13 through 200.20, toward meeting the
State's student academic achievement standards; and
(ii) The LEA is carrying out its responsibilities under this part
with respect to school improvement, technical assistance, parental
involvement, and professional development.
(2) In reviewing the progress of an LEA, the SEA may, in the case
of targeted assistance schools served by the LEA, consider the progress
only of the students served or eligible for services under this
subpart, provided the students selected for services in such schools
are those with the greatest need
[[Page 71728]]
for special assistance, consistent with the requirements of section
1115 of the ESEA.
(b) Rewards. If an LEA has exceeded AYP as defined under Sec. Sec.
200.13 through 200.20 for two consecutive years, the SEA may--
(1) Reserve funds in accordance with Sec. 200.100(c); and
(2) Make rewards of the kinds described under section 1117 of the
ESEA.
(c) Opportunity for review of LEA-level data. (1) Before
identifying an LEA for improvement or corrective action, the SEA must
provide the LEA with an opportunity to review the data, including
academic assessment data, on which the SEA has based the proposed
identification.
(2)(i) If the LEA believes that the proposed identification is in
error for statistical or other substantive reasons, the LEA may provide
supporting evidence to the SEA.
(ii) The SEA must consider the evidence before making a final
determination not later than 30 days after it has provided the LEA with
the opportunity to review the data under paragraph (c)(1) of this
section.
(d) Identification for improvement. (1) The SEA must identify for
improvement an LEA that, for two consecutive years, including the
period immediately before January 8, 2002, fails to make AYP as defined
in the SEA's plan under section 1111(b)(2) of the ESEA.
(2) The SEA must identify for improvement an LEA that was in
improvement status on January 7, 2002.
(3)(i) The SEA may identify an LEA for improvement if, on the basis
of assessments the LEA administers during the 2001-2002 school year,
the LEA fails to make AYP for a second consecutive year.
(ii) An SEA that does not identify such an LEA for improvement,
however, must count the 2001-2002 school year as the first year of not
making AYP for the purpose of subsequent identification decisions under
paragraph (d)(1) of this section.
(4) The SEA may remove an LEA from improvement status if, on the
basis of assessments the LEA administers during the 2001-2002 school
year, the LEA makes AYP for a second consecutive year.
(e) Identification for corrective action. After providing technical
assistance under Sec. 200.52(b), the SEA--
(1) May take corrective action at any time with respect to an LEA
that the SEA has identified for improvement under paragraph (d) of this
section;
(2) Must take corrective action--
(i) With respect to an LEA that fails to make AYP, as defined under
Sec. Sec. 200.13 through 200.20, by the end of the second full school
year following the year in which the LEA administered the assessments
that resulted in the LEA's failure to make AYP for a second consecutive
year and led to the SEA's identification of the LEA for improvement
under paragraph (d) of this section; and
(ii) With respect to an LEA that was in corrective action status on
January 7, 2002; and
(3) May remove an LEA from corrective action if, on the basis of
assessments administered by the LEA during the 2001-2002 school year,
it makes AYP for a second consecutive year.
(f) Delay of corrective action. (1) The SEA may delay
implementation of corrective action under Sec. 200.53 for a period not
to exceed one year if--
(i) The LEA makes AYP for one year; or
(ii) The LEA's failure to make AYP is due to exceptional or
uncontrollable circumstances, such as a natural disaster or a
precipitous and unforeseen decline in the LEA's financial resources.
(2)(i) The SEA may not take into account the period of delay
referred to in paragraph (f)(1) of this section in determining the
number of consecutive years the LEA has failed to make AYP; and
(ii) The SEA must subject the LEA to further actions following the
period of delay as if the delay never occurred.
(g) Continuation of public school choice and supplemental
educational services. An SEA must ensure that an LEA identified under
paragraph (d) or (e) of this section continues to offer public school
choice in accordance with Sec. 200.44 and supplemental educational
services in accordance with Sec. 200.45.
(h) Removal from improvement or corrective action status. If an LEA
makes AYP for two consecutive years following identification for
improvement under paragraph (d) or corrective action under paragraph
(e) of this section, the SEA need no longer--
(1) Identify the LEA for improvement; or
(2) Subject the LEA to corrective action for the succeeding school
year.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(c))
Sec. 200.51 Notice of SEA action.
(a) In general. (1) An SEA must--
(i) Communicate with parents throughout the review of an LEA under
Sec. 200.50; and
(ii) Ensure that, regardless of the method or media used, it
provides information to parents--
(A) In an understandable and uniform format, including alternative
formats upon request; and
(B) To the extent practicable, in a language that parents can
understand.
(2) The SEA must provide information to the parents of each student
enrolled in a school served by the LEA--
(i) Directly, through such means as regular mail or e-mail, except
that if an SEA does not have access to individual student addresses, it
may provide information to the LEA or school for distribution to
parents; and
(ii) Through broader means of dissemination such as the Internet,
the media, and public agencies serving the student population and their
families.
(3) All communications must respect the privacy of students and
their families.
(b) Results of review. The SEA must promptly publicize and
disseminate to the LEAs, teachers and other staff, the parents of each
student enrolled in a school served by the LEA, students, and the
community the results of its review under Sec. 200.50, including
statistically sound disaggregated results in accordance with Sec. Sec.
200.2 and 200.7.
(c) Identification for improvement or corrective action. If the SEA
identifies an LEA for improvement or subjects the LEA to corrective
action, the SEA must promptly provide to the parents of each student
enrolled in a school served by the LEA--
(1) The reasons for the identification; and
(2) An explanation of how parents can participate in improving the
LEA.
(d) Information about action taken. (1) The SEA must publish, and
disseminate to the parents of each student enrolled in a school served
by the LEA and to the public, information on any corrective action the
SEA takes under Sec. 200.53.
(2) The SEA must provide this information--
(i) In a uniform and understandable format, including alternative
formats upon request; and
(ii) To the extent practicable, in a language that parents can
understand.
(3) The SEA must disseminate the information through such means as
the Internet, the media, and public agencies.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(c))
27. Add new Sec. Sec. 200.52 and 200.53 and place them under the
new undesignated center heading ``LEA and School Improvement'' in
subpart A of part 200 to read as follows:
[[Page 71729]]
Sec. 200.52 LEA improvement.
(a) Improvement plan. (1) Not later than 3 months after an SEA has
identified an LEA for improvement under Sec. 200.50(d), the LEA must
develop or revise an LEA improvement plan.
(2) The LEA must consult with parents, school staff, and others in
developing or revising its improvement plan.
(3) The LEA improvement plan must--
(i) Incorporate strategies, grounded in scientifically based
research, that will strengthen instruction in core academic subjects in
schools served by the LEA;
(ii) Identify actions that have the greatest likelihood of
improving the achievement of participating children in meeting the
State's student academic achievement standards;
(iii) Address the professional development needs of the
instructional staff serving the LEA by committing to spend for
professional development not less than 10 percent of the funds received
by the LEA under subpart A of this part for each fiscal year in which
the SEA identifies the LEA for improvement. These funds--
(A) May include funds reserved by schools for professional
development under Sec. 200.41(c)(5); but
(B) May not include funds reserved for professional development
under section 1119 of the ESEA;
(iv) Include specific measurable achievement goals and targets--
(A) For each of the groups of students under Sec. 200.13(b)(7);
and
(B) That are consistent with AYP as defined under Sec. Sec. 200.13
through 200.20;
(v) Address--
(A) The fundamental teaching and learning needs in the schools of
the LEA; and
(B) The specific academic problems of low-achieving students,
including a determination of why the LEA's previous plan failed to
bring about increased student academic achievement;
(vi) As appropriate, incorporate activities before school, after
school, during the summer, and during any extension of the school year;
(vii) Specify the responsibilities of the SEA and LEA under the
plan, including the technical assistance the SEA must provide under
paragraph (b) of this section and the LEA's responsibilities under
section 1120A of the ESEA; and
(viii) Include strategies to promote effective parental involvement
in the schools served by the LEA.
(4) The LEA must implement the improvement plan--including any
revised plan--expeditiously, but not later than the beginning of the
school year following the year in which the LEA administered the
assessments that resulted in the LEA's failure to make AYP for a second
consecutive year and led to the SEA's identification of the LEA for
improvement under Sec. 200.50(d).
(b) SEA technical assistance. (1) An SEA that identifies an LEA for
improvement under Sec. 200.50(d) must, if requested, provide or
arrange for the provision of technical or other assistance to the LEA,
as authorized under section 1117 of the ESEA.
(2) The purpose of the technical assistance is to better enable the
LEA to--
(i) Develop and implement its improvement plan; and
(ii) Work with schools needing improvement.
(3) The technical assistance provided by the SEA or an entity
authorized by the SEA must--
(i) Be supported by effective methods and instructional strategies
grounded in scientifically based research; and
(ii) Address problems, if any, in implementing the parental
involvement and professional development activities described in
sections 1118 and 1119, respectively, of the ESEA.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6316(c))
Sec. 200.53 LEA corrective action.
(a) Definition. For the purposes of this section, the term
``corrective action'' means action by an SEA that--
(1) Substantially and directly responds to--
(i) The consistent academic failure that caused the SEA to identify
an LEA for corrective action; and
(ii) Any underlying staffing, curriculum, or other problems in the
LEA;
(2) Is designed to meet the goal that each group of students
described in Sec. 200.13(b)(7) and enrolled in the LEA's schools will
meet or exceed the State's proficient levels of achievement as measured
by the State assessment system; and
(3) Is consistent with State law.
(b) Notice and hearing. Before implementing any corrective action
under paragraph (c) of this section, the SEA must provide notice and a
hearing to the affected LEA--if State law provides for this notice and
hearing--not later than 45 days following the decision to take
corrective action.
(c) Requirements. If the SEA identifies an LEA for corrective
action, the SEA must do the following:
(1) Continue to make available technical assistance to the LEA.
(2) Take at least one of the following corrective actions:
(i) Defer programmatic funds or reduce administrative funds.
(ii) Institute and fully implement a new curriculum based on State
and local content and academic achievement standards, including the
provision of appropriate professional development for all relevant
staff that--
(A) Is grounded in scientifically based research; and
(B) Offers substantial promise of improving educational achievement
for low-achieving students.
(iii) Replace the LEA personnel who are relevant to the failure to
make AYP.
(iv) Remove particular schools from the jurisdiction of the LEA and
establish alternative arrangements for public governance and
supervision of these schools.
(v) Appoint a receiver or trustee to administer the affairs of the
LEA in place of the superintendent and school board.
(vi) Abolish or restructure the LEA.
(vii) In conjunction with at least one other action in paragraph
(c)(2) of this section--
(A) Authorize students to transfer from a school operated by the
LEA to a higher-performing public school operated by another LEA in
accordance with Sec. 200.44, and
(B) Provide to these students transportation, or the costs of
transportation, to the other school consistent with Sec. 200.44(h).
(Approved by the Office of Management and Budget under control
number 1810-0516)
(Authority: 20 U.S.C. 6316(c)(10))
28. Place reserved Sec. 200.54 under the undesignated center
heading ``LEA and school improvement'' in subpart A of part 200.
29. Add a new undesignated center heading to subpart A of part 200
and place it after Sec. 200.54 to read as follows:
Qualifications Of Teachers And Paraprofessionals
30. Add new Sec. Sec. 200.55 through 200.59 and place them under
the new undesignated center heading ``Qualifications of Teachers and
Paraprofessionals'' in subpart A of part 200 to read as follows:
Sec. 200.55 Qualifications of teachers.
(a) Newly hired teachers in Title I programs. (1) An LEA must
ensure that all teachers hired after the first day of the 2002-2003
school year who teach core academic subjects in a program supported
with funds under subpart A of this part are highly qualified as defined
in Sec. 200.56.
[[Page 71730]]
(2) For the purpose of paragraph (a)(1) of this section, a teacher
teaching in a program supported with funds under subpart A of this part
is--
(i) A teacher in a targeted assisted school who is paid with funds
under subpart A of this part;
(ii) A teacher in a schoolwide program school; or
(iii) A teacher employed by an LEA with funds under subpart A of
this part to provide services to eligible private school students under
Sec. 200.62.
(b) All teachers of core academic subjects. (1) Not later than the
end of the 2005-2006 school year, each State that receives funds under
subpart A of this part, and each LEA in that State, must ensure that
all public elementary and secondary school teachers in the State who
teach core academic subjects, including teachers employed by an LEA to
provide services to eligible private school students under Sec.
200.62, are highly qualified as defined in Sec. 200.56.
(2) A teacher who does not teach a core academic subject--such as
some vocational education teachers--is not required to meet the
requirements in Sec. 200.56.
(c) Definition. The term ``core academic subjects'' means English,
reading or language arts, mathematics, science, foreign languages,
civics and government, economics, arts, history, and geography.
(d) Private school teachers. The requirements in this section do
not apply to teachers hired by private elementary and secondary
schools.
(Authority: 20 U.S.C. 6319; 7801(11))
Sec. 200.56 Definition of ``highly qualified teacher.''
To be a ``highly qualified teacher,'' a teacher covered under Sec.
200.55 must meet the requirements in paragraph (a) and either paragraph
(b) or (c) of this section.
(a) In general. (1) Except as provided in paragraph (a)(3) of this
section, a teacher covered under Sec. 200.55 must--
(i) Have obtained full State certification as a teacher, which may
include certification obtained through alternative routes to
certification; or
(ii)(A) Have passed the State teacher licensing examination; and
(B) Hold a license to teach in the State.
(2) A teacher meets the requirement in paragraph (a)(1) of this
section if the teacher--
(i) Has fulfilled the State's certification and licensure
requirements applicable to the years of experience the teacher
possesses; or
(ii) Is participating in an alternative route to certification
program under which--
(A) The teacher--
(1) Receives high-quality professional development that is
sustained, intensive, and classroom-focused in order to have a positive
and lasting impact on classroom instruction, before and while teaching;
(2) Participates in a program of intensive supervision that
consists of structured guidance and regular ongoing support for
teachers or a teacher mentoring program;
(3) Assumes functions as a teacher only for a specified period of
time not to exceed three years; and
(4) Demonstrates satisfactory progress toward full certification as
prescribed by the State; and
(B) The State ensures, through its certification and licensure
process, that the provisions in paragraph (a)(2)(ii) of this section
are met.
(3) A teacher teaching in a public charter school in a State must
meet the certification and licensure requirements, if any, contained in
the State's charter school law.
(4) If a teacher has had certification or licensure requirements
waived on an emergency, temporary, or provisional basis, the teacher is
not highly qualified.
(b) Teachers new to the profession. A teacher covered under Sec.
200.55 who is new to the profession also must--
(1) Hold at least a bachelor's degree; and
(2) At the public elementary school level, demonstrate, by passing
a rigorous State test (which may consist of passing a State
certification or licensing test), subject knowledge and teaching skills
in reading/language arts, writing, mathematics, and other areas of the
basic elementary school curriculum; or
(3) At the public middle and high school levels, demonstrate a high
level of competency by--
(i) Passing a rigorous State test in each academic subject in which
the teacher teaches (which may consist of passing a State certification
or licensing test in each of these subjects); or
(ii) Successfully completing in each academic subject in which the
teacher teaches--
(A) An undergraduate major;
(B) A graduate degree;
(C) Coursework equivalent to an undergraduate major; or
(D) Advanced certification or credentialing.
(c) Teachers not new to the profession. A teacher covered under
Sec. 200.55 who is not new to the profession also must--
(1) Hold at least a bachelor's degree; and
(2)(i) Meet the applicable requirements in paragraph (b)(2) or (3)
of this section; or
(ii) Based on a high, objective, uniform State standard of
evaluation in accordance with section 9101(23)(C)(ii) of the ESEA,
demonstrate competency in each academic subject in which the teacher
teaches.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 7801(23))
Sec. 200.57 Plans to increase teacher quality.
(a) State plan. (1) A State that receives funds under subpart A of
this part must develop, as part of its State plan under section 1111 of
the ESEA, a plan to ensure that all public elementary and secondary
school teachers in the State who teach core academic subjects are
highly qualified not later than the end of the 2005-2006 school year.
(2) The State's plan must--
(i) Establish annual measurable objectives for each LEA and school
that include, at a minimum, an annual increase in the percentage of--
(A) Highly qualified teachers at each LEA and school; and
(B) Teachers who are receiving high-quality professional
development to enable them to become highly qualified and effective
classroom teachers;
(ii) Describe the strategies the State will use to--
(A) Help LEAs and schools meet the requirements in paragraph (a)(1)
of this section; and
(B) Monitor the progress of LEAs and schools in meeting these
requirements; and
(iii) Until the SEA fully complies with paragraph (a)(1) of this
section, describe the specific steps the SEA will take to--
(A) Ensure that Title I schools provide instruction by highly
qualified teachers, including steps that the SEA will take to ensure
that minority children and children from low-income families are not
taught at higher rates than other children by inexperienced,
unqualified, or out-of-field teachers; and
(B) Evaluate and publicly report the progress of the SEA with
respect to these steps.
(3) The State's plan may include other measures that the State
determines are appropriate to increase teacher qualifications.
(b) Local plan. An LEA that receives funds under subpart A of this
part must develop, as part of its local plan under section 1112 of the
ESEA, a plan to ensure that--
(1) All public elementary and secondary school teachers in the LEA
who teach core academic subjects, including teachers employed by the
[[Page 71731]]
LEA to provide services to eligible private school students under Sec.
200.62, are highly qualified not later than the end of the 2005-2006
school year; and
(2) Through incentives for voluntary transfers, professional
development, recruitment programs, or other effective strategies,
minority students and students from low-income families are not taught
at higher rates than other students by unqualified, out-of-field, or
inexperienced teachers.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6311(b)(8)(C), 6312(c)(1)(I), (L); 6319(a)(2)-
(3); 7801(34))
Sec. 200.58 Qualifications of paraprofessionals.
(a) Applicability. (1) An LEA must ensure that each
paraprofessional who is hired by the LEA and who works in a program
supported with funds under subpart A of this part meets the
requirements in paragraph (b) of this section and, except as provided
in paragraph (e) of this section, the requirements in either paragraph
(c) or (d) of this section.
(2) For the purpose of this section, the term
``paraprofessional''--
(i) Means an individual who provides instructional support
consistent with Sec. 200.59; and
(ii) Does not include individuals who have only non-instructional
duties (such as providing technical support for computers, providing
personal care services, or performing clerical duties).
(3) For the purpose of paragraph (a) of this section, a
paraprofessional working in ``a program supported with funds under
subpart A of this part'' is--
(i) A paraprofessional in a targeted assisted school who is paid
with funds under subpart A of this part;
(ii) A paraprofessional in a schoolwide program school; or
(iii) A paraprofessional employed by an LEA with funds under
subpart A of this part to provide instructional support to a public
school teacher covered under Sec. 200.55 who provides equitable
services to eligible private school students under Sec. 200.62.
(b) All paraprofessionals. A paraprofessional covered under
paragraph (a) of this section, regardless of the paraprofessional's
hiring date, must have earned a secondary school diploma or its
recognized equivalent.
(c) New paraprofessionals. A paraprofessional covered under
paragraph (a) of this section who is 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)(i) Met a rigorous standard of quality, and can demonstrate--
through a formal State or local academic assessment--knowledge of, and
the ability to assist in instructing, as appropriate--
(A) Reading/language arts, writing, and mathematics; or
(B) Reading readiness, writing readiness, and mathematics
readiness.
(ii) A secondary school diploma or its recognized equivalent is
necessary, but not sufficient, to meet the requirement in paragraph
(c)(3)(i) of this section.
(d) Existing paraprofessionals. Each paraprofessional who was hired
on or before January 8, 2002 must meet the requirements in paragraph
(c) of this section no later than January 8, 2006.
(e) Exceptions. A paraprofessional does not need to meet the
requirements in paragraph (c) or (d) of this section if the
paraprofessional--
(1)(i) Is proficient in English and a language other than English;
and
(ii) Acts as a translator to enhance the participation of limited
English proficient children under subpart A of this part; or
(2) Has instructional-support duties that consist solely of
conducting parental involvement activities.
(Authority: 20 U.S.C. 6319(c)-(f))
Sec. 200.59 Duties of paraprofessionals.
(a) A paraprofessional covered under Sec. 200.58 may not be
assigned a duty inconsistent with paragraph (b) of this section.
(b) A paraprofessional covered under Sec. 200.58 may perform the
following instructional support duties:
(1) One-on-one tutoring for eligible students if the tutoring is
scheduled at a time when a student would not otherwise receive
instruction from a teacher.
(2) Assisting in classroom management.
(3) Assisting in computer instruction.
(4) Conducting parent involvement activities.
(5) Providing instructional support in a library or media center.
(6) Acting as a translator.
(7) Providing instructional support services.
(c)(1) A paraprofessional may not provide instructional support to
a student unless the paraprofessional is working under the direct
supervision of a teacher who meets the requirements in Sec. 200.56.
(2) A paraprofessional works under the direct supervision of a
teacher if--
(i) The teacher plans the instructional activities that the
paraprofessional carries out;
(ii) The teacher evaluates the achievement of the students with
whom the paraprofessional is working; and
(iii) The paraprofessional works in close and frequent physical
proximity to the teacher.
(d) A paraprofessional may assume limited duties that are assigned
to similar personnel who are not working in a program supported with
funds under subpart A of this part--including non-instructional duties
and duties that do not benefit participating students--if the amount of
time the paraprofessional spends on those duties is the same proportion
of total work time as the time spent by similar personnel at the same
school.
(Authority: 20 U.S.C. 6319(g))
31. Revise Sec. Sec. 200.60 and 200.61 and place them under the
new undesignated center heading ``Qualifications of Teachers and
Paraprofessionals'' in subpart A of part 200 to read as follows:
Sec. 200.60 Expenditures for professional development.
(a)(1) Except as provided in paragraph (a)(2) of this section, an
LEA must use funds it receives under subpart A of this part as follows
for professional development activities to ensure that teachers and
paraprofessionals meet the requirements of Sec. Sec. 200.56 and
200.58:
(i) For each of fiscal years 2002 and 2003, the LEA must use not
less than 5 percent or more than 10 percent of the funds it receives
under subpart A of this part.
(ii) For each fiscal year after 2003, the LEA must use not less
than 5 percent of the funds it receives under subpart A of this part.
(2) An LEA is not required to spend the amount required in
paragraph (a)(1) of this section for a given fiscal year if a lesser
amount is sufficient to ensure that the LEA's teachers and
paraprofessionals meet the requirements in Sec. Sec. 200.56 and
200.58, respectively.
(b) The LEA may use additional funds under subpart A of this part
to support ongoing training and professional development, as defined in
section 9101(34) of the ESEA, to assist teachers and paraprofessionals
in carrying out activities under subpart A of this part.
(Authority: 20 U.S.C. 6319(h), (l); 7801(34))
Sec. 200.61 Parents' right to know.
(a) At the beginning of each school year, an LEA that receives
funds under subpart A of this part must notify the parents of each
student attending a Title I school that the parents may request, and
the LEA will provide the parents on request, information regarding the
professional qualifications of the
[[Page 71732]]
student's classroom teachers, including, at a minimum, the following:
(1) Whether the teacher has met State qualification and licensing
criteria for the grade levels and subject areas in which the teacher
provides instruction.
(2) Whether the teacher is teaching under emergency or other
provisional status through which State qualification or licensing
criteria have been waived.
(3) The baccalaureate degree major of the teacher and any other
graduate certification or degree held by the teacher, and the field of
discipline of the certification or degree.
(4) Whether the child is provided services by paraprofessionals
and, if so, their qualifications.
(b) A school that participates under subpart A of this part must
provide to each parent--
(1) Information on the level of achievement of the parent's child
in each of the State academic assessments required under Sec. 200.2;
(2) Timely notice that the parent's child has been assigned, or has
been taught for four or more consecutive weeks by, a teacher of a core
academic subject who is not highly qualified.
(c) An LEA and school must provide the notice and information
required under this section--
(1) In a uniform and understandable format, including alternative
formats upon request; and
(2) To the extent practicable, in a language that parents can
understand.
(Approved by the Office of Management and Budget under control number
1810-0581)
(Authority: 20 U.S.C. 6311(h)(6))
32. Add a new undesignated center heading to subpart A of part 200
and place it after Sec. 200.61 to read as follows:
Participation of Eligible Children in Private Schools
33. Add Sec. 200.62 and place it under the undesignated center
heading ``Participation of Eligible Children in Private Schools'' in
subpart A of part 200 to read as follows:
Sec. 200.62 Responsibilities for providing services to private school
children.
(a) After timely and meaningful consultation with appropriate
officials of private schools, an LEA must--
(1) In accordance with Sec. Sec. 200.62 through 200.67 and section
1120 of the ESEA, provide special educational services or other
benefits under subpart A of this part, on an equitable basis and in a
timely manner, to eligible children who are enrolled in private
elementary and secondary schools; and
(2) Ensure that teachers and families of participating private
school children participate on a basis equitable to the participation
of teachers and families of public school children receiving these
services in accordance with Sec. 200.65.
(b)(1) Eligible private school children are children who--
(i) Reside in participating public school attendance areas of the
LEA, regardless of whether the private school they attend is located in
the LEA; and
(ii) Meet the criteria in section 1115(b) of the ESEA.
(2) Among the eligible private school children, the LEA must select
children to participate, consistent with Sec. 200.64.
(c) The services and other benefits an LEA provides under this
section must be secular, neutral and nonideological.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6315(b); 6320(a))
34. Revise Sec. 200.63 and place it under the undesignated center
heading ``Participation of Eligible Children in Private Schools'' in
subpart A of part 200 to read as follows:
Sec. 200.63 Consultation.
(a) In order to have timely and meaningful consultation, an LEA
must consult with appropriate officials of private schools during the
design and development of the LEA's program for eligible private school
children.
(b) At a minimum, the LEA must consult on the following:
(1) How the LEA will identify the needs of eligible private school
children.
(2) What services the LEA will offer to eligible private school
children.
(3) How and when the LEA will make decisions about the delivery of
services.
(4) How, where, and by whom the LEA will provide services to
eligible private school children.
(5) How the LEA will assess academically the services to eligible
private school children in accordance with Sec. 200.10, and how the
LEA will use the results of that assessment to improve Title I
services.
(6) The size and scope of the equitable services that the LEA will
provide to eligible private school children, and, consistent with Sec.
200.64, the proportion of funds that the LEA will allocate for these
services.
(7) The method or sources of data that the LEA will use under Sec.
200.78 to determine the number of private school children from low-
income families residing in participating public school attendance
areas, including whether the LEA will extrapolate data if a survey is
used.
(8) The equitable services the LEA will provide to teachers and
families of participating private school children.
(c)(1) Consultation by the LEA must--
(i) Include meetings of the LEA and appropriate officials of the
private schools; and
(ii) Occur before the LEA makes any decision that affects the
opportunity of eligible private school children to participate in Title
I programs.
(2) The LEA must meet with officials of the private schools
throughout the implementation and assessment of the Title I services.
(d)(1) Consultation must include--
(i) A discussion of service delivery mechanisms the LEA can use to
provide equitable services to eligible private school children; and
(ii) A thorough consideration and analysis of the views of the
officials of the private schools on the provision of services through a
contract with a third-party provider.
(2) If the LEA disagrees with the views of the officials of the
private schools on the provision of services through a contract, the
LEA must provide in writing to the officials of the private schools the
reasons why the LEA chooses not to use a contractor.
(e)(1) The LEA must maintain in its records and provide to the SEA
a written affirmation, signed by officials of each private school with
participating children or appropriate private school representatives,
that the required consultation has occurred.
(2) If the officials of the private schools do not provide the
affirmations within a reasonable period of time, the LEA must submit to
the SEA documentation that the required consultation occurred.
(f) An official of a private school has the right to complain to
the SEA that the LEA did not--
(1) Engage in timely and meaningful consultation; or
(2) Consider the views of the official of the private school.
(Approved by the Office of Management and Budget under control
number 1810-0581)
(Authority: 20 U.S.C. 6320(b))
35. Add Sec. 200.64 and place it under the undesignated center
heading ``Participation of Eligible Children in Private Schools'' in
subpart A of part 200 to read as follows:
Sec. 200.64 Factors for determining equitable participation of
private school children.
(a) Equal expenditures. (1) Funds expended by an LEA under subpart
A of this part for services for eligible private school children in the
aggregate must be equal to the amount of funds generated by private
school children from low-income families under paragraph (a)(2) of this
section.
[[Page 71733]]
(2) An LEA must meet this requirement as follows:
(i)(A) If the LEA reserves funds under Sec. 200.77 to provide
instructional and related activities for public elementary or secondary
school students at the district level, the LEA must also provide from
those funds, as applicable, equitable services to eligible private
school children.
(B) The amount of funds available to provide equitable services
from the applicable reserved funds must be proportionate to the number
of private school children from low-income families residing in
participating public school attendance areas.
(ii) The LEA must reserve the funds generated by private school
children under Sec. 200.78 and, in consultation with appropriate
officials of the private schools, may--
(A) Combine those amounts, along with funds under paragraph
(a)(2)(i) of this section, if appropriate, to create a pool of funds
from which the LEA provides equitable services to eligible private
school children, in the aggregate, in greatest need of those services;
or
(B) Provide equitable services to eligible children in each private
school with the funds generated by children from low-income families
under Sec. 200.78 who attend that private school.
(b) Services on an equitable basis. (1) The services that an LEA
provides to eligible private school children must be equitable in
comparison to the services and other benefits that the LEA provides to
public school children participating under subpart A of this part.
(2) Services are equitable if the LEA--
(i) Addresses and assesses the specific needs and educational
progress of eligible private school children on a comparable basis as
public school children;
(ii) Meets the equal expenditure requirements under paragraph (a)
of section; and
(iii) Provides private school children with an opportunity to
participate that--
(A) Is equitable to the opportunity provided to public school
children; and
(B) Provides reasonable promise of the private school children
achieving the high levels called for by the State's student academic
achievement standards or equivalent standards applicable to the private
school children.
(3)(i) The LEA may provide services to eligible private school
children either directly or through arrangements with another LEA or a
third-party provider.
(ii) If the LEA contracts with a third-party provider--
(A) The provider must be independent of the private school and of
any religious organization; and
(B) The contract must be under the control and supervision of the
LEA.
(4) After timely and meaningful consultation under Sec. 200.63,
the LEA must make the final decisions with respect to the services it
will provide to eligible private school children.
(Authority: 20 U.S.C. 6320)
36. Revise Sec. 200.65 and place it under the undesignated center
heading ``Participation of Eligible Children in Private Schools'' in
subpart A of part 200 to read as follows:
Sec. 200.65 Determining equitable participation of teachers and
families of participating private school children.
(a)(1) From applicable funds reserved for parent involvement and
professional development under Sec. 200.77, an LEA shall ensure that
teachers and families of participating private school children
participate on an equitable basis in professional development and
parent involvement activities, respectively.
(2) The amount of funds available to provide equitable services
from the applicable reserved funds must be proportionate to the number
of private school children from low-income families residing in
participating public school attendance areas.
(b) After consultation with appropriate officials of the private
schools, the LEA must conduct professional development and parent
involvement activities for the teachers and families of participating
private school children either--
(1) In conjunction with the LEA's professional development and
parent involvement activities; or
(2) Independently.
(c) Private school teachers are not covered by the requirements in
Sec. 200.56.
(Authority: 20 U.S.C. 6320(a))
37. Add new Sec. Sec. 200.66 and 200.67 and place them under the
undesignated center heading ``Participation of Eligible Children in
Private Schools'' in subpart A of part 200 to read as follows:
Sec. 200.66 Requirements to ensure that funds do not benefit a
private school.
(a) An LEA must use funds under subpart A of this part to provide
services that supplement, and in no case supplant, the services that
would, in the absence of Title I services, be available to
participating private school children.
(b)(1) The LEA must use funds under subpart A of this part to meet
the special educational needs of participating private school children.
(2) The LEA may not use funds under subpart A of this part for--
(i) The needs of the private school; or
(ii) The general needs of children in the private school.
(Authority: 20 U.S.C. 6320(a), 6321(b))
Sec. 200.67 Requirements concerning property, equipment, and supplies
for the benefit of private school children.
(a) The LEA must keep title to and exercise continuing
administrative control of all property, equipment, and supplies that
the LEA acquires with funds under subpart A of this part for the
benefit of eligible private school children.
(b) The LEA may place equipment and supplies in a private school
for the period of time needed for the program.
(c) The LEA must ensure that the equipment and supplies placed in a
private school--
(1) Are used only for Title I purposes; and
(2) Can be removed from the private school without remodeling the
private school facility.
(d) The LEA must remove equipment and supplies from a private
school if--
(1) The LEA no longer needs the equipment and supplies to provide
Title I services; or
(2) Removal is necessary to avoid unauthorized use of the equipment
or supplies for other than Title I purposes.
(e) The LEA may not use funds under subpart A of this part for
repairs, minor remodeling, or construction of private school
facilities.
(Authority: 20 U.S.C. 6320(d))
38. Place reserved Sec. Sec. 200.68 and 200.69 under the
undesignated center heading ``Participation of Eligible Children in
Private Schools'' in subpart A of part 200.
39. Add a new undesignated center heading to subpart A of part 200
and place it after reserved Sec. 200.69 to read as follows:
Allocations To LEAS
40. Add new Sec. Sec. 200.70 through 200.75 and place them under
the undesignated center heading ``Allocations to LEAs'' in subpart A of
part 200 to read as follows:
Sec. 200.70 Allocation of funds to LEAs in general.
(a) The Secretary allocates basic grants, concentration grants,
targeted grants, and education finance incentive grants, through SEAs,
to each eligible LEA for which the Bureau of the Census has provided
data on the number of children from low-income families residing in the
school attendance areas
[[Page 71734]]
of the LEA (hereinafter referred to as the ``Census list'').
(b) In establishing eligibility and allocating funds under
paragraph (a) of this section, the Secretary counts children ages 5 to
17, inclusive (hereinafter referred to as ``formula children'')--
(1) From families below the poverty level based on the most recent
satisfactory data available from the Bureau of the Census;
(2) From families above the poverty level receiving assistance
under the Temporary Assistance for Needy Families program under Title
IV of the Social Security Act;
(3) Being supported in foster homes with public funds; and
(4) Residing in local institutions for neglected children.
(c) Except as provided in Sec. Sec. 200.72, 200.75, and 200.100,
an SEA may not change the Secretary's allocation to any LEA that serves
an area with a total census population of at least 20,000 persons.
(d) In accordance with Sec. 200.74, an SEA may use an alternative
method, approved by the Secretary, to distribute the State's share of
basic grants, concentration grants, targeted grants, and education
finance incentive grants to LEAs that serve an area with a total census
population of less than 20,000 persons.
(Approved by the Office of Management and Budget under control
numbers 1810-0620 and 1810-0622)
(Authority: 20 U.S.C. 6333-6337)
Sec. 200.71 LEA eligibility.
(a) Basic grants. An LEA is eligible for a basic grant if the
number of formula children is--
(1) At least 10; and
(2) Greater than two percent of the LEA's total population ages 5
to 17 years, inclusive.
(b) Concentration grants. An LEA is eligible for a concentration
grant if--
(1) The LEA is eligible for a basic grant under paragraph (a) of
this section; and
(2) The number of formula children exceeds--
(i) 6,500; or
(ii) 15 percent of the LEA's total population ages 5 to 17 years,
inclusive.
(c) Targeted grants. An LEA is eligible for a targeted grant if the
number of formula children is--
(1) At least 10; and
(2) At least five percent of the LEA's total population ages 5 to
17 years, inclusive.
(d) Education finance incentive grants. An LEA is eligible for an
education finance incentive grant if the number of formula children
is--
(1) At least 10; and
(2) At least five percent of the LEA's total population ages 5 to
17 years, inclusive.
(Approved by the Office of Management and Budget under control
numbers 1810-0620 and 1810-0622)
(Authority: 20 U.S.C. 6333-6337)
Sec. 200.72 Procedures for adjusting allocations determined by the
Secretary to account for eligible LEAs not on the Census list.
(a) General. For each LEA not on the Census list (hereinafter
referred to as a ``new'' LEA), an SEA must determine the number of
formula children and the number of children ages 5 to 17, inclusive, in
that LEA.
(b) Determining LEA eligibility. An SEA must determine basic grant,
concentration grant, targeted grant, and education finance incentive
grant eligibility for each new LEA and re-determine eligibility for the
LEAs on the Census list, as appropriate, based on the number of formula
children and children ages 5 to 17, inclusive, determined in paragraph
(a) of this section.
(c) Adjusting LEA allocations. An SEA must adjust the LEA
allocations calculated by the Secretary to determine allocations for
eligible new LEAs based on the number of formula children determined in
paragraph (a) of this section.
(Approved by the Office of Management and Budget under control
numbers 1810-0620 and 1810-0622)
(Authority: 20 U.S.C. 6333-6337)
Sec. 200.73 Applicable hold-harmless provisions.
(a) General. (1) Except as authorized under paragraph (c) of this
section and Sec. 200.100(d)(2), an SEA may not reduce the allocation
of an eligible LEA below the hold-harmless amounts established under
paragraph (a)(4) of this section.
(2) The hold-harmless protection limits the maximum reduction of an
LEA's allocation compared to the LEA's allocation for the preceding
year.
(3) Except as provided in Sec. 200.100(d), an SEA must apply the
hold-harmless requirement separately for basic grants, concentration
grants, targeted grants, and education finance incentive grants as
described in paragraph (a)(4) of this section.
(4) Under section 1122(c) of the ESEA, the hold-harmless percentage
varies based on the LEA's proportion of formula children, as shown in
the following table:
------------------------------------------------------------------------
LEA's number of formula
children ages 5 to 17,
inclusive, as a percentage of Hold-harmless Applicable grant
its total population of percentage formulas
children ages 5 to 17,
inclusive
------------------------------------------------------------------------
(i) 30% or more................ 95 Basic Grants,
(ii) 15% or more but less than 90 Concentration Grants,
30%. 85 Targeted Grants, and
(iii) Less than 15%............ Education Finance
Incentive Grants.
------------------------------------------------------------------------
(b) Targeted grants and education finance incentive grants. The
number of formula children used to determine the hold-harmless
percentage is the number before applying the weights described in
section 1125 and section 1125A of the ESEA.
(c) Adjustment for insufficient funds. If the amounts made
available to the State are insufficient to pay the full amount that
each LEA is eligible to receive under paragraph (a)(4) of this section,
the SEA must ratably reduce the allocations for all LEAs in the State
to the amount available.
(d) Eligibility for hold-harmless protection. (1) An LEA must meet
the eligibility requirements for a basic grant, targeted grant, or
education finance incentive grant under Sec. 200.71 in order for the
applicable hold-harmless provision to apply.
(2) An LEA not meeting the eligibility requirements for a
concentration grant under Sec. 200.71 must be paid its hold-harmless
amount for four consecutive years.
(Approved by the Office of Management and Budget under control
numbers 1810-0620 and 1810-0622)
(Authority: 20 U.S.C. 6332(c))
Sec. 200.74 Use of an alternative method to distribute grants to LEAs
with fewer than 20,000 total residents.
(a) For eligible LEAs serving an area with a total census
population of less than 20,000 persons (hereinafter
[[Page 71735]]
referred to as ``small LEAs''), an SEA may apply to the Secretary to
use an alternative method to distribute basic grant, concentration
grant, targeted grant, and education finance incentive grant funds.
(b) In its application, the SEA must--
(1) Identify the alternative data it proposes to use; and
(2) Assure that it has established a procedure through which a
small LEA that is dissatisfied with the determination of its grant may
appeal directly to the Secretary.
(c) The SEA must base its alternative method on population data
that best reflect the current distribution of children from low-income
families among the State's small LEAs and use the same poverty measure
consistently for small LEAs across the State for all Title I, part A
programs.
(d) Based on the alternative poverty data selected, the SEA must--
(1) Re-determine eligibility of its small LEAs for basic grants,
concentration grants, targeted grants, and education finance incentive
grants in accordance with Sec. 200.71;
(2) Calculate allocations for small LEAs in accordance with the
provisions of sections 1124, 1124A, 1125, and 1125A of the ESEA, as
applicable; and
(3) Ensure that each LEA receives the hold-harmless amount to which
it is entitled under Sec. 200.73.
(e) The amount of funds available for redistribution under each
formula is the separate amount determined by the Secretary under
sections 1124, 1124A, 1125, and 1125A of the ESEA for eligible small
LEAs after the SEA has made the adjustments required under Sec.
200.72(c).
(f) If the amount available for redistribution to small LEAs under
an alternative method is not sufficient to satisfy applicable hold-
harmless requirements, the SEA must ratably reduce all eligible small
LEAs to the amount available.
(Approved by the Office of Management and Budget under control
numbers 1810-0620 and 1810-0622)
(Authority: 20 U.S.C. 6333-6337)
Sec. 200.75 Special procedures for allocating concentration grant
funds in small States.
(a) In a State in which the number of formula children is less than
0.25 percent of the national total on January 8, 2002 (hereinafter
referred to as a ``small State''), an SEA may either--
(1) Allocate concentration grants among eligible LEAs in the State
in accordance with Sec. Sec. 200.72 through 200.74, as applicable; or
(2) Without regard to the allocations determined by the Secretary--
(i) Identify those LEAs in which the number or percentage of
formula children exceeds the statewide average number or percentage of
those children; and
(ii) Allocate concentration grant funds, consistent with Sec.
200.73, among the LEAs identified in paragraph (a)(2)(i) of this
section based on the number of formula children in each of those LEAs.
(b) If the SEA in a small State uses an alternative method under
Sec. 200.74, the SEA must use the poverty data approved under the
alternative method to identify those LEAs with numbers or percentages
of formula children that exceed the statewide average number or
percentage of those children for the State as a whole.
(Approved by the Office of Management and Budget under control
numbers 1810-0620 and 1810-0622)
(Authority: 20 U.S.C. 6334(b))
41. Add and reserve new Sec. 200.76 and place it under the revised
undesignated center heading ``Allocations to LEAs'' in subpart A of
part 200.
42. Add a new undesignated center heading to subpart A of part 200
and place it after Sec. 200.76 to read as follows:
Procedures for the Within-District Allocation of LEA Program Funds
43. Add new Sec. Sec. 200.77 and 200.78 and place them under the
undesignated center heading ``Procedures for the Within-District
Allocation of LEA Program Funds'' in subpart A of part 200 to read as
follows:
Sec. 200.77 Reservation of funds by an LEA.
Before allocating funds in accordance with Sec. 200.78, an LEA
must reserve funds as are reasonable and necessary to--
(a) Provide services comparable to those provided to children in
participating school attendance areas and schools to serve--
(1) Homeless children who do not attend participating schools,
including providing educationally related support services to children
in shelters and other locations where homeless children may live;
(2) Children in local institutions for neglected children; and
(3) If appropriate--
(i) Children in local institutions for delinquent children; and
(ii) Neglected and delinquent children in community-day school
programs;
(b) Provide, where appropriate under section 1113(c)(4) of the
ESEA, financial incentives and rewards to teachers who serve students
in Title I schools identified for school improvement, corrective
action, and restructuring for the purpose of attracting and retaining
qualified and effective teachers;
(c) Meet the requirements for choice-related transportation and
supplemental educational services in Sec. 200.48, unless the LEA meets
these requirements with non-Title I funds;
(d) Address the professional development needs of instructional
staff, including--
(1) Professional development requirements under Sec.
200.52(a)(3)(iii) if the LEA has been identified for improvement or
corrective action; and
(2) Professional development expenditure requirements under Sec.
200.60;
(e) Meet the requirements for parental involvement in section
1118(a)(3) of the ESEA;
(f) Administer programs for public and private school children
under this part, including special capital expenses, if any, incurred
in providing services to eligible private school children, such as--
(1) The purchase and lease of real and personal property (including
mobile educational units and neutral sites);
(2) Insurance and maintenance costs;
(3) Transportation; and
(4) Other comparable goods and services, including non-
instructional computer technicians; and
(g) Conduct other authorized activities, such as school improvement
and coordinated services.
(Authority: 20 U.S.C. 6313(c)(3) and (4), 6316(b)(10), (c)(7)(iii),
6318(a)(3), 6319(l), 6320, 7279d)
Sec. 200.78 Allocation of funds to school attendance areas and
schools.
(a)(1) An LEA must allocate funds under subpart A of this part to
school attendance areas and schools, identified as eligible and
selected to participate under section 1113(a) or (b) of the ESEA, in
rank order on the basis of the total number of children from low-income
families in each area or school.
(2)(i) In calculating the total number of children from low-income
families, the LEA must include children from low-income families who
attend private schools.
(ii) To obtain a count of private school children, the LEA may--
(A) Use the same poverty data the LEA uses to count public school
children;
(B)(1) Use comparable poverty data from a survey of families of
private school students that, to the extent possible, protects the
families' identity; and
[[Page 71736]]
(2) Extrapolate data from the survey based on a representative
sample if complete actual data are unavailable;
(C) Use comparable poverty data from a different source, such as
scholarship applications;
(D) Apply the low-income percentage of each participating public
school attendance area to the number of private school children who
reside in that school attendance area; or
(E) Use an equated measure of low income correlated with the
measure of low income used to count public school children.
(iii) An LEA may count private school children from low-income
families every year or every two years.
(iv) After timely and meaningful consultation in accordance with
Sec. 200.63, the LEA shall have the final authority in determining the
method used to calculate the number of private school children from
low-income families;
(3) If an LEA ranks its school attendance areas and schools by
grade span groupings, the LEA may determine the percentage of children
from low-income families in the LEA as a whole or for each grade span
grouping.
(b)(1) Except as provided in paragraphs (b)(2) and (d) of this
section, an LEA must allocate to each participating school attendance
area or school an amount for each low-income child that is at least 125
percent of the per-pupil amount of funds the LEA received for that year
under part A, subpart 2 of Title I. The LEA must calculate this per-
pupil amount before it reserves funds under Sec. 200.77, using the
poverty measure selected by the LEA under section 1113(a)(5) of the
ESEA.
(2) If an LEA is serving only school attendance areas or schools in
which the percentage of children from low-income families is 35 percent
or more, the LEA is not required to allocate a per-pupil amount of at
least 125 percent.
(c) An LEA is not required to allocate the same per-pupil amount to
each participating school attendance area or school provided the LEA
allocates higher per-pupil amounts to areas or schools with higher
concentrations of poverty than to areas or schools with lower
concentrations of poverty.
(d) An LEA may reduce the amount of funds allocated under this
section to a school attendance area or school if the area or school is
spending supplemental State or local funds for programs that meet the
requirements in Sec. 200.79(b).
(e) If an LEA contains two or more counties in their entirety, the
LEA must distribute to schools within each county a share of the LEA's
total grant that is no less than the county's share of the child count
used to calculate the LEA's grant.
(Authority: 20 U.S.C. 6313(c), 6320(a) and (c)(1), 6333(c)(2))
44. Add a new undesignated center heading to subpart A of part 200
and place it after new Sec. 200.78 to read as follows:
Fiscal Requirements
45. Add new Sec. 200.79 and place it under the new undesignated
center heading ``Fiscal Requirements'' in subpart A of part 200 to read
as follows:
Sec. 200.79 Exclusion of supplemental State and local funds from
supplement, not supplant and comparability determinations.
(a) For the purpose of determining compliance with the supplement
not supplant requirement in section 1120A(b) and the comparability
requirement in section 1120A(c) of the ESEA, a grantee or subgrantee
under subpart A of this part may exclude supplemental State and local
funds spent in any school attendance area or school for programs that
meet the intent and purposes of Title I.
(b) A program meets the intent and purposes of Title I if the
program either--
(1)(i) Is implemented in a school in which the percentage of
children from low-income families is at least 40 percent;
(ii) Is designed to promote schoolwide reform and upgrade the
entire educational operation of the school to support students in their
achievement toward meeting the State's challenging academic achievement
standards that all students are expected to meet;
(iii) Is designed to meet the educational needs of all students in
the school, particularly the needs of students who are failing, or most
at risk of failing, to meet the State's challenging student academic
achievement standards; and
(iv) Uses the State's assessment system under Sec. 200.2 to review
the effectiveness of the program; or
(2)(i) Serves only students who are failing, or most at risk of
failing, to meet the State's challenging student academic achievement
standards;
(ii) Provides supplementary services designed to meet the special
educational needs of the students who are participating in the program
to support their achievement toward meeting the State's student
academic achievement standards; and
(iii) Uses the State's assessment system under Sec. 200.2 to
review the effectiveness of the program.
(c) The conditions in paragraph (b) of this section also apply to
supplemental State and local funds expended under section 1113(b)(1)(D)
and 1113(c)(2)(B) of the ESEA.
(Authority: 20 U.S.C. 6321(b)-(d))
46. Revise subpart B of part 200 to read as follows:
Subpart B--Even Start Family Literacy Programs
Sec.
200.80 Migrant Education Even Start Program definition.
Subpart B--Even Start Family Literacy Programs
Sec. 200.80 Migrant Education Even Start Program definition.
Eligible participants under the Migrant Education Even Start
Program (MEES) must meet the definitions of a migratory child, a
migratory agricultural worker, or a migratory fisher in Sec. 200.81.
(Authority: 20 U.S.C. 6381a and 20 U.S.C. 6399)
47. Revise subpart C of part 200 to read as follows:
Subpart C--Migrant Education Program
Sec.
200.81 Program definitions.
200.82 Use of program funds for unique program function costs.
200.83 Responsibilities of SEAs to implement projects through a
comprehensive needs assessment and a comprehensive State plan for
service delivery.
200.84 Responsibilities of SEAs for evaluating the effectiveness of
the MEP.
200.85 Responsibilities of SEAs and operating agencies for improving
services to migratory children.
200.86 Use of MEP funds in schoolwide projects.
200.87 Responsibilities for participation of children in private
schools.
200.88 Exclusion of supplemental State and local funds from
supplement, not supplant and comparability determinations.
200.89 [Reserved]
Subpart C--Migrant Education Program
Sec. 200.81 Program definitions.
The following definitions apply to programs and projects operated
under subpart C of this part:
(a) Agricultural activity means--
(1) Any activity directly related to the production or processing
of crops, dairy products, poultry or livestock for initial commercial
sale or personal subsistence;
(2) Any activity directly related to the cultivation or harvesting
of trees; or
(3) Any activity directly related to fish farms.
(b) Fishing activity means any activity directly related to the
catching or
[[Page 71737]]
processing of fish or shellfish for initial commercial sale or personal
subsistence.
(c) Migratory agricultural worker means a person who, in the
preceding 36 months, has moved from one school district to another, or
from one administrative area to another within a State that is
comprised of a single school district, in order to obtain temporary or
seasonal employment in agricultural activities (including dairy work)
as a principal means of livelihood.
(d) Migratory child means a child who is, or whose parent, spouse,
or guardian is, a migratory agricultural worker, including a migratory
dairy worker, or a migratory fisher, and who, in the preceding 36
months, in order to obtain, or accompany such parent, spouse, guardian
in order to obtain, temporary or seasonal employment in agricultural or
fishing work--
(1) Has moved from one school district to another;
(2) In a State that is comprised of a single school district, has
moved from one administrative area to another within such district; or
(3) Resides in a school district of more than 15,000 square miles,
and migrates a distance of 20 miles or more to a temporary residence to
engage in a fishing activity.
(e) Migratory fisher means a person who, in the preceding 36
months, has moved from one school district to another, or from one
administrative area to another within a State that is comprised of a
single school district, in order to obtain temporary or seasonal
employment in fishing activities as a principal means of livelihood.
This definition also includes a person who, in the preceding 36 months,
resided in a school district of more than 15,000 square miles, and
moved a distance of 20 miles or more to a temporary residence to engage
in a fishing activity as a principal means of livelihood.
(f) Principal means of livelihood means that temporary or seasonal
agricultural or fishing activity plays an important part in providing a
living for the worker and his or her family.
(Authority: 20 U.S.C. 6391-6399, 6571)
Sec. 200.82 Use of program funds for unique program function costs.
An SEA may use the funds available from its State Migrant Education
Program (MEP) to carry out other administrative activities, beyond
those allowable under Sec. 200.101, that are unique to the MEP,
including those that are the same or similar to administrative
activities performed by LEAs in the State under subpart A of this part.
These activities include but are not limited to--
(a) Statewide identification and recruitment of eligible migratory
children;
(b) Interstate and intrastate coordination of the State MEP and its
local projects with other relevant programs and local projects in the
State and in other States;
(c) Procedures for providing for educational continuity for
migratory children through the timely transfer of educational and
health records, beyond that required generally by State and local
agencies;
(d) Collecting and using information for accurate distribution of
subgrant funds;
(e) Development of a statewide needs assessment and a comprehensive
State plan for MEP service delivery;
(f) Supervision of instructional and support staff;
(g) Establishment and implementation of a State parent advisory
council; and
(h) Conducting an evaluation of the effectiveness of the State MEP.
(Authority: 20 U.S.C. 6392, 6571)
Sec. 200.83 Responsibilities of SEAs to implement projects through a
comprehensive needs assessment and a comprehensive State plan for
service delivery.
(a) An SEA that receives a grant of MEP funds must develop and
update a written comprehensive State plan (based on a current statewide
needs assessment) that, at a minimum, has the following components:
(1) Performance targets. The plan must specify--
(i) Performance targets that the State has adopted for all children
in reading and mathematics achievement, high school graduation, and the
number of school dropouts, as well as the State's performance targets,
if any, for school readiness; and
(ii) Any other performance targets that the State has identified
for migratory children.
(2) Needs assessment. The plan must include an identification and
assessment of--
(i) The unique educational needs of migratory children that result
from the children's migratory lifestyle; and
(ii) Other needs of migratory students that must be met in order
for migratory children to participate effectively in school.
(3) Service delivery. The plan must describe the strategies that
the SEA will pursue on a statewide basis to achieve the performance
targets in paragraph (a)(1) of this section by addressing--
(i) The unique educational needs of migratory children consistent
with paragraph (a)(2)(i) of this section; and
(ii) Other needs of migratory children consistent with paragraph
(a)(2)(ii) of this section.
(4) Evaluation. The plan must describe how the State will evaluate
the effectiveness of its program.
(b) The SEA must develop its comprehensive State plan in
consultation with the State parent advisory council or, for SEAs not
operating programs for one school year in duration, in consultation
with the parents of migratory children. This consultation must be in a
format and language that the parents understand.
(c) Each SEA receiving MEP funds must ensure that its local
operating agencies comply with the comprehensive State plan.
(Approved by the Office of Management and Budget under control
number 1810-0659)
(Authority: 20 U.S.C. 6396)
Sec. 200.84 Responsibilities of SEAs for evaluating the effectiveness
of the MEP.
Each SEA must determine the effectiveness of its program through a
written evaluation that measures the implementation and results
achieved by the program against the State's performance targets in
Sec. 200.83(a)(1), particularly for those students who have priority
for service as defined in section 1304(d) of the ESEA.
(Approved by the Office of Management and Budget under control
number 1810-0659)
(Authority: 20 U.S.C. 6394)
Sec. 200.85 Responsibilities of SEAs and operating agencies for
improving services to migratory children.
While the specific school improvement requirements of section 1116
of the ESEA do not apply to the MEP, SEAs and local operating agencies
receiving MEP funds must use the results of the evaluation carried out
under Sec. 200.84 to improve the services provided to migratory
children.
(Authority: 20 U.S.C. 6394)
Sec. 200.86 Use of MEP funds in schoolwide projects.
Funds available under part C of Title I of the ESEA may be used in
a schoolwide program subject to the requirements of Sec.
200.28(c)(3)(i).
(Authority: 20 U.S.C. 6396)
Sec. 200.87 Responsibilities for participation of children in private
schools.
An SEA and its operating agencies must conduct programs and
projects under subpart C of this part in a manner consistent with the
basic requirements of section 9501 of the ESEA.
[[Page 71738]]
(Authority: 20 U.S.C. 6394)
Sec. 200.88 Exclusion of supplemental State and local funds from
supplement, not supplant and comparability determinations.
(a) For purposes of determining compliance with the comparability
requirement in section 1120A(c) and the supplement, not supplant
requirement in section 1120A(b) of the ESEA, a grantee or subgrantee
under part C of Title I may exclude supplemental State and local funds
expended in any school attendance area or school for carrying out
special programs that meet the intent and purposes of part C of Title
I.
(b) Before funds for a State and local program may be excluded for
purposes of these requirements, the SEA must make an advance written
determination that the program meets the intent and purposes of part C
of Title I.
(c) A program meets the intent and purposes of part C of Title I if
it meets the following requirements:
(1) The program is specifically designed to meet the unique
educational needs of migratory children, as defined in section 1309 of
the ESEA.
(2) The program is based on performance targets related to
educational achievement that are similar to those used in programs
funded under part C of Title I of the ESEA, and is evaluated in a
manner consistent with those program targets.
(3) The grantee or subgrantee keeps, and provides access to,
records that ensure the correctness and verification of these
requirements.
(4) The grantee monitors program performance to ensure that these
requirements are met.
(Approved by the Office of Management and Budget under control
number 1810-0659)
(Authority 20 U.S.C. 6321(d))
Sec. 200.89 [Reserved]
48. Revise subpart D of part 200 to read as follows:
Subpart D--Prevention and Intervention Programs for Children and Youth
Who are Neglected, Delinquent, or At-Risk of Dropping Out
Sec.
200.90 Program definitions.
200.91 SEA counts of eligible children.
200.92-200.99 [Reserved]
Subpart D--Prevention and Intervention Programs for Children and
Youth Who are Neglected, Delinquent, or At-Risk of Dropping Out
Sec. 200.90 Program definitions.
(a) The following definitions apply to the programs authorized in
part D, subparts 1 and 2 of Title I of the ESEA:
Children and youth means the same as ``children'' as that term is
defined in Sec. 200.103(a).
(b) The following definitions apply to the programs authorized in
part D, subpart 1 of Title I of the ESEA:
Institution for delinquent children and youth means, as determined
by the SEA, a public or private residential facility that is operated
primarily for the care of children and youth who--
(1) Have been adjudicated to be delinquent or in need of
supervision; and
(2) Have had an average length of stay in the institution of at
least 30 days.
Institution for neglected children and youth means, as determined
by the SEA, a public or private residential facility, other than a
foster home, that is operated primarily for the care of children and
youth who--
(1) Have been committed to the institution or voluntarily placed in
the institution under applicable State law due to abandonment, neglect,
or death of their parents or guardians; and
(2) Have had an average length of stay in the institution of at
least 30 days.
Regular program of instruction means an educational program (not
beyond grade 12) in an institution or a community day program for
neglected or delinquent children that consists of classroom instruction
in basic school subjects such as reading, mathematics, and vocationally
oriented subjects, and that is supported by non-Federal funds. Neither
the manufacture of goods within the institution nor activities related
to institutional maintenance are considered classroom instruction.
(c) The following definitions apply to the local agency program
authorized in part D, subpart 2 of Title I of the ESEA:
Immigrant children and youth and limited English proficiency have
the same meanings as the term ``immigrant children'' is defined in
section 3301 of the ESEA and the term ``limited English proficient'' is
defined in section 9101 of the ESEA, except that the terms
``individual'' and ``children and youth'' used in those definitions
mean ``children and youth'' as defined in this section.
Locally operated correctional facility means a facility in which
persons are confined as a result of a conviction for a criminal
offense, including persons under 21 years of age. The term also
includes a local public or private institution and community day
program or school not operated by the State that serves delinquent
children and youth.
Migrant youth means the same as ``migratory child'' as that term is
defined in Sec. 200.81(d).
(Authority: 20 U.S.C. 6432, 6454, 6472, 7801)
Sec. 200.91 SEA counts of eligible children.
To receive an allocation under part D, subpart 1 of Title I of the
ESEA, an SEA must provide the Secretary with a count of children and
youth under the age of 21 enrolled in a regular program of instruction
operated or supported by State agencies in institutions or community
day programs for neglected or delinquent children and youth and adult
correctional institutions as specified in paragraphs (a) and (b) of
this section.
(a) Enrollment. (1) To be counted, a child or youth must be
enrolled in a regular program of instruction for at least--
(i) 20 hours per week if in an institution or community day program
for neglected or delinquent children; or
(ii) 15 hours per week if in an adult correctional institution.
(2) The State agency must specify the date on which the enrollment
of neglected or delinquent children is determined under paragraph
(a)(1) of this section, except that the date specified must be--
(i) Consistent for all institutions or community day programs
operated by the State agency; and
(ii) Represent a school day in the calendar year preceding the year
in which funds become available.
(b) Adjustment of enrollment. The SEA must adjust the enrollment
for each institution or community day program served by a State agency
by--
(1) Multiplying the number determined in paragraph (a) of this
section by the number of days per year the regular program of
instruction operates; and
(2) Dividing the result of paragraph (b)(1) of this section by 180.
(c) Date of submission. The SEA must annually submit the data in
paragraph (b) of this section no later than January 31.
(Approved by the Office of Management and Budget under control
number 1810-0060)
(Authority: 20 U.S.C. 6432)
Sec. Sec. 200.92-200.99 [Reserved]
49. Revise subpart E of part 200 to read as follows:
Subpart E--General Provisions
Sec.
200.100 Reservation of funds for school improvement, State
administration, and the State academic achievement awards program.
200.101-200.102 [Reserved]
200.103 Definitions.
200.104-200.109 [Reserved]
[[Page 71739]]
Subpart E--General Provisions
Sec. 200.100 Reservation of funds for school improvement, State
administration, and the State academic achievement awards program.
A State must reserve funds for school improvement, State
administration, and State academic achievement awards as follows:
(a) School improvement. (1) To carry out school improvement
activities authorized under sections 1116 and 1117 of the ESEA, an SEA
must first reserve--
(i) Two percent from the sum of the amounts allocated to the State
under section 1002(a) of the ESEA for fiscal years 2002 and 2003; and
(ii) Four percent from the sum of the amounts allocated to the
State under section 1002(a) of the ESEA for fiscal year 2004 and
succeeding years.
(2) In reserving funds under paragraph (a)(1) of this section, a
State may not reduce the sum of the allocations an LEA receives under
section 1002(a) of the ESEA below the sum of the allocations the LEA
received under section 1002(a) for the preceding fiscal year.
(3) If funds under section 1002(a) are insufficient in a given
fiscal year to implement both paragraphs (a)(1) and (2) of this
section, a State is not required to reserve the full amount required
under paragraph (a)(1) of this section.
(b) State administration. (1) An SEA may reserve for State
administrative activities authorized in sections 1004 and 1903 of the
ESEA no more than the greater of--
(i) One percent from each of the amounts allocated to the State or
Outlying Area under section 1002(a), (c), and (d) of the ESEA; or
(ii) $400,000 ($50,000 for the Outlying Areas).
(2)(i) An SEA reserving $400,000 under paragraph (b)(1)(ii) of this
section must reserve proportionate amounts from each of the amounts
allocated to the State or Outlying Area under section 1002(a), but is
not required to reserve proportionate amounts from section 1002(a),
(c), and (d) of the ESEA.
(ii) If an SEA reserves funds from the amounts allocated to the
State or Outlying Area under section 1002(c) or (d) of the ESEA, the
SEA may not reserve from those allocations more than the amount the SEA
would have reserved if it had reserved proportionate amounts from
section 1002(a), (c), and (d) of the ESEA.
(3) If the sum of the amounts allocated to all the States under
section 1002(a), (c), and (d) of the ESEA is greater than
$14,000,000,000, an SEA may not reserve more than one percent of the
amount the State would receive if $14,000,000,000 had been allocated
among the States under section 1002(a), (c), and (d) of the ESEA.
(4) An SEA may use the funds it has reserved under paragraph (b) of
this section to perform general administrative activities necessary to
carry out, at the State level, any of the programs authorized under
Title I, parts A, C, and D of the ESEA.
(c) State academic achievement awards program. To operate the State
academic achievement awards program authorized under section 1117(b)(1)
and (c)(2)(A) of the ESEA, an SEA may reserve up to five percent of the
excess amount the State receives under section 1002(a) of the ESEA when
compared to the amount the State received under section 1002(a) of the
ESEA in the preceding fiscal year.
(d) Reservations and hold-harmless. In reserving funds under
paragraphs (b) and (c) of this section, an SEA may--
(1) Proportionately reduce each LEA's total allocation received
under section 1002(a) of the ESEA while ensuring that no LEA receives
in total less than the hold-harmless percentage under Sec.
200.73(a)(4), except that, when the amount remaining is insufficient to
pay all LEAs the hold-harmless amount provided in Sec. 200.73, the SEA
shall ratably reduce each LEA's hold-harmless allocation to the amount
available; or
(2) Proportionately reduce each LEA's total allocation received
under section 1002(a) of the ESEA even if an LEA's total allocation
falls below its hold-harmless percentage under Sec. 200.74(a)(3).
(Approved by the Office of Management and Budget under control
numbers 1810-0620 and 1810-0622)
(Authority: 20 U.S.C. 6303, 6304, 6317(c)(2)(A))
Sec. Sec. 200.101--200.102 [Reserved]
Sec. 200.103 Definitions.
The following definitions apply to programs operated under this
part:
(a) Children means--
(1) Persons up through age 21 who are entitled to a free public
education through grade 12; and
(2) Preschool children below the age and grade level at which the
agency provides free public education.
(b) Fiscal year means the Federal fiscal year--a period beginning
on October 1 and ending on the following September 30--or another 12-
month period normally used by the SEA for record-keeping.
(Authority: 20 U.S.C. 6315, 6571)
Sec. Sec. 200.104--200.109 [Reserved]
Appendix--Analysis of Comments and Changes
(Note: This appendix will not be codified in the Code of Federal
Regulations)
Section 200.11 Participation In NAEP
Comment: One commenter recommended that the language requiring LEAs
receiving Title I funds to participate in State-NAEP assessments be
strengthened by specifying an expected participation rate for States
and LEAs. The commenter further requested additional language that
would describe allowable extenuating circumstances that would excuse
schools from participating in the State NAEP assessments.
Discussion: Section 1112(b)(1)(F) of the ESEA requires that an LEA,
in its plan submitted to the State, provide an assurance that it will
participate, if selected, in NAEP. The statute is clear that all LEAs,
if selected, must participate. Therefore, the Secretary does not
believe that language concerning expected participation rates is
needed. The Secretary further believes that there will be few, if any,
extenuating circumstances that would excuse a school from participating
in the State-NAEP and will address any special circumstances on a case-
by-case basis.
Changes: None.
Comment: One commenter, while agreeing that participation of fourth
and eighth graders in NAEP testing in mathematics and reading is
appropriate, stated that the costs for administering those tests should
not be taken from a district's Title I allocation.
Discussion: Section 200.11 states that participation in the State
NAEP is mandatory, if the Department pays the costs of administering
those assessments.
Changes: None.
Comment: One commenter recommended clarifying that the criteria
used for selecting students to participate in NAEP reflect the student
population that the State tests for State assessment purposes and for
making determinations.
Discussion: Section 411(b)(2)of the National Education Statistics
Act of 1994 requires NAEP to ``use a random sampling process which is
consistent with relevant, widely accepted professional assessment
standards and that produces data that are representative on a national
and regional basis.''
Changes: None.
Comment: One commenter recommended adding language to
[[Page 71740]]
address the situation for rural schools with no fourth or eighth grade
students by stating that ``if the selected school has students in
fourth or eighth grade, the school is required to participate in
NAEP.''
Discussion: Since it would not be possible for a school to
participate in NAEP if it had no students enrolled at the grade(s)
tested, no further clarification is necessary.
Changes: None
Comment: One commenter stated that if NAEP results are to be valid
and accurate, a district may not be allowed to opt out of tests that
rely on sampling techniques. To reinforce this policy the commenter
recommended that the Department request Congress to make a technical
correction to the ESEA and statutorily modify the contradiction in
Sec. 602 of that Act, which amended Sec. 411(d)(1) of the National
Education Statistics Act of 1994. Another commenter, however,
recommended that Sec. 200.11 allow for voluntary participation in
NAEP, consistent with Sec. 1112(b)(1)(f) of the ESEA.
Discussion: The regulation clarifies that, if selected, an LEA that
receives funds under part A of Title I of the ESEA must participate in
NAEP notwithstanding the provisions of Sec. 411(d)(1) of the National
Education Statistics Act of 1994, which generally provides for
voluntary participation of LEAs.
Changes: None.
Comment: One commenter recommended clarification of the meaning of
``participate'' because an LEA could agree to participate, but all or
most of the selected schools in that LEA could refuse to participate.
The current NAEP guidelines require 85 percent participation of
selected schools if a State is to report State-level results.
Discussion: Additional clarification is not necessary because an
LEA cannot meet the NAEP participation requirement unless it requires
all schools selected to participate.
Changes: None.
Section 200.12 Single State Accountability System
Comment: One commenter suggested that States should be directed to
develop accountability systems that include multiple assessments that
measure higher-order thinking skills. The commenter's rationale was
that this would provide more valid and reliable student data.
Discussion: Section 1111(b)(3)(C)(vi) of the ESEA requires that
statewide assessments include multiple measures that assess higher-
order thinking skills and understanding. This requirement is clarified
in Sec. 200.2(b)(7) of the standards and assessment regulations
published on July 5, 2002 at 67FR 45038.
Changes: None.
Comment: One commenter suggested that the statutory requirements
for determining adequate yearly progress (AYP) be integrated into the
State's existing system of accountability. Furthermore, the commenter
expressed opposition to using different accountability measures in
different States.
Discussion: The Secretary agrees that the statutory and regulatory
provisions governing AYP must be integrated into a State's
accountability system. To comply with the NCLB Act, each State will
need to incorporate these requirements into its current accountability
system. The statute gives States flexibility to define achievement
standards, design assessments, and implement the accountability
provisions. The Secretary believes that these State responsibilities
will necessarily result in variation among State accountability
systems.
Changes: None.
Comment: One commenter expressed concerns that State accountability
systems will exclude homeless children.
Discussion: The statute and the regulations in Sec. 200.6(d)
require States to include homeless students in their assessment,
reporting, and accountability systems. However, the Secretary is aware
that the NCLB Act does not specifically identify homeless students as
one of the subgroups whose progress will be monitored in meeting the
2013-2014 proficiency goals. Nevertheless, these students are required
to be included in the accountability system. Schools and districts are
required to test all students, and high participation rates in
statewide assessments (i.e., 95 percent) are a condition of making AYP.
Furthermore, these students will be included in at least one subgroup--
the ``all student'' category--and schools will be accountable for
ensuring this group of students is proficient. To the extent that
homeless children are mobile, and many are, the regulations clarify
that students who have not been in a school for a full academic year
must be included in district accountability, or in State accountability
in those cases where students have been in multiple districts.
Changes: None.
Section 200.13 Adequate Yearly Progress in General
Comment: A number of commenters urged the Secretary to include
flexibility in the final regulations on to accommodate ``rigorous
models that States have already developed that may achieve the same
fundamental principles of the statute, although through different
approaches,'' as discussed in the preamble to the proposed regulations
and the Secretary's July 24, 2002 Dear Colleague letter. In particular,
commenters sought recognition of the validity of models that use
``growth trajectories,'' performance indices, or other ``value-added''
measures. Other commenters, however, strongly urged the Secretary to
ensure that any flexibility regarding the definition in the final
regulations does not go beyond the original intention of the ESEA.
Discussion: The NCLB Act included very specific, rigorous
requirements that States must implement to determine the AYP of each
public school, LEA, and the State itself. In preparing the final
regulations, the Secretary has faithfully implemented the statutory
provisions governing AYP addressing additional flexibility wherever
possible. The Secretary realizes that the accountability systems
currently in place in many States may not fully meet the statutory and
regulatory requirements. To meet the requirements in the ESEA and these
final regulations, a State may continue to use its current State
accountability system, consistent with the Secretary's July 24, 2002
Dear Colleague letter, if that system integrates AYP as defined in the
statute and regulations.
Changes: None.
Comment: One commenter requested clarification regarding the impact
of recent changes in the definitions of ethnic groups issued by the
Office of Management and Budget (OMB) on the requirement to ensure by
major racial and ethnic groups. Another commenter also suggested that
any changes in such definitions could hinder State efforts to collect
student level achievement data.
Discussion: The Department is developing guidance on the
implementation of OMB standards for data on multi-racial/ethnic groups
of individuals. Those standards will take effect for educational
agencies no sooner than the fall of 2004. Once the Department guidance
is issued, the Department plans to provide adequate lead-time for
educational agencies to make appropriate adjustments to their data
systems. Until that happens, educational agencies are under no
obligation to maintain, use, or report data under the OMB standards.
Although implementation of the new multi-racial data requirements must
await publication of guidance by the Department, the Secretary
encourages States to consider taking appropriate steps to implement
other provisions of
[[Page 71741]]
the OMB standards, such as separating Asians from Native Hawaiians and
Other Pacific Islanders.
Changes: None.
Comment: Several commenters strongly recommended that any alternate
assessment be based on the same State academic content standards used
for the regular assessments. The commenters believed that applying the
same standards to all children is the cornerstone of standards-based
education. Other commenters, however, supported alternate standards as
long as they are developed through a documented and validated process.
Additional commenters urged that any student prevented by a disability
from completing the regular assessment be permitted to take an
alternate assessment based on different standards, not just students
with ``the most significant cognitive disabilities.'' One commenter
expressed concern that requiring grade-level testing for students with
disabilities would be unfair both to individual students and to schools
enrolling such students.
Discussion: Too often in the past, schools and LEAs have not
expected students with disabilities to meet the same grade-level
standards as other students. The NCLB Act sought to correct this
problem by requiring each State to develop grade-level academic content
and achievement standards that it expects all students--including
students with disabilities--to meet, and by holding schools and LEAs
responsible for all students meeting those standards. If students with
disabilities cannot take a State's regular assessment, even with
accommodations, Sec. 200.6(a) of the final Title I regulations
published on July 5, 2002 at 67 FR 45038, 45041 required the State to
provide for one or more alternate assessments to measure those
students' achievement against the State's standards. Those final
regulations, however, did not clearly link those alternate assessments
to grade-level expectations. To make this link, the Secretary has
revised Sec. 200.6(a)(2)(ii) of the final regulations issued on July
5, 2002 to make clear that alternate assessments must yield results for
the grade in which a student with disabilities is enrolled. This change
is critical to ensure that students with disabilities are not excluded
from State accountability systems. This policy may be modified in the
future after public comment on the separate notice of proposed
rulemaking discussed in the preamble to these final regulations.
Changes: Section 200.6(a)(2)(ii) has been revised to make clear
that alternate assessments for students with disabilities who cannot
take the State's regular assessment must yield results for the grade in
which the student is enrolled.
Comment: Several commenters expressed concern that proposed Sec.
200.13(d) would create a ``loophole'' permitting arbitrary exclusion of
some schools from an SEA's regular assessment and accountability
system. The commenters noted in particular that widely differing
definitions of ``full academic year'' could lead to abuses of the
proposed regulations, and that the proposed regulations could be
manipulated to avoid assessment of certain students. One commenter
recommended clarifying that students attending a school for only part
of the academic year, but who are in an assessed grade and who have
attended schools in a single LEA for a full academic year, must be
assessed and counted in the calculation of AYP for the LEA.
Discussion: The intent behind the proposed regulation was to ensure
that schools in which no student attends for a full academic year are
held accountable. It was in no way intended to create a ``loophole''
that would permit certain students to not be assessed. In response to
these comments, this proposed regulation is removed. Instead, these
schools are governed by the final regulation in Sec. Sec. 200.20(e)
and 200.21(b): any student who is not in a school for a full academic
year but within a single district for a full academic year is included
in accountability for the LEA, and any student who attends schools
within several districts but within the same State for a full academic
year is included in determinations of State AYP. Schools in which no
student has attended for a full academic year would not be subject to
determinations of AYP; those students, however, would be assessed and
included, as discussed above, in decisions about LEA and State
progress.
Changes: Section 200.13(d) has been amended to remove the proposed
requirement that a State must establish a way to hold accountable
``schools whose purpose is to serve students for less than a full
academic year.''
Comment: Two commenters sought clarification of the types of
schools referred to in proposed Sec. 200.13(d)(1)(ii)--that is, those
whose purpose was to serve students for less than a full academic year.
In particular, one commenter expressed concern that the proposed
regulations might require an SEA to hold accountable schools not under
its jurisdiction, such as juvenile justice alternative education
programs.
Discussion: As discussed above, proposed Sec. 200.13(d)(1)(ii) has
been deleted. In accordance with Sec. 200.20(e)(2), to the extent that
a school serves students in a juvenile justice alternative education
program for less than a full academic year, the school would not be
held accountable for those students in determinations of AYP.
With respect to the issue of whether a State must hold accountable
schools not under the jurisdiction of the SEA, Sec. 200.13 of the
regulations, consistent with the statute, requires each State to
develop a single, statewide accountability system that will be
effective in ensuring that all LEAs, public elementary and public
secondary schools make AYP. The Department generally defers to the
State interpretation of what is a public elementary and secondary
school and an LEA, in accordance with State law. In a number of States,
juvenile justice alternative education programs are conducted in public
schools operated within school districts or other entities that are
LEAs under State law. In some States, the SEA has oversight
responsibility for juvenile justice alternative education programs, or
enters into an agreement with the State agency responsible for such
programs.
Changes: Section 200.13(d)(1)(ii) has been deleted.
Section 200.15 Timeline
Comment: Several commenters requested clarification of how changes
in assessment systems or AYP definitions will impact baselines and AYP
calculations over the course of the 12-year timeline for ensuring that
all students are proficient.
Discussion: As a State changes its assessments and collects new
data, the State may adjust its timeline, annual measurable objectives
and intermediate goals, as long as the new system has as its goal that
all students achieve proficiency by 2013-14. Further, regardless of
changing assessment systems, States must review the progress of schools
each year and, based on this annual review, identify schools that do
not meet AYP. If a Title I school has not made AYP for two consecutive
years, it must be identified for improvement, even if the assessment
system changed between those years, thereby changing the basis for
identification. Similarly, a school that has been identified for
improvement cannot exit school improvement status merely because a
different assessment system is used. Examples of ways in which States
can continue providing accountability decisions while moving to new
[[Page 71742]]
assessments will be included in nonregulatory guidance.
Changes: None.
Section 200.16 Starting Points
Comment: One commenter requested clarification that States are
permitted to average assessment data over a period of several years to
establish starting points for reading/language arts and mathematics.
Discussion: The Secretary agrees that, consistent with Sec.
200.20(d)(1)(i), more than one year of data can be used to establish
the starting point as long as that data includes assessment results
from the 2001-02 school year and does not delay the establishment of
the starting point. This clarification will be further explained in
nonregulatory guidance.
Changes: None.
Comment: Three commenters requested that the final regulations
permit States to establish separate starting points for each subgroup
of students.
Discussion: The NCLB Act clearly states that the starting point
must be the same for each subgroup of students. The final regulations
maintain this position. The Secretary believes that this approach
establishes similar expectations for all schools and requires high
achievement for all students. The final regulations do allow a State to
establish separate starting points by grade span.
Changes: None.
Section 200.18 Annual Measurable Objectives
Comment: Two commenters requested that the final regulations permit
a State to establish separate baselines and measurable objectives for
each subgroup of students.
Discussion: The ESEA clearly states that the starting point and
annual measurable objectives must be the same for each subgroup of
students.
Changes: None.
Comment: One commenter objected to determining AYP for an LEA based
on the academic achievement of all the students enrolled in the LEA,
rather than the performance of the schools within the LEA. On the other
hand, another commenter recommended that the final regulations clarify
that AYP for an LEA be based on the aggregated achievement of its
students and not its schools.
Discussion: The ESEA clearly specifies that LEAs are to be held
accountable for the achievement of students in the same manner as
schools. This means that each LEA is held accountable for all students
attending schools within the district for a full academic year. These
students must meet or exceed the annual measurable objectives and State
goals for the other academic indicators. These provisions are a
critical means of ensuring that students who are mobile within a
district are not excluded from accountability; they are included in LEA
and State accountability.
Changes: None.
Section 200.19 Other Academic Indicators
Comment: Several commenters asserted that, contrary to the ESEA,
the proposed regulations appear to make the use of other academic
indicators, including graduation rate, optional in the determination of
AYP. The commenters recommended that the final regulations clarify that
States must include graduation rate at the high school level and one
other academic indicator at the elementary and middle school levels as
part of their definitions of AYP, and that progress toward intermediate
and final objectives for these indicators is required for a State, LEA,
or school to make AYP. Another commenter made a similar recommendation,
based on the principle that a school that improves test scores by
increasing its dropout rate should not make AYP and should be
identified for improvement. Another commenter requested that the final
regulations reflect the statutory requirement that the other academic
indicators adopted by a State be measured separately for each subgroup
of students.
Discussion: As stated in Sec. 200.19(a), a State must use
graduation rate for high schools and another academic indicator of its
choosing for elementary schools and for middle schools to determine
AYP. Section 200.19(d)(2) makes clear that the State must disaggregate
its other academic indicators, including graduation rate, by each
subgroup in order to report that information under section 1111(h) of
the ESEA and to calculate whether schools that do not meet the State's
annual measurable objectives but have decreased for each subgroup the
percentage of students below proficient by at least 10 percent can be
considered to have made AYP. As indicated in Sec. 200.19(d)(2)(ii),
however, the State need not disaggregate its other academic indicators
for determining AYP. The Secretary is confident that publicly reporting
disaggregated data on the other academic indicators will ensure that
schools, LEAs, and the State are held accountable for subgroup
performance.
Changes: Section 200.19(a) and (d)(2) have been modified as
discussed above.
Comment: One commenter requested clarification on the definition of
``a regular diploma,'' as used in Sec. 200.19(a)(1)(i). Another
commenter asked whether a ``certificate of attendance'' or similar
recognition for students with disabilities may be considered a
``regular diploma.''
Discussion: The Secretary believes it is important to clarify this
term to ensure that States use graduation rates that are as accurate
and meaningful as possible. As a result, the final regulations make
clear that a ``regular diploma'' must be fully aligned with the State's
academic content standards and may not include a certificate or GED.
Thus, if a student with disabilities is given only a certificate of
attendance that does not reflect the student's achievement against the
State's content standards, that student would not have received a
``regular diploma'' and thus would not be considered to have graduated
for purposes of calculating graduation rate.
Changes: The final regulations clarify in Sec. 200.19(a)(1)(i)
that a regular diploma may not include an alternative degree that is
not fully aligned with the State's academic standards, such as a
certificate or GED.
Comment: One commenter objected to the use of the term ``standard
number of years'' as part of the regulatory definition of graduation
rate, on the grounds that such a limitation could penalize schools
serving students--such as students with disabilities, limited English
proficient students, and returning dropouts--who typically take longer
to graduate.
Discussion: The Secretary believes that the regulations provide
sufficient flexibility to address such students. For students that, in
very limited instances, may take longer than the standard number of
years to graduate, a State may propose a manner for accurately
accounting for these students in an alternate definition of graduation
rate under Sec. 200.19(a)(1)(i)(B). This definition must be included
with the State accountability plan and submitted for peer review.
Changes: None.
Comment: Several commenters expressed concern that proposed Sec.
200.19(a)(1) does not reflect conference report language accompanying
the NCLB Act that requires measurement of graduation rates in a way
that ``avoids counting dropouts as transfers'' and specifically
includes the graduation rate in the definition of AYP. Several
commenters also maintained that any alternative to the statutory
definition of graduation rate must be based on a ``more accurate
[[Page 71743]]
longitudinal system that follows individual student progress'' and thus
could accommodate varying numbers of years required to graduate for
students with special educational needs. Two of the commenters
encouraged the Secretary to take the lead in establishing a ``common
framework'' for calculating graduation and dropout rates in all States,
and one commenter recommended a specific definition based on a
combination of statutory and conference report language. Two other
commenters supported the flexibility regarding graduation rates
provided in the proposed regulation.
Discussion: The Secretary agrees that the graduation rate should
not include students who have dropped out of school as students who
have transferred to another school. With the passage of the NCLB Act,
the expectations for schools to make AYP have increased; it is
critically important that schools do not make AYP simply because
students have dropped out of school. The Secretary also agrees that
graduation rate should be measured from the beginning of high school in
order to capture students who drop out before reaching 12th grade.
Changes: Section 200.19(a)(1)(ii) of the final regulations
clarifies that a State must define graduation rate in a manner that
does not count students who have dropped out of school as students who
have transferred to another school. In addition, Sec.
200.19(a)(1)(i)(A) of the final regulations has been amended to require
States to measure graduation rate ``from the beginning of high
school.''
Comment: One commenter agreed with proposed Sec. 200.19(c), that
gives States discretion to require progress on other academic
indicators by setting increasing goals for those indicators, but
recommended that the final regulation also not permit a decline in such
indicators from the initial baseline level. Another commenter requested
clarification as to whether the State must set goals for these
indicators or may simply require ``progress'' over a certain
``threshold'' level. A third commenter recommended requiring a timeline
for any additional indicators used by a State, including starting
points, intermediate goals, and annual measurable objectives for such
indicators.
Discussion: The NCLB Act offers flexibility to States to define how
progress will be measured relative to the other academic indicators.
The regulations permit, but do not require, a State to increase the
goals of its other academic indicators over the course of the timeline.
Changes: None.
Section 200.20 Making Adequate Yearly Progress
Comment: In determining AYP, one commenter requested clarification
regarding the use of academic indicators in a school that includes both
high school students and middle or elementary school students. Since
these schools will have two indicators, the commenter asked if the
groups must make progress on both for the school to make AYP.
Discussion: The NCLB Act is silent on this issue. The use of these
indicators in determining AYP may vary depending on the configuration
of a school (e.g., kindergarten through eighth grade, eighth through
twelfth grade). The Secretary asks States to propose a policy for
addressing this issue when they submit plans for their State
accountability systems.
Changes: None.
Comment: One commenter expressed concern that the 95 percent
assessment requirement in proposed Sec. 200.20(c)(1)(i) may be
misconstrued as relieving States, LEAs, and schools from the
requirement to assess all students under Sec. Sec. 200.2(b)(9) and
200.6.
Discussion: The NCLB Act clearly states that all students must be
assessed to measure their achievement toward meeting the State's
challenging academic standards. Schools and districts are held
accountable for ensuring high rates of participation: no less than 95
percent of all students and student subgroups must participate in the
statewide assessments.
Changes: Section 200.20(c)(2) clarifies that a State, LEA, or
school may not systematically exclude students from taking the
statewide assessments.
Comment: Several commenters requested that the final regulations
provide flexibility to States in applying the requirement that 95
percent of each subgroup be tested in order to make AYP. Three of these
commenters were particularly concerned about the impact on this
requirement of State rules permitting parents to exclude their children
from statewide assessments. Two other commenters recommended phasing in
the 95 percent requirement over several years.
Discussion: The ESEA does not allow for a phase-in of the
participation requirement for AYP. The statute does acknowledge through
the 95 percent participation rate requirement that there may be
instances in which parents do not allow their students to take the
statewide assessments. Schools, LEAs, and States need to carefully and
thoughtfully explain to parents the importance of participating in such
assessments and the consequences for not participating.
Changes: None.
Comment: Two commenters requested clarification that proposed Sec.
200.20(c)(1)(ii), which requires subgroups to be of sufficient size to
produce statistically reliable results, applies only to the
determination of AYP and does not change the requirement that all
students must participate in the annual assessment system.
Discussion: The ESEA clearly states that all students must be
assessed to measure their achievement on challenging academic
standards. For purposes of determining AYP, if a subgroup within any
particular school or district is too small to produce statistically
reliable results, the requirement for 95 percent participation would
not apply to that subgroup. The Secretary clarifies in the final
regulations that a State, LEA, or school may not systematically exclude
students from participating in the assessments.
Changes: Section 200.20(c)(2) of the final regulations clarifies
that the ``95 percent participation rule'' does not permit a school or
LEA to systematically exclude 5 percent of students from participating
in the assessments.
Comment: Several commenters recommended that the final regulations
clarify that, even if a subgroup is too small to produce statistically
reliable data at the school level, the results of that subgroup must be
aggregated at the next level--in this case, for the LEA--to ensure that
the progress of the subgroup is not simply overlooked or excluded from
all calculations of AYP.
Discussion: The Secretary agrees with these comments.
Changes: Sections 200.20(e)(1) and 200.21(b) and 200.7(d) make
clear that all students enrolled for a full academic year in an LEA or
in a State must be included for accountability purposes at that level,
provided the size of a subgroup is large enough to produce
statistically reliable results. Subgroups too small to be reported or
identified at one level must be included at the next higher level,
assuming the subgroup reaches the appropriate size.
Comment: Two commenters expressed concern that varying definitions
of ``statistical significance'' applied under proposed Sec.
200.20(c)(1)(ii) could undermine the subgroup-based accountability
provisions of the NCLB Act. One commenter recommended that the final
regulations include standards to guide States in determining the number
of students required to yield statistically reliable information.
[[Page 71744]]
Discussion: Determining the number of students required to yield
statistically reliable information is the responsibility of each State.
The Secretary will review and approve these definitions as part of his
approval of State accountability systems. In nonregulatory guidance,
the Department may offer some guidelines for States to consider as they
make this decision.
Changes: None.
Comment: One commenter recommended that the final regulations
provide flexibility in defining AYP for small school districts and
single-school LEAs, in particular, that may find it difficult to
implement the subgroup-based accountability requirements of the ESEA.
Discussion: The intent of the law is to ensure that all schools and
districts are held accountable for student achievement. In those
instances in which schools and districts are too small to include any
subgroups, the school and district will need to make a decision about
AYP at least on the basis of all its students who were enrolled in the
school or district for a full academic year. The Department of
Education will issue nonregulatory guidance to provide examples of
methodologies for handling this issue.
Changes: None.
Comment: Two commenters objected to proposed Sec.
200.20(d)(1)(ii)(B), which would permit a State to delay the
determination of AYP on the basis of the new assessments for grades 3-8
required by the NCLB Act until the State has two or three years of data
to average under proposed Sec. 200.20(d)(1)(i). One commenter noted
that this provision potentially delays the use of the new assessment
data until the final year of the current authorization. Another
commenter, however, expressed support for the flexibility provided in
the proposed regulation.
Discussion: Section 1111(b)(2)(J) of the ESEA permits a State to
establish a uniform procedure for averaging data across grades and
across years in determining AYP. That provision specifically permits a
State averaging data across years to accumulate two or three years of
data under the new grades 3-8 assessments required by the NCLB Act
before using that data to determine AYP. The final regulations
accurately reflect this authority. They also make clear, however, that
a State may not delay implementing the new grades 3-8 assessment
requirements. Moreover, the State must report these data under section
1111(h)of the ESEA. Further, at a minimum, the State must continue
making annual decisions about AYP on the basis of data from the
reading/language arts and mathematics assessments in the three grade
spans required in Section 1111(b)(3)(C)(v)(I) of the ESEA.
Changes: Section 200.20(d)(1) has been revised to clarify better
the intent of these provisions.
Comment: Two commenters recommended modifying proposed Sec.
200.20(e) to restore the statutory emphasis on mitigating the impact of
student mobility on assessment results and prevent the potential
creation of a loophole permitting the exclusion of dropouts from the
determination of AYP. Additionally, another commenter recommended
permitting either the State or the LEA to define ``full academic
year.''
Discussion: The final regulations are an accurate reflection of the
statute: students who are enrolled within a district for a full
academic year must be included in the AYP of an LEA. Moreover, the
final regulations clarify that students who were not enrolled within a
school for a full academic year may not be included within that
school's determination of AYP. The Secretary also believes that it is
appropriate and justified to leave the decision of what is a ``full
academic year'' to each State.
Changes: None.
Section 200.21 Adequate Yearly Progress of a State
Comment: Three commenters recommended that the final regulations
specify that students who attend schools within a State but in more
than one LEA must be included in the determination of AYP for the
State. Two commenters also urged the Secretary to require States to
report on the progress of these students.
Discussion: The Secretary concurs with these comments.
Changes: Section 200.21(b) of the final regulations specifies that
all students who were enrolled within schools in a State for a full
academic year must be included in determining the progress of the
State.
Comment: One commenter requested that the final regulations include
a description of required technical assistance and other interventions
by the Secretary in the case of States that do not make AYP.
Discussion: In the case of a State that does not make AYP, the
technical assistance offered by the Secretary would be specific to the
State's needs. In order to offer the maximum amount of flexibility in
designing technical assistance, this issue will not be addressed in the
regulations but will be handled on a case-by-case basis within the
statutory parameters.
Changes: None.
Comment: One commenter urged the Secretary to include in the final
regulations a description of State obligations and requirements under
section 1111 of the ESEA to ensure that each State provides sufficient
support to LEAs and schools in implementation.
Discussion: The ambitious goals for student achievement contained
within the NCLB Act will best be achieved when States, districts, and
schools work together. To that end, the Department will provide
nonregulatory guidance about the roles of each entity and how they can
support improved achievement. The Secretary understands the important
role of the U.S. Department of Education as well and intends to review
State accountability plans in an expeditious manner.
Changes: None.
Comment: Two commenters recommended that the final regulations
require States to establish English Language Development Standards
designed to measure the oral, reading, and written proficiency in
English of limited English proficient students, as well as annual exams
linked to those standards.
Discussion: These final regulations cover only those provisions
contained within Title I of the ESEA. The provisions governing the
development of English proficiency are found in Title III. The
Department plans to issue nonregulatory guidance on this issue.
Changes: None.
Schoolwide Programs
Section 200.25 Schoolwide Program Purpose and Eligibility
Comment: One commenter cautioned that because the final regulations
are used frequently at the district and school level, they should
adhere as closely as possible to the NCLB Act. The commenter strongly
suggested that the regulations be restored to reflect the omitted
statutory requirements for schoolwide programs such as: opportunities
for advanced instruction and increased learning time, extended learning
opportunities, and provisions related to the needs assessment. The
commenter also recommended that the regulations be changed to ensure
that schoolwide programs include strategies to meet the educational
needs of historically underserved populations.
Discussion: The preamble to the NPRM makes specific reference to
the major purpose of schoolwide programs, which is to address the needs
and improve academic achievement of all
[[Page 71745]]
students in the school, especially for those furthest away from
demonstrating proficiency. The language in the preamble did not
especially address the comprehensive needs assessment and its
provisions because the needs assessment is an integral part of the
schoolwide planning process outlined in Sec. 200.26.
Changes: None.
Comment: One commenter requested clarification of the apparently
contradictory regulatory language in Sec. Sec. 200.25 through 200.27,
that defines low-achieving children as ``those students furthest away
from demonstrating proficiency,'' while the language in Sec. 200.25
states that a schoolwide program need not identify, target, or track
these children.
Discussion: In defining lowest achieving children, the preamble
refers to those students furthest away from meeting proficient and
advanced levels of achievement consistent with sections 1111 and 1116
of the Title I statute. The Secretary agrees that there is a need to
clarify in guidance that identification of those students furthest away
from meeting proficient and advanced levels of achievement and
identification of students for program participation have different
implications. Schoolwide programs must be able to accomplish the
former. They do not have to perform the latter as a means to achieve
it. The Department will clarify this issue further in nonregulatory
guidance.
Changes: None.
Comment: One commenter expressed concern about the requirement that
all paraprofessional instructional staff in the schoolwide program meet
the requirements for paraprofessionals that apply to targeted
assistance schools. The commenter expressed concern that many schools
will elect to remain in or return to targeted assistance status.
Discussion: Section 1119(c) of the ESEA requires that
paraprofessionals hired after January 8, 2002 and working in a program
supported with Title I, part A funds be highly qualified. Section
200.58 of the regulations further clarifies that statutory requirement
by providing that all paraprofessionals working in a schoolwide program
are considered to be supported by Title I, Part A funds. The Secretary
believes that individual schools will make the decision to operate a
schoolwide program, and continue their operation based on the need to
reform the school and improve student achievement.
Changes: None.
Comments: Two commenters objected to the provision in Sec.
200.25(b)(1)(ii) that the 40 percent poverty eligibility threshold for
operating a schoolwide program is required for only the initial year of
the program. The commenters suggested that this provision be deleted,
so that if a school's poverty level decreases in subsequent years it
can no longer operate as a schoolwide project.
Discussion: Section 1114(a)(1) of the ESEA establishes the 40
percent eligibility threshold for a school to operate a schoolwide
program. The intent of the statute is to enable the schoolwide program
to improve the entire educational program of the school. Long-term
reform occurs over time and requires sustained and consistent
intervention if student achievement is to improve. The Secretary
believes that making the 40 percent threshold an initial eligibility
requirement, rather than an annual eligibility requirement, reinforces
this long-range approach.
Changes: None.
Comments: Two commenters questioned, in Sec. 200.25(b)(2), the
advisability of allowing schools to choose a measure of poverty to
determine eligibility for schoolwide programs that is different from
the measure used by LEAs for Title I allocation purposes. One
recommended requiring identical measures of poverty across the LEA's
Title I program, or at least requiring equivalent or comparable
measures of poverty.
Discussion: The provision to allow a school to use a poverty
measure that is different from the one the LEA selects for Title I
allocation purposes when determining eligibility for operating a
schoolwide program is a continuation of flexibility provided under the
old regulations. An LEA may use more restrictive free school lunch
data, rather than free and reduced-price lunch data to determine which
schools are eligible for Title I and to allocate funds. Based on free
lunch data, however, a school might not meet the 40 percent schoolwide
eligibility criteria data, while it might qualify if free and reduced-
price lunch data were used. The Secretary wants to continue providing
as much flexibility as possible to enable schools to qualify for
implementing a schoolwide program.
Changes: None.
Section 200.26 Development and Evaluation of Schoolwide Program Plan
Comment: One commenter remarked that the language of the proposed
regulation concerning the development of the schoolwide plan is complex
and confusing because of its organizational structure and recommended
reorganizing Sec. 200.26 along the lines of the NCLB Act.
Discussion: The language in Sec. 200.26 of the NPRM was intended
to clarify that a schoolwide plan must describe how the school will
improve academic achievement and make explicit the process used for
developing the plan. However, the Secretary believes that the
organization in the NPRM may be confusing and concurs that reorganizing
the regulations to make them more consistent with the NCLB Act would
make clearer the planning process required to operate a schoolwide
program.
Changes: The Secretary has reorganized the regulations by adding a
new Sec. 200.26 (renamed ``Core elements of a schoolwide program'')
and placed it under the undesignated center heading ``Schoolwide
Programs'' in subpart A of part 200 to make the regulations consistent
with the statute. All cross-references have been amended appropriately.
Comment: One commenter recommended an addition to Sec.
200.26(b)(1) to acknowledge that the needs of migratory children are
constantly changing, requiring an ongoing needs assessment process.
Discussion: The comprehensive needs assessment described in Sec.
200.26 addresses the needs of the school, in general, and specifically
requires that the needs of migratory children be taken into account
when conducting the needs assessment. The Secretary has added language
to this section that includes migratory children as part of the needs
assessment and provides a specific reference to the definition
contained in section 1309(2) of the ESEA.
Changes: The Secretary has added a new Sec. 200.26 and placed it
under the undesignated center heading ``Schoolwide Programs.'' The
language in this new section provides for the use of academic
achievement information for all students in the school including all
demographic groups of students as part of the needs assessment. The
inclusion of migratory students in the needs assessment, and as defined
in section 1309(2) of the NCLB Act is referenced in this section.
Comments: Several commenters referenced language in Sec.
200.26(a)(2)(ii) requiring a focus on scientifically based research.
One remarked that the meaning of this term is widely debated and that
the application of science to improved instruction is often a complex
process. One commenter asked for clarification about the meaning of
regulatory language that requires a school's process for developing its
schoolwide plan to focus on scientifically based research.
[[Page 71746]]
Discussion: Scientifically based research is defined in section
9101(B)(37) of the ESEA as ``research that involves the application of
rigorous, systematic, and objective procedures to obtain reliable and
valid knowledge relevant to education activities and programs.'' The
strategies and methods used in schoolwide programs must be of high
quality and have a reasonably high probability of increasing student
achievement.
Changes: None.
Comments: Several commenters requested amplification of language
regarding the schoolwide planning process to reinforce the notion that
the process must be meaningful, to provide clarity regarding who should
participate in the evaluation of the program's effectiveness, and to
require that the comprehensive needs assessment include data on school
funding and the school's capacity to meet needs. One commenter in this
group also requested that the regulations be more explicit about the
importance of the comprehensive needs assessment to the planning
process.
Discussion: The Secretary agrees that the schoolwide planning
process must be meaningful, and reflect data obtained from the
comprehensive needs assessment. The resulting plan must include
strategies for improved student achievement, evaluation, monitoring for
effectiveness, and for amendment of the plan, as needed.
Changes: To make this policy clear and to address the comenters'
concerns, the Secretary has reorganized Sec. 200.26 and renamed it
``Core elements of a schoolwide program''. In the NPRM, these
provisions were contained under Sec. 200.28--Use of funds in a
schoolwide program. The new Sec. 200.26 outlines the basic elements of
the schoolwide program planning process with regard to conducting a
comprehensive needs assessment, developing a comprehensive plan, and
evaluating the program.
Comment: One commenter noted widespread confusion about the Title I
provisions related to serving homeless children and recommended further
elaboration in nonregulatory guidance on needs and issues affecting
homeless students. The commenter also suggested that the school needs
assessment take into account the needs of homeless as well as migrant
students.
Discussion: The Secretary agrees with the commenter's concerns and
will address in nonregulatory guidance the issue of including the
homeless population in all schoolwide reform efforts. The language
included in revised Sec. 200.26(a)(1)(i) provides that the
comprehensive needs assessment must be based on academic achievement
information about all students in the school, which includes homeless
and migrant students.
Changes: None.
Comments: One commenter expressed concern that the needs assessment
was taken out of the listing of components, thereby eliminating the
requirement for a school to describe the needs assessment in its
schoolwide plan.
Discussion: The needs assessment is critical to the development of
the comprehensive schoolwide program plan. A review of the core
elements of the schoolwide program includes the comprehensive needs
assessment, the comprehensive plan, and the evaluation. The description
of the comprehensive needs assessment may be included as a part of this
section.
Changes: In the revised Sec. 200.26, the Secretary has included
three subparts that address the comprehensive needs assessment, the
comprehensive plan, and the evaluation.
Comments: Two commenters expressed concern about the importance of
including strategies to increase parental involvement, and requested
that the regulations make reference to the parental involvement
requirements contained in section 1118 of the ESEA.
Discussion: The Secretary concurs that including parents in all
aspects of schoolwide program planning, development, and implementation
is essential.
Change: The Secretary has included provisions for parental
involvement, consistent with the ESEA, in Sec. Sec. 200.27(b)(2);
200.27(c)(1) and (2); and 200.28 (c)(3)(i).
Section 200.27 Schoolwide Program Implementation Components
Comments: Several commenters expressed concern that this section of
the proposed regulations omitted several key components that are
critical to operating a schoolwide program: These components include
the participation of teachers in the decisions regarding use of
assessments, increasing the amount and quality of learning time,
strategies to meet the needs of historically underserved populations,
methods that help provide an accelerated and enriched curriculum,
language that refers to proficient and advanced levels of academic
achievement, inclusion of information about how the school will
determine if academic needs have been met, and instruction by highly
qualified teachers.
Discussion: The proposed regulations organized the schoolwide
requirements to emphasize key components necessary for the operation of
a successful schoolwide program. The intent of the NPRM was to outline
an approach that would lead schools to restructure in ways that would
be most likely result in improved student achievement. However, the
Secretary agrees that the proposed regulations may be confusing because
those provisions did not parallel the language in the ESEA.
Changes: The Secretary has amended and renamed Sec. 200.27--
Schoolwide program components--to make the regulations parallel the
statute more closely and to address the specific concerns of the
commenters.
Comments: Two commenters expressed concerns about proposed language
in Sec. 200.27(c) of the NPRM, which requires the inclusion of parents
in the planning and academic intervention process, and requires that
student achievement reports be provided to parents in a language that
they can understand.
Discussion: The Secretary strongly supports the right of parents to
be involved in the schoolwide planning process and to have information
regarding the education services provided to their children in a form
and language they can understand.
Changes: The Secretary has clarified the parental involvement
provisions in Sec. Sec. 200.27(b)(2) and 200.27(c) to require that a
school develop its schoolwide comprehensive plan with the involvement
of parents, consistent with section 1118 of the ESEA and to make that
plan available to parents in an understandable format and, to the
extent practicable, in a language that parents can understand.
Comment: One commenter believed that the reference in Sec.
200.27(a) concerning the application of the new science requirement by
2005-06 was inappropriate because improvement in meeting standards
cannot be demonstrated without a proper assessment.
Discussion: the Secretary agrees that the reference to science in
Sec. 200.27(a) is confusing and that providing a general reference to
improving the opportunities of students to meet the State's proficient
and advanced levels of student achievement is more appropriate.
Changes: The Secretary has made this clarifying change in Sec.
200.28(a)(1).
Section 200.28 Use of Funds in a Schoolwide Program
Comment: One commenter asked that Sec. 200.28 be further clarified
to confirm that consolidation of funds does not constitute a waiver of
the school's obligation to comply with the requirements of the NCLB
Act, nor does
[[Page 71747]]
it diminish the school's obligation to fulfill other programs'
purposes. All program purposes and needs must be met, not merely
addressed.
Discussion: The Secretary agrees with the commenter's concern and
will provide further clarification in nonregulatory guidance.
Changes: None.
Comments: Several commenters recommended that Sec.
200.28(c)(3)(i)(A) and (B) require that before consolidating Title I
part C funds, a school first meet the unique educational needs of
migratory students that result from their migratory lifestyle and
document that these needs have been met. Several of these commenters
further recommended that documentation could consist of maintaining a
record of the actions taken by the school or LEA on behalf of migrant
students.
Discussion: The Secretary agrees with these concerns and will
provide further clarification in nonregulatory guidance.
Changes: None.
Comment: Several commenters recommended an addition to Sec.
200.28(c)(3)(i) of the NPRM to include consultation with parents of
migrant children or organizations representing those parents, or both.
Discussion: The Secretary concurs with commenters regarding the
importance of involving parents of migratory children and the
organizations that represent them.
Changes: The Secretary has clarified in Sec. 200.28(c)(1)(i) that
an LEA must consult with parents of migratory children or organizations
representing those parents, or both.
Comment: One commenter noted that currently the latest list of
programs identified by the Department that may be combined in a
schoolwide program was published in a September 21, 1995 Federal
Register notice. This does not allow for combining of funds from new
programs created by the NCLB Act. The commenter recommended that the
regulations specify which Federal funds administered by the Secretary
may be combined in a schoolwide program.
Discussion: The Secretary understands the importance of LEAs and
schools knowing which funds may be combined in a schoolwide program and
will publish an updated list in the Federal Register soon after
publication of the final regulations.
Changes: None.
Comment: One commenter noted that the provision in Sec.
200.28(c)(3)(iii) allowing for consolidation of IDEA funds in a
schoolwide program is not in the ESEA, and recommended that this
provision should be deleted from the regulations.
Discussion: The provisions in the regulations concerning
consolidation of special education funds are consistent with the
requirements of section 613(a)(2)(D) of the IDEA. The regulations
provide that the amount of funds consolidated for special education
purposes may not exceed the amount received by the LEA under part B of
IDEA for that fiscal year, divided by the number of children with
disabilities in the jurisdiction of the LEA, and multiplied by the
number of children with disabilities participating in the schoolwide
program.
Changes: None.
Comment: One commenter noted that Sec. 200.28(c)(4)(i)(A), of the
proposed regulations, that provides that programs consolidated in a
schoolwide program are exempt from statutory or regulatory provisions
governing their operation, does not include an important qualification
contained in section 1114 (a)(3)(A) of the ESEA. This statutory
provision allows programs to be consolidated only ``if the intent and
purpose of such other programs are met.'' This omission must be
restored in order to conform to the ESEA.
Discussion: The Secretary agrees with the commenter.
Changes: The Secretary has added clarifying language in Sec.
200.29(b)(1)(ii) requiring that a school consolidating and using in a
schoolwide program funds from any other Federal program administered by
the Department meet the intent and purposes of that program and ensure
that the needs of the intended beneficiaries of that program are
addressed.
Comment: One commenter urged that the regulations be changed to
ensure that a school operating a schoolwide program does not use Title
II, part D, Education Technology Grant funds for purposes other than
those authorized by the statute. The commenter suggested that language
be added to Sec. 200.28(c)(4)(i)(C) to require that a schoolwide
program as a whole, addresses the ``intent, purposes, activities and
uses'' of funds, rather than just the ``intent and purposes'' of funds,
for each Federal program whose funds were consolidated to support the
schoolwide program.
Discussion: The Secretary believes that the language now in Sec.
200.29(d) requiring that the intent and purposes of the programs
consolidated in a schoolwide program be met provides sufficient
protection to ensure that the needs of the children specifically
designed to be served by those programs are met. The proposed change
would take away the flexibility a school would have in operating
schoolwide programs. The purpose of a schoolwide program is to enable a
school to combine its Federal, State and local resources so it can
focus on providing comprehensive services that best enable its students
to meet State's academic content and student achievement standards. In
exchange for this flexibility, the school must ensure that its students
make progress toward meeting those academic content and student
achievement standards.
Changes: None.
Comment: One commenter recommended adding a new paragraph (d) to
Sec. 200.28 mandating that States require LEAs to involve providers of
federally funded adult education and career technical education
programs to ensure the maximum support for the academic achievement of
students in local schools.
Discussion: While the Secretary agrees that providers of Federally
funded adult education and career technical education programs can play
an important role in providing services to students in local schools,
involving these providers in not a specific statutory requirement and
may not be appropriate in every schoolwide program.
Changes: None.
LEA and School Improvement
Section 200.30 Local Review
Comment: One commenter objected to giving LEAs the responsibility
for conducting the annual progress review to determine whether
participating schools are making AYP, on the grounds that a statewide
system would better ensure equity and reliability in making AYP
determinations.
Discussion: The Secretary understands the concerns of the
commenter, but believes that the combination of the statewide
assessment system described in Sec. 200.2 and the AYP requirements
described in Sec. Sec. 200.13 through 200.20, which LEAs must use in
conducting their review of school performance, will ensure that such
reviews are conducted in a fair and uniform manner across each State.
While the statute clearly specifies that the local review and school
improvement process is an LEA responsibility, it also ensures that, in
carrying out this responsibility, LEAs will rely primarily on standards
and indicators developed at the State level.
Changes: None.
Comment: One commenter expressed concern that the proposed
regulations do not address the role of charter school LEAs or other
single-school LEAs in the school review and improvement process.
[[Page 71748]]
Discussion: Single-school LEAs have the same role and
responsibilities in the school review and improvement process as other
LEAs, including responsibility for review of school progress in meeting
adequately yearly progress requirements, identifying the school for
improvement, corrective action, or restructuring, providing public
school choice options under Sec. 200.44, and making available
supplemental educational services in accordance with Sec. Sec. 200.45
and 200.46.
Changes: None.
Comment: One commenter expressed concern that the proposed
regulations imply that LEAs are not required to use other academic
indicators in determining whether a school has made AYP.
Discussion: As clarified in Sec. 200.19(a), a State must use
graduation rate for high schools and another academic indicator of its
choosing for elementary schools and for middle schools to determine
AYP. At the local level, an LEA may use additional academic assessments
or indicators for the purpose of identifying additional schools for
improvement, corrective action or restructuring. In addition, progress
on these LEA academic indicators may permit a school to make AYP in
accordance with the exception clause specified in Sec. 200.20(b).
Changes: None.
Comment: One commenter objected to the proposed regulation
permitting an LEA to limit its review of a school operating a targeted
assistance program to the academic achievement of only those children
served by the program. The commenter noted that this regulation could
create a disincentive for schools to operate schoolwide programs and
could hinder the development of single, statewide accountability
systems covering all students.
Discussion: The Secretary agrees with the concerns expressed by the
commenter, but notes that the regulations reflect the clear language of
the statute. In addition, the Secretary believes that few schools will
take advantage of this provision, because it would, by definition,
limit review to the lowest-achieving students and thus might make it
more difficult for a school to demonstrate AYP.
Changes: None.
Comment: One commenter recommended adding to the final regulations
statutory language regarding the use of the results of the LEA's annual
review of school performance.
Discussion: The Secretary believes that in the overall context of
AYP and school improvement requirements, the purposes of the annual
progress review and the use of the results of that review are
sufficiently explained in the regulations. Any further explanation may
be accomplished through nonregulatory guidance.
Changes: None.
Section 200.32 Identification for School Improvement
Comment: Several commenters maintained that the identification
timeline in the proposed regulations does not allow sufficient time for
States to make available assessment data from a given school year, or
for school districts to analyze that data and identify schools for
improvement, corrective action, or restructuring, prior to the
beginning of the next school year.
Discussion: The identification timeline in the proposed regulations
is faithful to the timeline specified in the ESEA. The Secretary
recognizes that States may have to adjust their assessment schedules to
comply with this timeline, but the centrality of the timeline to the
integrity of the entire improvement process, as well as the plain
language of the statute, permit no alternative.
Changes: None.
Comment: One commenter recommended that the timeline for
identifying schools for improvement be based on the school year in
which assessment results become available, rather than the school year
in which the assessments are administered.
Discussion: Section 1116(b)(1)(B) of the ESEA requires
identification ``before the beginning of the school year following such
failure to make.'' The Secretary believes that this phrase
unambiguously links identification to the school year in which the
failure occurred, and not to the availability of assessment results
documenting that failure. In addition, section 1116(a)(2) of the ESEA,
incorporated into the regulations as Sec. 200.49(e), reinforces this
approach by requiring SEAs to make assessment results in a given school
year available to LEAs before the beginning of the next school year.
Any delay in this identification timeline would severely undermine the
strong accountability, with consequences for schools and options for
students, that is at the core of the NCLB Act.
Changes: None.
Comment: Two commenters expressed concern that the proposed
regulations appear to hold LEAs responsible for identifying schools for
improvement prior to the beginning of the school year even if SEAs fail
to make assessment results available on a timely basis.
Discussion: Section 200.49(e) of the final regulations specifically
requires SEAs to ensure that the results of academic assessments
administered as part of the State assessment system for a given year
are available to LEAs before the beginning of the next school year. In
addition, Sec. 200.49(e)(1) clarifies that the SEA must provide the
required assessment data in sufficient time to permit the LEA to make
the identification in accordance with Sec. 200.32(a)(2). Finally,
Sec. 200.49(e)(2) prohibits an LEA from identifying a school for
improvement, corrective action, or restructuring unless the SEA has
provided assessment results to the school.
Changes: The final regulations include additional language in Sec.
200.49(e)(1) requiring SEAs to make available assessment data for a
given school year to LEAs ``in such time as to allow for the
identification'' for improvement prior to the beginning of the next
school year.
Comment: Several commenters objected to the flexibility provided in
proposed Sec. 200.32(d) and (e) regarding the identification of
schools for improvement or removal of schools from improvement status
on the basis of 2001-2002 assessment results. The commenters interpret
the statute as requiring the identification for improvement of any
school that fails to make AYP for two consecutive years, as well as the
removal from improvement status of any school that makes AYP for two
consecutive years, regardless of the years involved.
Discussion: The Secretary believes that the absence of any
reference to 2001-2002 assessment results in the otherwise very
specific transition provisions of the statute, combined with the strong
likelihood that many States would not be able to make these results
available to LEAs prior to the beginning of the 2002-2003 school year,
supports a flexible approach to the use of those results for
identification purposes during the transition to the NCLB Act.
Changes: None.
Comment: Two commenters expressed concern that the proposed
regulations, which give LEAs flexibility in the use of 2001-2002
assessment data in making identification decisions not specifically
covered under the transition provisions of the statute, could create
confusion regarding the use of 2001-2002 assessment data in subsequent
years.
Discussion: The Secretary agrees that the flexibility provided in
the proposed regulations could be interpreted as permitting LEAs to
ignore 2001-2002 assessment data in making
[[Page 71749]]
identification decisions in subsequent years. The regulations clarify
that an LEA decision not to identify for improvement a school that, on
the basis of 2001-2002 assessment data, does not make AYP for a second
consecutive year, does not permit the LEA to ignore that failure in
making future identification decisions.
Changes: Section 200.32(e) has been amended to clarify that if an
LEA chooses not to identify for improvement a school that, on the basis
of 2001-2002 assessment results, does not make AYP for a second
consecutive year, it nevertheless must consider the school's 2001-2002
performance as the first year of not making AYP for the purpose of
subsequent identification decisions.
Comment: One commenter asserted that the proposed regulations
unfairly penalize schools that were hoping to exit improvement status
by making AYP in two out of three years, as provided for under the
previous statute. For example, under the old law, a school that made
AYP in the 1999-2000 school year, failed to make AYP in 2000-2001, and
made AYP in 2001-2002 would be removed from improvement status. Under
the new law, however, such a school would continue to be identified for
improvement until it makes AYP for two consecutive years.
Discussion: The reauthorized ESEA specifies the identification
status of schools identified for improvement under the previous law,
but makes no exceptions to the new requirement that schools may be
removed from improvement only after making AYP for two consecutive
years. The Secretary has provided limited flexibility to LEAs to
identify for improvement or remove from improvement schools in certain
situations not covered by the statutory transition provisions. In both
instances, however, this flexibility is consistent with the ``two
consecutive year'' standard of the statute. The Secretary's authority
to provide flexibility in implementing the new law does not extend to
overriding this standard.
Changes: None.
Comment: Several commenters objected to the proposed requirement
that LEAs make choice immediately available to students attending
schools that are identified for improvement after the beginning of the
school year following the year in which the LEA administered the
assessments that resulted in the identification for improvement. The
commenters believe that this requirement will be unnecessary if
identification takes place in accordance with the statutory timeline
(prior to the beginning of the school year), and that if identification
occurs following the beginning of the school year, the statute requires
LEAs to provide choice no sooner than the first day of the school year
following identification.
Discussion: The commenters are correct in their observation that
the mid-year choice requirement of proposed Sec. 200.32(f)(1) is
unnecessary if identification occurs in accordance with the statutory
timeline. The Secretary's intention, however, was to encourage
adherence to that statutory timeline by removing a potential incentive
for delaying identification until after the beginning of the school
year. In other words, an LEA may not postpone its obligation to provide
public school options to students attending schools identified for
improvement simply by delaying identification.
Changes: None.
Comment: Several commenters objected to the proposed regulations
requiring an LEA to count as a full year of improvement any year in
which the LEA identifies a school for improvement after the beginning
of the school year. The commenters maintained that mid-year
identification would not provide adequate time for districts and
schools to develop and implement effective improvement plans. They also
noted that the statutory timeline is linked to identification and
generally requires a ``full school year'' at each stage of the
improvement process. One commenter suggested that while a school
identified in mid-year should start the improvement process, it should
not officially enter improvement status until the beginning of the next
school year.
Discussion: The Secretary understands the concerns of the
commenters, particularly with regard to giving schools adequate time to
prepare and carry out effective improvement plans. However, the clear
intention of the NCLB Act is to impose rigorous accountability measures
on a precise timeline designed both to bring about rapid improvement in
school quality and to provide immediate options to students attending
identified schools. Giving primacy to the ``full school year'' language
of the statute potentially rewards LEAs that violate the statutory
identification timeline, delays the availability of public school
choice and supplemental educational services to students, and
unacceptably extends an already lengthy improvement timeline (which
permits six years of not making before implementation of
restructuring). The regulations underscore, in Sec. 200.49(e), the
importance of SEAs ensuring that LEAs and schools receive their
assessment data in a timely manner so that they can meet the statutory
school improvement deadlines.
Changes: None.
Section 200.33 Identification for Corrective Action
Comment: Two commenters objected to the flexibility provided to
LEAs in proposed Sec. 200.33(c) to remove from corrective action a
school that, on the basis of assessments administered during the 2001-
2002 school year, makes AYP for a second consecutive year. They
maintained that the statute requires LEAs to remove schools from
corrective action in such cases, and one commenter argued that LEAs
also should use 2001-2002 assessment data to identify additional
schools for corrective action.
Discussion: The Secretary believes that the proposed regulations
are an appropriate way to address an inequity in the statutory
transition provisions covering identification for corrective action.
These provisions require LEAs to treat schools that were identified for
corrective action prior to enactment of the NCLB Act as subject to
corrective action for the 2002-2003 school year. Some of these schools,
however, may have made AYP in both 2000-2001 and 2001-2002, thus
meeting the statutory requirement for removal from corrective action.
The proposed regulations permit LEAs to remove these schools from
corrective action, but does not require such removal because some LEAs
may, in part due to the uncertain timing of assessment results, prefer
simply to adhere to the statutory transition provisions.
On the issue of identifying additional schools for corrective
action, Sec. 200.32(c)(1) already specifies the identification status
of schools that have been identified for improvement for two or more
consecutive years. LEAs must treat such schools as being in the second
year of improvement under the new law for the 2002-2003 school year.
Failure to make AYP in 2001-2002 would not change this designation. The
proposed regulations thus reflect the clear intent of the NCLB Act to
identify for corrective action, for the 2002-2003 school year, only
those schools identified for corrective action under the previous law.
Changes: None.
Section 200.36 Communication with Parents
Comment: One commenter expressed concern about the rights of
parents with limited English proficiency, in light of Title VI of the
Civil Rights Act and Executive Order 13166, to receive communications
about their child in a
[[Page 71750]]
language that they understand. In addition, two commenters urged the
Secretary to require the use of native language to communicate with
parents in areas where large numbers of students share the same primary
language.
Discussion: Section 1116 of the ESEA requires SEAs and LEAs to keep
parents informed during the school improvement process and, to the
extent practicable, to provide information to parents with limited
English proficiency in a language the parent understands. In addition,
Title VI of the Civil Rights Act of 1964 and longstanding Department
policy require SEAs and LEAs to communicate information to limited-
English proficient parents that is communicated to non-limited English
proficient parents. Under Title VI, SEAs and LEAs have flexibility in
determining what mix of oral and written translation services may be
necessary and reasonable for communicating this information. This
policy is also consistent with Executive Order 13166.
It is the Department's position that, pursuant to the requirements
of section 1116 of the ESEA, it is ``practicable'' to provide
information to limited-English proficient parents orally in a language
that they understand. This interpretation of Section 1116 of the ESEA
also is consistent with Title VI, longstanding Department policy under
Title VI, and Executive Order 13166.
Additionally, section 1116 of the ESEA requires written
translations of printed information to be provided to parents with
limited English proficiency in a language they understand, whenever
such written translations are ``practicable.'' If it is not
``practicable'' to provide written translations of notices, section
1116 requires SEAs and LEAs to ensure that parents with limited English
proficiency are provided oral translations of the written information.
This requirement to translate orally written information whenever a
written translation is not practicable is consistent with Title VI,
longstanding Department policy under Title VI, and Executive Order
13166.
Changes: None.
Comment: One commenter suggested additional regulatory language to
ensure effective communication with the parents of limited English
proficient and migrant students. In particular, the commenter
recommended the use of non-traditional communication vehicles, such as
posting notices at churches and distributing information through social
service providers.
Discussion: The Secretary agrees that effective communication with
the parents of limited-English proficient and migrant students is
important, but he believes that widely varying local circumstances
argue in favor of addressing the concerns raised by the commenter in
nonregulatory guidance rather than through ``one-size-fits-all''
regulatory prescription.
Changes: None.
Comment: One commenter expressed concern that it would not be
possible for a State to communicate directly with parents, as required
by the proposed regulations, if the State does not maintain
information, such as street or e-mail addresses, on individual
students. The commenter recommended requiring States to communicate to
parents only through such broader means as the Internet and other
media. Another commenter addressed a similar concern by recommending
that States be permitted to fulfill their obligation by providing
school improvement information to LEAs and schools, which would then
distribute the information to parents, rather than requiring States to
communicate directly with parents.
Discussion: The Secretary agrees that the proposed regulations
should be amended to reflect the limited student information available
to States in some cases. However, the final regulations continue to
require States to communicate to individual students and their
families, even if they must do so indirectly through LEAs and schools.
Changes: Section 200.36(b)(1) has been amended to permit States to
distribute information to parents through LEAs and schools.
Comment: One commenter recommended that any information provided to
parents also be provided to teachers and other school staff so that
educators know and understand what is happening in their schools.
Discussion: Section 200.36 is intended to clarify statutory
requirements regarding communication with parents during the school
improvement process. Notice requirements affecting teachers and school
staff are addressed elsewhere, such as in Sec. Sec. 200.30 and 200.43.
Changes: None.
Comment: One commenter requested clarification of proposed Sec.
200.36(c), which requires all communications to respect the privacy of
students and their families.
Discussion: The proposed regulations are intended to help prevent,
for example, the public disclosure of the names of students receiving
supplemental educational services, as prohibited by Sec. 200.46(a)(5)
and (b)(2)(v). Further clarification will be provided in nonregulatory
guidance.
Changes: None.
Section 200.37 Notice of Identification for Improvement, Corrective
Action, or Restructuring
Comment: Two commenters recommended adding a definition of
``promptly'' in proposed Sec. 200.37(a), which requires LEAs to
``promptly notify'' parents when their child's school has been
identified for improvement. The commenters expressed particular concern
that parents have sufficient time to consider public school choice
options.
Discussion: The Secretary agrees that timely notification is
essential to ensuring that parents are able to make informed choices
regarding their children's education. Such notifications should be made
as soon as possible. However, the precise amount of time required may
vary depending on local circumstances. The Department has issued
nonregulatory guidance on this issue.
Changes: None.
Comment: One commenter recommended including, in the notice to
parents that their child's school has been identified for improvement,
a description of the actions being taken to improve the school.
Discussion: The Secretary agrees that information on the action
being taken to improve a school is important, and notes that Sec.
200.38(a) requires an LEA to provide such information to parents.
However, because parental consideration of choice and supplemental
educational service options generally must occur at the same time a
school is developing its school improvement plan, it will usually be
impossible to include such information in the initial notice of
identification.
Changes: None.
Comment: One commenter recommended that the explanation of the
option to transfer described in Sec. 200.37(b)(4)(i) include a
reference to the provision of transportation to the new school.
Discussion: The proposed regulations referenced proposed Sec.
200.44, which included choice-related transportation requirements, but
the Secretary agrees that the restoration of the statutory reference to
transportation in the notice requirement will clarify this issue.
Changes: Section 200.37(b)(4)(i) has been amended to include a
discussion of transportation in the explanation of the option to
transfer provided to parents as part of the notice of identification
for improvement, corrective action, or restructuring.
[[Page 71751]]
Comment: Two commenters objected to the proposed requirement in
Sec. 200.37(b)(4)(ii) that LEAs provide information to parents on the
performance of the school or schools to which their children may
transfer. Both commenters found this requirement administratively
burdensome, particularly in districts that offer a large number of
choices and thus would have to document the performance of many
schools. One commenter suggested that LEAs be permitted to ``direct''
parents to publicly available sources of such information, such as a
school or district Web site.
Discussion: Since a basic principle of the public school choice
option required as part of the school improvement process is to give
parents in low-performing schools the opportunity to send their
children to a higher-performing school, the Secretary believes the
provision of the information called for in proposed Sec.
200.37(b)(4)(ii) is essential. However, the regulations provide
substantial flexibility to LEAs in selecting the most meaningful local
measures of academic achievement, rather than mandating either the kind
or number of such measures. LEAs are free, and indeed encouraged, to
summarize school performance in a manageable and understandable format,
rather than overwhelm parents with detailed reports. In addition, the
final regulations clarify that, for the purposes of Sec. 200.44, the
only required indicator of performance is the academic achievement of
students in the receiving schools. Finally, while it may be appropriate
to direct parents to sources such as Web sites for additional
information, basic performance information should be provided directly
to parents, many of whom lack access to electronic information sources
such as the Internet.
Changes: Section 200.37(b)(4)(ii) has been amended so that the only
performance information required in the explanation of the public
school choice option is the academic achievement of the schools to
which a student may transfer.
Comment: One commenter suggested that the Secretary require, rather
than encourage, LEAs to provide the additional information on public
school choice options described in Sec. 200.37(b)(4)(iii).
Discussion: The ESEA requires only that LEAs offer parents and
students the option to transfer to another public school that is not
identified for improvement, corrective action, or restructuring. This
emphasis on academic performance is reflected in the information
required by Sec. 200.37(b)(4)(ii). The Secretary agrees that
additional information on the options available to parents is
desirable, but believes that LEAs should have flexibility to provide
the most useful information in light of local needs and circumstances.
Changes: None.
Comment: One commenter recommended that the information on the
school or schools to which a student may transfer include a description
of parental involvement programs.
Discussion: The Secretary agrees that, in addition to the academic
quality of the school, the opportunity for greater involvement in their
child's education could be an important consideration for parents
exploring public school choice options. However, we do not agree that
such information should be required.
Changes: In order to clarify that information on parent
opportunities may be provided in the explanation of the parents' option
to transfer their child to another school, Sec. 200.37(b)(4)(iii)(D)
has been amended to specifically authorize provision of a description
of parental involvement opportunities at the school or schools to which
the student may transfer.
Comment: Two commenters objected to the proposed requirement that
the annual notice of the availability of supplemental educational
services include approved providers of technology-based or distance-
learning services. One commenter maintained that the proposed
regulations are unnecessary and implied a preference for technology-
based providers over other providers, while another asserted that any
clarification of means of providing services is more properly the role
of SEAs, since they are responsible for approving providers.
Discussion: The success of the supplemental educational services
component of the school improvement process depends on the availability
of a sufficient number of providers to meet the diverse educational
needs of students. Provider availability is a particular concern in
poor urban and rural areas where it is reasonable to expect there will
be the greatest demand for supplemental educational services.
Technology provides a means to overcome geographic and demographic
barriers to the provision of high-quality services. For this reason,
the Secretary believes it is appropriate to emphasize the potential
role of technology-based providers. Finally, the ESEA clearly assigns
responsibility for providing annual notice to parents of the
availability of supplemental educational services to the LEA, not the
SEA.
Changes: None.
Comment: One commenter recommended including in the information
about supplemental educational service providers the religious
affiliation of such providers, the duration of services, whether
services are school-based, and whether transportation to the provider
is available.
Discussion: The Secretary believes that Sec. 200.37(b)(5)(ii)(B)
is sufficient to ensure the provision of such information in the annual
notice of the availability of supplemental educational services, and
will clarify this requirement in nonregulatory guidance.
Changes: None.
Comment: One commenter recommended requiring LEAs to include, in
the explanation of public school choice and supplemental educational
service options, a detailed discussion of procedures required to
exercise such options, including any required forms, documentation, and
schedules or deadlines.
Discussion: Procedures for exercising a public school choice or
supplemental educational service option may vary widely from district
to district depending on such factors as pre-existing choice programs,
the timing of identification, and the use of technology. For this
reason, the Secretary believes that the best way to address the
commenter's concerns is through general guidelines in nonregulatory
guidance.
Changes: None.
Section 200.38 Information About Action Taken
Comment: One commenter suggested that the final regulations require
an LEA to include, in its explanation of corrective action or
restructuring, a description of actions recommended by school-level
staff or a school-level governance committee.
Discussion: The ESEA requires only that LEAs publish and
disseminate information about measures actually taken to address the
problems that led to the identification of a school for improvement,
corrective action, or restructuring. Districts are free to provide
additional information on the process that led to the adoption of such
measures if they believe such information will support school
improvement efforts.
Changes: None.
Section 200.39 Responsibilities Resulting From Identification for
School Improvement
Comment: One commenter expressed concern that proposed Sec.
200.39(a)(1)(i)
[[Page 71752]]
potentially misleads students and their families by suggesting that all
students in schools identified for improvement will have the option to
transfer to a better-performing school, when in fact the ESEA requires
LEAs to give priority to the lowest-achieving students from low-income
families in providing public school choice options.
Discussion: The regulation, like the statute, does indeed require
that LEAs provide a public school choice option to all eligible
students, defined as all students--regardless of achievement or family
income--enrolled in a school identified for improvement, corrective
action, or restructuring. The statutory priority on the lowest-
achieving students from low-income families is a priority in providing
transportation, as well as in making assignments to the family's
preferred choice among available schools. It is not an invitation to
LEAs to limit choice to only those students.
Changes: None.
Section 200.40 Technical Assistance
Comment: One commenter recommended that all technical assistance
providers comply with the requirements of Title II of the Higher
Education Act of 1965 (HEA), which requires institutions of higher
education that conduct teacher preparation programs and receive Federal
financial assistance under the HEA to issue reports on the ``pass
rates'' of their teacher education graduates on State certification and
licensure assessments, as well as on other aspects of their teacher
education programs.
Discussion: The requirements in Title II of the Higher Education
Act do not apply to other private organizations or to technical
assistance providers.
Changes: None.
Comment: One commenter recommended that an LEA be required to
``publicly identify'' any entities providing technical assistance when
it identifies a school for improvement.
Discussion: The ESEA requires only that an LEA ``ensure the
provision of technical assistance as the school develops and
implements'' its improvement plan. In addition, the improvement plan
must include a description of the technical assistance to be provided
by the LEA. This suggests that information on the precise nature of the
technical assistance required, as well as the identity of the
providers, is unlikely to be available at the time of identification.
Changes: None.
Comment: One commenter observed that the proposed regulations are
inconsistent with the statutory requirements governing technical
assistance to schools identified for improvement, particularly with
regard to the goals of such technical assistance.
Discussion: The Secretary agrees that the proposed regulations
inadvertently omitted the statutory reference to technical assistance
in identifying and addressing any failure of the LEA or school in
implementing the school plan.
Changes: Section 200.40(c)(1) has been amended to restore the
omitted reference to technical assistance regarding LEA and school
fulfillment of responsibilities under the school plan.
Section 200.41 School Improvement Plan
Comment: One commenter requested that the parental consultation
requirement in Sec. 200.41(a)(2) include a reference to a similar
requirement in section 1118 of the ESEA.
Discussion: The Secretary believes that both the ESEA and the
proposed regulations are unambiguous in requiring schools to consult
with parents in developing or revising their school improvement plans,
and that further clarification is unnecessary.
Changes: None.
Comment: One commenter suggested that the required consultation
with parents, school staff, the LEA, and outside experts should take
the form of written comments that are included in the school
improvement plan.
Discussion: The ESEA does not require schools to seek comments in
written form as part of the consultation process, but also does not
preclude such an approach. The final regulations maintain this
flexibility, which helps to ensure that school improvement planning is
focused on results, not process.
Changes: None.
Comment: One commenter objected to the proposed regulation
requiring school improvement plans to include ``measurable goals''
rather than the ``annual, measurable objectives'' terminology employed
by the ESEA.
Discussion: The Secretary believes that the term ``annual,
measurable objectives'' used in section 1116(b)(3)(A)(v) of the ESEA is
ambiguous and, in particular, risks unintentional confusion with the
annual measurable objectives required by Sec. 200.18 as part of the
definition of AYP. The substitution of the term ``measurable goals'' is
intended to clarify that schools must set their own separate, interim
performance goals that will contribute to the attainment of the annual
measurable objectives required to make AYP and gain removal from
improvement status.
Changes: None.
Comment: Two commenters requested that schools identified for
improvement be permitted to use both Part A and non-Part A funds to
satisfy the requirement in Sec. 200.41(c)(5) that such schools spend
not less than 10 percent of their part A allocation on professional
development designed to help remove the school from improvement status.
Discussion: The proposed regulations accurately reflect the
specific language of the ESEA, and the Secretary has no authority to
modify this requirement.
Changes: None.
Comment: One commenter requested the addition of a reference to
section 1119 of the ESEA in proposed Sec. 200.41(c)(5), which outlines
the requirements for school improvement-related professional
development.
Discussion: The Secretary modified the statutory reference to
section 1119 of the ESEA because this provision specifically covers
professional development intended to ensure that all teachers are
highly qualified, and not professional development designed to help
remove a school from school improvement status.
Changes: None.
Comment: One commenter objected to the omission of the statutory
requirement for an explanation of how funds reserved for professional
development will be used to remove a school from improvement status,
which in the proposed regulations was reflected only in a requirement
for an assurance that such funds would ``contribute to removing the
school from school improvement status.''
Discussion: The Secretary agrees that the proposed regulations
could have inadvertently weakened the requirement for a firm commitment
on the use of professional development funds in school improvement
plans.
Changes: Section 200.41(c)(6) of the final regulations requires a
school to specify how it will use its 10 percent reservation of Part A
funds to gain removal from improvement status.
Comment: One commenter objected to the requirement that school
improvement plans incorporate teacher mentoring programs.
Discussion: The Secretary has no authority to remove this
requirement, which is specifically provided for in the ESEA. However,
the final regulations clarify that the intention is to include teacher
mentoring programs as a necessary element of the professional
development provided as part of the school improvement plan.
Changes: The requirement for teacher mentoring programs has been
moved to
[[Page 71753]]
Sec. 200.41(c)(5)(iii) of the final regulations.
Comment: One commenter objected to the omission of the notice
requirement from the proposed regulation on school improvement plans.
Discussion: The notice requirement was omitted from proposed Sec.
200.41 both because it concerned the initial identification for
improvement, which in most cases will precede the development of the
school improvement plan, and because it was included in proposed Sec.
200.37, which covers all of the various statutory notice requirements
related to the school improvement process. The Secretary agrees with
the commenter, however, that it is important for the school improvement
plan to describe how the school will notify parents of the
identification for improvement.
Changes: Section 200.41(c)(7) requires the school improvement plan
to include a description of how notice of identification for
improvement will be provided to parents.
Section 200.42 Corrective Action
Comment: One commenter expressed concern that some of the
corrective actions described in the proposed regulations may conflict
with State charter school laws.
Discussion: Section 200.42(a) includes a range of corrective action
options and requires any action taken to be ``consistent with State
law.'' Where certain corrective actions specified in the ESEA and
regulations conflict with State charter school laws, LEAs are not
required to adopt those actions.
Changes: None.
Comment: One commenter requested clarification of the role of
school support teams in providing technical assistance during
corrective action.
Discussion: As described in Sec. 200.42(b)(2), the LEA must
continue to make available technical assistance, whether provided
through school support teams or through some other mechanism, that
meets the requirements of Sec. 200.40.
Changes: None.
Comment: One commenter requested explanation of the proposed
regulations regarding the appointment of an outside expert as a
corrective action.
Discussion: The ESEA includes, as one of the corrective actions
that may be taken by an LEA, the appointment of an outside expert ``to
advise the school on its progress toward making AYP, based on its
school plan under paragraph (3).'' The school plan cited in the
statute, however, is the school improvement plan developed after
initial identification for improvement and covering the two years of
improvement efforts prior to the identification for corrective action.
Since it presumably was at least in part the failure of this plan to
improve the performance of the school that led to identification for
corrective action, the Secretary believed that rather than providing
advice based on this plan, it would be more appropriate for the outside
expert to assist in revising the plan and in implementing the revised
plan. Accordingly, Sec. 200.42(b)(4)(iv) requires this approach when
an LEA appoints an outside expert as a corrective action.
Changes: None.
Section 200.43 Restructuring
Comment: Three commenters requested clarification of the status of
a school that has implemented a restructuring plan. One recommended
that it be treated as a new school, and one asked whether such a school
would be required to offer choice and supplemental educational services
to its students.
Discussion: The ESEA does not address the status of a school that
has implemented a restructuring plan. However, section 1116(b)(12) of
the statute requires an LEA to remove a school from improvement,
corrective action, or restructuring status only after the school has
made AYP for two consecutive school years. The Secretary believes that
the best interpretation of this language as it applies to a
restructured school is that such a school remains ``in improvement''
until it makes AYP for two consecutive school years. For this reason,
the LEA serving a restructured school must continue to provide public
school choice options and make available supplemental educational
services to eligible students enrolled in the school until the school
makes AYP for two consecutive school years.
Changes: Section 200.43(c)(2) of the final regulations requires an
LEA to provide public school choice options and make available
supplemental educational services to students enrolled in a
restructured school until the school makes AYP for two consecutive
school years.
Comment: One commenter recommended that any entity selected to
operate a school as part of a restructuring plan be required to
demonstrate financial stability.
Discussion: The ESEA and proposed regulations require only that
such an entity have a ``demonstrated record of effectiveness.'' States
and LEAs, which presumably will enter into a contract with the entity,
may identify other requirements or standards that the entity must meet.
The ESEA requires that restructuring options be implemented
``consistent with state law.''
Changes: None.
Section 200.44 Public School Choice
Comment: One commenter requested clarification regarding LEA
flexibility in providing public school choice options to students
enrolled in schools identified for improvement, including whether an
LEA may, in view of capacity constraints, offer choice to students only
at some and not all of the schools it has identified for improvement.
Discussion: Both the ESEA and the proposed regulations clearly
require, except where State law prohibits, LEAs to offer all students
enrolled in all schools identified for improvement the option of
transferring to another public school that has not been identified for
improvement.
Changes: None.
Comment: Several commenters maintained that existing overcrowding
of schools, teacher shortages, transportation difficulties, class-size
limits, health and safety concerns, and other capacity issues prevent
many LEAs from implementing the public school choice option in
accordance with the requirements of Sec. 200.44. One commenter, for
example, recommended that the final regulations permit LEAs to preclude
transfers to schools that have reached their ``maximum instructional
capacity under State or local laws or ordinances.'' Another asked
whether a State law limiting class size would permit an LEA to limit
choice on the basis of the ``State law prohibition'' in Sec.
200.44(a)(5).
Discussion: In general, as the Secretary has made clear in Dear
Colleague letters, nonregulatory guidance, proposed regulations, and
other policy statements, the ESEA does not permit an LEA to preclude
choice options on the basis of capacity constraints. Rather, the
statute requires an LEA to take measures to overcome issues such as
overcrowding, class size limits, and health and safety concerns, that
otherwise might prevent the LEA from complying with Title I public
school choice requirements. This could mean, for example, adding
classes and hiring additional teachers so that the LEA can offer
choices to students while adhering to State-mandated class size limits.
In addition, LEAs have broad latitude in determining the schools to
which students can transfer. They may, for example, consider health and
safety factors in providing transfer options to
[[Page 71754]]
students and their parents. Such factors do not permit an LEA, however,
to simply avoid its obligation to provide public school choice options
as required by section 1116 of the ESEA. The expectation is that LEAs
will need to find ways to provide choice, consistent with their
obligations to provide a healthy and safe learning environment.
Changes: Section 200.44(d) of the final regulations clarifies that
an LEA may not use lack of capacity to deny an eligible student the
opportunity to transfer to another school not identified for
improvement.
Comment: Two commenters requested that the final regulations
include language permitting LEAs to limit the availability of choice
options to comply with ``health and safety code requirements regarding
facility capacity.''
Discussion: In implementing the public school choice requirements,
an LEA must provide parents of students eligible to transfer a choice
of more than one school if more than one school is available. The LEA
is not required, however, to make available every school in the
district. Rather, the LEA may take into consideration factors such as
health and safety requirements or transportation costs in determining
which schools in the district would be available to accept transfer
students. Such factors may not be used, however, to deny students the
opportunity to transfer to any other school.
Changes: Section 200.44(d) of the final regulations makes clear
that an LEA may not use lack of capacity to deny an eligible student
the opportunity to transfer to another school not identified for
improvement.
Comment: One commenter recommended that the final regulations
permit LEAs to offer supplemental educational services to those
students whose transfer requests cannot be accommodated due to capacity
constraints.
Discussion: Section 200.44(g)(2) of the final regulations permits
an LEA with no eligible schools to which a student may transfer to
offer supplemental educational services to eligible students enrolled
in schools identified for their first year of improvement. However,
since neither the ESEA nor Sec. 200.44(d) of the final regulations
permits an LEA to deny public school choice options to eligible
students due to capacity constraints, there is no reason to offer
supplemental educational services in lieu of choice under the
circumstances suggested by the commenter.
Changes: None.
Comment: One commenter noted that some States and school districts
currently operate public school choice plans and asked whether the new
law requires additional choices beyond those already provided.
Discussion: If an existing choice plan meets the requirements of
Sec. 200.44, then the LEA is already in compliance with the ESEA. In
most cases, however, the Secretary believes that it will be necessary
to modify existing choice plans to meet these requirements, which
include, for example, the provision of transportation, a choice of more
than one school, and a priority for the lowest-achieving students from
low-income families.
Changes: None.
Comment: One commenter expressed concern that proposed Sec.
200.44(a)(2), which would require LEAs to offer choice ``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,'' could
require mid-year implementation of choice that would lead to major
disruptions in both sending and receiving schools.
Discussion: Proposed Sec. 200.44(a)(2) is based on the clear
language of section 1116(b)(1)(E)(i) of the ESEA, which assumes SEA and
LEA compliance with the equally clear statutory identification
timeline. SEAs and LEAs that adhere to this timeline will not face the
additional challenge of implementing the public school choice
requirements of Sec. 200.44 in the middle of a school year. The
Secretary does not believe it is appropriate, however, to reward LEAs
that do not comply with the law by permitting them to postpone their
obligations under Sec. 200.44 until the following school year and
thereby deny students attending identified schools the opportunity to
transfer immediately to a better school.
Changes: None.
Comment: One commenter noted that States and school districts may
have their own ``improvement'' designations based on different criteria
than those provided under section 1116 of the ESEA. For this reason,
the commenter requested clarification that the standard proposed under
Sec. 200.44(a)(3)(i)(A) limits transfers to schools that have not been
identified for improvement, corrective action, or restructuring under
Title I.
Discussion: The Secretary agrees that the proposed regulations did
not clearly reflect the statutory requirement under section
1116(b)(1)(E)(i) of the ESEA that an LEA provide a public school choice
option ``that has not been identified for school improvement under this
paragraph.'' The phrase ``under this paragraph'' expressly limits the
exclusion from eligible choice options of schools identified under
section 1116(b)(1) of the ESEA, and does not rule out schools that may
have been identified for improvement under other State or local
criteria as possible schools to which students may transfer.
Changes: The final regulations specify that transfers are limited
to schools that have not been identified under Sec. Sec. 200.32
through 200.34.
Comment: Two commenters requested clarification that proposed Sec.
200.44(a)(3)(ii) refers only to public charter schools that are served
by the LEA.
Discussion: The Secretary believes that both the ESEA and the
regulations are clear in requiring choice only within LEAs. The precise
relationship between public charter schools and LEAs, however, varies
widely and is better addressed through nonregulatory guidance.
Changes: No change.
Comment: Several commenters objected to proposed Sec.
200.44(a)(4)(i), which requires LEAs to offer parents of eligible
students the choice of more than one school that is not identified for
improvement, corrective action, or restructuring. The commenters argued
that this requirement is inconsistent with both the NCLB Act and the
Secretary's overall goal of regulating only where necessary to provide
clarity or flexibility.
Discussion: The Secretary believes that the principle and intent of
choice embodied in the NCLB Act has meaning only if parents and
students have the ability to choose from more than one public school
choice option. One school is effectively no choice. Choice implies, at
a minimum, the opportunity to choose between at least two better-
performing schools. However, the regulations do not prohibit an LEA
from limiting choice options on the basis of such factors as
transportation arrangements, so long as it provides more than one
option to students enrolled in schools identified for improvement,
corrective action, or restructuring.
Changes: None.
Comment: One commenter requested clarification as to whether an LEA
may limit the number of schools to which a student may transfer on the
basis of such factors as transportation arrangements, so long as the
LEA provides parents and students more than one option from which to
choose.
Discussion: The Secretary has issued nonregulatory guidance
explaining that LEAs are indeed permitted to take into account
logistical concerns, such as
[[Page 71755]]
transportation, in limiting the range of available choices to students
exercising an option under Sec. 200.44.
Changes: None.
Comment: One commenter recommended deletion of proposed Sec.
200.44(a)(4)(ii), which requires LEAs to ``take into account'' parent
preferences in making final assignments among public school choice
options offered to students attending schools identified for
improvement, corrective action, and restructuring. The commenter noted
that this provision is not included in the ESEA and ``interferes with
the local control of school systems.''
Discussion: The Secretary recognizes that the final decision
regarding student assignment among available choices rests with the
LEA, but believes that meaningful choice requires that LEAs take into
account parental preferences.
Changes: None.
Comment: One commenter requested clarification of the eligibility
for choice and supplemental educational services of students who plan
to attend, but are not yet enrolled in, a school for which an LEA must
provide such options.
Discussion: The answer to this question depends in large part on
State and local definitions of ``enrollment,'' but the Secretary
believes that in general LEAs should provide new students the same
options offered to existing students at a given school.
Changes: None.
Comment: One commenter requested clarification of the limitation on
the State law prohibition in Sec. 200.44(b), including examples of
improper application of the prohibition.
Discussion: Section 1116(b)(1)(E)(i) of the ESEA requires an LEA to
provide public school choice to any student in a school identified for
improvement, unless such public school choice is prohibited by State
law. Section 200.44(b) of the final regulations clarifies that an LEA
may invoke the State law exception only if the State law prohibits
choice through restrictions on public school assignments or student
transfers among schools. Such a State law could explicitly prohibit an
LEA from permitting students to transfer to other public schools or it
could, for example, enforce desegregation by restricting transfers in
such a way that effectively makes choice impossible. A State law that
limits class size, however, is not a State law prohibiting choice,
because an LEA could add teachers to meet class size requirements and
still permit students to transfer.
Changes: None.
Comment: Several commenters objected to the language in proposed
Sec. 200.44(c)(3) requiring LEAs to ``secure appropriate changes'' to
desegregation plans to permit compliance with the public school choice
requirements of Sec. 200.44. Commenters noted that LEAs could only
seek such changes and only courts or the responsible agencies could
grant the changes. In addition, two commenters were concerned that this
provision may impose the burden and expense of protracted litigation on
LEAs.
Discussion: Nothing in the proposed regulations or these final
regulations provides an LEA with the authority to violate an applicable
desegregation plan; rather, Sec. 200.44(c)(1) holds that the existence
of a desegregation plan does not exempt an LEA from the public school
choice requirements of Sec. 200.44. In addition, Sec. 200.44(c)(2)
states that an LEA may take into account the requirements of its
desegregation plan in determining how to implement a transfer option.
An LEA is required to ``secure appropriate changes'' from the court
only if it is unable to implement the choice requirement consistent
with the plan. The Department of Education anticipates that courts and
responsible agencies will recognize the benefits of allowing students
to transfer from schools identified as needing improvement and will
grant amendments to desegregation plans permitting such transfers. If a
court or responsible agency denies an LEA's request to amend its
desegregation plan to allow for choice, then the LEA should contact the
Department of Education. It is not the Secretary's intent to deny Title
I funding to an LEA that in good faith takes appropriate action to seek
amendments to the desegregation plan in order to comply with the public
school choice requirements of Sec. 200.44.
Changes: None.
Comment: One commenter recommended that LEAs be permitted to limit
eligible students to a single public school choice option, rather than
the multiple options required by Sec. 200.44(a)(4)(i), in order to
support the goals of existing desegregation plans.
Discussion: Section 1116(b)(1)(E)(i) of the ESEA requires an LEA
with Title I schools identified for improvement to provide students in
those schools the opportunity to transfer to a school not identified
for improvement. Consistent with Sec. 200.44(a), eligible students
must have the opportunity to express a preference among at least two
eligible schools and that preference must be considered by the school
district in making their assignment. An LEA may take into account the
requirements of its desegregation plan in determining how to implement
the transfer option. If its desegregation plan offers no opportunity
for the LEA to implement the choice requirement consistent with the
plan, the LEA would need to secure appropriate changes from the court.
Changes: None.
Comment: One commenter maintained that compliance with the priority
in Sec. 200.44(d), and a similar priority for supplemental educational
services in Sec. 200.45(d), will require students to re-apply annually
for a public school choice option to ensure equity in the context of
limited funding for choice-related transportation and supplemental
educational services.
Discussion: The Secretary understands the concerns of the
commenter, but notes that Sec. 200.44(f) contains the statutory
requirement permitting students who exercise a public school choice
option to remain in the new school until the student has completed the
highest grade in that school. For this reason, the Secretary believes
that the priority in Sec. 200.44(d) was intended to apply only to
students requesting a choice option for the first time, not those who
have already exercised such an option. As for the commenter's similar
concern regarding supplemental educational services, Sec. 200.45(b)(3)
requires LEAs to make such services available only until the end of the
school year in which they are first provided, a limitation that
mandates annual re-application for such services.
Changes: None.
Comment: One commenter recommended that the Department regulate the
State role in encouraging cooperative agreements between LEAs to make
available choice to students in LEAs in which all schools have been
identified for improvement, corrective action, or restructuring.
Discussion: While the Secretary agrees that it would helpful, and
consistent with the spirit of the NCLB Act, for States to encourage
cooperative agreements between LEAs that would increase the
availability of public school choice options, it would be inappropriate
to regulate in this area of State authority.
Changes: None.
Comment: One commenter recommended setting geographic limits on the
distance between LEAs that arrange cooperative agreements for the
purpose of expanding public school choice options available to students
enrolled in schools identified for improvement, corrective action, or
restructuring.
Discussion: The Secretary believes that geographic limits are the
kind of issue the authorizers intended to
[[Page 71756]]
address when they called for such cooperative agreements ``to the
extent practicable,'' a limitation that is repeated in Sec.
200.44(h)(1).
Changes: None.
Comment: One commenter requested clarification as to whether
``receiving school districts,'' presumably under a cooperative
agreement such as that provided for under Sec. 200.44(h)(1), would be
permitted to refuse to accept certain students, such as students with
disabilities who might require special services and support.
Discussion: All public school districts, as recipients of Federal
financial assistance, must comply with applicable Federal civil rights
requirements, including those under Title VI of the Civil Rights Act of
1964, Section 504 of the Rehabilitation Act of 1973 (Section 504), and
Title II of the Americans with Disabilities Act of 1990 (ADA).
Changes: None.
Comment: One commenter objected to Sec. 200.44(h)(2), which
permits LEAs with no eligible schools to which a student may transfer
to offer supplemental educational services in lieu of choice to
students enrolled in schools identified for their first year of
improvement. The commenter stated that the proposed regulations go
beyond the scope of the statute.
Discussion: The proposed regulations are consistent with the NCLB
Act's emphasis on increasing educational options for all students
attending low-performing schools. The proposed regulations do not
create a new authority, but merely highlight an existing one, since the
provision of tutoring and other supplemental instructional services is
already a permissible use of Federal funds as part of the regular Title
I program in both schoolwide projects and targeted assistance schools.
An LEA may implement any corrective action or restructuring measure
earlier than what is required by the statute.
Changes: None.
Comment: One commenter suggested that if the transportation costs
associated with public school choice become excessive, funds might be
better used to pay for supplemental educational services.
Discussion: Section 200.44(h)(2) permits an LEA with no eligible
schools to which a student may transfer to offer supplemental
educational services to eligible students enrolled in a school in its
first year of improvement. Neither the ESEA nor the regulations,
however, allow an LEA to offer supplemental educational services in
lieu of choice solely on basis of the costs incurred in providing
choice in accordance with the requirements of Sec. 200.44.
Changes: None.
Comment: Two commenters expressed concern that public school choice
could require costly replication of specialized services for various
student populations, including limited-English proficient and migrant
students and students with disabilities.
Discussion: In order to provide public school choice, some school
districts may need to make specialized services for special populations
of students, such as limited-English proficient students and students
with disabilities, available in other schools in order to provide those
students with the opportunity to attend an eligible school, namely, a
school that has not been identified for school improvement, corrective
action or for restructuring, and that has not been identified by the
State as persistently dangerous. However, in offering school choice,
the school district has the flexibility to offer parents the option to
enroll their child in eligible schools of choice that already provide
the language or disability-related services needed by the student.
Changes: None.
Comment: One commenter expressed concern about the eligibility for
choice and supplemental services of students who have been
involuntarily transferred from Title I schools that are identified for
improvement, corrective action, or restructuring.
Discussion: Generally, Title I affords parents of students in low-
performing schools an option to choose a school that has not been
identified for improvement for their child. There are a very few
situations, however, that are handled differently. If a student is
assigned to a particular school by a family court for child custody
reasons and that school has been identified for improvement, the
student could be eligible to transfer under the provisions in the ESEA.
However, the student's parents may not be able to exercise that option
without first obtaining permission from the court to move their child.
In the case of a student assigned to a particular school by a juvenile
court due to the student's violent or criminal behavior, or for
disciplinary reasons sufficiently serious to justify placement in a
particular learning environment, the LEA may limit or deny the choice
option.
Changes: None.
Comment: Two commenters expressed concern that parental exercise of
a choice option in the case of a student receiving special education
services, without the approval of the student's Individualized
Education Program (IEP) team, may constitute a unilateral change in
placement under the IDEA that could violate the student's right to a
free appropriate public education (FAPE).
Discussion: Under the IDEA, a change in the location of delivery of
services, in and of itself, does not trigger the ``change of
placement'' procedures of the IDEA. The LEA can allow the school of
choice either to implement the IEP that the prior school developed for
the new school year, or convene an IEP team meeting and develop a new
IEP that meets the student's needs. If the LEA adopts the student's
existing IEP, none of the ``change of placement'' procedures apply.
However, the school district must comply with the ``change of
placement'' requirements of the IDEA if the new IEP will change either
the services in the IEP or the extent to which the student will
participate with nondisabled students in academic and nonacademic
activities. Similar rules apply to students who are covered only by
Section 504 and Title II of the ADA.
Changes: None.
Comment: One commenter requested clarification that an LEA would be
permitted to limit the choices of a student with a disability to those
eligible schools with the capacity to provide the services required by
the student's IEP.
Discussion: LEAs are not required to offer students with
disabilities the same choices of schools as are offered to nondisabled
students, but may match the abilities and needs of a student with a
disability, as indicated on the student's IEP, to those schools that
have the ability to provide FAPE to the student. However, school
districts must offer students with disabilities and those eligible
under Section 504 and Title II of the ADA the opportunity to be
educated in an eligible school, namely, a school that has not been
identified for school improvement, corrective action, or restructuring
and that has not been identified by the State as persistently
dangerous. Like other students, students with disabilities and those
covered by Section 504 and Title II of the ADA must have the
opportunity to express a preference among at least two eligible schools
and that preference must be considered by the school district in making
their assignment.
Changes: None.
Section 200.45 Supplemental Educational Services
Comment: Two commenters expressed concern that proposed Sec.
200.45(b)(1) goes beyond the NCLB Act in requiring LEAs to ``arrange''
for each eligible student to receive
[[Page 71757]]
supplemental educational services, rather than ``make available'' such
services at the request of parents.
Discussion: The ESEA requires LEAs that are identified for a second
year of improvement or subject to corrective action or restructuring to
``make supplemental services available'' in accordance with section
1116(e) of the statute. Section 1116(e)(1) requires such LEAs to
``arrange for the provision of supplemental educational services to
eligible children in the school from a provider with a demonstrated
record of effectiveness, that is selected by the parents.'' The
proposed regulations are consistent with this statutory language.
Changes: None.
Comment: One commenter urged the Secretary to issue ``clarifying
regulations and guidance'' encouraging States and LEAs to promote
maximum participation by providers that utilize distance-learning
technologies.
Discussion: The Secretary recognizes the potential value of
technology as a means to overcome geographic and cost barriers to the
universal availability of high-quality supplemental educational
services, particularly in poor urban and rural areas where it is
reasonable to expect there will be the greatest demand for such
services. This is why Sec. 200.37(b)(5)(i)(A) requires the LEA's
annual notice of the availability of supplemental educational services
to specifically include providers of technology-based or distance-
learning services, when such providers are on the SEA's list. However,
the ESEA does not give the Secretary authority to promote one type of
provider over another; rather, it places responsibility for promoting
participation by the maximum number of providers on SEAs, which must
develop standards for approving providers and maintain an updated list
of approved providers from which parents may select. Unless evidence
emerges that the State approval process presents barriers to
participation by technology-based or distance-learning providers, the
Secretary believes there is no need for further regulations on this
issue.
Changes: None.
Comment: One commenter requested additional language in proposed
Sec. 200.45(b)(4)(i)(A) requiring an SEA, before granting a waiver
from the requirement to provide supplemental educational services, to
determine that the providers on its approved list makes services
available within the LEA requesting the waiver through technology-based
or distance-learning methods.
Discussion: The proposed regulations require the SEA to determine
that none of the providers on its list makes available supplemental
educational services to students served by the LEA before granting a
waiver from the requirement to provide such services. Since the SEA's
list presumably will include providers using technology-based or
distance-learning methods, no additional language is needed.
Changes: None, except that the final regulation has been renumbered
as Sec. 200.45(c)(4)(i)(A).
Comment: One commenter maintained that since any transportation
costs related to supplemental educational services would strain
``already tight school budgets,'' the final regulations should
encourage the use of school-based services wherever possible.
Discussion: The Secretary appreciates the concern of the commenter,
and acknowledges the potential benefits of providing supplemental
educational services at the school site. However, the ESEA
unambiguously leaves the selection of services up to the parents of
eligible students.
Changes: None.
Section 200.46 LEA Responsibilities for Supplemental Educational
Services
Comment: One commenter recommended that the regulations clarify
that for students with disabilities, supplemental educational services
must ``continue to meet the goals and objectives of the IEP.''
Discussion: For a student with disabilities, the supplemental
educational services agreement must include a statement of specific
achievement goals for the student, a description of how the student's
progress will be measured, and a timetable for improving achievement,
that are consistent with the student's IEP. However, the supplemental
educational services do not also have to meet the goals and objectives
of the IEP.
Changes: Section 200.46(b)(3) of the final regulations clarifies
that each of the provisions of the statement included in the
supplemental educational services agreement, and not just the timetable
for improving achievement, must be consistent with the student's IEP or
individualized services under Section 504.
Comment: One commenter requested clarification of the relationship
of supplemental educational services to Individualized Education
Programs (IEPs) under IDEA or individualized services under a section
504 plan, out of concern that if such services are written into these
plans, they could be subject to challenge in a due process proceeding.
Discussion: Sec. 200.46(b)(2)(i)(c) requires supplemental
educational services to be ``consistent'' with IEPs and section 504
services, but these services are provided in addition to the
instruction and services provided during the school day under the IEP
or Section 504 plan and are not considered part of IEPs or section 504
plans.
Changes: None.
Comment: One commenter requested that the regulations provide an
exemption from restrictions under the Family Educational Rights and
Privacy Act to permit the sharing of IEP and section 504 plans with
supplemental educational services providers.
Discussion: Under the Family Educational Rights and Privacy Act
(FERPA), parental consent must be obtained before developing the
supplemental services agreements provided for in section 1116(e)(3) of
the ESEA and Sec. 200.46(b), without regard to whether a particular
student is a student with disabilities or a nondisabled student,
because all supplemental services agreements will require the LEA to
share information from education records with the services provider.
Therefore, an exemption for students with IEPs or Section 504 plans is
not appropriate.
Changes: None.
Comment: One commenter recommended strengthening proposed
Sec. Sec. 200.46(a)(4) and 200.47(a)(5) by adding language ensuring
that eligible students with disabilities and students covered under
section 504 of the Rehabilitation Act of 1973 ``are provided with equal
access to each provider.''
Discussion: The Secretary has determined that no change is
necessary. Sections 200.46(a)(4) and 200.47(a)(5) of the final
regulations must be read consistent with the requirements of Section
504 and Title II of the ADA. Under Section 504, SEAs and LEAS, as
recipients of Federal financial assistance, have responsibility for
ensuring that there is no discrimination in the supplemental services
program. SEAs and LEAS have similar duties under Title II of the ADA,
which applies to public entities. In particular, SEAs and LEAs must
ensure that students with disabilities and students covered by Section
504 receive appropriate supplemental educational services and necessary
accommodations in the provision of those services. Consistent with this
duty, LEAs may not, through contractual or other arrangements with
private providers, discriminate against a student with a disability by
failing to provide for appropriate supplemental educational services
with necessary
[[Page 71758]]
accommodations. Such services and necessary accommodations must be
available, but not necessarily from each provider. Rather, SEAs and
LEAs are responsible for ensuring that the supplemental educational
service providers made available to parents include some providers that
can serve students with disabilities and students covered under Section
504 with any necessary accommodations, with or without the assistance
of the SEA or LEA. If no provider is able to make the services with
necessary accommodations available to a student with a disability, the
LEA would need to provide these services, with necessary
accommodations, either directly or through a contract.
Changes: None.
Comment: In giving further consideration to the proposed
regulations during the review of public comments, the Secretary noted
that while proposed Sec. 200.46(a)(4) required an LEA to ensure that
eligible students with disabilities and students covered under Section
504 receive appropriate supplemental educational services and
accommodations in the provision of those services, the proposed
regulations were silent on the LEA's obligation to ensure the provision
of appropriate services, including any necessary language assistance,
to students with limited English proficiency.
Discussion: Eligible students are entitled to supplemental
educational services regardless of their English proficiency and, in
fact, some students may need such services due to their limited English
proficiency. Under Sec. 200.20, each LEA is required to report on the
annual yearly progress of each subgroup, including students with
limited English proficiency. Additionally, under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, an LEA implementing the Title I
program is prohibited from discriminating against students with limited
English proficiency. For these reasons, the final regulations include
new language emphasizing an LEA's responsibility to ensure that the
supplemental education providers made available to parents include some
who can serve students with limited English proficiency, with or
without the assistance of the LEA.
Changes: Section 200.46(a)(5) of the final regulations require LEAs
to ensure that students who have limited English proficiency receive
appropriate supplemental educational services and language assistance
in the provision of those services.
Comment: One commenter asked whether an LEA may identify and
approve providers of supplemental educational services if an SEA fails
to provide a list of approved providers in a timely manner.
Discussion: The ESEA does not authorize an LEA to identify and
approve providers of supplemental educational services except, as
described under section 1116(e)(11), when State law prohibits an SEA
from carrying out this responsibility. In general, the Secretary would
consider an SEA that fails to provide a list of approved providers in a
timely manner to be out of compliance with the statute, and would take
action to bring the SEA into compliance and ensure that LEAs can
arrange for eligible students to receive supplemental educational
services.
Changes: None.
Comment: One commenter asked whether LEAs are permitted to
establish additional criteria for supplemental educational service
providers on the SEA's list.
Discussion: With the narrow exception in Sec. 200.46(c), the ESEA
clearly assigns authority for identifying and approving supplemental
service providers to the SEA. LEAs, which also may serve as providers
and thus would face a potential conflict of interest in setting
additional barriers to participation by SEA-approved providers, are not
permitted to set additional criteria or otherwise modify the list of
providers made available by the SEA.
Changes: None.
Section 200.47 SEA Responsibilities for Supplemental Educational
Services
Comment: One commenter expressed concern that proposed Sec.
200.47(a)(3), which requires SEAs to ``maintain by LEA an updated list
of approved providers from which parents may select,'' could
inadvertently lead to the exclusion of technology-based or distance-
learning providers located outside the LEA.
Discussion: The Secretary agrees that the language of the proposed
regulations could be misconstrued to exclude technology-based or
distance-learning providers.
Changes: Final Sec. 200.47(a)(3) includes additional language
requiring the updated LEA lists of providers to include technology-
based and distance-learning providers serving the respective LEAs.
Comment: None.
Discussion: In giving further consideration to the proposed
regulations during the review of public comments, the Secretary noted
that while proposed Sec. 200.47(a)(5) requires an SEA to ensure that
eligible students with disabilities and students covered under Section
504 receive appropriate supplemental educational services and
accommodations in the provision of those services, the proposed
regulations were silent on the SEA's obligation to ensure the provision
of appropriate services, including any necessary language assistance,
to students with limited English proficiency.
Eligible students are entitled to supplemental educational services
regardless of their English proficiency and, in fact, some students may
need such services due to their limited English proficiency. Under
Sec. 200.21, each SEA is required to report on the annual yearly
progress of each subgroup, including students with limited English
proficiency. Additionally, under Title VI of the Civil Rights Act of
1964, 42 U.S.C. 2000d, an SEA implementing a Title I program is
prohibited from discriminating against students with limited English
proficiency. For these reasons, the final regulations include new
language emphasizing an SEA's responsibility to ensure that the
supplemental education providers made available to parents include some
who can serve students with limited English proficiency, with or
without the assistance of the SEA.
Changes: Section 200.47(a)(6) of the final regulations requires
SEAs to ensure that students who have limited English proficiency
receive appropriate supplemental educational services and language
assistance in the provision of those services.
Comment: One commenter expressed concern over the exclusion of
educational service agencies from the list of potential providers in
proposed Sec. 200.47(b)(1). The commenter noted that such agencies may
be considered LEAs under section 9101(26) of the NCLB Act.
Discussion: The Secretary agrees that it is appropriate to clarify
that educational service agencies may be supplemental educational
service providers.
Changes: Educational service agencies have been added to the
definition of entities eligible to be supplemental educational service
providers in Sec. 200.47(b)(1).
Comment: Several commenters objected to proposed Sec.
200.47(b)(1)(iv), which would prohibit States from approving as a
supplemental service provider any school that has been identified for
improvement, corrective, or restructuring. Commenters asserted that
this restriction would prevent some identified schools that operate
``very effective'' after-school programs from serving as providers,
complicate efforts
[[Page 71759]]
to make services available on school grounds, and limit the
availability of providers in poor and rural communities.
Discussion: The Secretary believes that schools that are identified
for improvement or subjected to corrective action or restructuring need
to be focused on carrying out comprehensive efforts to make in helping
all student meet challenging State academic achievement standards, and
not divert staff and other resources to the creation and operation of
supplemental educational service programs. Though the proposed
regulations excluded only identified schools as service providers, the
same concerns apply to LEAs identified for improvement or corrective
action. The purpose of supplemental educational services--increasing
the academic achievement of eligible children on State assessments and
helping them attain proficiency in meeting the State's academic
achievement standards--is not well served if students obtain such
services from an entity that is demonstrably failing to achieve those
goals as shown by a consistent inability to make AYP. The final
regulations do not hinder in any way the ability of a provider to offer
services on school grounds or in LEA facilities. Finally, the success
of supplemental educational services depends not merely on the
availability of services, but on the availability of high-quality
services that meet student needs. The Secretary believes there will be
sufficient incentive for independent providers or potential providers,
including those offering technology-based or distance-learning
services, to offer such services in poor urban and rural communities.
Changes: Section 200.47(b)(1)(v) has been added to clarify that an
LEA that has been identified for improvement or corrective action is
not eligible to be a supplemental educational services provider.
Comment: One commenter supported proposed Sec. 200.47(b)(1)(iv),
which would prohibit States from approving as a supplemental service
provider any school that has been identified for improvement,
corrective action, or restructuring. However, the commenter requested
clarification that highly qualified teachers employed by such schools
are eligible to provide such services.
Discussion: The final regulations do not restrict in any way the
ability of a highly qualified teacher employed by a school identified
for improvement, corrective action, or restructuring from forming an
entity that would serve as a supplemental educational services
provider, or from working for such an entity.
Changes: None.
Comment: One commenter expressed concern that the purpose and
quality of supplemental educational services may be undermined if
providers are permitted to hire as instructors staff who teach at
schools identified for improvement, corrective action, or
restructuring.
Discussion: The Secretary understands the concern of the commenter,
but believes that even the lowest-performing schools may have teachers
who have the experience and skill to provide high-quality supplemental
educational services. In addition, the Secretary has no authority to
limit contractual agreements between teachers and other entities.
Changes: None.
Comment: One commenter recommended that the regulations encourage
SEAs to include input from parents in developing standards for
approving and monitoring supplemental educational service providers.
Discussion: The ESEA neither requires nor precludes participation
by parents in the process of approving and monitoring supplemental
educational service providers, and SEAs that wish to include parents in
this process are free to do so.
Changes: None.
Comment: Several commenters maintained that proposed Sec.
200.47(b)(3) could have permitted providers to exclude students with
disabilities, based on the possibility of an ``arbitrary judgment''
regarding the ``minor adjustments'' required to serve them. Some
commenters requested a definition of ``minor adjustments,'' including
an explanation of who would pay for such adjustments, while others
recommended that the final regulations simply prohibit providers from
discriminating against any eligible student with a disability.
Discussion: The Secretary agrees with commenters that the proposed
regulations potentially created confusion regarding the civil rights
obligations that are applicable when students with disabilities and
students covered by Section 504 and Title II of the ADA receive
supplemental educational services. Under Section 504 and Title II, SEAs
and LEAs have primary responsibility for ensuring that there is no
discrimination in the provision of supplemental educational services.
Thus, SEAs and LEAs are responsible for ensuring that the supplemental
educational service providers made available to parents include some
providers that can serve students with disabilities and students
covered by Section 504 with any necessary accommodations, with or
without the assistance of the SEA or LEA.
At the SEA level, this responsibility must involve efforts to
identify and approve providers that will be available to serve these
students with necessary accommodations. LEAs also are responsible for
ensuring that supplemental services are available for students with
disabilities and students covered by Section 504, and may have to
provide services and necessary accommodations directly to these
students in the absence of a private provider that is able to provide
supplemental educational services with necessary accommodations.
Private supplemental service providers are not deemed recipients
merely by virtue of their provision of these services and therefore are
not covered under Section 504; nor are they covered under Title II of
the ADA since they are not public entities. For this reason, proposed
Sec. 200.47(b)(3), which governed the obligations of private providers
of supplemental educational services for students with disabilities and
students covered by Section 504 and Title II of the ADA, has been
removed from the final regulations. However, private providers may have
certain responsibilities under Federal, State and local civil rights
laws, and SEAs must ensure that providers fulfill these
responsibilities as a condition of approval as a supplemental
educational services provider. For example, private providers that are
not religious entities must comply with the nondiscrimination
requirements of Title III of the ADA (Title III).
Under Title III, which is enforced by the U.S. Department of
Justice, private entities that are places of public accommodation
(except for religious entities) must make reasonable modifications to
their policies, practices, and procedures to ensure nondiscrimination
on the basis of disability, unless to do so would fundamentally alter
the nature of the program. Likewise, these providers must take those
steps necessary to ensure that students with disabilities are not
denied services or excluded because of the absence of auxiliary aids
and services, unless taking those steps would fundamentally alter the
nature of the services or would result in an undue burden (i.e.,
significant difficulty or expense). Private providers may also be
subject to Title VII of the Civil Rights Act concerning discrimination
in employment.
[[Page 71760]]
Changes: Proposed Sec. 200.47(b)(3) has been removed from the
final regulations.
Comment: Two commenters found proposed Sec. 200.47(b)(3), which
appears to permit providers to exclude some students with disabilities,
to be inconsistent with proposed Sec. Sec. 200.46(a)(4) and
200.47(a)(5), which require LEAs and SEAs to ensure that these students
``receive appropriate supplemental educational services and
accommodations in the provision of those services.''
Discussion: The Secretary agrees with the commenters, as explained
in the discussion of the previous comment.
Changes: Proposed Sec. 200.47(b)(3) has been removed from the
final regulation.
Comment: Several commenters objected to proposed Sec.
200.47(b)(4)(i), which would prohibit States from requiring providers
to hire staff who are highly qualified, as defined by Sec. Sec. 200.55
and 200.56. The commenters argued that the proposed regulations are
inconsistent with the letter and spirit of the NCLB Act, which
prohibits Title I programs from hiring new teachers who are not highly
qualified and requires States to adopt plans for ensuring that all
public school teachers are highly qualified by 2005-2006.
Discussion: The Secretary believes that requiring supplemental
educational service providers to use only highly qualified staff, as
defined in the NCLB Act, would severely limit the availability of
providers, particularly in poor urban and rural areas. For example,
retired teachers might not be able to provide services through approved
providers. States, LEAs, and schools receive substantial resources
through Federal education programs that may be used to help ensure that
all teachers are highly qualified. Because these resources are
unavailable to supplemental service providers, few providers would be
able to meet the same standard. In addition, unprecedented
accountability requirements will help to ensure the quality of
instruction offered by providers. All providers must have a
``demonstrated record of effectiveness'' to win approval by the SEA,
must be selected by parents, must enter into agreements with specific
achievement goals for each student, and must meet those goals to remain
on the SEA's list of approved providers. Furthermore, parents of
eligible students must request services annually, giving providers a
strong incentive both to produce results as measured by improved
achievement and to offer high-quality customer service to parents and
students. Finally, even though States may not bar participation by
providers who do not use only highly qualified staff, they would be
permitted to indicate the qualifications of provider staff in
information provided to parents.
Changes: None.
Comment: Several commenters also objected to proposed Sec.
200.47(b)(4)(ii), under which States could not require, as a condition
of approval, that supplemental educational service providers document
that they use instructional strategies based on scientifically based
research. The commenters believe that this proposal would have
undermined one of the core principles of the NCLB Act, which requires
the use of instructional strategies based on scientifically based
research in nearly all of its authorities, including Part A of Title I.
Discussion: The use of instruction based on scientifically based
research is indeed a core principle of the NCLB Act. It is absent,
however, from the statutory definition of supplemental educational
services, which refers only to services that are ``research-based.''
This term suggests that Congress intended a different standard to apply
to supplemental educational services, one based on the unique
accountability inherent in such services. However, the Secretary agrees
that States should be permitted, but not required, to include the use
of instruction grounded in scientifically based research in the
criteria used to approve supplemental educational service providers.
Changes: Proposed Sec. 200.47(b)(4)(ii) has been removed from the
final regulations.
Section 200.48 Funding for Choice-Related Transportation and
Supplemental Educational Services
Comment: A number of commenters raised objections to proposed Sec.
200.48(a)(2), which covers funding requirements related to the
provision of public school choice options and supplemental educational
services. Their comments focused primarily on concerns that the
proposed regulations were confusing and deviated from what commenters
believed was the clear language of the ESEA.
Discussion: Proposed Sec. 200.48(a)(2) reflects the Secretary's
best interpretation of a section of the ESEA that includes ambiguous
and sometimes contradictory provisions. This interpretation is based
primarily on section 1116(b)(10)(A) of the statute, which states that
``Unless a lesser amount is needed to comply with paragraph (9)
[choice-related transportation] and to satisfy all requests for
supplemental educational services under subsection (e), a local
educational agency shall spend an amount equal to 20 percent of its
allocation under subpart 2 [Title I, Part A allocations]'' for choice-
related transportation and supplemental educational services.
The primary effect of this provision, as described in proposed
Sec. 200.48(a)(2), is to clearly obligate an LEA to spend ``an amount
equal to'' 20 percent of its allocation under subpart 2 on choice-
related transportation, supplemental educational services, or a
combination of the two, regardless of the actual source of the funds.
The emphasis is on the amount that must be spent--an amount equal to 20
percent of its subpart 2 allocation--not the source of the funds. The
final regulations maintain this requirement.
LEA discretion in spending such funds is limited by the requirement
in section 1116(b)(10)(A)(i) and (ii) of the ESEA that an LEA spend an
amount equal to 5 percent of its allocation under subpart 2 on choice-
related transportation and 5 percent on supplemental educational
services, assuming there is demand for both. In other words, if
students require transportation to a school selected under Sec.
200.44, and parents have requested supplemental educational services
under Sec. 200.45, the LEA does not have discretion to use the full 20
percent reservation on only one of these activities.
Proposed Sec. 200.48(a)(2)(iii)(A), which was intended to prevent
an LEA from using the entire 20 percent on choice-related
transportation and ignoring demand for supplemental educational
services, should have clarified that an LEA also is not permitted to
use the entire amount for supplemental educational services and
potentially deny choice to students by failing to provide or pay for
choice-related transportation.
On the other hand, if there is demand for either choice-related
transportation or supplemental educational services, but not both, the
Secretary believes that section 1116(b)(10)(A) of the statute requires
an LEA to spend the full 20 percent on the required activity, and not
the maximum of 15 percent suggested by some commenters.
In addition, the claim by some commenters that section
1116(b)(10)(B) of the ESEA caps an LEA's spending on supplemental
educational services at an amount equal to 5 percent of its allocation
ignores the requirements of the introductory clause of section
1116(b)(10)(A) of the statute and the overall legislative context of
this provision. Section 1116(b)(10)(B) appears to set such a cap, and
thus
[[Page 71761]]
contradict the introductory clause of subparagraph (A), which requires
the expenditure of an amount equal to 20 percent of an LEA's subpart 2
allocation ``to satisfy all requests for supplemental educational
services under subsection (e).'' However, the plain language of section
1116(b)(10)(B) of the statute refers to a maximum amount to be spent on
supplemental services ``under this part.'' ``[T]his part'' refers to
the source of funds, which is Title I, Part A. Thus, the maximum amount
that an LEA is required to spend out of its Title I, Part A funds is an
amount equal to 5 percent of its allocation under subpart 2 of this
part. Subparagraph (B) does not change or otherwise reduce the
obligation under subparagraph (A) for an LEA to spend an amount equal
to 20 percent of its subpart 2 allocation, but simply places a 5
percent limitation on the required use of Title I, Part A funds for
this purpose. An LEA, for example, could use funds allocated under Part
A of Title V of the ESEA to meet the remaining 15 percent requirement.
However, the 5 percent limitation on the required use of Title I, part
A funds for this purpose does not prevent an LEA, at its option, from
using a higher percentage of Title I, part A funds for this purpose.
Finally, one commenter observed that the proposed regulations
appear to ignore section 1116(b)(9) of the ESEA, which requires
affected LEAs to provide or pay for choice-related transportation,
without specifying either the source of funds or any limit on such
costs. Section 1116(b)(9) must be read in context with section
1116(b)(10), which was negotiated during the House Senate conference
committee meetings on the ESEA. Earlier versions of the bill had
uniformly required transportation for all students exercising a choice
option until all needs were met, while limiting the contribution of
subpart 2 funds for transportation to 15 percent of an LEA's
allocation. If transportation costs exceeded this 15 percent cap on
subpart 2 funds, an LEA would have had to use other funds to pay the
balance of the choice-related transportation costs. However, the final
language of the NCLB Act required only the expenditure of an ``amount
equal to 20 percent of its allocation under subpart 2,'' thereby
extending the cap to funding from all sources and limiting the
obligation to pay transportation costs until all needs were met.
Changes: The final regulations maintain the NPRM requirement in
Sec. 200.48(a)(2) that an LEA spend an amount equal to 20 percent of
its Title I, part A allocation on choice-related transportation and
supplemental educational services, unless a lesser amount is needed to
meet the requirements of Sec. Sec. 200.44 and 200.45. Section
200.48(a)(2)(iii)(A) has been amended to clarify that an affected LEA
must spend a minimum of an amount equal to 5 percent of its allocation
under subpart A for transportation required under Sec. 200.44 and an
identical amount for supplemental educational services under Sec.
200.45, unless a lesser amount is needed to comply with all requests
for choice-related transportation and supplemental educational
services.
Comment: One commenter requested regulatory clarification that
Title I, Part A funds may be used to pay the administrative costs
associated with supplemental educational services.
Discussion: Section 1116(b)(10) of the ESEA requires an LEA to
spend an amount equal to 20 percent of its Title I allocation for
transportation costs related to public school choice and to provide
supplemental educational services. This requirement establishes a
minimum amount an LEA must spend on the actual supplemental educational
services in order to make those services available to as many eligible
students as possible. As a result, the Secretary has revised Sec.
200.48(a)(2)(iii)(B) of the final regulations to make clear that an LEA
may not include costs for administration or transportation incurred in
providing supplemental educational services, or any administrative
costs associated with the provision of public school choice options
under Sec. 200.44, in the amounts required to be spent to meet the
requirements of section 1116(b)(10) of the ESEA. Such costs, however,
are allowable Title I expenditures and may be taken off the top of the
LEA's Title I allocation like other proper administrative costs.
Changes: Section 200.48(a)(2)(iii)(B) has been amended to clarify
that administrative costs associated with providing supplemental
educational services may not ``count'' toward meeting the minimum
expenditure requirements in section 1116(b)(10) of the ESEA.
Comment: Two commenters objected to proposed Sec.
200.48(a)(2)(iii)(B), which prohibits an LEA from including
supplemental educational services-related administrative or
transportation costs as part of the minimum 5 percent of an LEA's Part
A allocation that must be spent on satisfying all requests for such
services. One of the commenters asserted that since a provider would be
permitted to include transportation costs in its fees, LEAs should be
permitted to include similar costs under the 5 percent minimum.
Discussion: The ESEA is silent on the treatment of administrative
or transportation costs associated with supplemental educational
services. The Secretary believes, however, that the funds made
available for supplemental educational services under Sec.
200.48(a)(2) are intended to pay for actual services and not
administrative or transportation costs. Funding limitations may
restrict significantly the availability of supplemental educational
services in many LEAs, and permitting LEAs to count administrative or
transportation costs toward satisfying the funding requirements of
Sec. 200.48(a)(2) would only further reduce the number of students
receiving supplemental educational services. In addition, the proposed
regulations should have stated that an LEA may not use administrative
or transportation costs related to supplemental educational services to
satisfy any of the funding requirements of Sec. 200.48(a)(2), and not
just the 5 percent minimum requirements under Sec.
200.48(a)(2)(iii)(A).
Changes: The final regulations clarify that LEAs may not include
administrative or transportation costs associated with the provision of
supplemental educational services in meeting the funding requirements
of Sec. 200.48(a)(2).
Comment: One commenter requested that the final regulations clarify
that LEAs have fulfilled their responsibility to fund ``all requests
for supplemental educational services'' once they have spent an amount
equal to 20 percent of their Part A allocations on choice-related
transportation, supplemental educational services, or a combination of
the two.
Discussion: The Secretary believes that it is clear from the
proposed regulations that an LEA's obligation to ``satisfy all requests
for supplemental educational services'' is limited by available funding
specified under Sec. 200.48(a)(2). This limitation is explicitly
acknowledged in proposed Sec. 200.48(a)(3) and (4), which permit but
do not require LEAs and SEAs to make available additional funding for
choice-related transportation and supplemental educational services
from other sources.
Changes: None.
Comment: One commenter requested that the final regulations permit
the use of alternatives to census poverty estimates in calculating the
per-child funding for supplemental educational services under proposed
Sec. 200.48(c).
Discussion: Section 1116(e)(6) of the ESEA explicitly requires an
LEA to use census poverty estimates to calculate the per-child amount
available for
[[Page 71762]]
providing supplemental educational services. The Department provides
these estimates to each State when it makes annual Title I allocations,
and thus they are available to each LEA. The Secretary has no authority
to permit the use of alternative poverty data to determine the per-
child amount available for supplemental educational services. We note,
however, that an LEA does not use the census poverty estimates to
identify those low-income students eligible for supplemental
educational services. Rather, an eligible student is a student from a
low-income family as determined by the LEA for purposes of allocating
Title I funds to schools under section 1113 of the ESEA.
Changes: None.
Section 200.49 SEA Responsibilities for School Improvement, Corrective
Action, and Restructuring
Comment: Several commenters recommended modifying proposed Sec.
200.49(b)(2)(ii), which permits an SEA to use school improvement funds
to directly provide school improvement activities ``if requested by an
LEA,'' by returning to the language of section 1003(b)(2) of the ESEA,
which permits SEA retention of such funds ``with the approval of the
local educational agency.'' The proposed regulations could be
interpreted as preventing a State from developing a cost-effective,
statewide approach to supporting school improvement efforts absent a
request from LEAs.
Discussion: The Secretary agrees that the proposed regulations
could be subject to misinterpretation.
Changes: Section 200.49(b)(2)(ii) has been changed to permit SEAs
to directly support school improvement activities ``with the approval
of the LEA.''
Comment: One commenter expressed concern that while proposed Sec.
200.49(e) requires SEAs to make the results of academic assessments in
a given year available to LEAs before the beginning of the next school
year, the inclusion of local assessments, over which SEAs have little
or no authority, in State assessment systems may prevent SEAs from
meeting this requirement.
Discussion: SEAs are responsible for ensuring that their State
assessment systems, which may include local assessments, comply with
all the requirements of the ESEA.
Changes: None.
Comment: One commenter expressed concern that charter schools, many
of which enjoy LEA status or are treated as LEAs in the administration
of Federal education programs, might not be subject to the rigorous
accountability of the NCLB Act if they are effectively permitted to
monitor themselves.
Discussion: Section 1111(b)(2)(K) of the ESEA recognizes the unique
and varying circumstances of charter schools by requiring that
accountability be overseen for charter schools in accordance with State
charter school law. The Secretary agrees that the inclusion of this
language in the final regulations would help clarify that while the
accountability provisions of the NCLB Act apply to charter schools,
they are not intended to expand the authority of SEAs or LEAs over
charter school operations except to the extent authorized by State
charter school law.
Changes: Section 200.49(f) of the final regulations incorporates
the charter school accountability language of section 1111(b)(2)(K) of
the ESEA.
Section 200.50 SEA Review of LEA Progress
Comment: One commenter requested clarification of the SEA review of
LEA progress required by proposed Sec. 200.50(a), which does not
appear to include progress on other indicators, such as graduation
rates.
Discussion: The Secretary agrees that proposed Sec.
200.50(a)(1)(ii)(A) appears to require progress only in meeting State
student academic achievement standards, rather than the broader
definition of suggested by the statutory reference to section
1111(b)(2) of the ESEA.
Changes: Section 200.50(a)(1)(i) has been amended to require ``as
defined under Sec. Sec. 200.13 through 200.20,'' which includes
progress on other academic indicators in the State plan.
Comment: Two commenters objected to the permissive authority in
proposed Sec. Sec. 200.50(d)(3) and (d)(4) to identify an LEA for
improvement or remove an LEA from improvement, respectively, on the
basis of 2001-2002 assessment data. The commenters interpret the ESEA
as requiring the identification for improvement of any LEA that fails
to make AYP for two consecutive years, as well as the removal from
improvement status of any LEA that makes AYP for two consecutive years,
regardless of the years involved.
Discussion: The Secretary believes that the absence of any
reference to 2001-2002 assessment results in the otherwise very
specific transition provisions of the new law, combined with the strong
likelihood that many States would not be able to make these results
available to LEAs prior to the beginning of the 2002-2003 school year,
supports a flexible approach to the use of those results for
identification purposes during the transition to the new law. To avoid
any confusion about the use of 2001-2002 assessment results in
subsequent years, however, the Secretary has added language clarifying
that an SEA decision not to identify for improvement an LEA that, on
the basis of 2001-2002 assessment data, does not make AYP for a second
consecutive year, does not permit the SEA to ignore that failure in
making future identification decisions.
Changes: Section 200.50(d)(3)(ii) clarifies that if an SEA chooses
not to identify for improvement a school that, on the basis of 2001-
2002 assessment results, does not make AYP for a second consecutive
year, it nevertheless must consider the LEA's 2001-2002 performance as
the first year of not making AYP for the purpose of subsequent
identification decisions.
Comment: One commenter objected to the flexibility provided SEAs in
proposed Sec. 200.50(e)(3) to remove from corrective action an LEA
that, on the basis of assessments administered during the 2001-2002
school year, makes AYP for a second consecutive year. The commenter
maintained that the ESEA requires SEAs to remove LEAs from corrective
action in such cases, as well as to use 2001-2002 assessment data to
identify additional LEAs for corrective action.
Discussion: The Secretary believes that the proposed regulations
are an appropriate way to address an inequity in the statutory
transition provisions covering identification for corrective action.
These provisions require SEAs to treat LEAs that were identified for
corrective prior to enactment of the NCLB Act as subject to corrective
action for the 2002-2003 school year. Some of these LEAs, however, may
have made AYP in both 2000-2001 and 2001-2002, thus meeting the
statutory requirement for removal from corrective action. The proposed
regulations thus permit SEAs to remove these LEAs from corrective
action, but does not require such removal because some SEAs may, in
part due to the uncertain timing of assessment results, prefer to
simply adhere to the statutory transition provisions. As for
identifying additional LEAs for corrective action on the basis of 2001-
2002 assessment data, proposed Sec. 200.50(e)(1) already permits an
SEA to take corrective action against any LEA that it has identified
for improvement, but the statutory transition provisions suggest that
mandatory identification for corrective action in the 2002-2003 school
year is limited to those LEAs identified under the previous law.
Changes: None.
[[Page 71763]]
Section 200.51 Notice of SEA Action
Comment: Two commenters requested clarification on whether SEAs,
rather than communicating directly to parents as required by proposed
Sec. 200.51(a)(2)(i), are permitted to work with the LEA to deliver
information about the LEA review and improvement process directly to
parents.
Discussion: The Secretary agrees that it may be more effective for
SEAs, in cases where an SEA does not have access to individual student
addresses, to communicate with parents through means provided by the
LEA.
Changes: Section 200.51(a)(2)(i) has been changed to permit an SEA,
in cases where an SEA does not have access to individual student
addresses, to provide information on the LEA review and improvement
process by using LEA- and school-level delivery mechanisms.
Section 200.54 Rights of School and School District Employees
Comment: Numerous commenters objected to proposed Sec. 200.54,
which would have given LEAs greater flexibility in negotiating
collective bargaining agreements and other agreements between employers
and employees that are consistent with the school and LEA improvement
requirements of proposed Sec. Sec. 200.30 through 200.53. Commenters
maintained that the proposed regulations were inconsistent with both
the statute and with many State and local laws governing collective
bargaining agreements.
Discussion: The Secretary believes that section 1116(d) of the ESEA
was not intended to deny LEA and school leaders the management tools
needed to implement effective LEA and school improvement measures,
which may often involve changes in the assignment and duties of LEA and
school personnel. However, the Secretary agrees that the proposed
regulations arguably were inconsistent with a strict reading of the
NCLB Act and may have conflicted with applicable State and local laws.
Changes: Proposed Sec. 200.54 has been removed from the final
regulations.
Qualifications of Teachers and Paraprofessionals
Section 200.55 Qualifications of Teachers
Comment: Several commenters asked for clarification as to which
subjects are ``core academic subjects.'' One commenter asked that
foreign languages and the arts be excluded from the definition of core
academic subjects. One commenter asked why science was listed as a
stand-alone discipline when social studies was broken down into civics,
geography, and history. Another commenter asked why special education
was not listed as a core academic area.
Discussion: The definition of core academic subjects is in section
9101(11) of the ESEA, and is repeated in Sec. 200.55(c) of the
regulations. The statute defines core academic subjects as English,
reading or language arts, mathematics, science, foreign languages,
civics and government, economics, arts, history, and geography. Hence,
the definition lists science generally but civics, geography, and
history separately. The statute does not identify special education as
a core academic subject, and the Secretary lacks authority to delete or
change the subjects included in this statutory definition.
Changes: None.
Comment: A commenter recommended that newly hired Title I teachers
serving private school students meet the same standards of quality as
those who teach in public schools.
Discussion: We agree with this recommendation.
Changes: Section 200.55 (a)(2) and (b) has been modified to clarify
that the requirements governing ``highly qualified'' teachers apply to
teachers employed by an LEA with funds under part A of Title I, who
teach eligible private school students, to the same extent as they
apply to those who teach eligible public school students.
Comment: One commenter recommended that the regulations clarify
that a teacher in a targeted assistance program is one who teaches
students participating in that program.
Discussion: We believe that the existing language is clear and that
no further clarification is needed.
Changes: None.
Comment: One commenter recommended that the ``highly qualified''
requirement not apply to all teachers in a school that operates a
schoolwide program.
Discussion: Inherent to the concept of schoolwide programs is the
elimination of any distinction between Title I and non-Title I
students; that is, a schoolwide program is intended to provide an
instructional program that helps all students in the school. Therefore,
it would subvert the intent of schoolwide programs to have requirements
that govern highly qualified teachers apply to some, but not all,
teachers in a schoolwide program school.
Changes: None.
Comment: One commenter recommended that Sec. 200.55(b)(1) clarify
that the requirement that ``all teachers in the State'' be highly
qualified by the end of the 2005-2006 school year applies only to
public elementary and secondary school teachers, and not to others,
such as private school and college teachers.
Discussion: The Secretary agrees with the comment.
Changes: Section 200.55(b) has been revised to clarify that the
requirements governing highly qualified teachers apply to ``all public
elementary and secondary school teachers.'' This clarification was also
made in Sec. 200.56(b)(1) and (b)(2). In addition, Sec. 200.55(d) has
been added to clarify that the requirements of the section do not apply
to teachers hired by private elementary and secondary schools.
Comment: As proposed, Sec. 200.55(b)(2) provided, as an example of
teachers who do not need to meet the highly qualified requirements
because they do not teach a core academic subject, ``some vocational
educational teachers.'' One commenter recommended deletion of the word
``some.''
Discussion: We disagree with the comment. If a vocational education
teacher teaches a core academic subject, such as applied physics,
section 1119 of the ESEA requires that teacher to be highly qualified.
On the other hand, if a vocational education teacher teaches only a
trade, such as auto mechanics, the teacher would not need to meet these
requirements since the law does not treat that area of study as a core
academic subject. Hence, Sec. 200.56(b)(2) only exempts ``some''
vocational educational teachers.
Changes: None.
Comment: A number of commenters requested clarification about how
the ``highly qualified'' requirements apply to special education
teachers and teachers of limited-English proficient (LEP) students.
Several recommended that special education teachers be deemed to have
met the ``highly qualified'' requirements that apply to other teachers
if they are certified or licensed in special education and have passed
an appropriate State test.
Discussion: The ESEA specifies that all teachers of core academic
subjects are to meet the requirements set forth in the statute.
Students with limited English proficiency or with disabilities are
expected to meet the same standards as all other students, and their
teachers should be expected to have met the same standards for content
knowledge. On the other hand, special educators who do not directly
instruct students on any core academic subject or who provide only
consultation to highly qualified teachers of core academic subjects in
adapting curricula, using
[[Page 71764]]
behavioral supports and interventions, and selecting appropriate
accommodations do not need to meet the same ``highly qualified''
subject-matter competency requirements that apply under the NCLB Act to
teachers of core academic subjects. SEAs and LEAs must ensure that all
special education personnel, including related services providers, meet
the personnel-standards requirements of section 612(a)(15) of the IDEA
and 34 CFR Sec. 300.136. Special education teachers who are providing
instruction in core academic subjects also must meet the ``highly
qualified'' requirements of the ESEA.
The Secretary recognizes that there is an urgent need for highly
qualified teachers, and that critical shortages exist in some areas,
particularly math and science teachers, and special education teachers.
Nevertheless, the NCLB Act sets high standards for students, as well as
teachers, and states should work to meet them. The statute provides a
certain amount of flexibility in how the standards are met. Teachers
can demonstrate competency by taking a test, and States have
flexibility to tailor those tests to the subjects taught by teachers,
including special education teachers and teachers of LEP students. This
issue will be addressed further in guidance.
Changes: None.
Section 200.56 Definition of ``Highly Qualified Teacher''
Comment: Several commenters recommended tightening the requirements
for teachers in alternative route programs so that these individuals
receive, as quickly as possible, the training and full State
certification they need to be effective teachers.
Discussion: We agree with the comment. Our proposal that a teacher
in an alternative route program be considered highly qualified if the
teacher ``is making satisfactory progress toward full certification as
prescribed by the State and the program'' reflects the need for States
to ensure that alternative routes to certification do not become
vehicles for granting long-term waivers of certification requirements.
Still, we understand that, for these teachers to be effective, those in
alternative route programs need to be prepared to teach their students
from the moment they step into their classrooms, and receive the
follow-up support they need as beginning teachers. We also believe
that, in order to ensure that alternative route programs do not become
long-term vehicles for waiving State requirements for full
certification, it is reasonable to establish a maximum period--three
years--in which a teacher in an alternative route can be considered to
be fully certified without having received State certification.
Changes: Section 200.56(a)(1)(iii)(B) is amended by adding language
that requires teachers in alternate route programs to (1) receive high-
quality professional development that is sustained, intensive, and
classroom-focused in order to have a positive and lasting impact on
classroom instruction, before and while teaching, (2) participate in a
program of intensive supervision that consists of structured guidance
and regular ongoing support for teachers or a teacher mentoring
program, (3) assume functions as a teacher only for a specified period
of time not to exceed three years before receiving full State
certification, and (4) demonstrate satisfactory progress toward full
certification as prescribed by the State. The regulations have been
further amended by requiring that the State ensure, through its
certification and licensure process, that these provisions are met.
Comment: A commenter recommended deleting the proposed language
that would permit teachers in alternative route programs to be deemed
to have obtained full State certification for purposes of meeting the
requirements governing highly qualified teachers. Several other
commenters expressed support for the Department's proposal.
Discussion: We do not agree with those commenters who wish to
delete the flexibility that we would provide LEAs for teachers in
alternative routes to certification. First, Congress has chosen both to
authorize and fund two alternative route programs, Troops-to-Teachers
and Transition to Teaching, in Title II, part C of the ESEA, and has
permitted States and LEAs to use Title II, part A formula grant funds
to hire teachers in alternative route programs. Hence, we do not
believe that Congress intended that teachers in alternative route
program would be unable to teach until they had obtained full State
certification. Beyond this, we believe that LEAs can and should be able
to continue to effectively use alternate routes to certification as a
mechanism for increasing the number of teachers who are capable of
providing effective instruction, and, indeed that these alternative
routes can also serve as models for the certification system as a
whole.
Changes: None.
Comment: A commenter recommended that teachers participating in
alternative certification programs be required to demonstrate subject
matter competency.
Discussion: Sections 9101(23)(B) and (C) of the ESEA, and Sec.
200.56(b) and (c) of the regulations already require this.
Changes: None.
Comment: A commenter requested that the regulations clarify that
current teachers may demonstrate their subject area competency in the
same ways as new teachers can, or through a state-established system of
evaluation as section 9101(23)(c)(ii) of the ESEA permits.
Discussion: Section 200.56(c)(2) already provides this
clarification.
Changes: None.
Comment: One commenter recommended that teachers be allowed to
demonstrate subject-matter competency needed to be highly qualified on
the basis of a minor in an academic area. Another commenter requested
that where an evaluation of teacher performance is used to demonstrate
competency, LEAs, rather than SEAs, be allowed to determine the
standard of evaluation.
Discussion: We disagree with both recommendations. Section
9101(b)(ii) of the ESEA permits middle and secondary school teachers to
demonstrate subject-matter competency by successful completion, in each
academic subject the teacher teaches, of an academic major or
coursework equivalent to an academic major (or a graduate degree or
advanced certification or recredentialing). The law does not authorize
receipt of a minor in the subject being taught as sufficient to
demonstrate competency. Similarly, section 9101(23)(c)(ii) of the ESEA
expressly permits the demonstration of subject-matter competency to be
based on ``a high objective State standard of evaluation,'' not a
``local standard'' of evaluation. Moreover, the Secretary lacks
authority to delete or change the aspects of this statutory definition.
Changes: None.
Comment: Section 9101(23(A)(ii)) of the ESEA, like Sec.
200.56(B)(3), provides that to be highly qualified a teacher may not
have had ``certification or licensure requirements waived on an
emergency, temporary, or provisional basis.'' One commenter recommended
that the terms temporary, emergency, and provisional licensure be
defined.
Discussion: State certification and licensure is a matter of State
law and policy, and hence the definition of these terms is left to
State decisionmaking. We do not believe that attempting to establish a
common definition of these terms is needed. We add only that with one
exception the Secretary interprets the phrase ``waived on an emergency,
[[Page 71765]]
provisional, or temporary basis,'' to encompass any form of a waiver,
by whatever name a State uses, under which the State permits a teacher
to teach without having obtained full certification or licensure
applicable to the years of experience the teacher possesses. That
exception is for teachers in alternative routes to certification
consistent with Sec. 200.56(a)(2)(ii).
Change: None.
Comment: One commenter requested that all of the highly qualified
teacher provisions apply to charter school teachers.
Discussion: Section 9101(23)(A)(i) of the ESEA provides that, for
teachers of public charter schools, obtaining full State certification
(or passing the State teacher licensing examination and holding a
license to teach) means that teachers have met the requirements of
their State charter school laws. Thus, the certification and licensure
requirements of the ESEA do not apply to charter school teachers if
State law exempts charter school teachers from these requirements. The
statute's definition of highly qualified teachers provides no other
exceptions for charter school teachers.
Changes: None.
Comment: One commenter recommended that, as part of the definition
of highly qualified, all teachers be required to complete an approved
educator preparation program.
Discussion: We assume that the comment was meant to apply to
teachers progressing through alternate routes to certification. The
Secretary agrees that proposed Sec. 200.56(a)(1)(iii)(B) should be
modified to include a requirement that teachers in alternative route
programs receive high-quality professional development before beginning
to teach. However, the Secretary does not believe that those
progressing through alternative routes to teaching should need to
complete a State ``approved educator preparation program,''
particularly since this kind of requirement would very likely
discourage a great many talented individuals who would want to change
careers and become teachers from ever doing so.
Changes: Sec. 200.56(a)(2)(ii)(A) now contains language that
requires teachers in alternative route programs to receive rigorous
training before assuming instructional duties and to participate in a
teacher mentoring program.
Comment: One commenter requested that the language in paragraph
(b)(1) be revised to require teachers new to the profession either to
hold a Bachelor's degree or, for those in teacher preparation programs,
to have completed all of the requirements for the degree with the
exception of student teaching.
Discussion: Sections 9101(23)(B)(i)(I), 9101(23)(B)(ii), and
9101(23)(C)(i) of the ESEA expressly require all teachers to hold a
Bachelor's degree in order to be considered highly qualified. The
Secretary lacks authority to delete or change the subjects included in
this statutory definition.
Changes: None.
Comment: A commenter requested clarification of the terms
``advanced certification or credentialing.''
Discussion: The NCLB Act offers these vehicles as alternative means
by which middle and high school teachers not new to the profession may
demonstrate subject matter competency in the subjects they teach. Each
State may define these terms, and establish policies that implement
them, as it believes will meet the purpose of the law--to enable
teachers to demonstrate subject matter competency.
Changes: None.
Section 200.57 Plans to Increase Teacher Quality
Comment: One commenter recommended that the regulations should
require the State to outline specific steps for carrying out the highly
qualified teacher provision, and how the State intends to monitor LEAs
in this regard.
Discussion: The Secretary agrees with this recommendation.
Changes: Section 200.57(a) has been amended to require that the
State's plan describe the strategies the state will use to help LEAs
and schools have all teachers meet the highly qualified requirements no
later than the end of the 2005-2006 school year, and to monitor the
progress of LEAs and schools in meeting these requirements.
Comment: One commenter recommended that the regulations include the
statutory references to the ``parents right to know'' provision.
Discussion: The Secretary believes that it is critical that parents
be kept well informed on the status of their child's education, and so
he agrees with this recommendation.
Changes: A new section, Sec. 200.61, has been added that restates
the language on a ``parent's right to know,'' as stated in section
1111(h)(6) of the NCLB Act.
Comment: A commenter recommended that the regulations clarify that
State plans to increase teacher quality must indicate both the steps
States will take to ensure that minority students have equal access to
high quality teachers, and how the States will measure their progress
in meeting this requirement.
Discussion: The Secretary agrees with this recommendation.
Including this information in the State plan merely ensures that,
through the plan, the SEA is ensuring that LEAs implement the assurance
they provide the State in section 1111(c)(1)(L) of the ESEA that they
``ensure, through incentives for voluntary transfers, the provision of
professional development, recruitment programs, or other effective
strategies, that low-income students and minority students are not
taught at higher rates than other students by unqualified, out-of-
field, or inexperienced teachers.'' Indeed, given this LEA assurance,
the Secretary also believes that comparable information should be
included in the local plan to increase teacher quality.
Changes: Section 200.57(a) has been amended to require that the SEA
take specific steps to ensure that Title I schools provide instruction
by highly qualified teachers, including steps to ensure that poor and
minority children are not taught at higher rates than other children by
inexperienced, unqualified, or out-of-field teachers. SEAs must
evaluate and publicly report their progress with respect to these
steps.
Section 200.58 Qualifications of Paraprofessionals
Comment: One commenter asked that the regulations clarify that it
is the paraprofessional's choice as to which of the three allowable
options (two years of study at an institute of higher education, an
associate's degree, or demonstrating knowledge and ability to assist in
instruction through an assessment) the paraprofessional will meet. The
commenter also recommends that the regulations clarify that once a
paraprofessional has met qualification requirements in one district, he
or she does not have to re-qualify after moving to another school
district.
Discussion: The Secretary does not believe a change in the
regulations is necessary. Any needed clarifications will be addressed
in future nonregulatory guidance.
Changes: None.
Comment: Several commenters asked for greater clarification about
which paraprofessionals must meet the requirements in Sec. 200.58. One
commenter requested that the regulations be revised to clarify that the
requirements apply only to paraprofessionals hired by the school
district or school. Another commenter asked whether the requirements
apply to paraprofessionals with non-instructional duties working in a
schoolwide project school.
[[Page 71766]]
Discussion: The requirements of section 1119(c) of the ESEA and
Sec. 200.58 apply to individuals hired by an LEA whether individually
or as part of a partnership. They do not apply to volunteers or other
paraprofessionals who may be employed by a private contractor. They
also do not apply to individuals with solely non-instructional roles in
schoolwide project schools.
Changes: Section 200.58(a)(1) has been amended to clarify that the
qualification requirements apply to each paraprofessional ``who is
hired by the LEA'' and who meets the other criteria set out in this
section of the regulations.
Comment: Two commenters asked that the regulations be modified to
provide a four-year transition period for paraprofessionals to obtain a
high school diploma or the equivalent. Another commenter recommended
that the regulations include a grandfather clause that would exempt
paraprofessionals with ten or more years of experience from having to
meet any of the qualification requirements.
Discussion: Section 1119(f) of the ESEA requires that LEAs
receiving Title I, part A funds ensure that all paraprofessionals
working in a program supported with Title I, part A funds, regardless
of the paraprofessional's hiring date, have a high school diploma. The
ESEA provides no authority for a phase-in of this requirement or to
exempt paraprofessionals with ten or more years of experience from
meeting this requirement.
Changes: None.
Comment: One commenter requested that the regulations be modified
to permit a paraprofessional enrolled in an associate's degree program
to be considered as meeting the qualification requirements through an
alternative qualification process.
Discussion: The statute does not authorize paraprofessionals to
meet the qualification requirements in the manner suggested.
Changes: None.
Comment: Two commenters objected to the qualification option that
paraprofessionals have an associate's degree.
Discussion: An associate's degree is one of the three ways that the
statute provides for paraprofessionals to demonstrate they are
qualified. A paraprofessional may (1) complete two years of study at an
institution of higher education, or (2) have an associate's degree, or
(3) pass a state or local assessment that demonstrates knowledge of and
ability to assist in the instruction of reading, writing or mathematics
(or reading readiness, writing readiness, or mathematics readiness), as
appropriate. The options recognize that, depending on a
paraprofessional's background and experience, there is more than one
way to demonstrate the appropriate competency.
Changes: None.
Comment: Several commenters sought clarification of what it means
for a paraprofessional to have completed at least two years of study at
an institution of higher education. One commenter asked that the
regulations specify the specific number of semester hours necessary to
demonstrate that a paraprofessional has completed the required two
years of study. On the other hand, other commenters asked that the
regulations make it clear that there is no specific number of credit
hours that defines two years of study.
Discussion: The number of credit hours necessary to demonstrate
that a paraprofessional has completed at least two years of study at an
institution of higher education will vary by institution. Therefore, a
``one-size-fits-all'' definition would be inappropriate. Each State may
choose to define, for paraprofessionals working in the State, what
these two years of study encompass. If it does not do so, the policies
of each institution will govern whether a paraprofessional has
completed two years of study.
Changes: None.
Comment: One commenter requested that the regulations make it clear
that paraprofessionals providing instructional support for teachers of
eligible students attending private schools must meet the same
standards as other paraprofessionals.
Discussion: The Secretary agrees with this recommendation.
Paraprofessionals hired by an LEA to provide instructional support for
Title I, part A teachers of eligible students attending private schools
are employees of the school district and must meet the same
requirements as any other paraprofessionals providing instructional
support in a program supported by Title I, part A funds.
Change: Section 200.58(a)(3)(iii) is added to clarify that the
qualification requirements apply to paraprofessionals hired by an LEA
to provide instructional support to public school teachers providing
Title I services to eligible private school students.
Comment: Several commenters sought clarification of the option that
paraprofessionals may meet a rigorous standard of quality by
demonstrating competency through a formal State or local academic
assessment. One commenter requested clarification that the assessment
does not have to be in writing. Other commenters wanted the regulations
to require States and districts to develop these assessments; make
clear that States or districts may adopt an existing assessment;
require that assessments be available before September 2003; specify
that the assessment should be made available at no cost to the
paraprofessionals; and clarify that Title I, part A funds may be used
to develop or purchase such assessments.
Discussion: Under the ESEA, States and LEAs have considerable
flexibility in how they design and administer their assessments. The
Secretary does not believe that additional regulations are necessary
and intends to highlight this flexibility in future nonregulatory
guidance.
Change: None.
Comment: Two commenters sought clarification on how the
requirements apply to paraprofessionals hired ``on'' January 8, 2002 as
opposed to those before or after that date.
Discussion: The Secretary agrees that clarification is needed.
Changes: Section 200.58(d) is amended to clarify that existing
paraprofessionals are those hired on or before January 8, 2002.
Comment: Several commenters sought clarification on how the
requirements apply to paraprofessionals in specified circumstances,
e.g., paraprofessionals with multiple roles, such as translators who
also provide instructional support, paraprofessionals who provide
instructional support to teachers of subjects other than core academic
subjects, such as physical education, and non-instructional computer
technicians.
Discussion: The ESEA is very explicit about the requirements and to
whom they apply. The requirements apply to any paraprofessionals in
Title I, part A programs who are assigned an instructional support
duty, even as one of many assigned responsibilities, identified in
section 1111(g)(2) of the ESEA and Sec. 200.59(b). With regard to
computer technicians, Sec. 200.58(a)(2)(ii) of the regulations states
that solely providing technical support for computers is a non-
instructional duty.
Changes: None.
Comment: One commenter sought clarification on how the requirements
apply to paraprofessionals working in a variety of pre-Kindergarten
programs, such as Head Start, or pre-Kindergarten programs funded with
Head Start and State pre-Kindergarten funds.
Discussion: A number of questions have been raised about how the
paraprofessional qualification
[[Page 71767]]
requirements apply to paraprofessionals working in these pre-
Kindergarten programs. The Secretary intends to address this issue in
nonregulatory guidance.
Change: None.
Section 200.59 Duties of Paraprofessionals
Comment: One commenter wanted changes in the proposed Sec. 200.59
in order to reinforce the difference between instructional and non-
instructional duties.
Discussion: The Secretary agrees with the recommendation.
Changes: Section 200.59(b) is amended to read, ``A paraprofessional
covered under Sec. 200.58 may perform the following instructional
support duties:'' Regardless of an employee's title, an individual
hired by an LEA who does not perform instructional support duties as
identified in Sec. 200.59 is not a ``paraprofessional'' for purposes
of Section 1119 of the ESEA or these regulations. Moreover, it is
possible that one employee, for example, performs parental involvement
that is instructional support while another employee performs parental
involvement that is not instructional support. The Department intends
to issue guidance to help explain that distinction.
Comment: Several commenters recommended deleting language that
would specify that one-on-one tutoring must take place outside of the
regular school day.
Discussion: The Secretary agrees that there may be circumstances in
which tutoring could be provided during the school day at a time when a
student is not receiving instruction from a teacher.
Changes: Section 200.59(b)(1) is amended to remove the language
requiring one-on-one tutoring to take place outside of the regular
school day.
Comment: Many commenters addressed the regulatory provisions in
paragraph (c), and asked that it clarify what it means for a
paraprofessional to work under the direct supervision of a teacher. For
example, several commenters said that the proposed language was too
prescriptive, while another proposed that the regulations require
paraprofessionals to work in the same room as the teacher. One
commenter sought additional clarification of what ``close and physical
proximity to a teacher'' means, while still another commenter
recommended deleting this language.
Discussion: This regulatory provision responds to a finding of the
National Assessment of Title I that, even though the prior statute also
required paraprofessionals to work under the direct supervision of a
teacher, 41 percent of paraprofessionals reported that half or more of
the time they spent teaching or helping to teach was on their own,
without a teacher present.
Changes: None.
Participation of Eligible Children in Private Schools
Section 200.62 Responsibilities for Providing Services to Private
School Children
Comment: One commenter recommended that the regulations confirm
that Title I services and benefits to private school students be
secular, neutral, and non-ideological.
Discussion: The Secretary concurs. Section 1120(a) of the ESEA
requires that Title I services and benefits provided to eligible
private school children be secular, neutral, and non ideological.
Changes: Section 200.62 incorporates the statutory language that
reflects the recommended change.
Section 200.63 Consultation
Comment: One commenter recommended that the consultation topics
listed in Sec. 200.63(b) be examples of timely and meaningful
consultation by the LEA rather than required topics for consultation.
Discussion: Section 1120(b)(2) of the ESEA requires that
consultation by an LEA occur prior to an LEA's making any decision that
affects the opportunities of private school children to participate in
Title I. The Secretary believes that all of the consultation topics
listed in Sec. 200.63(b) are necessary because they affect the
opportunities of private school children to participate in Title I.
Changes: None.
Comment: One commenter asked that Sec. 200.63(b)(5), concerning an
LEA's responsibility for assessing services to private school children,
be clarified by adding a reference to the LEA's assessment
responsibility under Sec. 200.10.
Discussion: The Secretary concurs that a reference to Sec. 200.10
clarifies the LEA's assessment responsibility.
Changes: Section 200.63(b)(5) contains a reference to Sec. 200.10.
Comment: One commenter recommended that Sec. 200.63(b)(6),
concerning size and scope of equitable services, be clarified by
including a reference to Sec. 200.64, that addresses factors for
determining equitable participation of private school children.
Discussion: The Secretary agrees that a reference to Sec. 200.64
clarifies an LEA's responsibility to consider the factors listed in
that section when determining equitable participation for private
school students.
Changes: Section 200.63(b)(6) contains a reference to Sec. 200.64.
Comment: One commenter suggested that Sec. 200.63(b)(7) singles
out one method for determining poverty data for private school
children, and asked that the words ``including whether the LEA will
extrapolate data from a survey'' be deleted.
Discussion: Section 1120(c) of the ESEA lists four ways an LEA may
determine the number of private school children from low-income
families. The Secretary's intent is to give direction for consultation
rather than to indicate a preference for any method.
Changes: To make the intent clear, Sec. 200.63(b)(7) has been
amended to clarify that consultation regarding the source of poverty
data for private school children must include a discussion of
extrapolation only if a survey is used.
Comment: One commenter recommended that the SEA be allowed
flexibility in implementing Sec. 200.63(e)(1), that outlines the
records an LEA must maintain and submit to the SEA when documenting
that it has consulted with private school officials.
Discussion: The Secretary believes that the language in Sec.
200.63(e) accurately reflects the statute and gives an SEA the
flexibility needed to implement provisions of this section.
Changes: None.
Comment: One commenter requested that Sec. 200.63(e)(2), that
requires an LEA to report to the SEA that it has consulted private
school representatives, be amended by adding a provision requiring that
an LEA indicate the reason why the private school officials did not
provide affirmation.
Discussion: The Secretary believes that the proposed regulations
accurately reflect the NCLB Act. The Secretary assumes, and would
encourage, that any documentation that an LEA provides to the SEA
concerning its consultation with private school officials would include
an explanation about why private school officials did not provide the
requisite affirmation.
Changes: None.
Section 200.64 Factors for Determining Equitable Participation of
Private School Children
Comment: One commenter asked that the clause ``In the aggregate,''
at the beginning of Sec. 200.64(a)(1), concerning equal expenditures,
be deleted.
Discussion: The Secretary concurs and believes that this clause was
[[Page 71768]]
included in error. This same clause is contained elsewhere in Sec.
200.64(a)(1).
Changes: Section 200.64(a)(1) has been amended to remove ``In the
aggregate.''
Comment: One commenter stated that the language concerning equal
expenditures lacks specificity and could result in confusion. The
equitable services requirements would not apply to all of the district-
wide activities for which an LEA must reserve funds under Sec. 200.77.
For example, an LEA would not need to ensure that private school
students receive equitable services from funds reserved to meet
transportation costs related to public school choice or to provide
supplemental services to students in public schools identified as in
need of improvement. The commenter asked that Sec. 200.64(a)(2) be
changed to make clear that the equitable services requirement applies
only to reserved funds that affect services to private school students.
Another commenter stated that funds reserved under Sec. 200.77 are not
limited to instructional activities, and that Sec. 200.64(a)(2) should
not limit the use of the funds only to ``instructional activities.'' In
order to be consistent with the language in Sec. 200.77, the commenter
recommended the use of the more inclusive word ``services.''
Discussion: The Secretary agrees that, where applicable, funds an
LEA reserves under Sec. 200.77 must be used to provide equitable
services for private school children. An LEA must also, when reserving
funds under Sec. 200.77, ensure that it provides instructional and
related activities for eligible private school children that are
equitable to activities provided for public elementary or secondary
school students.
Changes: Section 200.64(a)(2)(i)(A) is amended to make clear that
an LEA must provide equitable services to private school students from
funds it reserves off the top of its allocation if those funds are used
to provide instructional and related activities to public elementary
and secondary school students.
Comment: One commenter recommended that Sec. 200.64(a)(2)(i) be
changed to specify that the equitable services an LEA must provide
include ``necessary educational support such as technology and
interpreters''.
Discussion: The needs of the private school participants determine
what Title I services an LEA provides. Technology and interpreters are
two of many Title I service options available, but may not be what is
required in all instances.
Change: None.
Comment: One commenter stated the language in Sec.
200.64(a)(2)(i), concerning district-level funds reserved for student
instructional and related activities, is confusing with regard to how
an LEA provides equitable services to private school children from
Title I funds reserved by the LEA for district-wide activities. The
commenter believes that equitable services should be based on a
comparison to services and benefits provided to public school students
rather than on the proportion to the number of private school children
from low-income families residing in participating attendance areas.
Discussion: The Secretary believes that, in order to ensure that
private school children receive an equitable share of services from
funds an LEA reserves under Sec. 200.77, the amount of funds made
available from that reserve for equitable services must be
proportionate to the number of private school children from low-income
families residing in participating attendance areas. The Secretary
agrees that this regulatory language needs to be modified in order to
make this policy clearer.
Changes: The Secretary has amended proposed Sec.
200.62(a)(2)(i)(B) to clarify that equitable services must be
proportionate to the number of private school children from low-income
families residing in participating public school attendance areas.
Comment: None.
Discussion: In giving further consideration to the proposed
regulations, Departmental staff determined that Sec.
200.64(b)(2)(iii)(B) needed further clarification concerning the need
for private school participants to meet the State's student academic
performance standards. Because a private school's curriculum may not be
aligned with State standards, it may be inappropriate to expect private
school participants to meet the same State standards. The Secretary is
making a clarifying change to give an LEA the flexibility to use
equivalent standards to measure the academic progress of private school
participants.
Changes: The Secretary has made this change.
Comment: One commenter recommended a technical correction in Sec.
200.64(b)(3)(i), concerning an LEA's choice to provide services to
private school children either directly or through a third-party
contractor, to replace the word ``must'' with the word ``may'' and
thereby make the language consistent with the statute.
Discussion: The Secretary concurs with this change.
Changes: Section 200.64(b)(3)(i) has been amended to make clear
that an LEA may provide equitable services either directly or through a
third-party provider.
Comment: One commenter suggested that Sec. 200.64(b)(3)(ii) of the
regulations be clarified so that, if an LEA provides services through a
contract with a third-party provider, the contractor must be
independent of the private school and of any religious organization.
Discussion: The Secretary agrees with the recommended change.
Section 1120(c)(2)(B) of the ESEA requires that a third-party provider
who provides equitable services to private school students must be
independent of the private school and of any religious organization and
that the contractor be under the control and supervision of the LEA.
Changes: The Secretary has amended Sec. 200.64(b)(3)(ii) to
include the statutory language.
Comment: One commenter suggested that Sec. 200.64(b)(4) be changed
to clarify that timely and meaningful consultation with private school
officials must take place in accordance with Sec. 200.63 before an LEA
makes final decisions with respect to providing Title I services to
eligible private school children.
Discussion: The Secretary agrees that an LEA must make final
decisions with respect to the services it will provide to eligible
private school children only after timely and meaningful consultation
with private school officials in accordance with Sec. 200.63.
Changes: Section 200.64(b)(4) has been amended to reflect the
recommended clarification.
Section 200.65 Determining Equitable Participation of Teachers and
Families of Participating Private School Children
Comment: A commenter recommended clarifying Sec. 200.65(a)(1),
concerning the reservation of funds for parent involvement and
professional development activities, by inserting the word
``applicable'' before ``funds''.
Discussion: The Secretary agrees with this recommendation because
the equitable services requirements apply to most, but not all, funds
reserved for professional development and parent involvement
activities. For example, equitable services for private school teachers
would not apply to professional development funds an LEA in improvement
must reserve in order to improve the quality of its schools.
Changes: The Secretary has made this change.
Comment: A commenter recommended that Sec. 200.65(a)(1) be changed
so that an LEA must ensure
[[Page 71769]]
that ``pupil services personnel,'' in addition to teachers who provide
services to private school children, be involved in professional
development on an equitable basis.
Discussion: The requirement for equitable services in section
1120(a) of the ESEA applies to private school teachers of students
participating in Title I to improve the achievement of those students.
To the extent that ``pupil services personnel'' are involved with
improving the achievement of participating private school students,
they may participate in professional development activities under Title
I.
Changes: None.
Comment: One commenter did not agree that the amount of funds an
LEA must make available under Sec. 200.65(a)(1) to ensure equitable
services to private school children must be based on the proportion of
private school children from low-income families residing in
participating school attendance areas. The commenter believed that the
measure of service equity is more appropriately based on the services
provided to the teachers and parents of private school students
compared to services provided to teachers and parents of public school
students.
Discussion: The Secretary believes that the best way to ensure that
the equitable participation of teachers and families of participating
private school children occurs is to base the amount available for
those services from the applicable reserve on the proportion of private
school children from low-income families residing in participating
public school attendance areas. To make this policy more clear, the
Secretary has made a clarifying amendment.
Change: The Secretary has amended Sec. 200.65(a)(2) to clarify
that the amount of funds available to provide equitable services from
reserved funds for parent involvement and professional development must
be proportionate to the number of private school children from low-
income families residing in participating public school attendance
areas.
Allocations to LEAs
Section 200.70 Allocation of Funds to LEA in General
Comment: One commenter recommended clarifying the references to
total population used for determining whether an LEA is a small or
large LEA in Sec. 200.70(c) and (d) to indicate that this means total
census population.
Discussion: The language in the proposed regulations is consistent
with the statutory language in section 1124(a)(2)(B)(vi)(II) of the
ESEA, which defines a small LEA as one with a total population of less
than 20,000. However, the Secretary, in fact, provides States with data
from the Census Bureau on the total resident population for each LEA in
order for the SEA to identify large and small LEAs for the purpose of
redistributing Title I, Part A funds among its small LEAs using
alternative poverty data. We agree that the commenter's recommendation
adds clarity. Such a change will make the regulations consistent with
the Department's current practice of providing States with total census
population data for each LEA.
Changes: The Secretary has changed the ``total population''
references in Sec. Sec. 200.70(c) and (d) and 200.74(a) to ``total
census population''.
Comment: One commenter asked what was meant by the term ``limited
instances'' used in the preamble to the proposed regulations, which
stated that Sec. 200.70 establishes the principle that an SEA must
change the allocations determined by the Department in limited
instances.
Discussion: As a general rule, the Department of Education
determines allocations for LEAs. Sections 200.70 through 200.75 outline
the specific, limited instances when an SEA must adjust the allocations
determined by the Department. For example, the list of LEAs that the
Secretary uses to determine LEA allocations is provided by the Census
Bureau and is based on the geographic boundaries of LEAs as they
existed several years ago. Because that list does not match the current
universe of LEAs in many States, SEAs must adjust the Department's LEA
allocations to account for school district consolidations, break-ups,
and boundary changes and to account for the creation of new LEAs (such
as charter school LEAs) that are legitimately eligible for Title I,
part A funds. In addition, SEAs must adjust the Department's
allocations to (1) reserve funds for school improvement, State
administration, and the State academic achievement awards program; and
(2) allow, in certain cases, for the use of alternative poverty data to
redistribute Department-determined Title I allocations among districts
with fewer than 20,000 total residents.
Changes: None.
Section 200.72 Procedures for Adjusting Allocations Determined by the
Secretary To Account for Eligible LEAs not on the Census List
Comment: One commenter recommended that this section be revised to
require that an SEA provide final allocations to LEAs no later than 60
days following the receipt of the final allocation notification from
the Department.
Discussion: While the Secretary supports the need for SEAs to
determine final allocations as quickly as possible, it is sometimes
impossible for an SEA with a significant number of newly created or
expanding charter school LEAs to make final allocations within the 60
day deadline recommended by the commenter. In many cases the poverty
and enrollment data for the charter school LEAs and the districts from
which they draw their students are not available until the beginning of
the school year. The data available at the beginning of the school year
are often estimates, which the SEA uses to determine preliminary
allocations. The SEA must adjust these allocations later in the school
year after it receives actual data in order to determine final LEA
allocations.
Changes: None.
Section 200.73 Applicable Hold-Harmless Provisions
Comment: One commenter believed that the language of this section
implied that an LEA must meet the eligibility requirements for three of
the four Title I, part A formulas in order to benefit from the hold-
harmless protection.
Discussion: For the Basic, Targeted, and Education Finance
Incentive Grant formulas, Sec. 200.73(d)(1) requires that an LEA be
eligible under each of those formulas in order for the applicable hold-
harmless provision to apply.
Changes: The Secretary has amended the language in Sec.
200.73(d)(1) to clarify that, to benefit from the hold-harmless
provision under a particular formula, an LEA need only be eligible
under that formula.
Section 200.75 Special Procedures for Allocating Concentration Grant
Funds to Small States
Comment: One commenter raised a concern whether the Concentration
Grant hold-harmless provision applies to the special procedures that a
small State may use in allocating those funds to LEAs.
Discussion: The Concentration Grant hold-harmless provision
described in Sec. 200.73(d)(2) applies to LEAs in all States.
Therefore, an SEA must pay an LEA not meeting the eligibility
thresholds for Concentration Grants its hold-harmless amount for four
consecutive years. This hold-harmless provision applies to a small
State that uses the flexibility available to it under section 1124A(d)
of the ESEA and
[[Page 71770]]
Sec. 200.75 of the regulations when allocating Concentration Grant
funds to eligible LEAs in which the number or percentage of formula
children equals or exceeds the Statewide average number or percentage
of those children.
Changes: The Secretary has added a reference Sec. 200.75(a)(2)(ii)
to make clear that the Concentration Grant hold-harmless provision in
Sec. 200.73(d) applies to small States using the special procedures
outlined in Sec. 200.75.
Procedures for the Within-District Allocation of LEA Program Funds
Section 200.77 Reservation of Funds by an LEA
Comment: One commenter asked why there is a provision regarding
reserving funds for capital expenses since there are no funds
appropriated for the Capital Expenses program and the authorization for
that program will expire on September 30, 2003.
Discussion: Section 200.77(f) of the regulations continues the
authority for an LEA reserve Title I funds that are reasonable and
necessary to administer programs for public and private school
children. An LEA may still use Title I funds it reserves for
administration to pay for capital expenses associated with providing
services to private school children even though Congress has
appropriated no funds specifically for capital expenses in fiscal year
2002 and the authorization, which governs the use of funds appropriated
for the program will expire on September 30, 2003.
Changes: None.
Comment: One person commented that an LEA should have the
flexibility to meet the reserve requirements for professional
development in Sec. Sec. 200.52(a)(3)(iii) and 200.60 from non-Title I
funds and asked whether the parental involvement reserve can be met
from non-Title I funds.
Discussion: In all three instances, the Title I statute requires
that these reserve requirements be met from Title I funds received by
the LEA.
Change: None.
Section 200.78 Allocation of Funds to School Attendance Areas and
Schools
Comment: One commenter recommended amending the language in Sec.
200.78(a)(2)(ii)(B)(1) related to obtaining a poverty count of children
in private schools through a survey to make it consistent with the
statute.
Discussion: In obtaining a count of private school children from
low-income families for within-district Title I, part A allocation
purposes, the regulations provide that an LEA could, instead of using
the same poverty data it uses to count public school children, use
comparable poverty data from a different source such as a private
school survey so long as that survey protects the identity of families
of private school children. In order to be consistent with the language
in the statute, the Secretary agrees with the language change in Sec.
200.78(a)(2)(ii)(B)(1) that the commenter suggests. However, in order
to provide LEAs with the greatest flexibility possible in obtaining
poverty data for students attending private schools, the Secretary is
adding language that enables an LEA to use comparable poverty data from
a different source such as scholarship applications.
Changes: The Secretary has made the suggested change and added
further clarifying language noted in the discussion by adding a new
paragraph (a)(2)(ii)(C) to Sec. 200.78.
Comment: One commenter recommended changing the language in Sec.
200.78(a)(2)(iv) to make it consistent with the provisions in Sec.
200.63 that address district consultation with private school officials
and reference Sec. 200.78. The commenter believed this change would
make clearer that an LEA has the final authority to determine the
method used to calculate the number of private school children from
low-income families for Title I allocation purposes only after the LEA
has engaged in timely and meaningful consultation with private school
officials.
Discussion: The Secretary agrees that the commenter's proposed
change makes it clearer that an LEA must engage in timely and
meaningful consultations with local private school officials before
making a final decision about the method it will use to determine the
number of private school children from low-income families who reside
in participating public school attendance areas. The change would also
make this provision consistent with the requirements in Sec. 200.63.
Changes: The Secretary has modified Sec. 200.78(a)(2)(iv) to make
clear that an LEA must consult with appropriate private school
officials about the method of collection of poverty data.
Fiscal Requirements
Section 200.79 Exclusion of Supplemental State and Local Funds From
Supplement, Not Supplant and Comparability Determinations
Comment: One commenter asked for clarification, in either the
regulations or guidance, to indicate that the use of Title I funds to
pay for substantial increases in transportation costs of an LEA
directly attributable to the public school choice provisions of section
1116 of the ESEA do not violate supplement, not supplant or
comparability provisions. Another commenter asked whether an LEA could
combine State and local funds with Title I, part A funds to pay for
transportation costs associated with implementing the public school
choice provision in section 1116 of the ESEA. If an LEA can combine
State and local funds with Title I funds for transportation costs, the
commenter further asked whether an LEA will be in compliance with the
supplement, not supplant requirement even though it is using Title I
funds to supplement local funds for transportation.
Discussion: The Secretary will address this issue in guidance.
Generally, however, an LEA must first determine what its transportation
costs would be in the absence of Title I. Additional transportation
costs attributable to the public choice provision of section 1116 of
ESEA may be met with Title I, part A funds.
Changes: None.
Subpart C--Migrant Education Program
Section 200.82 Use of Program Funds for Unique Program Function Costs
Comment: One commenter recommended adding in Sec. 200.82(e) the
term ``MEP'' to clarify that the comprehensive State plan is for the
delivery of MEP services.
Discussion: The Secretary agrees with the suggested editorial
change.
Change: Section 200.82(e) has been amended to refer to a
``comprehensive State plan for MEP service delivery.''
Comment: Three commenters recommended adding several additional
items to the list of examples in Sec. 200.82 of ``other administrative
activities * * * unique to the MEP'' for which an SEA may expend MEP
funds that it does not reserve for general administration. The
commenters recommended adding one or more of the following activities:
parent advisory council activities; advocacy and outreach activities
for migratory children and their families; planning, operation and
evaluation of program effectiveness; and services to migratory children
who are failing, or most at risk of failing, to meet the State's
academic standards and whose parents do not have a high school diploma
or its recognized equivalent or who have low levels of literacy.
Discussion: The Secretary agrees that, under the statute, MEP funds
can be expended for all of these activities. However, the Secretary
does not agree that each of these activities constitutes
[[Page 71771]]
the other administrative activities unique to the MEP, or activities
that are the same or similar to administrative activities that LEAs
perform under Title I, part A, for which MEP funds not reserved for
general administration may be expended under Sec. 200.82. Of the
commenters' suggestions, the Secretary believes that activities
associated with an SEA's establishment and operation of a State parent
advisory council, and its evaluation of the effectiveness of the State
MEP are the appropriate additional examples of those other
administrative activities that are the subject of Sec. 200.82.
Change: Section 200.82(g) and (h) has been added to clarify that
the establishment and implementation of a State parent advisory
committee and the evaluation of the effectiveness of the State MEP are
additional examples of other administrative activities, unique to the
MEP, or are the same or similar to administrative activities that LEAs
perform under Title I, part A for which an SEA may expend MEP funds
that are not reserved for general administration.
Section 200.83 Responsibilities of SEAs To Implement Projects Through a
Comprehensive Needs Assessment and a Comprehensive State Plan for
Service Delivery
Comment: None.
Discussion: In giving further consideration to the proposed
regulations, Departmental staff determined that Sec. 200.83(a)(3)(ii)
refers to the ``general educational needs of migratory children'' that
must be addressed by an SEA's MEP service delivery plan, while Sec.
200.83(a)(2)(ii) refers to the ``other needs of migratory children''
that are to be identified in an SEA's needs assessment. Given that both
references are intended to refer to the same needs, and that section
1306(a) of the ESEA provides that these needs are to be ``special
educational needs of migratory children,'' the Secretary believes that
it is desirable to improve the clarity of both of these regulations so
that they reflect special educational needs that an SEA's needs
assessment must address.
Change: The ``special educational needs'' of migratory children
that are identified and addressed through the SEA's comprehensive needs
assessment and State plan for service delivery are those identified in
section 1306(b)(1) of the ESEA, i.e., (1) unique needs arising from
these children's migratory lifestyle, and (2) those needs that must be
addressed in order to permit these children to participate effectively
in school. Section 200.83(a)(2)(i) and (a)(3)(i) already provide that
the SEA's needs assessment and service delivery must address the unique
needs arising from migratory lifestyle. Section 200.83(a)(2)(ii) and
(a)(3)(ii) have been revised to clarify that the needs assessment and
service delivery also must address other needs of migratory children
that must be met in order for these children to participate effectively
in school.
Comment: One commenter recommended the inclusion of additional,
detailed requirements and examples for carrying out parental
consultation under Sec. 200.83(b). The commenter proposed adding
language to this paragraph to require that this consultation include
(1) interpreter services; (2) notices to parents in a language that the
parents can understand; taking into account language proficiency and
literacy levels; (3) the use of non-traditional communications
vehicles, such as posting notices at churches and other social service
facilities; and (4) the establishment of networks with other care-
givers who serve the population of migratory workers. The commenter
stated that providing these examples of communication strategies would
help ensure more effective communications with the families of
migratory children.
Discussion: Section 200.83(b) requires an SEA to develop its MEP
service delivery plan in consultation with parents. The Secretary
believes that this level of detail is more appropriate for
nonregulatory guidance. However, the Secretary does agree that,
consistent with Sec. 1304(c)(3)(B) of the ESEA, Sec. 200.83(b) should
clarify that the required parental consultation regarding the SEA's MEP
service delivery plan must be through a format and language that
parents understand.
Change: Section 200.83(b) has been amended to note that
consultation shall be in a format and language that parents understand.
Section 200.84 Responsibilities of SEAs for Evaluating the
Effectiveness of the MEP
Comment: One commenter recommended amending Sec. 200.84 to
specifically include the use of alternatives to standardized testing
used with other children when an SEA evaluates the effectiveness of its
MEP. The commenter suggested that migratory children often cannot be
assessed through standard or traditional means since standardized
testing used with other children to determine overall program progress
is not likely to be valid with the population of migratory children.
Discussion: The Secretary does not believe the commenter's proposed
additional language to Sec. 200.84 is needed. The Secretary believes
that specific details about the methods an SEA might use for
determining the effectiveness of its MEP are more appropriately
presented in nonregulatory guidance.
Change: None.
Subpart D--Prevention and Intervention Programs for Children and Youth
Who are Neglected, Delinquent, or At-risk of Dropping Out
Section 200.90 Program Definitions
Comment: One commenter asked that a provision be added to clarify
that the supplement, not supplant requirement applies to Title I, part
D, subpart 2.
Discussion: This fiscal requirement does not apply because NCLB
does not specifically make the supplement, not supplant requirement
applicable to programs authorized under part D, Subpart 2 of Title I.
Changes: None.
Subpart E--General Provisions
Section 200.100 Reservation of Funds for School Improvement, State
Administration, and the State Academic Achievement Awards Program
Comment: One commenter stated that the $400,000 cap on the amount a
small State may reserve for State administration is inadequate.
Discussion: Section 1004 of the ESEA authorizes an SEA to reserve
for State administration up to one percent from funds allocated to the
State under Title I, part A (Grants to LEAs), part C (Migrant
Education), and part D, Subpart 1 (State Agency Neglected or Delinquent
Program. The ESEA further provides that if the amount calculated as
available to be reserved for State administration totals less than
$400,000, an SEA may reserve up to $400,000. The Department cannot
increase these limitations through regulations.
Changes: None.
[FR Doc. 02-30294 Filed 11-25-02; 3:50 pm]
BILLING CODE 4000-01-P