[Federal Register: August 6, 2002 (Volume 67, Number 151)]
[Proposed Rules]
[Page 50985-51027]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr06au02-38]
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Part II
Department of Education
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34 CFR Part 200
Title I--Improving the Academic Achievement of the Disadvantaged;
Proposed Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1810-AA91
Title I--Improving the Academic Achievement of the Disadvantaged
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Secretary proposes to amend the regulations governing the
programs administered under Title I of the Elementary and Secondary
Education Act of 1965, as amended (ESEA)--referred to in these proposed
regulations as the Title I programs. These proposed regulations are
needed to implement recent changes to Title I of the ESEA made by the
No Child Left Behind Act of 2001 (NCLB Act).
DATES: We must receive your comments on or before September 5, 2002.
ADDRESSES: Address all comments for subparts A, B, and D of part 200 in
these proposed regulations and all comments on information collection
requirements to Jacquelyn C. Jackson, Ed.D., Acting Director, Student
Achievement and School Accountability Programs, Office of Elementary
and Secondary Education, U.S. Department of Education, 400 Maryland
Avenue, SW., room 3W230, FB-6, Washington, DC 20202-6132. The Fax
number for submitting comments on subparts A, B, and D is (202) 260-
7764.
Address all comments for subpart C of part 200 in these proposed
regulations to Francisco Garcia, Director, Migrant Education Program,
Office of Elementary and Secondary Education, U.S. Department of
Education, 400 Maryland Avenue, SW., room 3E317, FB-6, Washington, DC
20202-6135. The Fax number for submitting comments on subpart C is
(202) 205-0089.
If you prefer to send your comments through the Internet, use the
following address: TitleIRulemaking@ed.gov.
FOR FURTHER INFORMATION CONTACT: For subparts A, B, D, and E, of part
200, Jackie Jackson, Student Achievement and School Accountability
Programs, Office of Elementary and Secondary Education, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3W202, FB-6, Washington,
DC 20202-6132. Telephone: (202) 260-0826.
For subparts C and E of part 200, James English, Migrant Education
Program, Office of Elementary and Secondary Education, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3E315, FB-6, Washington,
DC 20202-6135. Telephone (202) 260-1394.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have maximum value in helping
us develop the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each
comment addresses and to arrange your comments in the same order as the
proposed regulations.
During and after the comment period, you may inspect all public
comments about subparts A, B, D, and E of part 200, as appropriate, of
these proposed regulations in room 3C147, FB-6, 400 Maryland Avenue,
SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern
time, Monday through Friday of each week except Federal holidays. You
may inspect all public comments about subparts C and E of part 200, as
appropriate, of these proposed regulations in room 3E315, FB-6, 400
Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m.
and 4 p.m., Eastern time, Monday through Friday of each week except
Federal holidays.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the person
listed under FOR FURTHER INFORMATION CONTACT.
Background
The NCLB Act reauthorized the ESEA and incorporated the major
educational reforms proposed by President George W. Bush in his No
Child Left Behind initiative. These reforms included important changes
to Title I of the ESEA, which is designed to help disadvantaged
children meet high academic standards.
These proposed regulations would implement those changes in a
manner that respects State and local control over education while
ensuring strong accountability for results. On July 5, 2002, the
Secretary separately published in the Federal Register final
regulations for the standards and assessment provisions of Title I,
part A of the ESEA.
The Secretary intends to regulate only if absolutely necessary: for
example, if the statute requires regulations or if regulations are
necessary to provide flexibility or clarification for State educational
agencies (SEAs) and local educational agencies (LEAs). Rather than
regulating extensively, the Secretary intends to issue nonregulatory
guidance addressing particular legal and policy issues under the Title
I programs. This guidance will inform schools, parents, school
districts, States, and other affected parties about the flexibility
that exists under the statute, including different approaches they may
take to carry out the statute's requirements.
Significant Proposed Regulations
We group major issues according to subject. We discuss other
substantive issues under the sections of the proposed regulations to
which they pertain. Generally, we do not address proposed regulatory
provisions that are technical or otherwise minor in effect.
Subpart A--Improving Basic Programs Operated by Local Educational
Agencies
Section 200.11 Participation in NAEP
Statute: Section 1111(c)(2) of the NCLB Act requires each State to
participate in biennial State assessments of 4th and 8th grade reading
and mathematics under the National Assessment of Educational Progress
(NAEP). Similarly, section 1112(b)(1)(F) of the NCLB Act requires each
LEA participating under subpart A of this part to participate, if
selected, in the State NAEP.
Proposed Regulations: The proposed regulation would clarify that
LEAs receiving Title I funds must participate in NAEP if they are
selected.
Reasons: The proposed regulations make clear that a condition of
receiving Title I funds is that, if selected, the LEA must participate
in NAEP despite section 411(d)(1) of the National Education Statistics
Act of 1994, which provides for voluntary participation of LEAs.
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State Accountability System
Section 200.12 Single State Accountability System
Statute: Under section 1111(b)(2)(A) of the ESEA, each State must
develop and implement a single, statewide accountability system to
ensure that all LEAs and public schools in the State make adequate
yearly progress. The State's accountability system must be based on the
State's academic standards and assessment system and take into account
all public elementary and secondary school students; be the same
accountability system the State uses for all public schools and LEAs in
the State; and include rewards and sanctions the State will use to hold
LEAs and public schools accountable for student achievement. The
State's accountability system may, but is not required to, apply the
requirements in section 1116 of Title I relating to identifying schools
for improvement, corrective action, and restructuring to non-Title I
schools and non-Title I LEAs.
Proposed Regulations: Proposed Sec. 200.12 would implement the
statutory provisions requiring a single, statewide accountability
system. It would make clear that these provisions take effect beginning
with the 2002-2003 school year. Proposed Sec. 200.12 also would require
States to include, in their accountability system, guidelines for
identifying the students with disabilities who should take alternate
assessments and would require reporting on the number of students with
disabilities who take an alternate assessment.
Reasons: Proposed Sec. 200.12 reflects the Secretary's goal of
regulating only where necessary to provide clarity or flexibility. It
emphasizes the importance of a single, statewide accountability system
and sets the context for the subsequent regulations on adequate yearly
progress. By requiring States to establish guidelines governing
alternate assessments, it also ensures that only students with the most
significant disabilities take those assessments.
Adequate Yearly Progress
Sections 200.13 Through 200.20 Adequate Yearly Progress
Statute: Under section 1111(b)(2)(B), each State must demonstrate
what constitutes adequate yearly progress of the State, and of all
public elementary and secondary schools and LEAs in the State, toward
enabling all students to meet the State's student achievement
standards. ``Adequate yearly progress'' definitions must apply the same
high standards of academic achievement to all public elementary and
secondary school students in the State, be statistically valid and
reliable, and measure progress based primarily on the State's academic
assessments. The definition must include separate annual measurable
objectives for continuous and substantial improvement in both
mathematics and reading/language arts for all students and for each of
the following specific groups of students: students who are
economically disadvantaged, students from major racial and ethnic
groups, students with disabilities, and students with limited English
proficiency.
Adequate yearly progress must include a timeline that ensures that
all students in each subgroup meet or exceed the State's proficient
level of academic achievement no later than the 2013-2014 school year.
Using data from the 2001-2002 school year, each State must determine a
starting point for reading/language arts and mathematics for measuring
the percentage of students meeting or exceeding the State's proficient
level of academic achievement. The starting point must, at a minimum,
be based on the higher of two proficiency levels specified in the
statute. Adequate yearly progress must include intermediate goals that
increase in equal increments over the timeline; the first increment
must occur in not more than two years from the baseline year (2001-
2002) and the following increases must occur in not more than three
years. Adequate yearly progress must also include the graduation rate
for high schools and a similar academic indicator for elementary and
middle schools.
To make adequate yearly progress, a school must meet two criteria.
First, the school must meet or exceed the State's annual measurable
objectives with respect to all students and students in each subgroup.
If students in any subgroup fail to make the requisite progress,
however, the school can still make adequate yearly progress if the
percentage of students below proficient in that subgroup decreased by
at least 10 percent compared to the preceding year and that subgroup
made progress on one or more of the additional academic indicators.
Second, at least 95 percent of the students in each subgroup enrolled
in the school must take the assessment.
Current Regulations: The current regulations governing adequate
yearly progress (34 CFR 200.3) reflect provisions of section 1111 of
the ESEA that were superseded by the NCLB Act.
Proposed Regulations: The proposed regulations in Secs. 200.13
through 200.20 would implement the statutory provisions in section
1111(b)(2) that require each State to demonstrate what constitutes
adequate yearly progress. For the most part, the proposed regulations
would merely reorganize the statutory provisions to make them more
understandable, particularly the interrelationship among the timeline,
starting points, intermediate goals, and annual measurable objectives.
In several instances, the proposed regulations would clarify the
statutory provisions or provide flexibility. For example, proposed
Sec. 200.13(c)(1) permits a State to define achievement standards for
students with the most significant cognitive disabilities who take an
alternate assessment. Section 1111(b)(2)(I)(ii) of the ESEA provides
that children with disabilities who take an alternate assessment must
be included in the 95 percent of students who must participate in the
assessments in order for a school to make adequate yearly progress.
Under the Title 1 accountability system, alternate assessments are an
appropriate way to measure the progress of only that very limited
portion of students with the most significant cognitive disabilities
who will never be able to demonstrate progress on grade level academic
achievement standards even if provided the very best possible
education. Based on current prevalence rates of students with the most
significant cognitive disabilities, proposed Sec. 200.13(c)(2), would
set the number of students with disabilities who should be included in
accountability measures using alternate standards at not more than 0.5
percent of all students assessed in a State or LEA. For accountability
purposes, the performance of all other students with disabilities
(including any other students with disabilities who take an alternate
assessment) must be assessed against the academic content and
achievement standards established under Sec. 200.1.
Proposed Sec. 200.13(d) would make clear that a State must have a
way to hold accountable schools in which no grade level is assessed
under the State's academic assessment system or whose purpose is to
serve students for less than a full academic year. The proposed
regulations emphasize, however, that the State does not need to
administer a formal assessment to students in these schools. Similarly,
proposed Sec. 200.15(b) would clarify that, if a State changes its
academic assessment system or its definition of adequate yearly
progress, the State may not extend, beyond the 2013-2014 school year,
its timeline for enabling all students to reach proficiency. Proposed
Sec. 200.16 would make clear that a State must set separate starting
points for reading/language arts and mathematics, because the State
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must hold schools accountable for student achievement in each subject.
That section would permit a State to establish separate starting points
by grade span. Proposed Sec. 200.16(b)(2) also would clarify how a
State determines a starting point based on the percentage of students
at the proficient level in the ``school at the 20th percentile in the
State, based on enrollment.''
Section 1111(b)(2)(C)(vi) of the ESEA requires a State to include
the graduation rate in its determination of adequate yearly progress
for public secondary schools and defines graduation rate as ``the
percentage of students who graduate from secondary school with a
regular diploma in the standard number of years.'' Proposed
Sec. 200.19, which deals with other academic indicators, would rely on
language in the conference report to the NCLB Act to permit a State to
submit for the Secretary's approval another definition that accurately
measures the high school graduation rate. Proposed Sec. 200.19(c) would
make clear that a State may, but is not required to, increase the goals
of its other academic indicators over the course of its timeline.
Proposed Sec. 200.20, which would implement the statutory
provisions for how a school or LEA makes adequate yearly progress,
would clarify the statutory requirement that 95 percent of the students
enrolled in each subgroup in a school must take the State's academic
assessment in order for the school to make adequate yearly progress.
Proposed Sec. 200.20(c)(1)(ii) would make clear that the number of
students in a subgroup must be of sufficient size to produce
statistically reliable results for the 95 percent requirement to affect
adequate yearly progress. In other words, if the number of students in
a subgroup is too small to produce statistically reliable results, the
State need not, on the basis of the 95 percent requirement, identify
the school as failing to make adequate yearly progress if less than 95
percent of the students in that subgroup take the State's assessment.
This proposed provision would not, however, authorize a State to
exclude students in small subgroups from taking the assessment.
Finally, proposed Sec. 200.20(e) would permit a State to define ``full
academic year'' for the purpose of determining adequate yearly
progress.
Reasons: Proposed Secs. 200.13 through 200.20 reflect the
Secretary's goal of providing clarity where the statute is ambiguous
and reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements. These sections
also reflect the Secretary's goal to provide added flexibility wherever
possible.
In developing these proposed regulations, the Department has
carefully based them on the statutory provisions governing adequate
yearly progress. These requirements are designed to enhance the quality
systems of accountability that many States have already developed. At
the core of the NCLB Act's accountability pillar, the statutory
provisions require each State to implement a single statewide system
for annually holding all public schools and LEAs accountable. This
single system will ensure that all students, including students with
disabilities, limited English proficient students, economically
disadvantaged students, and students from major racial and ethnic
groups, will be proficient in reading/language arts and mathematics by
the 2013-2014 school year. We are aware that there are rigorous models
that States have already developed that may achieve the same
fundamental principles of the statute, although through different
approaches. For example, some models establish a growth trajectory for
each school based on the school's baseline performance. Other models,
in determining a school's performance, take into consideration the
school's progress in moving students from ``below basic'' to ``basic''
as well as from ``basic'' to ``proficient'' and from ``proficient'' to
``advanced.'' We specifically invite States that have been using
different models to comment on the statutory provisions that might
affect their use, and how these requirements could be incorporated into
their current systems.
Section 200.21 Adequate Yearly Progress of a State
Statute: Section 6161 of the ESEA requires the Secretary, beginning
with the 2004-2005 school year, to review whether each State that
receives funds under Title I, part A has made adequate yearly progress
with respect to each subgroup of students under section
1111(b)(2)(C)(v) of the ESEA. If a State also receives funds under
Title III, part A, subpart 1 of the ESEA, the Secretary must also
review whether the State has met its annual measurable achievement
objectives relating to the development and attainment of English
proficiency by limited English proficient students.
Proposed Regulations: Proposed Sec. 200.21 would implement this new
requirement. This section would emphasize that the Secretary will
review whether a State has made adequate yearly progress as defined in
proposed Secs. 200.13 through 200.20 for each subgroup of students as
well as has met its annual measurable achievement objectives relating
to the development and attainment of English proficiency by limited
English proficient students.
Reasons: Proposed Sec. 200.21 reflects the Secretary's goal of
regulating only where necessary to provide clarity or flexibility. It
is included to emphasize, for the first time, a State's responsibility
to make adequate yearly progress for each subgroup of students and meet
its goals for improving the English proficiency of its limited English
proficient students.
Schoolwide Programs
Statute: Section 1114 of the ESEA made three substantive changes to
the existing requirements governing schoolwide programs. Section
1114(a)(1) allows a school to operate a schoolwide program if the
school serves an eligible school attendance area in which at least 40
percent of the children are from low-income families, or if at least 40
percent of the children enrolled in the school are from such families.
Under the previous statute, the eligibility threshold was 50 percent.
Section 1114(b)(1)(A) requires the comprehensive needs assessment
for a schoolwide program to take into account the needs of migratory
children.
Section 1306(b)(4) of the ESEA made one additional substantive
change in the schoolwide program requirements. Under that provision, a
school must document that the special educational needs of migrant
students have been met before Title I, part C funds may be included in
a schoolwide program. Previously, a school was required only to address
those needs, not document that they had been met, before including
Title I, part C funds.
Current Regulations: Current Sec. 200.8 reflects the basic
statutory requirements for schoolwide programs. The regulations specify
(1) the eligibility requirements for a schoolwide program--including a
provision that permits an LEA to determine schoolwide eligibility using
a poverty measure that is different from the poverty measure used to
identify and rank school attendance areas; (2) requirements for and
restrictions on combining funds in a schoolwide program; (3) components
of a schoolwide program; (4) schoolwide program planning and needs
assessment; and (5) the effects of operating a schoolwide program in
relation to other Federal program requirements.
Proposed Regulations: The proposed regulations would not
substantively
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change the current regulations beyond conforming them to the new
statutory requirements. However, the proposed regulations would
reorganize the current regulations in a way that emphasizes the
fundamental purpose of a schoolwide program. The provisions of current
Sec. 200.8 would be divided into four new, smaller and simpler
sections--proposed Secs. 200.25 through 200.28.
Proposed Sec. 200.25 would clarify that the purpose of a schoolwide
program is to improve the academic achievement of all students,
especially those furthest from meeting the State's proficient academic
achievement standard. Proposed Sec. 200.25 would also contain the
eligibility requirements.
Proposed Sec. 200.26 would clarify that a schoolwide plan must
describe how the school will improve academic achievement so that all
students will meet the State's proficient academic achievement
standard, especially those furthest from meeting proficiency. The
proposed section would also clarify that the plan must be reviewed and
revised as necessary to reflect changes in the schoolwide program or in
the State's academic content standards and academic achievement
standards. The proposed section would also include the provisions
requiring the comprehensive needs assessment to take into account the
needs of migratory children.
Proposed Sec. 200.27 would reorganize the schoolwide components
into four primary categories: (1) Schoolwide reform strategies, (2)
instruction by highly qualified teachers, (3) parent involvement, and
(4) additional support. The proposed section also would emphasize that
reform strategies must address the needs of students in the school, but
particularly those furthest from meeting the State's proficient
academic achievement standard.
Proposed Sec. 200.28 would group together all the statutory
provisions addressing the uses of funds in a schoolwide program. These
provisions include the new provisions governing meeting the needs of
migrant students.
Reasons: The Department has found that school-level officials are
sometimes confused about the purpose of the schoolwide approach. Often,
schools do not use the flexibility offered by the schoolwide approach
as a means to improve achievement, particularly for those students
furthest from meeting the proficient standard. These regulations are
intended to help schools better understand that schoolwide flexibility
is a strategic approach, using scientifically based strategies, for
improving student achievement to ensure that no child is left behind.
LEA and School Improvement
Section 200.30 Local Review; and Sec. 200.31 Opportunity To Review
School Level Data
Statute: Under section 1116(a) and (b) of Title I, each
participating LEA must use the State academic assessments and other
indicators in the State plan, and, at the LEA's discretion, other
academic indicators described in the LEA's plan, to review the progress
of each school served under subpart A of this part to determine whether
the school is making adequate yearly progress. The LEA must publicize
the results of its review to parents, teachers, principals, schools,
and the community.
In general, the LEA's use of other academic indicators may not
reduce the number or change the identity of schools that would
otherwise be identified for improvement, corrective action, or
restructuring, but may result in the identification of additional
schools for improvement, corrective action, or restructuring. However,
the use of these indicators may permit a school to make adequate yearly
progress if the school reduces by at least 10 percent the percentage of
a student subgroup failing to meet the proficient level of academic
achievement.
Before identifying a school for improvement, corrective action, or
restructuring, an LEA must provide the school an opportunity to review
the school-level data, including academic assessment data, on which the
LEA has based the proposed identification.
Current Regulations: The current regulations governing LEA review
of school performance reflect provisions of section 1116 of the ESEA
that were superseded by the NCLB Act.
Proposed Regulations: Proposed Sec. 200.30 would repeat the
statutory requirement for LEAs to conduct an annual review of the
performance of all schools receiving funds under subpart A of this
part. The review would determine whether the schools are making
adequate yearly progress toward the goal of helping all students reach
proficiency in reading and mathematics within 12 years of enactment of
the NCLB Act.
Proposed Sec. 200.30 would further clarify the circumstances under
which an LEA could limit its review to the progress of only those
students served, or eligible for services, in a school operating a
targeted assistance program. The LEA could limit its review only if the
students selected for services under the targeted assistance program
are those with the greatest need for academic assistance.
Proposed Sec. 200.31 would repeat and reorganize the statutory
requirement that an LEA provide a school with the opportunity to review
the data on which an LEA has based a proposed identification of the
school for improvement, corrective action, or restructuring. The
proposed provision would make clear that this review must occur before
the LEA's final decision on identification.
Reasons: Proposed Secs. 200.30 and 200.31 would reflect the
Secretary's goal of clarifying and reorganizing the statutory
requirements to facilitate a better understanding of and compliance
with those requirements.
Section 200.32 Identification for School Improvement; Sec. 200.33
Identification for Corrective Action; Sec. 200.34 Identification for
Restructuring; and Sec. 200.35 Delay and Removal
Statute: Under section 1116(b) of Title I, an LEA must (1) identify
for school improvement any school that fails to make adequate yearly
progress for two consecutive years and (2) must make available public
school choice to all students enrolled in the school. If the school
fails to make adequate yearly progress for a third consecutive year,
the LEA must continue to offer public school choice and must also make
available supplemental educational services to students who remain in
the school.
In the case of a school that fails to make adequate yearly progress
after two years of improvement, the LEA must identify the school for
corrective action and continue to offer public school choice and
supplemental educational services to students enrolled in the school.
If a school fails to make adequate yearly progress after one year of
corrective action, the LEA must identify the school for restructuring
and must continue to offer public school choice and supplemental
educational services while it prepares a restructuring plan for the
school.
The statute also includes transition provisions governing schools
identified for improvement or corrective action before the enactment of
the NCLB Act:
An LEA must treat any school that was in improvement on
January 7, 2002 as a school that is in the first year of improvement
for the 2002-2003 school year.
An LEA must treat any school that was in improvement for
two or more consecutive years on January 7, 2002 as a school in its
second year of school improvement for the 2002-2003 school year.
An LEA must treat any school that was in corrective action
on January 7,
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2002 as a school that is in corrective action for the 2002-2003 school
year.
An LEA may delay for one year the requirements for any school under
the second year of improvement, under corrective action, or under
restructuring, if (1) the school makes adequate yearly progress for one
year or (2) if the school's failure to make adequate yearly progress is
due to exceptional or uncontrollable circumstances, such as a natural
disaster or a precipitous and unforeseen decline in the financial
resources of the LEA or school. However, the LEA may not take into
account this period of delay in determining the number of consecutive
years of failure to make adequate yearly progress for the purpose of
subjecting the school to further improvement actions.
If a school identified for improvement, corrective action, or
restructuring makes adequate yearly progress for two consecutive years,
the LEA may no longer subject the school to the requirements of
improvement, corrective action, or restructuring or identify the school
for improvement for the next school year.
Current Regulations: The current regulations governing LEA
identification of schools for improvement and corrective action reflect
provisions of section 1116 of the ESEA that were superseded by the NCLB
Act.
Proposed Regulations: In general, proposed Secs. 200.32, 200.33,
200.34, and 200.35 would restate and reorganize the statutory
provisions related to the LEA's identification of schools for
improvement, corrective action, and restructuring, as well as
provisions governing the delay or termination of requirements related
to identification.
Proposed Sec. 200.32 clarifies the statutory timeline for
identifying schools for improvement. The statute requires the
identification to take place ``before the beginning of the school year
following such failure to make adequate yearly progress.'' To clarify
the meaning of this deadline, proposed Sec. 200.32(a)(2) restates the
deadline so that it is clear that the identification must take place
``before the beginning of the school year following the year in which
the LEA administered the assessments that resulted in the school's
failure to make adequate yearly progress for a second consecutive
year.''
In addition, proposed Sec. 200.32(f) states that if the LEA misses
this deadline, the school is nevertheless subject to the requirements
of school improvement--including the provision of public school choice
options to all students enrolled in the school--upon identification and
that the LEA must count that school year as a full year of school
improvement for the purpose of subjecting the school to additional
improvement measures if it continues to fail to make adequate yearly
progress. This proposed regulation is intended to prevent the potential
delay of needed improvement measures for an additional year if States
and LEAs fail to make identification in accordance with the statutory
deadline.
Proposed Secs. 200.32 and 200.33 also address identification issues
related to schools that are not covered under the statutory transition
provisions. More specifically, the statute does not account for the
potential impact of the results of assessments administered during the
2001-2002 school year. Proposed Sec. 200.32(d) gives an LEA discretion
to remove from improvement status a school that, on the basis of the
2001-2002 assessments, makes adequate yearly progress for a second
consecutive year. Similarly, proposed Sec. 200.33(c) permits an LEA to
remove from corrective action a school that, on the basis of the 2001-
2002 assessments, makes adequate yearly progress for a second
consecutive year. Proposed Sec. 200.32(e) permits, but does not
require, an LEA to identify for improvement a school that, on the basis
of the 2001-2002 assessments, fails to make adequate yearly progress
for a second consecutive year.
Reasons: Proposed Secs. 200.32, 200.33, 200.34, and 200.35 reflect
the Secretary's goal of providing clarity where the statute is
ambiguous and reorganizing the statutory requirements to facilitate a
better understanding of and compliance with those requirements. In
particular, proposed Sec. 200.32(a)(2) clarifies the statutorily
ambiguous deadline for identifying schools for improvement and proposed
Sec. 200.32(f) ensures that the school improvement timeline is not
thwarted by the failure to meet this deadline.
In addition, proposed Sec. 200.32(d) and (e) and Sec. 200.33(c)
apply the statutory provisions for entering and exiting improvement
status--two consecutive years of failure to make adequate yearly
progress and two consecutive years of making adequate yearly progress,
respectively--to schools not covered under the transition provisions in
section 1116(f) of the NCLB Act.
Section 200.36 Communication With Parents; Sec. 200.37 Notice of
Identification for Improvement, Corrective Action, or Restructuring;
and Sec. 200.38 Information About Action Taken
Statute: Under section 1116 of Title I, SEAs and LEAs must keep
parents informed throughout the improvement process. In particular,
section 1116(b)(6) requires LEAs to provide the parents of each student
enrolled in a school identified for improvement, corrective action, or
restructuring an explanation of what the identification means, the
reasons for the identification, what the school, LEA, and SEA are doing
to address the achievement problems that led to the identification, how
parents can help the school improve, and the parents' option to
transfer their child to another public school or to obtain supplemental
educational services for their child.
Current Regulations: The current regulations governing LEA
notification of parents during the school improvement process reflect
provisions of section 1116 of the ESEA that were superseded by the NCLB
Act.
Proposed Regulations: Proposed Sec. 200.36 clarifies the manner in
which SEAs, LEAs, and schools must meet notification requirements under
section 1116 by providing guidelines for all communications with
parents. These guidelines include the use of an understandable and
uniform format for all required notices; the provision, to the extent
practicable, of all notices in a language that parents can understand;
the use of direct means of communication, such as mailing materials
home, as well as broader electronic means such as the Internet; and
assurances that all notices respect the privacy of students and their
families.
Proposed Sec. 200.37 repeats the statutory requirement to notify
parents when the school their child attends is identified for
improvement, corrective action, or restructuring. Proposed
Sec. 200.37(b)(4) would add to the statutory requirement for an
explanation of the public school choice option the inclusion of
information on the performance of the schools to which a student may
transfer. Proposed Sec. 200.37 also would require LEAs to include in
their annual notice of the availability of supplemental educational
services the identification of any providers of technology-based or
distance-learning services.
Proposed Sec. 200.38 restates the statutory requirement for LEA
notification to parents of action taken to
[[Page 50991]]
address the problems that led the LEA to identify the school for
improvement, corrective action, or restructuring.
Reasons: Proposed Secs. 200.36, 200.37, and 200.38 reflect the
Secretary's goal of providing clarity where the statute is ambiguous
and reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements. The proposed
regulations would help ensure that SEAs, LEAs, and schools develop a
uniform approach for communicating with parents throughout the school
improvement process.
Section 200.39 Responsibilities Resulting From Identification for
School Improvement; Sec. 200.40 Technical Assistance; and Sec. 200.41
School Improvement Plan
Statute: Under section 1116(b) of Title I, if an LEA identifies a
school for improvement, the LEA must provide all students enrolled in
the school with the option to transfer to schools served by the LEA
that have not been identified for improvement. The LEA also must ensure
that the school receives technical assistance in identifying and
addressing the problems that led to the identification for improvement.
The school must develop and implement a school improvement plan
covering a two-year period that specifies the responsibilities of the
school, the LEA, and the SEA under the plan; incorporates
scientifically based strategies for strengthening instruction in the
core academic subjects; includes annual measurable objectives for
helping all student groups make adequate yearly progress; and sets
aside 10 percent of the school's Title I allocation for professional
development that directly addresses the achievement problems that led
the LEA to identify the school for improvement.
The LEA must promptly review the school improvement plan, work with
the school to make any necessary revisions, and approve the plan within
45 days of receiving it from the school. The LEA may condition approval
of the plan on the inclusion of one of the corrective actions specified
in section 1116(b)(7)(C)(iv) of Title I or on feedback from parents and
community leaders.
If a school continues to fail to make adequate yearly progress
after one year of school improvement, the LEA must continue to offer a
public school choice option to students enrolled in the school,
continue to provide technical assistance, and make available
supplemental educational services to eligible students who remain in
the school.
Current Regulations: The current regulations governing LEA and
school-level responsibilities when the LEA identifies a school for
improvement reflect provisions of section 1116 of the ESEA that were
superseded by the NCLB Act.
Proposed Regulations: In general, proposed Secs. 200.39, 200.40,
and 200.41 restate the statutory requirements related to LEA and
school-level responsibilities under the school improvement process,
including the LEA's obligation to offer public school choice options
and to provide technical assistance and the school's responsibility to
develop and implement a comprehensive school improvement plan. Proposed
Sec. 200.41(c)(4) also clarifies that school improvement plans must
include measurable goals that address the specific reasons for the
school's failure to make adequate yearly progress. This proposal is
intended to eliminate possible confusion between the goals in the
improvement plan and the State-level annual measurable objectives
established under section 1111 for the purpose of determining adequate
yearly progress.
Proposed Sec. 200.41(c)(5) would increase flexibility in the use of
the 10 percent set-aside for professional development under the school
improvement plan by making instructional staff other than teachers and
principals eligible for these professional development activities.
Reasons: Proposed Secs. 200.39, 200.40, and 200.41 reflect the
Secretary's goal of providing clarity where the statute is ambiguous
and reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements.
Section 200.42 Corrective Action; and Sec. 200.43 Restructuring
Statute: Under section 1116(b)(7) of Title I, if an LEA identifies
a school for corrective action, it must continue to provide all
students enrolled in the school with the option to transfer to another
public school, continue to ensure that the school receives technical
assistance, continue to make available supplemental educational
services to students who remain in the school, and take at least one of
the corrective actions specified in the statute. These corrective
actions include replacing the school staff, implementing a new
curriculum, decreasing management authority at the school, appointing
an outside expert to advise the school, extending the school day or
year, and reorganizing the school internally.
If an LEA identifies a school for restructuring, it must continue
to provide a public school choice option and make available
supplemental educational services while preparing a plan to carry out
an alternative governance arrangement specified in the statute. These
alternative governance arrangements include reopening the school as a
public charter school, replacing all or most of the school staff,
entering into a contract with a private management company to operate
the school as a public school, turning over operation of the school to
the SEA, or any other major restructuring of a school's governance
arrangements.
If the school continues to fail to make adequate yearly progress,
the LEA must implement its restructuring plan no later than the
beginning of the school year following the year in which it identified
the school for restructuring.
Current Regulations: The current regulations governing corrective
action reflect provisions of section 1116 of the ESEA that were
superseded by the NCLB Act, and restructuring is a new requirement
under the NCLB Act.
Proposed Regulations: In general, Secs. 200.42 and 200.43 restate
the statutory requirements related to corrective action and
restructuring. Proposed Sec. 200.42(b)(4)(iv)(A) and (B) clarify that
the purpose of appointing an outside expert as a corrective action is
to help revise the school improvement plan developed under Sec. 200.41
and implement the revised plan.
Reasons: Proposed Secs. 200.42 and 200.43 reflect the Secretary's
goal of providing clarity where the statute is ambiguous and
reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements.
Section 200.44 Public School Choice
Statute: Under section 1116(b) of Title I, if an LEA identifies a
school for improvement, corrective action, or restructuring it must
provide each student enrolled in the school with the option to transfer
to another public school served by the LEA that is not identified for
improvement, corrective action, or restructuring, unless such an option
is prohibited by State law. The LEA must provide the option to transfer
no later than the first day of the school year following the
identification for improvement, corrective action, or restructuring,
and must provide or pay for the transportation of the student to the
school the student chooses to attend.
In providing students the option to transfer, the LEA must give
priority to the lowest-achieving students from low-income families. If
a student exercises
[[Page 50992]]
the option to transfer to another public school, the LEA must permit
the student to remain in that school until the student has completed
the highest grade in the school. However, the LEA's obligation to
provide transportation ends at the end of a school year if the school
from which the student transferred is no longer identified for
improvement, corrective action, or restructuring.
Current Regulations: The public school choice requirement is new
under the NCLB Act and not covered under current regulations.
Proposed Regulations: Proposed Sec. 200.44 restates and reorganizes
the statutory provisions in section 1116(b) related to public school
choice. The proposed regulations also clarify the statutory deadline by
requiring LEAs to provide a choice option not later than the first day
of the school year following the year in which the LEA administered the
assessments that resulted in the identification of the school for
improvement, corrective action, or restructuring.
In addition, proposed Sec. 200.44(a)(4) would require LEAs to offer
the parents of each eligible student a choice of more than one school,
if there is more than one school within the LEA that has not been
identified for improvement, corrective action, or restructuring, and to
take into account the parents' preferences in assigning students to a
new school.
Proposed Sec. 200.44(b) would clarify that the statutory exception
from the public school choice requirements where choice is prohibited
by State law applies only if the State law prohibits choice through
restrictions on public school assignments or the transfer of students
from one public school to another public school. Proposed
Sec. 200.44(c) clarifies that LEA implementation of a desegregation
plan does not exempt the LEA from the public school choice requirement
in section 1116(b) of Title I.
Proposed Sec. 200.44(f) and (h) would limit an LEA's obligation to
provide or pay for choice-related transportation due to insufficient
funding resulting from the application of Sec. 200.48.
Reasons: Proposed Sec. 200.44 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of and
compliance with those requirements. Proposed Sec. 200.44(a)(2)
clarifies the deadline for providing choice to be consistent with the
statutory requirement that identification for improvement, corrective
action, or restructuring occur prior to the beginning of the school
year.
Proposed Sec. 200.44(a)(4) would empower parents by ensuring,
wherever possible, that they have the option of choosing, from among
several options, the school that best meets the educational needs of
their child.
Proposed Sec. 200.44(b) and (c) are intended to prevent LEAs from
arbitrarily invoking either State law or desegregation plans in seeking
an exemption from the public school choice requirement. Proposed
Sec. 200.44(f) and (h) reflect the interpretation under Sec. 200.48
that the statute caps the set-aside for choice-related transportation
and supplemental educational services at an amount equal to 20 percent
of an LEA's allocation under subpart A of this part, thereby limiting
the LEA's obligation to satisfy all requests for choice-related
transportation.
Proposed Sec. 200.44(i) clarifies that for children with
disabilities, the public school choice option must provide a free and
appropriate public education.
Section 200.45 Supplemental Educational Services; Sec. 200.46 LEA
Responsibilities for Supplemental Educational Services; and Sec. 200.47
SEA Responsibilities for Supplemental Educational Services
Statute: Section 1116(e) of Title I defines supplemental
educational services as tutoring and other academic enrichment services
designed to increase the academic achievement of eligible students and
help them attain proficiency in meeting State academic achievement
standards. If an LEA has identified a school for a second year of
school improvement, for corrective action, or for restructuring, it
must arrange for supplemental educational services for each eligible
student from a State-approved provider selected by the student's
parents. Eligible students are defined in the statute as students from
low-income families, and if funding is insufficient to provide services
to all such students, LEAs must give priority to the lowest-achieving
eligible students.
SEAs must promote participation by as many providers as possible,
develop criteria for approval as a provider that are based on a
demonstrated record of effectiveness in increasing student achievement
in subjects relevant to meeting State academic content and achievement
standards, maintain an updated list of providers from which parents may
select, and monitor the quality and effectiveness of approved
providers.
An LEA making available supplemental educational services must,
funding permitting, continue to make available such services until the
end of the school year. An SEA may waive the requirement for an LEA to
provide supplemental educational services if none of the providers on
the State's list make services available within a reasonable distance
of the LEA and if the LEA itself is not able to provide the services.
Current Regulations: The requirement to provide supplemental
educational services is new under the NCLB Act and not covered under
current regulations.
Proposed Regulations: In general, proposed Secs. 200.45, 200.46,
and 200.47 repeat the statutory requirements for the provision of
supplemental educational services. Proposed Sec. 200.47 would modify
the standards for SEA approval of providers to clarify that
supplemental service providers may include a non-profit entity, a for-
profit entity, a public school, including a public charter school, a
private school, or an LEA. The proposed Sec. 200.47 also would prohibit
schools that are identified for improvement, corrective action, or
restructuring from being a provider.
Reasons: Proposed Secs. 200.45, 200.46, and 200.47 reflect the
Secretary's goal of providing clarity where the statute is ambiguous
and reorganizing the statutory requirements to facilitate a better
understanding of and compliance with those requirements.
Examples of evidence from a provider that may demonstrate
effectiveness include the following:
Significant improvement in student academic achievement as
measured by statewide assessments;
Successful use of instructional practices based on
research;
Successful and sustained remediation of reading/language
arts or math difficulties, such as bringing students up to grade-level
standards.
Section 200.48 Funding for Choice-Related Transportation and
Supplemental Educational Services
Statute: Section 1116(b)(10) of Title I requires LEAs to make
available funding to pay for transportation costs related to the
provision of public school choice options and for supplemental
educational services. In general, affected LEAs must spend an amount
equal to 20 percent of their allocation under subpart A of this part to
pay for choice-related transportation, supplemental educational
services, or a combination of the two. In reserving such funds, an LEA
may not reduce by more than 15 percent the allocation it provides to a
[[Page 50993]]
school identified for corrective action or restructuring.
LEAs must use, at a minimum, an amount equal to five percent of
their allocations under subpart A of this part to pay for supplemental
educational services, if parents request such services. SEAs may use
funds reserved for State-level activities under subpart A of this part
and under part A of Title V to assist LEAs that do not have sufficient
funds to satisfy all requests for supplemental educational services.
For each student receiving such services, the LEA must make available
the lesser of the LEA's per-child allocation under subpart A of this
part or the actual cost of services.
Current Regulations: The requirement to reserve funding for choice-
related transportation and supplemental educational services is new
under the NCLB Act and not covered under current regulations.
Proposed Regulations: Proposed Sec. 200.48 would clarify statutory
ambiguity regarding the reservation of funding to pay for choice-
related transportation and supplemental educational services.
Specifically, the proposed regulation would require LEAs to spend an
amount equal to 20 percent of their allocation under subpart A of this
part to provide or pay for the transportation of students exercising a
choice option, to satisfy all requests for supplemental educational
services, or a combination of the two. Proposed Sec. 200.48 clarifies
that LEAs may use funds allocated under subpart A of this part, from
other Federal education programs, or from State, local, or private
resources to satisfy this requirement.
Proposed Sec. 200.48 also clarifies that if the costs of satisfying
all requests for supplemental educational services exceed an amount
equal to 5 percent of an LEA's allocation under subpart A of this part,
the LEA may not spend less than this amount for supplemental
educational services. In addition, the proposed regulations would
permit--but not require--LEAs to exceed the 20 percent cap to pay all
choice-related transportation costs and to meet the demand for
supplemental educational services.
Reasons: Proposed Sec. 200.48 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of and
compliance with those requirements.
Section 200.49 SEA Responsibilities for School Improvement, Corrective
Action, and Restructuring
Statute: Sections 1003 and 1116 of Title I include various
provisions relating to SEA responsibilities in the school improvement
process. Section 1116(f) requires an SEA to ensure that LEAs serving
schools identified for improvement or corrective action prior to
enactment of the NCLB Act provide public school choice options and make
available supplemental educational services, as appropriate, not later
than the first day of the 2002-2003 school year.
Section 1003 requires SEAs to reserve two percent of the amounts
received under subpart A of this part, rising to four percent in fiscal
year 2004, to support local school improvement activities and to
provide technical assistance to schools that LEAs have identified for
improvement, corrective action, or restructuring and to LEAs that the
SEA has identified for improvement or corrective action. SEAs must
allocate not less than 95 percent of these funds directly to LEAs
serving schools identified for improvement, corrective action, and
restructuring, with a priority on LEAs serving the lowest-achieving
schools and demonstrating the greatest need for assistance.
SEAs also must ensure that the results of academic assessments in a
given school year are available to LEAs before the beginning of the
next school year, and that such results are provided to a school before
an LEA may identify the school for school improvement, corrective
action, or restructuring.
Current Regulations: The current regulations governing SEA
responsibilities related to school improvement reflect provisions of
section 1116 of the ESEA that were superseded by the NCLB Act.
Proposed Regulations: Proposed Sec. 200.49 repeats and reorganizes
the statutory requirements related to SEA responsibilities in the
school improvement process.
Reasons: Proposed Sec. 200.49 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of and
compliance with those requirements.
Section 200.50 SEA Review of LEA Progress
Statute: Under section 1116(c) of Title I, SEAs must annually
review the progress of each LEA receiving funds under subpart A of this
part to determine whether the LEA is making adequate yearly progress
toward meeting the State's student academic achievement standards and
whether the LEA is carrying out its responsibilities under subpart A of
this part with respect to technical assistance, parental involvement,
and professional development. After providing an LEA with the
opportunity to review academic assessment data, the SEA must identify
for improvement an LEA that has failed to make adequate yearly progress
for two consecutive years.
The SEA must identify for corrective action an LEA that fails to
make adequate yearly progress for two consecutive years following the
identification for improvement. The SEA may delay corrective action if
the LEA makes adequate yearly progress for one year or if the LEA's
failure to make adequate yearly progress is due to exceptional or
uncontrollable circumstances, such as a natural disaster or a
precipitous and unforeseen decline in the LEA's financial resources.
The SEA may remove from improvement or corrective action status an
LEA that makes adequate yearly progress for two consecutive years, and
may provide rewards to LEAs that exceed adequate yearly progress for
two consecutive years.
Current Regulations: The current regulations governing SEA review
of LEA progress reflect provisions of section 1116 of the ESEA that
were superseded by the NCLB Act.
Proposed Regulations: In general, proposed Sec. 200.50 repeats the
statutory requirements related to SEA review of LEA progress in helping
all students meet State academic achievement standards.
In addition, proposed Sec. 200.50 clarifies the circumstances under
which an SEA may include, in its review of an LEA serving schools
operating targeted assistance programs, only the progress of students
served or eligible for services under subpart A of this part. Proposed
Sec. 200.50(d)(2) clarifies the timeline for identifying LEAs for
corrective action to be consistent with the statutory requirement that
such identification occur prior to the beginning of the school year.
Proposed Sec. 200.50(d) and (e) also clarify SEA discretion in
identifying LEAs for improvement or removing LEAs from improvement or
corrective action status on the basis of assessments administered
during the 2001-2002 school year.
Reasons: Proposed Sec. 200.50 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of
[[Page 50994]]
and compliance with those requirements. Specifically, the proposed
regulation clarifies the identification timeline for LEA corrective
action and applies the statutory provisions for entering and exiting
improvement status--two consecutive years of failure to make adequate
yearly progress and two consecutive years of making adequate yearly
progress, respectively--to LEAs not covered by the transition language
in section 1116(f) of the NCLB Act.
Section 200.51 Notice of SEA Action
Statute: Under section 1116(c) of Title I, an SEA must publicize
and disseminate the results of its review of an LEA to the LEA,
teachers and other staff, parents, students, and the community. If an
SEA identifies an LEA for improvement or corrective action, it must
provide to the parents of each student enrolled in a school served by
the LEA the reasons for the identification and an explanation of how
the parents can participate in upgrading the LEA. The SEA also must
publish and disseminate to parents and the public information on any
corrective action it takes against an LEA.
Current Regulations: The current regulations governing SEA notice
requirements related to its review of LEA progress reflect provisions
of section 1116 of the ESEA that were superseded by the NCLB Act.
Proposed Regulations: In general, proposed Sec. 200.51 restates the
statutory notice requirements triggered when an SEA reviews the
progress of an LEA under Sec. 200.50. Proposed Sec. 200.51 also
clarifies the manner in which SEAs must meet these notification
requirements by providing guidelines for all communications with
parents. These guidelines include the use of an understandable and
uniform format for all required notices; the provision, to the extent
practicable, of all notices in a language that parents can understand;
the use of direct means of communication, such as sending materials
home with students, as well as broader electronic means such as the
Internet; and assurances that all notices respect the privacy of
students and their families.
Reasons: Proposed Sec. 200.51 reflects the Secretary's goal of
providing clarity where the statute is ambiguous and reorganizing the
statutory requirements to facilitate a better understanding of and
compliance with those requirements. The proposed regulations would help
ensure that SEAs develop a uniform approach for communicating with
parents throughout the LEA review and improvement process.
Section 200.52 LEA Improvement; and Sec. 200.53 LEA Corrective Action
Statute: Under section 1116(c) of Title I, if an SEA identifies an
LEA for improvement, the LEA must develop or revise an LEA improvement
plan that incorporates scientifically based strategies to strengthen
instruction in core academic subjects in schools served by the LEA,
addresses the professional development needs of the LEA's instructional
staff by reserving for that purpose not less than 10 percent of the
funds received by the LEA under subpart A of this part, and includes
specific measurable goals and targets consistent with adequate yearly
progress requirements. The improvement plan also must incorporate
extended learning time strategies, specify LEA and SEA responsibilities
under the plan, and promote effective parental involvement. At the
request of the LEA, the SEA must provide or arrange for technical or
other assistance in developing and implementing the improvement plan.
The LEA must implement its improvement plan not later than the
beginning of the school year after the school year in which the SEA
identified the LEA for improvement.
If an SEA identifies an LEA for corrective action, it must continue
to make available technical assistance to the LEA and take at least one
of the corrective actions specified in the statute. These corrective
actions include deferring programmatic funds or reducing administrative
funds, instituting a new curriculum, replacing LEA personnel, removing
particular schools from the jurisdiction of the LEA and establishing
alternative governance for these schools, appointing a receiver or
trustee to administer the LEA in place of the superintendent and school
board, and abolishing or restructuring the LEA. In addition, in
conjunction with at least one of these actions, the SEA may authorize
students to transfer, with transportation provided, from a school
operated by the LEA to a higher-performing public school operated by
another LEA.
Current Regulations: The current regulations governing LEA
improvement and corrective action reflect provisions of section 1116 of
the ESEA that were superseded by the NCLB Act.
Proposed Regulations: In general, Secs. 200.52 and 200.53 restate
the statutory requirements for LEA improvement and corrective action.
Proposed Sec. 200.52(a)(4) also clarifies that an LEA must implement
its improvement plan not later than the beginning of the school year
following the year in which the LEA administered the assessments that
resulted in the SEA's identification of the LEA for improvement.
Reasons: Proposed Secs. 200.52 and 200.53 reflect the Secretary's
goal of providing clarity where the statute is ambiguous and
reorganizing the statutory requirements to facilitate a better
understanding of, and compliance with, those requirements. Proposed
Sec. 200.52(a)(4) clarifies the deadline for implementation of an LEA's
improvement plan to be consistent with the statutory requirement that
such implementation occur prior to the beginning of the school year
following the identification for improvement.
Section 200.54 Rights of School and School District Employees
Statute: Section 1116(d) of Title I provides that none of the
requirements concerning school and LEA improvement, corrective action,
and restructuring shall be construed to alter or otherwise affect the
rights, remedies, and procedures afforded school or LEA employees under
Federal, State, or local law (including applicable regulations or court
orders) or under the terms of collective bargaining agreements,
memoranda of understanding, or other agreements between the employers
and their employees.
Current Regulations: The current regulations do not address this
requirement.
Proposed Regulations: Section 200.54(a) implements the statutory
provision with respect to State or local laws or collective bargaining
agreements in effect on January 8, 2002--the day the NCLB Act was
signed into law. Section 200.54(b) makes clear, however, that any State
or local laws, regulations, or policies adopted after January 8, 2002
may not exempt an LEA from taking actions it may be required to take by
Secs. 200.30-200.53 with respect to school and LEA employees.
Similarly, Sec. 200.54(c) requires an LEA to ensure that any collective
bargaining agreements, memoranda of understanding or other similar
agreements negotiated after January 8, 2002 do not prohibit actions
that the LEA may be required to take with respect to school or school
district employees to implement Secs. 200.30-200.53.
Reasons: These proposed regulations are necessary to clarify that
the statutory provision applies to laws, regulations, and agreements in
effect on January 8, 2002. States and LEAs, however, have affirmative
responsibilities to ensure that laws, regulations, policies, and
agreements that take effect after January 8 do not prohibit actions
that an LEA or
[[Page 50995]]
State may be required to take to implement Secs. 200.30-200.53.
Qualifications of Teachers and Paraprofessionals
Sections 200.55 through 200.57 Highly Qualified Teachers
Statute: Under section 9101(23) of the ESEA, a highly qualified
teacher in any public elementary or secondary school must hold at least
a bachelor's degree and either (1) have obtained full State teacher
certification or (2) have passed the State teacher licensing
examination and hold a license to teach in that State. A teacher in a
public charter school may instead meet the certification or licensure
requirements of the State's public charter school law. No highly
qualified teacher may have his or her certification or licensure
requirements waived on an emergency, temporary, or provisional basis.
Section 9101(23) of the ESEA contains additional requirements for a
highly qualified teacher depending on which grade level the teacher
teaches and whether the teacher is new to the profession. An elementary
school teacher who is new to the profession must have demonstrated
subject knowledge and teaching skills in reading, writing, mathematics,
and other areas of the basic elementary school curriculum by passing a
rigorous State test. Passing a rigorous State test can mean passing a
State-required certification or licensing test or tests in reading,
writing, mathematics, and other areas of the basic elementary school
curriculum.
A middle or secondary school teacher who is new to the profession
must have demonstrated a high level of competency in each academic
subject that he or she teaches by (1) passing a rigorous State academic
subject test in each of those subjects or (2) successfully completing,
in each of those subjects, an academic major, coursework equivalent to
an undergraduate academic major, a graduate degree, or advanced
certification or credentialing. Passing the rigorous State test can
mean receiving a passing level of performance on a State-required
certification or licensing test or tests in each of the academic
subjects that the teacher teaches.
To be highly qualified, an elementary, middle, or secondary school
teacher who is not new to the profession must meet the applicable
requirements for a new teacher or must demonstrate competence in all
academic subjects that he or she teaches based on a high objective
uniform State standard of evaluation. To be considered a high objective
uniform standard of evaluation, the State standard may involve
multiple, objective measures of teacher competency and must satisfy
these six criteria:
Be set both for grade-appropriate academic subject matter
knowledge and for teaching skills.
Be aligned with challenging State academic content and
student academic achievement standards and developed through
consultation with core content specialists, teachers, principals, and
school administrators.
Provide objective and coherent information about the
teacher's attainment of the core content knowledge in the applicable
academic subject.
Be applied uniformly to all teachers in the same academic
subject and grade level throughout the State.
Take into consideration, although not primarily, the time
the teacher has been teaching the subject.
Be available to the public on request.
Under section 1119(a)(1) of the ESEA, beginning with the first day
of the 2002-2003 school year, each LEA receiving assistance under Title
I, part A is responsible for applying these requirements to any public
school teacher in a core academic subject supported by part A funds who
is hired after that day. The LEA also must have a plan to ensure that
all public school teachers teaching in core academic subjects in the
LEA meet these requirements by the end of the 2005-2006 school year.
At the State level, section 1119(a)(2) of the ESEA requires each
State to develop a plan to ensure that all teachers teaching in core
academic subjects in the State meet these requirements by the end of
the 2005-06 school year. The State plan must set annual measurable
objectives for each LEA and school. At a minimum, these objectives must
provide for an increase in the percentage of highly qualified teachers
in each LEA and school and an annual increase in the percentage of
teachers receiving high-quality professional development toward
becoming highly qualified and successful. The objectives may include
other appropriate measures to improve teacher qualifications.
Proposed Regulations: In addition to incorporating the statutory
provisions described above, proposed Secs. 200.55 through 200.57 would
clarify that the requirements for teacher qualifications apply to
teachers in core academic subjects. Proposed Sec. 200.55(a)(2) would
clarify that a teacher in a program supported by funds under subpart A
of this part is a teacher in a targeted assistance program paid with
Title I, part A funds and any teacher in a schoolwide program. Proposed
Sec. 200.56(a)(1)(iii) would clarify that a teacher meets the full
certification and licensure requirements applicable to the years of
experience the teacher possesses. For example, a first-year teacher
would meet this requirement if State law requires that teacher to work
on a probationary basis for a limited time. Proposed
Sec. 200.56(a)(1)(iii) would also clarify that a teacher meets the
alternate route certification program requirements if the State permits
the teacher to assume functions as a teacher and if the teacher is
making satisfactory progress toward full certification as prescribed by
the State and the program.
A teacher who does not teach a core academic subject, or an
employee of a third-party contractor or supplemental services provider,
would not be required to meet the teacher qualification requirements.
Reasons: Most of the provisions in proposed Secs. 200.55 through
200.57 would clarify unclear areas of the statute. Exempting teachers
who do not teach in core academic subjects from the teacher
qualification requirements, for example, would recognize and encourage
the traditional flexibility that States have exercised in setting
qualification standards in such areas as vocational education. Yet
extending this flexibility would not jeopardize the statute's overall
objective of ensuring that, through high-quality instruction, all
students reach proficient levels of State academic student achievement
standards.
Sections 200.58 through 200.59 Paraprofessionals
Statute: Section 1119(c) through (g) of the ESEA contains
requirements that apply to all paraprofessionals working in a program
supported with Title I, part A funds and specify how each LEA receiving
assistance under part A must ensure that those paraprofessionals meet
those requirements.
Under section 1119(a), each paraprofessional hired after January 8,
2002, must have--
(1) Completed at least two years of study at an institution of
higher education;
(2) Obtained an associate's or higher degree; or
(3) Met a rigorous standard of quality and be able to demonstrate,
through a formal State or local academic assessment, knowledge of, and
the ability to assist in instructing reading, writing, and mathematics
or, as appropriate, in reading readiness,
[[Page 50996]]
writing readiness, and mathematics readiness.
Section 1119(d) requires a paraprofessional hired before January 8,
2002, to meet these requirements within four years of that date.
Section 1119(e) excepts from these requirements a paraprofessional who
serves primarily as a translator, if the paraprofessional is proficient
in English and a language other than English. Section 1119(e) also
excepts a paraprofessional working solely on parental involvement
activities.
Section 1119(f) of the ESEA requires all paraprofessionals,
regardless of hiring date, to have earned a secondary school diploma or
the recognized equivalent.
Section 1119(g) of the ESEA specifies that a paraprofessional may
provide one-on-one tutoring for eligible students, provided the
tutoring is scheduled at a time when a student would not otherwise
receive instruction from a teacher; assist with classroom management,
such as organizing instructional and other materials; provide
assistance in a computer laboratory; conduct parental involvement
activities; provide support in a library or media center; act as a
translator; or provide, under the direct supervision of a teacher,
instructional services.
Section 1119(g)(3) allows a paraprofessional to assume limited
duties assigned to similar personnel who do not work in a program
supported with part A funds. Those duties may include duties beyond
classroom instruction or duties that do not benefit participating
children, if the paraprofessional spends the same proportion of time on
those duties that similar personnel in the school spend on the same
duties.
Proposed regulations: Proposed Secs. 200.58 and 200.59 would
incorporate the statutory provisions governing paraprofessionals. In
addition, proposed Sec. 200.58(a)(2) would clarify that the term
``paraprofessional'' applies to an individual performing instructional
support duties and not to an individual performing only non-
instructional duties. Proposed Sec. 200.58(a)(3) would clarify that a
paraprofessional in a program supported by funds under subpart A of
this part means a paraprofessional in a targeted assisted program paid
with those funds and any paraprofessional in a schoolwide program.
Proposed Sec. 200.59(b) would clarify the duties that
paraprofessionals may perform. Proposed Sec. 200.59(c)(2) would clarify
that a paraprofessional works under the direct supervision of a teacher
if the teacher plans the paraprofessional's instructional activities
and evaluates the achievement of the students with whom the
paraprofessional works. The paraprofessional also would be required to
work in close physical proximity of the teacher.
Reasons: The clarifications in proposed Secs. 200.58(a)(2) and
200.59(b) would reinforce the consistent application of the statutory
concept that paraprofessional qualification requirements apply to the
performance of instructional support duties. The clarification in
proposed Sec. 200.59(c)(2) on what would constitute working under the
direct supervision of a teacher is intended to reinforce the statutory
safeguards against the improper use of paraprofessionals to provide
actual instruction.
Section 200.60 Expenditures for Professional Development
Statute: Section 1119(h) allows an LEA to use funds under Title I,
part A for ongoing training and professional development to help
teachers and paraprofessionals meet the new statutory requirements
governing their qualifications.
Section 1119(l) requires the LEA, for each of fiscal years 2002 and
2003, to use a minimum of 5 percent and a maximum of 10 percent of its
part A funds for professional development aimed at ensuring that
teachers who are not qualified become highly qualified by the end of
the 2005-2006 school year. For each subsequent fiscal year, the LEA
must use a minimum of 5 percent of its part A funds for that purpose.
Section 1119(j) of the ESEA permits an LEA to combine part A funds used
for professional development with other Federal funds, including those
from Title II of the ESEA, and funds from other sources.
Section 1119(k) prohibits a State from mandating, beyond the
amounts specified in section 1119(l), the specific amount that an LEA,
other than an LEA identified for improvement, may spend for
professional development.
Proposed Regulations: Proposed Sec. 200.60(a) would clarify that
professional development funds may be used for paraprofessionals, as
well as teachers. It also would clarify that the statutory minimum
would not apply to an LEA, if most teachers and paraprofessionals in
the LEA's school district already meet the statutory qualification
requirements. Proposed Sec. 200.60(b) would clarify that an LEA may use
additional funds under subpart A of this part for ongoing training and
professional development to help teachers and paraprofessionals carry
out their subpart A activities.
Reasons: Proposed Sec. 200.60(a) is needed to ensure consistent
application of the requirements in section 1119 and elsewhere in the
ESEA that permit flexibility in the use of funds for professional
development. The requirements in section 1119 contemplate that an LEA
will give priority for the use of professional development expenditures
to helping teachers and paraprofessionals meet the requirements for
highly qualified teachers and the qualifications for paraprofessionals,
respectively. Nevertheless, in cases where that priority has been met,
and to help teachers and paraprofessionals carry out their activities
under subpart A, funds under subpart A remain available,
notwithstanding the mandated percentages in section 1119, to an LEA for
ongoing training and professional development.
Participation of Eligible Children in Private Schools
Statute: Section 1120 of Title I requires LEAs to provide on an
equitable basis educational services or other benefits (1) to eligible
children attending private schools; and (2) to the teachers and
families of these children in Title I--supported parent involvement and
professional development activities. It requires LEAs to develop these
services in consultation with officials of the private schools and
prescribes how an LEA determines that it is providing services on an
equitable basis.
Current Regulations: The current regulations governing equitable
participation of eligible children in private schools (34 CFR 200.10
through 200.13) implement provisions of section 1120 of the ESEA that
were superseded by the NCLB Act.
Proposed Regulations: Proposed Secs. 200.61 through 200.66 contain
several provisions to address changes in the statute from the previous
law and to clarify issues about which questions have arisen in the
past. The proposed regulations would--
Reiterate which children an LEA must serve;
Clarify the equal expenditure requirement for
instructional services;
Define equitable expenditures for teachers and families of
participating private school children;
Require consultation on specified topics and expand those
topics to include equitable services to teachers and families of
participating private school students; and
[[Page 50997]]
Clarify the flexibility that exists for private school
officials to appoint representatives for consultation and sign-off
purposes.
Additionally, the proposed regulations would remove regulations
governing capital expenses (currently contained in Secs. 200.15 through
200.17), because the authority for capital expenses expires October 1,
2003 and no funds were appropriated for fiscal year 2002.
Reasons: The existing regulations need to be updated to reflect the
changes made by the NCLB Act. The proposed regulations also facilitate
implementation of the requirements for providing services to eligible
private school students, their teachers, and their families by ensuring
that both public and private school officials have consistent and
accurate information to implement fully the requirements of this
section. Finally, the proposed regulations remove current provisions
that are no longer needed.
Allocations to LEAS
Statute: Title I, part A, subpart 2 establishes the formulas the
Secretary must use to determine LEA allocations for Basic Grants,
Concentration Grants, Targeted Grants, and Education Finance Incentive
Grants (EFIG). The Secretary makes allocations to LEAs for all four
programs using data that include children ages 5 through 17 in families
with incomes below the poverty line based on the most recent
satisfactory data available from the Census Bureau, in families not in
poverty but receiving assistance under the Temporary Assistance for
Needy Families program, in foster homes, and in locally operated
institutions for neglected children. These data are then adjusted to
account for each State's per-pupil expenditure for education. The
Targeted Grants program further requires that the Secretary adjust the
number of children counted in the formula to give greater weight to
those LEAs that have higher numbers or percentages of formula children.
The formula for EFIG, in addition to including the number of children
counted in the Title I formula and each State's per-pupil expenditure,
uses two other factors that measure (1) a State's effort to provide
financial support for education compared to its relative wealth based
on its per capita income (fiscal effort factor) and (2) the degree to
which education expenditures among school districts within a State are
equalized (equity factor). Once a State's EFIG allocation is determined
using all four of these factors, the Secretary distributes funds among
LEAs within a State using a process similar to Targeted Grants by
giving a greater weight to those LEAs that have higher numbers or
percentages of formula children. The weights used to determine EFIG
allocations for each LEA will vary for each State depending on its
equity factor. After initial LEA allocations are determined for all
four programs using the factors described, the Secretary must guarantee
that no LEA (depending on its formula child rate) receives less than
85, 90, or 95 percent of the amount allocated to it in the preceding
year and ensure that no State in total receives less than the minimum
amount prescribed in the statute.
Title I further authorizes States to use alternative data to
determine eligibility and redistribute allocations that the Secretary
determined for its ``small'' LEAs with fewer than 20,000 residents.
This provision in the law responds to concerns about the quality of
census poverty estimates for small LEAs, which account for roughly 79
percent of all districts nationally, but serve only 24 percent of all
school-age children. Under this provision, SEAs have the flexibility to
use alternative data, which the Secretary must approve, that better
reflect the location of poor children among small LEAs in a State.
Current Regulations: The current regulations (contained in 34 CFR
200.20 through 200.26) outline procedures that an SEA uses to sub-
allocate county Title I, part A allocations determined by the Secretary
to LEAs. Because the Secretary now makes Title I, part A allocations
directly to LEAs rather than to counties, these regulations are no
longer applicable and would be replaced by the proposed regulations.
Proposed Regulations: Proposed Secs. 200.70 through 200.75 would
outline procedures SEAs must follow to adjust allocations determined by
the Secretary to account for unique situations within their States.
Proposed Sec. 200.70 would outline the general process that the
Secretary follows to determine Title I, part A LEA allocations and
establish the principle that an SEA may change those allocations in
limited instances.
Proposed Sec. 200.71 would clarify the eligibility thresholds for
Basic Grants, Concentration Grants, Targeted Grants, and EFIG. For
Basic Grants, an LEA is eligible if the number of children counted for
allocation purposes is at least 10 and exceeds two percent of its
school-age population ages 5 through 17. An LEA is eligible for a
Concentration Grant if it is eligible for a Basic Grant and the number
of formula children exceeds 6,500 or 15 percent of its school-age
population. To be eligible for a Targeted Grant and EFIG, an LEA must
have at least 10 formula children and a formula child rate of at least
5 percent. Targeted Grant and EFIG eligibility is based on the raw
number of formula children without application of the weights provided
in the statute.
Proposed Sec. 200.72 would establish the general procedures an SEA
must follow to adjust allocations determined by the Secretary to
account for eligible ``new'' LEAs not on the Census list that the
Secretary used to calculate LEA allocations and to reflect changes in
district boundaries. Under this section, an SEA must first determine
the number of Title I formula children for new LEAs that are not on the
Secretary's list of LEAs, second determine the eligibility of these new
LEAs for a Basic, Concentration, Targeted, and EFIG based on that
number, and third provide the new LEAs with Title I funds based on the
number of formula children that they draw from the LEAs that are on the
Secretary's list for which the Department made allocations.
Proposed Sec. 200.73 would outline the statutory ``hold-harmless''
provisions more clearly. The hold-harmless protection limits the
maximum reduction in an LEA's allocation when compared to its prior
year's allocation. Under each program, an LEA is guaranteed at least
85, 90, or 95 percent of the amount received in the preceding year. The
hold-harmless percentage varies according to each LEA's formula child
rate. For Targeted Grants and EFIG, the hold-harmless percentage is
based on formula counts without application of the weights. Except when
an SEA is calculating LEA reductions to account for reserves for school
improvement, State administration, and the State academic achievement
awards program, the hold-harmless percentage is applied separately for
Basic Grants, Concentration Grants, Targeted Grants, and EFIG. With the
exception of Concentration Grants, an LEA must be eligible for Basic
Grants, Targeted Grants, and EFIG in order for the hold-harmless
protection to apply. For Concentration Grants an LEA is entitled to its
hold-harmless percentage based on its prior year amount for four
consecutive years even if it no longer meets the eligibility
thresholds.
Proposed Sec. 200.74 would clarify the statutory procedures an SEA
would follow if it chooses to use an alternative method to redistribute
Title I, part A grants to LEAs with fewer than 20,000 total residents.
Language in proposed Sec. 200.74(a) would extend this flexibility to
EFIG.
Proposed Sec. 200.75 would outline the flexibility available to
States in which their Title I formula count on January 8,
[[Page 50998]]
2002 makes up less than .25 percent of the national total. These
``small'' States may redistribute Concentration Grant allocations
determined by the Secretary to LEAs in which the number or percentage
of formula children equals or exceeds the Statewide average number or
percentage.
Reasons: The proposed regulations are needed to give guidance to
States on how to adjust the LEA allocations determined by the Secretary
to account for circumstances unique to each State. The Secretary
determines LEA allocations directly using a list of LEAs provided to us
by the Census Bureau, which is based on LEAs that existed in school
year 1999-2000. Because that list does not match the current universe
of LEAs in many States, SEAs must adjust the Secretary's LEA
allocations to account for newly created LEAs (e.g. charter schools and
LEA consolidations) and district boundary changes. An SEA must also
adjust our allocations to (1) reserve funds for school improvement,
State administration, and the State academic achievement awards
programs, (2) allow for the use of alternative data to redistribute
Title I allocations determined by the Secretary among districts with
fewer than 20,000 total residents, and (3) in the case of ``small''
States, redistribute Concentration Grant allocations determined by the
Secretary to LEAs in which the number or percentage of formula children
equal or exceed the Statewide average number or percentage of formula
children.
In outlining SEA procedures for adjusting our allocations in the
proposed regulations, we have tried to give SEAs as much flexibility as
possible. For example, in proposed Sec. 200.72 concerning a State's use
of alternative data to redistribute allocations determined by the
Secretary, we believe it appropriate to extend that flexibility to EFIG
even though the statute specifically authorizes this flexibility only
for Basic, Concentration, and Targeted Grants.
Section 200.78 Allocation of Funds to School Attendance Areas and
Schools
Statute: Section 1113 of the Title I statute lays out the
procedures an LEA must use to determine school-level Title I
allocations once it receives its final allocation from the State. In
calculating school-level allocations, an LEA must first determine which
school attendance areas or schools are eligible to participate in Title
I. As a general rule, a school attendance area is eligible if its
percentage of children from low-income families is above 35 percent
poverty or is at least as high as the percentage of children from low-
income families in the LEA as a whole. An LEA may also serve a school
in an ineligible area if the percentage of children from low-income
families enrolled in that school is equal to, or greater than, the
percentage of such children in a participating school attendance area.
The statute also allows an LEA to continue serving an attendance area
or school for one more year if it has become ineligible.
An LEA must serve eligible schools or attendance areas in rank
order according to their poverty percentage. An LEA must serve those
areas or schools above 75 percent poverty, including any middle or high
schools, before it serves any with a poverty percentage below 75
percent. Once all of the attendance areas or schools with a poverty
rate above 75 percent have been served, an LEA may serve lower-poverty
areas and schools either by continuing with the district-wide ranking
or by ranking its areas or schools below 75 percent poverty according
to grade-span groupings.
When calculating the total number of children from low-income
families, the LEA must include children from low-income families who
reside in a participating area and attend private schools. If the same
poverty data for public and private school children are not available,
an LEA may use comparable poverty data for private school children. If
complete actual poverty data are not available on private school
children, an LEA may extrapolate, from actual data on a representative
sample of private school children, the number of children from low-
income families who attend private schools. An LEA may also correlate
sources of data or apply the low-income percentage of each
participating public school attendance area to the number of private
school children who reside in that area. If an LEA selects a public
school to participate on the basis of enrollment, rather than because
it serves an eligible school attendance area, the LEA must determine an
equitable way to count poor private school children in order to
calculate the amount of Title I funds available to serve private school
children. In making this determination an LEA must consult with private
school officials.
If an LEA serves any attendance area with a poverty rate less than
35 percent, the LEA must allocate to all its participating school
attendance areas or schools an amount per poor child that equals at
least 125 percent of the LEA's part A allocation per poor child. If an
LEA serves only areas with a poverty rate greater than 35 percent, it
must allocate funds in rank order on the basis of the total number of
poor children in each area or school but is not required to allocate a
per-pupil amount of at least 125 percent.
Proposed Regulations: Proposed Secs. 200.77 and 200.78 would
clarify the within-district allocation procedures in section 1113 of
the statute. Because the section 1113 requirements in the new law are
largely the same as the old law, the proposed regulations change little
from the old regulations.
Proposed Sec. 200.77 would clarify what funds an LEA must reserve
before allocating funds to school attendance areas and schools. An LEA
must, for example, reserve funds needed to provide comparable services
to children in local institutions for neglected children and for
homeless children. An LEA is also required to reserve funds, as
appropriate, to meet the (1) transportation and supplemental services
requirements in Sec. 200.48, unless the LEA meets those requirements
with non-Title I funds, (2) the professional development requirements
for LEAs identified for improvement under section 1116(c)(7)(A)(iii),
(3) the professional development needs of teachers who are not highly
qualified under section 1119(l), and (4) the parental support and
involvement requirements in section 1118(a)(3)(A). An LEA may further
reserve funds to meet the needs of children in local institutions for
delinquent children and of neglected or delinquent children in
community day school programs, to provide financial incentives and
rewards (not to exceed 5 percent of the amount received by the LEA
under Title I, part A) for teachers who serve schools identified for
improvement, and to conduct other authorized activities such as school
improvement and coordinated services.
Reasons: The proposed regulations are needed to clarify statutory
provisions concerning how LEAs allocate Title I funds within school
districts.
Fiscal Requirements
Section 200.79 Exclusion of Supplemental State and Local Funds From
Supplement, Not Supplant and Comparability Determinations
Statute: Under section 1120A(d) of Title I, an LEA may exclude
supplemental State and local funds from supplement, not supplant and
comparability determinations if those supplemental funds meet the
intent and purposes of Title I.
Current Regulations: Section 200.63 of the current regulations
clarifies a similar provision in the old law by describing what
criteria a State or local program
[[Page 50999]]
must meet in order to be excluded from supplement, not supplant and
comparability determinations.
Proposed Regulations: Proposed Sec. 200.79 would continue the
provisions contained in Sec. 200.63 of the current regulations by
clarifying the criteria a State or local program must meet in order to
be excluded from supplement, not supplant and comparability
determinations. Section 200.79(b)(1)(i) reflects the change in the
poverty threshold for schoolwide programs under section 1114.
Reasons: Proposed Sec. 200.79 is needed to provide continued
guidance to LEAs on what criteria a State or local program must fulfill
in order to meet the intent and purposes of Title I.
Subpart C--Migrant Education Program
Subpart C of this part contains the program-specific regulations
for the Migrant Education Program (MEP) authorized under Title I, part
C of the statute. The proposed MEP regulations contained in
Secs. 200.81 through 200.88 are intended to clarify ambiguous or
unclear provisions of the statute and replace Secs. 200.40 through
200.45 of the current regulations.
Section 200.81 Program Definitions
Statute: Section 1309 of Title I provides a basic definition of a
``migratory child.''
Current Regulations: The current regulations (contained in 34 CFR
200.40) provide definitions of several additional terms that are
necessary to interpret the statutory definition of a ``migratory
child.''
Proposed Regulations: Proposed Sec. 200.81 would make no changes to
these additional program definitions included in the current
regulations.
Reasons: The program definitions are included in these proposed
regulations solely to provide, in one place, a complete set of the
regulations published for subpart C.
Section 200.82 Use of Program Funds for Unique Program Function Costs
Statute: Section 1302 of Title I provides the authority for SEAs to
operate the MEP either directly or though local operating agencies.
This authority means that the MEP, unlike the Title I, part A program,
is a State-operated, not simply a State-administered, program and, as
such, may carry out particular operational functions that are unique to
the program and beyond those usually carried out by SEAs under Title I,
part A.
Current Regulations: The current regulations (contained in 34 CFR
200.41) clarify that SEAs may use MEP funds to carry out ``other
administrative activities,'' beyond those normally paid for by the SEA
using its general Title I administrative set-aside funds. These ``other
administrative activities'' are those that are unique to the MEP,
including activities that are the same as, or similar to, those carried
out by an LEA under Title I, part A. The current regulations provide
several examples of such unique program costs.
Proposed Regulations: Proposed Sec. 200.82 would repeat the current
regulations, except that proposed Sec. 200.82(e) has been revised to
clarify that MEP funds may be used for the administrative aspects of
developing the statewide needs assessment and comprehensive State plan
that are required in section 1306(a) of the statute and proposed
Sec. 200.83.
Reasons: The revision to Sec. 200.82(e) is intended to emphasize
that SEAs may use MEP funds to conduct the statewide needs assessment
and develop the statewide service delivery plan required under section
1306(a) of the statute and proposed Sec. 200.83.
Section 200.83 Responsibilities of SEAs To Implement Projects Through
a Comprehensive Needs Assessment and a Comprehensive State Plan for
Service Delivery
Statute: Under section 1306(a) of Title I, each SEA receiving MEP
funds must identify and address the special educational needs of
migrant children in accordance with a comprehensive needs assessment
and service delivery plan.
Proposed Regulations: Proposed Sec. 200.83 would clarify the
responsibilities of an SEA receiving MEP funds regarding development of
a comprehensive needs assessment and service delivery plan. The
proposed regulations would clarify that SEAs must deliver and evaluate
MEP-funded services to migratory children based on a written plan that
reflects the results of a current statewide needs assessment and
identified performance targets. The proposed regulations would further
clarify that this plan must be developed in consultation with the
parents of migratory children, and that this requirement is applicable
to both SEAs and their local operating agency projects.
Reasons: The provisions in proposed Sec. 200.83 would outline to
grantees the minimum requirements the Secretary believes necessary for
the development of a comprehensive needs assessment and plan for
service delivery required by section 1306(a) of Title I.
Section 200.84 Responsibilities of SEAs for Evaluating the
Effectiveness of the MEP
Statute: Section 1304(c)(5) of Title I requires SEAs to provide an
assurance that the effectiveness of the State MEP be determined, where
feasible, using the same approaches and standards that will be used to
assess Title I, part A.
Current Regulations: The current regulations (contained in 34 CFR
200.42) define the responsibilities of SEAs and their local projects in
regard to assessing the effectiveness of their operations using the
content and performance standards and, where possible, the assessments
that the State has established for all children. The current
regulations also note that, where it is not feasible to use the
assessments the State has established for all children, e.g., in short-
term summer projects, the SEA and the local project still have a
responsibility to use a reasonable process for assessing the
effectiveness of the project.
Proposed Regulations: Proposed Sec. 200.84 renames and simplifies
the language of the regulatory requirements to clarify that SEAs have a
responsibility to evaluate the MEP in terms of the performance targets
established for migratory children in proposed Sec. 200.83.
Reasons: The provisions of proposed Sec. 200.84 simplify the
regulatory language and align it with the requirements of proposed
Sec. 200.83.
Section 200.85 Responsibilities of SEAs and Operating Agencies for
Improving Services to Migratory Children
Statute: Section 1304(b)(1)(D) of the new statute requires that
measurable goals and outcomes be used when planning and implementing
State and local MEP projects to address the needs of migratory
children.
Current Regulations: The current regulations (contained in 34 CFR
200.43) explain that, while the specific school improvement
requirements of section 1116 of the statute do not apply to the MEP,
SEAs and their local projects are required to use assessment results to
improve the design of services provided to migratory children.
Proposed Regulations: In proposed Sec. 200.85, a minor conforming
change has been made to the language of the current regulations that
would clarify that it is the results of the evaluations conducted under
proposed Sec. 200.84 that are to be used to improve the design of
services to migratory children.
Reasons: The minor conforming change is necessary to establish the
[[Page 51000]]
correct reference to the evaluations to be conducted under proposed
Sec. 200.84.
Section 200.86 Use of MEP funds in Schoolwide Projects
Statute: The new statute sets a new and higher threshold for
combining MEP funds with other funds in a schoolwide program. Section
1306(b)(4) of Title I now requires that a schoolwide program that
receives MEP funds must not only continue to ``address'' the identified
needs of migratory children (as was required under the prior statute)
but now must also ``meet'' these identified needs before it can combine
the MEP funds with other funds in the schoolwide program. This new
statutory requirement would be addressed in Sec. 200.28 of the proposed
subpart A regulations.
Current Regulations: The current regulations (contained in 34 CFR
200.44) note that a schoolwide program may combine MEP funds with other
funds subject to meeting the requirements found in current
Sec. 200.8(c)(3)(ii)(B)(1).
Proposed Regulations: In proposed Sec. 200.86, a minor conforming
change would be made to clarify that the requirements for combining MEP
funds are now to be found in proposed Sec. 200.28(c)(3)(i) of the
proposed subpart A regulations.
Reasons: The minor conforming change is necessary to establish the
correct reference to the requirements of proposed Sec. 200.28(c)(3)(i).
Section 200.87 Responsibilities for Participation of Children in
Private Schools
Statute: Section 1304(c)(2) of Title I eliminates the reference, in
the prior statute, to the applicability of section 1120 (Participation
of Children in Private Schools) of Title I to the MEP. Instead, section
9501(b) of the new statute makes the private school provisions of
section 9501 of the statute applicable to the MEP.
Current Regulations: The current regulations (contained in 34 CFR
200.45) note that the provisions of section 1120 regarding the
participation of private school children are applicable to the MEP.
Proposed Regulations: In proposed Sec. 200.87, a minor conforming
change has been made that would clarify that the provisions regarding
the participation of children in private schools contained in section
9501 of the new statute apply to the MEP.
Reasons: The minor conforming change is necessary to establish the
correct reference to the requirements of section 9501 of the new
statute.
Section 200.88 Exclusion of Supplemental State and Local Funds From
Supplement, not Supplant and Comparability Determinations
Statute: Section 1120A(b) and (c) of the statute define the
``comparability'' and ``supplement, not supplant'' requirements that
apply to Title I, part A. Subsection (d) of section 1120A provides an
exception to the ``comparability'' and ``supplement, not supplant''
requirements for State and local funds that are expended for programs
that meet the intent and purposes of Title I. The assurances in section
1304(c)(2) of Title I, in turn, adopt, by reference, the
``comparability'' and ``supplement, not supplant'' requirements in
section 1120A.
Current Regulations: The current regulations (contained in 34 CFR
200.63) implement the exclusion from both the ``comparability'' and
``supplement, not supplant'' requirements in section 1120A(d), and,
because of section 1304(c)(2), make that exclusion applicable, as a
general regulatory provision, to the MEP as well as to Title I, part A.
The exclusion is only for State and local funds spent for programs that
meet the intent and purposes of Title I. That is, under current
Sec. 200.63(b), a State or local program is considered to meet the
intent and purposes of Title I if it has basic aspects of the Title I,
part A program--e.g., if implemented in any schoolwide program or
school that: (1) serves only children failing or at risk of failing to
achieve to high standards, (2) provides supplementary educational
services to meet the special educational needs of participating
children, and (3) uses the State's system of assessments.
Proposed Regulations: Proposed Sec. 200.88 would clarify that, for
purposes of the MEP, only ``supplemental'' State or local funds that
are used for programs specifically designed to meet the unique needs of
migratory children may be excluded in terms of determining compliance
with the ``comparability'' and ``supplement, not supplant'' provisions
of the statute.
Reasons: In the past few years, the Department has learned of
situations in which, with State approval, one or more LEAs paid the
costs of their summer programs with a mixture of State compensatory
education program funds and MEP funds. While these programs served both
migratory and non-migratory children, they paid for a portion of
services available to migrant students out of their MEP funds,
excluding them from the level of services provided with the State
compensatory education program funds to non-migratory children. While
this arrangement is consistent with the letter of current Sec. 200.63
as written, the Department believes that it violates the intent of
section 1304(c)(2) of the statute.
The broad purpose of the section 1120A statutory exclusion is to
encourage States and LEAs to use their own funds to support
supplemental programs without concern for ``comparability'' and
``supplement, not supplant'' considerations. The Department believes
that the requirement in section 1304(c)(2), that the MEP be implemented
``in a manner consistent with the objectives of'' the section 1120A
``comparability'' and ``supplement, not supplant'' requirements, is
best interpreted, for purposes of the MEP, to exclude only State and
local funds used in programs that are specifically designed, like the
MEP itself, to serve migratory children. Proposed Sec. 200.88 would
serve to establish this reasonable interpretation through regulations.
Subpart D--Prevention Programs for Children and Youth Who Are
Neglected, Delinquent, or At-risk of Dropping Out
Statute: Title I, part D of the ESEA authorizes two programs that
address the needs of neglected, delinquent, and at-risk children and
youth. The basic provisions of this part of the new law are the same as
the old law. Subpart l of part D establishes the State agency Neglected
or Delinquent (N or D) program, which provides Federal financial
assistance to State agencies that operate educational programs for
children and youth in institutions or community day programs for N or D
children and for youth in adult correctional facilities. Subpart 2 of
part D authorizes a program that provides assistance to LEAs to serve
children and youths who are in locally operated correctional facilities
(including institutions for delinquent children) or are at risk of
dropping out of school. Funds for this program are generated by counts
of children, which the Department collects annually for Title I, part A
purposes, that live in locally operated institutions for delinquent
children or are in locally operated correctional facilities. States
award Subpart 2 funds to LEAs with high numbers or percentages of youth
residing in correctional facilities or institutions for delinquent
children to conduct programs that provide an array of services to meet
the special needs of at-risk children and youth.
Current Regulations: The current regulations in 34 CFR 200.50 and
200.51 contain several specific program
[[Page 51001]]
definitions and set out requirements for SEAs to follow when providing
the Department with enrollment data used to determine State agency N or
D allocations.
Proposed Regulation: The proposed regulations would continue the
regulations with no change in policy.
Reasons: The Department needs the proposed regulations in order to
collect the annual data used for determining part D, Subpart 1
allocations, and to provide guidance and clarification about the
children, who are eligible for services under part D, subpart 2.
The definitions in proposed Sec. 200.90 would ensure that the data
used by the Secretary to allocate funds are based on common
definitions. For example, the definition of a regular program of
instruction is included to ensure that the children counted are
enrolled in actual educational programs that involve classroom
instruction supported by State funds. The definitions of institutions
for neglected or delinquent children and youth further require that the
average length of stay in the institution be at least 30 days. This
continues current policy and ensures that the children counted for
allocation purposes are in an institution for a sufficient length of
time so that educational services provided by the institution can be
effective.
Proposed Sec. 200.92, which outlines the requirements for an SEA in
providing the Department with enrollment data for use in determining
State Agency N or D allocations, clarifies, for example, how States
adjust their enrollment counts to account for the length of the school
year as required by the statute.
Subpart E--General Provisions Section 200.100 Reservation of Funds
for School Improvement, State Administration, and the State Academic
Achievement Award Program; and Sec. 200.103 Definitions
Statute: Section 1003 of Title I requires that an SEA reserve two
percent of its funds received under Title I, part A for school
improvement activities authorized in section 1116 and 1117 of the
statute. The amount reserved rises to four percent beginning in 2004.
Section 1004 authorizes an SEA to reserve up to the greater of one
percent or $400,000 from funds it receives under Title I, part A, part
C (Migrant Education program) and part D (State Agency Neglected or
Delinquent program) for State administration. Section 1117(c)(2)(A)
further authorizes the SEA to reserve up to five percent of the Title
I, part A amount received in excess of the prior-year amount for the
State academic awards program.
Current Regulations: The current regulations (contained in 34 CFR
200.60 through 200.65) outline procedures for how a State reserves
funds for State administration and school improvement activities,
provides guidance to an SEA on the use of funds reserved for State
administration, and defines certain terms that apply to all programs
covered by the regulations.
Proposed Regulations: Proposed Sec. 200.100 would clarify new
procedures an SEA must follow when reserving funds for school
improvement, State administration, and the State academic achievement
awards program. When reserving funds for these activities, the SEA must
first reserve funds for school improvement activities authorized under
sections 1116 and 1117 of the Title I statute. In reserving funds for
school improvement, an SEA may not reduce the sum of the Title I, part
A allocations each LEA would receive below the total amount the LEA
received in the preceding year. After reserving funds for school
improvement, an SEA may then reserve funds for State administration and
the State academic achievement awards program. In reducing LEA
allocations, the SEA has the flexibility of (1) ensuring that no LEA
receives, in total, less than 85, 90, or 95 percent, as applicable, of
the amount it received in the preceding year (depending on its
percentage of formula children) or (2) reducing each LEA at the same
rate even if that results in an LEA receiving less than its hold-
harmless amount.
In addition, proposed Secs. 200.100 and 200.103 would (1) address
the use of funds reserved for State administration and (2) provide
certain definitions that apply to all of the programs governed by the
proposed regulations.
Reasons: The provisions in proposed Sec. 200.100 work in
combination with the requirements outlined in proposed Secs. 200.70
through 200.75 for allocating Title I, part A funds to an LEA by
establishing the procedures that an SEA follows when reserving funds
for school improvement, State administration, and the State academic
achievement awards program. The key issue in proposed Sec. 200.100 is
whether the Department should give an SEA the flexibility to reduce an
LEA below its hold-harmless amount when reserving funds for State
administration and the State academic awards program so that all LEAs
would contribute proportionately to these activities.
In the past, an SEA has always followed Title I's hold-harmless
provisions when reserving funds for State administration, provided
there was enough money available to honor the hold-harmless
requirement. However, in ensuring that no LEA receives less than its
hold-harmless amount, any LEA that gained additional funds under the
Title I formula had to give up all or part of its gain in order to
bring any LEA falling below its hold-harmless amount up to that level.
As a result, any LEA that gained funds under the formula contributed a
disproportionately larger share of its Title I allocations to support
these Statewide activities, while an LEA funded at its hold-harmless
level contributed nothing.
In order to provide more equity in how each LEA contributes to the
reserve for State administration and the State academic achievement
award program, the language in proposed Sec. 200.100(d) would give a
State the option of proportionately reducing each LEA's total Title I
allocation even if the outcome results in some LEAs receiving less than
their hold-harmless amounts. If the SEA adopts this option, every LEA
would contribute an equal proportion of its Title I allocation to these
Statewide activities.
The language in proposed Sec. 200.103 is the same as in the current
regulations and would define certain terms that are used throughout the
proposed regulations.
Executive Order 12866
1. Potential Costs and Benefits
The proposed costs have been reviewed in accordance with Executive
Order 12866. Under the terms of the Order, the Department has assessed
the costs and benefits of this regulatory action.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these proposed regulations, the Department has
determined that the benefits of the proposed regulations justify the
costs. The Department has also determined that this regulatory action
does not unduly interfere with State, local, and tribal governments in
the exercise of their governmental functions.
To assist the Department in complying with the requirements of
Executive Order 12866, the Secretary invites comment on whether there
may be further opportunities to reduce any potential costs or increase
potential benefits resulting from these proposed regulations without
impeding the effective and efficient administration of the programs.
Summary of Benefits and Costs
As noted elsewhere, most of the regulations the Secretary proposes
to
[[Page 51002]]
issue through this notice would add clarity where the statute is
ambiguous or unclear or would reorganize statutory provisions to
facilitate a better understanding of their requirements. The proposed
regulations would not add significantly to the costs of implementing
the programs authorized by ESEA Title I or alter the benefits that the
Secretary believes will be obtained through successful implementation.
The vast majority of the implementation costs and benefits will stem
from the underlying legislation.
The programs authorized by Title I of the Elementary and Secondary
Education Act, as reauthorized by the No Child Left Behind Act of 2001,
have as their goal the education of all students, including students
who are economically disadvantaged, limited English proficient,
disabled, migrant, residing in institutions for neglected or delinquent
youth and adults, or members of other groups typically considered ``at
risk,'' so that they can achieve to challenging content and academic
achievement standards. Thus, the benefits that will be obtained through
the reauthorized Title I and its implementing regulations are those
primarily of a more educated society. National data sets and studies by
prominent researchers have demonstrated repeatedly that better
education has major benefits, both economic and non-economic, not only
for the individuals who receive it but for society as a whole. Nations
that invest in quality education enjoy higher levels of growth and
productivity, and a high-quality education system is an indispensable
element of a strong economy and successful civil society.
Data from the 1999 Current Population Survey, conducted by the
Census Bureau, indicate that adults with a high school diploma (but no
further education) had a median income of $23,061, compared to $17,015
for those with no diploma and $15,098 for those with less than 9 years
of education. High school graduates are more likely to continue their
education and receive the additional skills and knowledge necessary to
compete for jobs in a high-technology, knowledge-driven economy.
Scholars have also found strong, positive correlations between higher
levels of schooling and higher lifetime earnings, higher savings rates,
and reduced costs of job search.
Researchers have, in addition, found that more and better education
correlates with other outcomes that, while not directly related to
employment and earnings, have a major, positive benefit on society.
More educated individuals lead healthier lives and have lower mortality
rates. They are more likely to donate time and money to charity, and to
vote in elections. Researchers have demonstrated the intergenerational
impact of education, as the educational level of parents is a positive
predictor of children's health, cognitive development, education,
occupational status, and future earnings. In addition, education is
negatively correlated with criminal activity and incarceration, and
more educated mothers are less likely to have daughters who give birth
out of wedlock as teens.
The reauthorized Title I programs, and the regulations that the
Department is proposing for those programs, will also lead to
improvements in the qualifications of teachers, both in programs
supported by Title I and in schools generally. The Department believes
that the new teacher qualifications provisions will also convey major
benefits on students and on society generally. Research has found that
the academic success of children is more dependent on teacher quality
than on any other variable, with the exception of family background; it
is, in other words, the most important school-related determinant of
achievement.
The major costs to States and to LEAs imposed by the statute and
the proposed regulations are the costs of administering the Title I
programs: at the State level, distributing funds to LEAs, monitoring
LEA activities, providing technical assistance, and carrying out other
activities specified in the statute, and, at the local level,
administering programs in schools and classrooms, providing
professional development to teachers and other staff, and ensuring
program accountability, among other things. The Department believes
that these activities will be financed through the appropriations for
Title I and other Federal programs and that the responsibilities
encompassed in the law and regulations will not impose a financial
burden that States and LEAs will have to meet from non-Federal
resources. For purposes of the Unfunded Mandates Reform Act of 1995,
this rule does not include a Federal mandate that might result in
increased expenditures by State, local, and tribal governments, or
increased expenditures by the private sector of more than $100 million
in any one year.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential Memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 200.12 Single State accountability system.)
Could the description of the proposed regulations in the
``Supplementary Information'' section of this preamble be more helpful
in making the proposed regulations easy to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.
Initial Regulatory Flexibility Analysis
This Initial Regulatory Flexibility Analysis (IRFA) has been
prepared in accordance with the Regulatory Flexibility Act. It involves
proposed rules under Title I of the Elementary and Secondary Education
Act, as amended by the NCLB Act. Its provisions require LEAs, without
regard to size, to take certain actions to improve student academic
achievement.
1. Reasons for, and Objectives of, Proposed Rules
The purpose of the proposed rules is to implement recent changes to
Title I of the ESEA made by the NCLB Act.
2. Legal Basis
We are proposing the rules under the authority in section 1901(a)
of Title I.
3. Small Entities Subject to the Proposed Rules
The small entities that would be affected by these proposed
regulations are small LEAs receiving Federal funds under Title I
programs.
4. Reporting, Recordkeeping and Other Compliance Requirements
Among other requirements, LEAs must: (1) Publicize and disseminate
the results of its annual progress review, (2)
[[Page 51003]]
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.
5. Duplicative, Overlapping or Conflicting Federal Rules
We believe that there are no rules that duplicate, overlap or
conflict with the proposed rules.
6. 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. We believe
there are no regulatory alternatives as the portions of these
regulations that would affect small entities restate statutory
requirements. Moreover, activities required under these proposed
regulations would be financed through the appropriations for Title I
programs, 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.
7. Request for Comments
Little data are available that would permit a separate analysis of
how the proposed changes affect small entities in particular.
Therefore, the Secretary specifically invites comments on the
differential effects of the proposed regulations on small entities, and
whether there may be further opportunities to reduce any potential
adverse impact or increase potential benefits resulting from these
proposed regulations without impeding the effective and efficient
administration of Title I programs. Commenters are requested to
describe the nature of any effect and provide empirical data and other
factual support for their views to the extent possible. These comments
will be considered in the preparation of the final regulations and the
accompanying Final Regulatory Flexibility Analysis, and will be placed
in the public comment file.
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the 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 do not believe these proposed
requirements would have federalism implications as defined in Executive
Order 13132, we encourage State and local elected officials to review
them and to provide comments.
Paperwork Reduction Act of 1995
Title I, part A of the Elementary and Secondary Education, as
amended by the No Child Left Behind Act, contains several provisions
that require State educational agencies (SEAs), Local educational
agencies (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,
200.36, 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, and 200.62. 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 are covered under OMB control numbers
1810-0620 and 1810-0622. 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, and (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 adequate yearly progress,
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 adequate yearly progress,
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 intents and
purpose of each Federal program included.
The total estimated burden hours for SEA activities covered by the
paperwork requirements is 55,952 across 52 SEAs. The total estimated
burden hours for LEA activities covered by the paperwork requirements
is 959,480 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 adequate yearly progress 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.
[[Page 51004]]
Sec. 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.
Sec. 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 proposed regulatory requirements is
19,405 hours.
The Office of Management and Budget is currently reviewing the
information collections pertaining to this regulation. We invite
comments on the paperwork sections of this proposed regulation by
September 5, 2002. If you want to comment on the information collection
requirements, please send your comments to Jacquelyn C. Jackson at the
address listed under ADDRESSES.
Electronic Access to This Document
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Education documents published in the Federal Register, in text or Adobe
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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)
List of Subjects in 34 CFR Part 200
Administrative practice and procedure, Adult education, Children,
Coordination, Education, Education of disadvantaged children, Education
of children with disabilities, 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: July 30, 2002.
Rod Paige,
Secretary of Education.
The Secretary proposes to amend 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. 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
2. Add a new undesignated center heading to subpart A of part 200
and place it after Sec. 200.10 (as revised in a final rule published in
the Federal Register on July 5, 2002 (67 FR 45038)) to read as follows:
Participation in NAEP
2a. In subpart A to part 200, remove the undesignated center
headings ``Schoolwide Programs'', ``Participation of Eligible Children
in Private Schools'', ``Capital Expenses'', Procedures for the Within-
State Allocation of LEA Program Funds'', and ``Procedures for the
Within-District Allocation of LEA Program Funds''.
3. Revise Sec. 200.11 and place it under the new undesignated
center heading ``Participation in 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 Act, and notwithstanding section 441(d)(1) of the National
Education Statistics Act, an LEA that receives funds under subpart A of
this part, if selected, must participate 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))
4. Add a new undesignated center heading to subpart A of part 200
and place it after revised Sec. 200.11 to read as follows:
State Accountability System
5. 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 as defined in Secs. 200.13 through
200.20.
(b)(1) Except as provided in paragraph (b)(2) of this section, each
State must use the same accountability system for all public elementary
and secondary schools and all LEAs in the State.
(2) The State may, but is not required to, subject schools and LEAs
not participating under subpart A of this part to the requirements of
section 1116 of the Act.
(c) 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) 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 adequate yearly progress;
(4) Establish guidelines to ensure that alternate assessments are
used only when appropriate for students with disabilities who have the
most significant cognitive disabilities; and
(5) Require schools and LEAs to report the percentage of students
taking an alternate assessment.
(Authority: 20 U.S.C. 6311(b)(2)(A))
6. 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
7. Revise Sec. 200.13 and place it under the new undesignated
center heading ``Adequate Yearly Progress'' in subpart A of part 200 to
read as follows:
[[Page 51005]]
Sec. 200.13 Adequate yearly progress in general.
(a) Each State must demonstrate in its State plan what constitutes
adequate yearly progress 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 schools.
(b) A State must define adequate yearly progress, in accordance
with Secs. 200.14 through 200.20, in a manner that--
(1) Except as provided in paragraph (c) of this paragraph, 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--
(i) Based primarily on the State's academic assessment system under
Sec. 200.2; or
(ii) Consistent with paragraph (d) of this section;
(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 intermediate
goals, annual measurable objectives, and other academic indicators
under Secs. 200.17 through 200.19 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 Act.
(D) Students with limited English proficiency, as defined in
section 9101(25) of the Act.
(c)(1) For students with the most significant cognitive
disabilities who take an alternate assessment, a State may, through a
documented and validated standards-setting process, define achievement
standards that--
(i) Are aligned with the State's academic content standards; and
(ii) Reflect professional judgment of the highest learning
standards possible for those students.
(2)(i) In calculating adequate yearly progress for schools, a State
may permit the use of the achievement standards in paragraph (c)(1) of
this section, provided that schools in the aggregate do not exceed the
State and LEA limitations in paragraph (c)(2)(ii) of this section.
(ii) In calculating adequate yearly progress for States and LEAs, a
State may not permit the use of the achievement standards in paragraph
(c)(1) of this section for more than 0.5 percent of all students in the
grades assessed.
(iii) For purposes of calculating adequate yearly progress for
States and LEAs, the State must require that grade-level academic
content and achievement standards established under Sec. 200.1 apply to
any students taking alternate assessments that exceed the number
established under paragraph(c)(2)(ii) of this section.
(d)(1) The State must establish a way to hold accountable schools--
(i) In which no grade level is assessed under the State's academic
assessment system; or
(ii) Whose purpose is to serve students for less than a full
academic year.
(2) The State is not required to administer a formal assessment to
meet the requirement in paragraph (d)(1) of this section.
(Authority: 20 U.S.C. 6311(b)(2))
8. Add Sec. 200.14 and place it under the new undesignated center
heading ``Adequate Yearly Progress'' in subpart A of part 200 to read
as follows:
Sec. 200.14 Components of adequate yearly progress.
A State's definition of adequate yearly progress 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))
9. Revise Secs. 200.15 through 200.17 and place them under the new
undesignated center heading ``Adequate Yearly Progress'' in subpart A
of part 200 to read as follows:
Sec. 200.15 Timeline.
(a) Each State must establish a timeline for making adequate yearly
progress 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 adequate yearly
progress under Secs. 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 for 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 in which is
enrolled the student at the 20th percentile of the State's total
enrollment. 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 total enrollment in all schools.
(iv) Identify the percent 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
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 within three
years.
(Authority: 20 U.S.C. 6311(b)(2))
[[Page 51006]]
10. Add Secs. 200.18 and 200.19 and place them under the new
undesignated center heading ``Adequate Yearly Progress'' in subpart A
of part 200 to read as follows:
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))
Sec. 200.19 Other academic indicators.
(a) Each State must include in its definition of adequate yearly
progress--
(1) The graduation rate for public high schools, which means--
(i) The percentage of students who graduate from high school with a
regular diploma (not including a GED) in the standard number of years;
or
(ii) Another definition, developed by the State and approved by the
Secretary in the State plan, that more accurately measures the high
school graduation rate; and
(2) 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) The 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.
(d) In carrying out paragraphs (a) and (b) of this section, a State
must ensure that the 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.
(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))
11. Revise Secs. 200.20 and 200.21 and place them under the new
undesignated center heading ``Adequate Yearly Progress'' in subpart A
of part 200 to read as follows:
Sec. 200.20 Making adequate yearly progress.
A school or LEA makes adequate yearly progress 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) A school or LEA makes adequate yearly progress if each group of
students under Sec. 200.13(b)(7) meets or exceeds the State's--
(1) Annual measurable objectives under Sec. 200.18; and
(2) Other academic indicators consistent with Sec. 200.19(e).
(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 adequate yearly progress 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. 200.70(a)(2)(ii).
(c)(1) A school or LEA makes adequate yearly progress if,
consistent with paragraph (e) of this section--
(i) Not less than 95 percent of the students enrolled in each group
under Sec. 200.13(b)(7) take 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) If a group under Sec. 200.13(b)(7) is not of sufficient size to
produce statistically reliable results under paragraph (c)(1)(ii) of
this section, the State must still include students in that group in
its State assessments under Sec. 200.2.
(d) For the purpose of determining whether a school or LEA has made
adequate yearly progress, 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--
(A) May not delay--
(1) Implementing the assessments under Sec. 200.5(a)(2) and (b);
(2) Determining adequate yearly progress under Secs. 200.13 through
200.20 on the basis of assessments under Sec. 200.5(a)(1);
(3) Reporting data resulting from the assessments under
Sec. 200.5(a)(2) and (b); or
(4) Implementing the requirements in section 1116 of the Act; but
(B) May delay determining adequate yearly progress on the basis of
assessments under Sec. 200.5(a)(2) until it has data from two or three
years to average.
(2) Combining data across grades. Within each subject area, the
State may combine data across grades in a school or LEA.
(e)(1) In determining the adequate yearly progress 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 adequate yearly progress 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 Act, the Secretary must,
beginning with the 2004-2005 school year, annually review whether the
State has--
(a) Made adequate yearly progress as defined in Secs. 200.13
through 200.20 for each group of students in Sec. 200.13(b)(7); and
(b) Met its annual measurable achievement objectives relating to
the development and attainment of English proficiency by limited
English
[[Page 51007]]
proficient students under section 3122(a) of the Act.
(Authority: 20 U.S.C. 7325)
12. Remove and reserve Secs. 200.22 through 200.24 and place them
under the new undesignated center heading ``Adequate Yearly Progress''
in subpart A of part 200.
12a. Add a new undesignated center heading following Sec. 200.24 to
read as follows:
Schoolwide Programs
13. 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 program purpose and eligibility.
(a) Purpose. (1) The purpose of a schoolwide program is to improve
academic achievement throughout a school so that all students
demonstrate proficiency related to the State's academic content and
student academic achievement standards, particularly those students
furthest away from demonstrating proficiency.
(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
Act; 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 under subpart A of this part as
eligible to participate in a schoolwide program; or
(2) Provide services to those children that supplement the services
they would receive, as otherwise required by section 1120A(b) of the
Act.
(d) Funding. An eligible school may 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 Secs. 200.25 through 200.28.
(Authority: 20 U.S.C. 6314)
14. 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 Development and evaluation of program plan.
(a) Development of plan. (1) A school must develop for its
schoolwide program a comprehensive schoolwide program plan that
describes how the school will improve academic achievement so that all
students demonstrate proficiency on the State's academic content and
student academic achievement standards, particularly those students
furthest away from demonstrating proficiency.
(2) The school's process for developing its schoolwide plan must--
(i) Reflect an understanding of the school's academic strengths and
needs related to the State's academic content and student academic
achievement standards;
(ii) Focus on scientifically based research that reflects best
practices for improving student academic achievement;
(iii) Involve the individuals who will have responsibility for
implementing the schoolwide program plan in accordance with paragraph
(d)(2) of this section;
(3) Reflect a process that occurs over time; and
(4) Provide for regular evaluation of the program's effectiveness
related to the State's academic content and student academic
achievement standards.
(b) Comprehensive needs assessment. An eligible school that desires
to operate a schoolwide program must first conduct a comprehensive
needs assessment of the entire school that--
(1) Takes into account the needs of migratory children as defined
in section 1309(2) of the Act;
(2) Is developed with the participation of individuals who will
carry out the comprehensive schoolwide program plan as that plan is
described in paragraph (c) of this section;
(3) Is based on information about all students in the school,
including all the demographic groups of students listed in section
1111(b)(2)(C) of the Act in relation to the State academic standards
described in Sec. 200.1;
(4) Reflects current achievement data that will help the school
understand the subjects and skills in which teaching and learning need
to be improved; and
(5) Reflects data that will identify--
(i) Students and groups of students who are not yet achieving to
the State academic content standards and the State student academic
achievement standards; and
(ii) The specific academic needs of those students that are to be
addressed in the schoolwide program plan.
(c) Comprehensive schoolwide program plan. (1) After conducting the
comprehensive needs assessment described in paragraph (b) of this
section, the school must develop a comprehensive plan for assisting all
students to achieve proficiency in relation to the State's academic
content and student academic achievement standards.
(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 Act.
(3) The comprehensive plan must--
(i) Describe how the school will carry out the implementation
components described in Sec. 200.27;
(ii) Describe how the school will use resources under this part and
from other sources to carry out the implementation components described
in Sec. 200.27; and
(iii) Include a list of SEA and LEA programs and other Federal
programs under Sec. 200.28 that the school will consolidate in the
schoolwide program.
(d) Schoolwide program planning process. (1) The school must
develop the comprehensive schoolwide program 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 Act, determines that
less time is needed to develop and implement the schoolwide program; or
(ii) The school is 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
Secs. 200.25 through 200.28 during the first year that it receives
funds under subpart A of this part.
(2) The school must develop the comprehensive plan with the
involvement of parents 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
Act;
[[Page 51008]]
(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 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 must remain in effect for the duration
of the school's participation under Secs. 200.25 through 200.28.
(5) The school must review and revise the plan as necessary to
reflect changes in the schoolwide program or changes in State academic
content standards and student academic achievement standards.
(e) Evaluation. The school must include in the comprehensive
schoolwide program plan provisions to--
(1) Evaluate the implementation and results achieved by the
schoolwide program using the State's annual assessment data, other
State indicators of academic achievement, and other locally determined
indicators of achievement;
(2) Determine whether the schoolwide program has been effective in
increasing the extent to which students are meeting the State's
academic content and student academic achievement standards,
particularly those students who had been furthest from achieving those
standards; and
(3) Amend the plan, as necessary, based on the results of this
evaluation, to ensure continuous improvement of the schoolwide program.
(Authority: 20 U.S.C. 6314)
15. Revise Secs. 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 Schoolwide program implementation components.
The schoolwide program must include the following implementation
components:
(a) Schoolwide reform strategies. The schoolwide program must
incorporate reform strategies in the overall instructional program.
Those strategies must--
(1) Address the needs of all children in the school, particularly
the needs of students furthest away from demonstrating proficiency
related to the State's academic content and student academic
achievement standards; and
(2) Reflect effective methods and instructional practices that are
based on scientifically based research, as defined in section 9101 of
the Act, and that--
(i) Improve the teaching of reading/language arts, mathematics,
and, at least by the 2005-2006 school year, science, consistent with
the State's academic content and student academic achievement standards
throughout the school;
(ii) Strengthen the core academic program; and
(iii) Increase the amount and quality of learning time.
(b) Instruction by highly qualified teachers. A schoolwide program
must ensure instruction by highly qualified teachers and ongoing
professional development by--
(1) Including strategies to ensure instruction in the schoolwide
program by highly qualified teachers, as defined in Sec. 200.56;
(2)(i) Providing high-quality and ongoing professional development
in accordance with sections 1119 and 9101 of the Act for teachers,
principals, paraprofessionals and, if appropriate, pupil services
personnel, parents, and other staff; and
(ii) Aligning professional development with the State's academic
content and student academic achievement standards;
(3) Devoting sufficient resources to carry out effectively the
professional development activities described in paragraph (b)(2) of
this section; and
(4) Including teachers in professional development activities
regarding the use of academic assessments described in Sec. 200.2 and,
thus, 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 comprehensive
schoolwide program plan.
(2) A schoolwide program must have a parental involvement policy
that--
(i) Includes strategies to increase parental involvement in
accordance with sections 1118 and 9101 of the Act, such as family
literacy services;
(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. 200.1;
(iii) Makes the comprehensive schoolwide program plan available to
the LEA, parents, and the public; and
(iv) Provides the information contained in the comprehensive
schoolwide program plan in an understandable and uniform format and, to
the extent practicable, in a language that the parents can understand.
(d) Additional support. A schoolwide program must improve the
entire educational program of a school, particularly with respect to
those students who are furthest away from demonstrating proficiency in
attaining the State's academic content and academic achievement
standards. The schoolwide program must--
(1) 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;
(2) Ensure that those students' difficulties are identified on a
timely basis; and
(3) Provide sufficient information to teachers 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 Individuals
with Disabilities Act or a State-run preschool program, to the
schoolwide program.
(Authority: 20 U.S.C. 6314)
Sec. 200.28 Use of funds in a schoolwide program.
(a) Supplemental funds. A school operating a schoolwide program
must use funds available to carry out Secs. 200.25 through 200.28 only
to supplement funds that would, in the absence of funds under subpart A
of this part, be made available from non-Federal sources for the
school, including funds needed to provide services that are required by
law for children with disabilities and children with limited English
proficiency.
(b) Prekindergarten Program. A school that is eligible for a
schoolwide program under Sec. 200.1 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.
(c) Availability of other Federal funds. (1) In addition to funds
under subpart A of this part, a school may use for its schoolwide
program Federal funds of any program administered by the Secretary that
is included in the most recent notice published for this purpose in the
Federal Register.
[[Page 51009]]
(2) For the purposes of Secs. 200.25 through 200.28, the authority
of the school to consolidate funds from other Federal programs also
applies to the consolidation of services provided to the school with
those funds.
(3) If a school consolidates and uses funds from other programs in
its schoolwide program, the school must meet the following
requirements:
(i) Migrant education. Before the school chooses to consolidate in
its schoolwide program funds received under part C of Title I of the
Act, the school must--
(A) Use these funds first to meet the identified unique educational
needs of migratory students that result from the effects of their
migratory lifestyle, and to permit these students to participate
effectively in school; and
(B) Document that these needs have been met.
(ii) Indian education. The school may consolidate funds received
under subpart 1 of part A of Title VII of the Act if the parent
committee established by the LEA under section 7114(c)(4) of the Act
approves the inclusion of these funds.
(iii) Special education. (A) The school may consolidate funds
received under part B of the Individuals with Disabilities Education
Act (IDEA).
(B) 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.
(C) The school may also consolidate funds received under section
8003(d) of the Act (Impact Aid) for children with disabilities in a
schoolwide program.
(D) A school that consolidates funds under part B of IDEA or
section 8003(d) of the Act 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 Act in
the schoolwide program.
(4)(i) Except as provided in paragraph (c)(4)(ii) of this section,
a school that consolidates and uses in a schoolwide program funds from
different Federal programs administered by the Secretary--
(A) Is not required to meet the statutory or regulatory
requirements of that program applicable at the school level;
(B) Is not required to maintain separate fiscal accounting records,
by program, that identify the specific activities supported by those
particular funds;
(C) Is required to 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; and
(D) Is required to ensure that the needs of the intended
beneficiaries of those other programs are addressed.
(ii) A school that chooses to use funds from other Federal programs
must meet the requirements of those other programs relating to--
(A) Health;
(B) Safety;
(C) Civil rights;
(D) Student and parental participation and involvement;
(E) Services to private school children;
(F) Maintenance of effort;
(G) Comparability of services;
(H) Use of Federal funds to supplement, not supplant non-Federal
funds in accordance with paragraph (a) of this section; and
(I) Distribution of funds to SEAs or LEAs.
(Authority: 20 U.S.C. 6314, 1413(a)(s)(D), 6396(b), 7703(d),
7815(c))
16. Place reserved Sec. 200.29 under the undesignated center
heading ``Schoolwide Programs'' in subpart A of part 200.
17. Add a new undesignated center heading to subpart A of part 200
and place it after reserved Sec. 200.29 to read as follows:
LEA and School Improvement
18. Transfer Secs. 200.30 through 200.69 to subpart A of part 200.
19. 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 adequate yearly
progress 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
academic assistance, consistent with the requirements of section 1115
of the Act.
(c)(1) To determine whether schools served under subpart A of this
part are making adequate yearly progress, an LEA also may use any
additional academic assessments or any other academic indicators
described in the LEA's plan.
(2) These indicators--
(i) May identify additional schools for school improvement or in
need of corrective action or restructuring;
(ii) May permit a school to make adequate yearly progress if, in
accordance with Sec. 200.20(b), the school also reduces the percentage
of a student group failing to meet the State's proficient level of
academic achievement by at least 10 percent; and
(iii) With the exception described in paragraph (ii), may not be
used to reduce the number of or change 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.
(Authority: 20 U.S.C. 6316(a) and (b))
20. Add new Secs. 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
[[Page 51010]]
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.
(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 adequate yearly progress as defined
under Secs. 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 adequate yearly progress 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 adequate yearly progress for a
second consecutive year.
(e) 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 adequate yearly
progress for a second consecutive year.
(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 adequate yearly progress 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 adequate yearly
progress.
(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 adequate yearly progress by the end of the second full year
after the LEA has identified the school for improvement under
Sec. 200.32, 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; and
(ii) In accordance with Sec. 200.45, make available supplemental
educational services to eligible students who remain in the school.
(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 adequate yearly progress for a
second consecutive year.
(Authority: 20 U.S.C. 6316)
Sec. 200.34 Identification for restructuring.
(a) If a school continues to fail to make adequate yearly progress
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 adequate yearly
progress, the LEA must 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 (a) of this section.
(Authority: 20 U.S.C. 6316(b)(8))
Sec. 200.35 Delay and removal.
(a) 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--
(1) The school makes adequate yearly progress for one year; or
(2) The school's failure to make adequate yearly progress is due to
exceptional or uncontrollable circumstances, such as a natural disaster
or a precipitous and unforeseen decline in the financial resources of
the LEA or school.
(b)(1) 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 adequate yearly progress.
(2) Except as provided in paragraph (c) of this section, the LEA
must subject the school to further actions as if the delay never
occurred.
(c) If any school identified for school improvement, corrective
action, or restructuring makes adequate yearly progress 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, and
school must communicate with the parents of each child attending the
school.
(b) The State, LEA, and school must ensure that, regardless of the
method or media used, it provides information 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.
[[Page 51011]]
(c) The State, LEA, and school must provide information to parents-
-
(1) Directly, through such means as regular mail or, if possible,
e-mail; 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.
(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 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, in accordance with Sec. 200.44.
(ii) The explanation of the parents' option to transfer must
include, at a minimum, information on the performance 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; and
(C) The professional qualifications of teachers in the core
academic subjects.
(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, or 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.
(Authority: 20 U.S.C. 6316)
Sec. 200.38 Information about action taken.
(a) An LEA must publish and disseminate to parents and 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, including opportunities for parental
participation.
(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 adequate yearly progress 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 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.
(Authority: 20 U.S.C. 6316(b))
21. Revise Secs. 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 Act.
(2) The SEA.
(3) An institution of higher education that is in full compliance
with all 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--
(i) Identify and address problems in instruction and problems in
implementing requirements for parental involvement and professional
development under subpart A of this part; and
(ii) Identify the responsibilities of the school and LEA in
developing solutions to these problems.
(2) Assistance in identifying and implementing professional
development and instructional strategies and methods that have been
proven 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.
(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
[[Page 51012]]
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, drawn from 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 implementating of a comprehensive
school reform model described in section 1606 of the Act;
(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 received 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 Act, that will
contribute to removing the school from school improvement status and
that--
(i) Directly addresses the academic achievement problem that caused
the school to be identified for improvement; and
(ii) Is provided in a manner that affords increased opportunity for
participating in that professional development;
(6) Incorporates a teacher mentoring program;
(7) Includes strategies to promote effective parental involvement
at the school; and
(8) As appropriate, incorporates 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.
(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 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 adequate yearly progress.
(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 adequate
yearly progress.
(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 adequate yearly progress 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.
(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 adequate
yearly progress as defined under Secs. 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 adequate
yearly progress.
(iii) Enter into a contract with an entity, such as a private
management
[[Page 51013]]
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. If a school continues to fail to make adequate
yearly progress, the LEA must 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.
(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.
(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, corrective action, or
restructuring; 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 Secs. 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)(4) 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-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) 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 children
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.
(e) 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.
(f) 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 (h) of
this section and in Sec. 200.48.
(g) 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.
(h) 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 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.
(i) 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
[[Page 51014]]
(3) Of high quality and research-based.
(b) Requirement. (1) If an LEA identifies a school for improvement
under Sec. 200.39(b), 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 Secs. 200.32(d) and 200.33(c), if the
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 (b)(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.
(c) 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.
(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.
(Authority: 20 U.S.C. 6316)
22. Add new Secs. 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 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 students whose parents request services.
(4) 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.
(5) 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) A statement of 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 that, in the case of a
student with disabilities under IDEA or a student covered under Section
504, is consistent with the student's individualized education program
under section 614(d) of the IDEA or the student's individualized
services under Section 504;
(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) 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))
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 that are based on a
demonstrated record of effectiveness in increasing the academic
proficiency of students in subjects relevant to meeting the State
academic content standards and the State student achievement standards
described under Sec. 200.1;
(3) Maintain by LEA an updated list of approved 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 and students
covered under Section 504 receive appropriate supplemental educational
services and accommodations in the provision of those services.
(b) Standards for approving providers. (1) As used in this section
and in
[[Page 51015]]
Sec. 200.46, ``provider'' means a non-profit entity, a for-profit
entity, an LEA, a public school, including a public charter school, or
a private school that----
(i) Has a demonstrated record of effectiveness in increasing
student academic achievement;
(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 public school, has not been identified under
Secs. 200.32, 200.33, or 200.34.
(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 responsible LEA with information on the
progress of the student in increasing achievement.
(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) 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.
(4) As a condition of approval, a State may not require a provider
to----
(i) Hire only staff who meet the requirements under Secs. 200.55
and 200.56; or
(ii) Document that its instructional strategies include
scientifically based research, as that term is defined in section
9101(37) of the Act.
(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 Act, an LEA may use--
(i) Funds allocated under subpart A of this part;
(ii) Funds, where authorized, 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
(iii) Pay for both paragraph (a)(2)(i) and (ii) of this section,
except that----
(A) If the cost of satisfying all requests for supplemental
educational services under Sec. 200.45 exceeds an amount equal to 5
percent of the LEA's allocation under subpart A of this part, the LEA
may not spend less than this amount for supplemental educational
services; and
(B) The LEA may not include costs for transportation or
administration in meeting this 5 percent requirement
(3) If the amount specified in paragraph (a)(2) of this section is
insufficient to pay all choice-related transportation costs, the LEA
may, but is not required to, 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.
(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 Act; 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
Secs. 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 Secs. 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 two percent of the
amount it receives under subpart A of this part for fiscal years 2002
and 2003, and four percent of the amount it receives under subpart A of
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 (a)(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) If requested by an 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.
[[Page 51016]]
(c) Technical assistance. The SEA must make technical assistance
available, through the statewide system of support and improvement
required by section 1117 of the Act, 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 corrective
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.
(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) Factors affecting student achievement. Consistent with section
1111(b)(9) of the Act, the SEA must notify the Secretary of Education
of major factors that have significantly affected student academic
achievement in schools and LEAs identified for improvement within the
State.
(Authority: 20 U.S.C. 6316)
23. Revise Secs. 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)(i) An SEA must annually review the progress
of each LEA in its State that receives funds under subpart A of this
part.
(ii) The review must determine whether--
(A) The LEA's schools served under subpart A of this part are
making adequate yearly progress toward meeting the State's student
academic achievement standards; and
(B) The LEA is carrying out its responsibilities under subpart A of
this part with respect to 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 subpart A of
this part, provided the students selected for services in such schools
are those with the greatest need for academic assistance, consistent
with the requirements of section 1115 of the Act.
(b) Rewards. If an LEA has exceeded adequate yearly progress as
defined under Secs. 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
Act.
(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 adequate
yearly progress as defined under Secs. 200.13 through 200.20.
(2) The SEA must identify for improvement an LEA that was in
improvement status on January 7, 2002.
(3) 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 adequate yearly progress for a second consecutive
year.
(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 adequate yearly progress 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 adequate yearly
progress, as defined under Secs. 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
adequate yearly progress for a second consecutive year and led to the
SEA's identification 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 adequate yearly progress 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 adequate yearly progress for one year; or
(ii) The LEA's failure to make adequate yearly progress is due to
exceptional or uncontrollable circumstances, such as a natural disaster
or a precipitous and unforeseen decline in the LEA's financial
resources.
(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 adequate yearly
progress; 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 adequate yearly progress for two consecutive years following
identification for improvement under paragraph (d) 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.
(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 parents--
[[Page 51017]]
(i) Directly, through such means as regular mail or, if possible,
e-mail; 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 publicize and disseminate to
the LEAs, teachers and other staff, parents, students, and the
community the results of its review under Sec. 200.50, including
statistically sound disaggregated results in accordance with
Secs. 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 upgrading the
LEA.
(d) Information about action taken. (1) The SEA must publish, and
disseminate to parents and 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.
(Authority: 20 U.S.C. 6316(c))
24. Add new Secs. 200.52 through 200.54 and place them under the
new undesignated center heading ``LEA and School Improvement'' in
subpart A of part 200 to read as follows:
Sec. 200.52 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, drawn from 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 Act.
(iv) Include specific measurable achievement goals and targets--
(A) For each of the groups of students described in the
disaggregated data under Sec. 200.13(b)(7); and
(B) That are consistent with adequate yearly progress as defined
under Secs. 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 Act.
(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 adequate yearly
progress 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 Act.
(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
drawn from 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 Act.
(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 increase substantially the likelihood 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 adequate yearly progress.
[[Page 51018]]
(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).
(Authority: 20 U.S.C. 6316(c)(10))
Sec. 200.54 Rights of school and school district employees.
(a) Nothing in Secs. 200.30 through 200.53 is intended to alter or
otherwise affect the rights, remedies, and procedures afforded school
or school district employees under Federal, State, or local laws
(including applicable regulations or court orders) or under the terms
of collective bargaining agreements, memoranda of understanding, or
other agreements between those employees and their employers in effect
on January 8, 2002.
(b)(1) Any State or local law, regulation, or policy adopted after
January 8, 2002 may not exempt an LEA from taking actions it may be
required to take with respect to school or school district employees to
implement Secs. 200.30 through 200.53.
(2) When the collective bargaining agreements, memoranda of
understanding, or other agreements referred to in paragraph (a) of this
section are renegotiated, an LEA must ensure that those agreements do
not prohibit actions that the LEA may be required to take with respect
to school or school district employees to implement Secs. 200.30
through 200.53.
(Authority: 20 U.S.C. 6316(d))
25. 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
26. Add new Secs. 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 to 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.
(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; or
(ii) A teacher in a schoolwide program school.
(b)(1) All teachers of core academic subjects. Not later than the
end of the 2005-2006 school year, each State that receives funds under
subpart A of this part must ensure that all teachers in the State who
teach core academic subjects are highly qualified as defined in
Sec. 200.56.
(2) A teacher of a subject other than 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.
(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)(2) 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.
(iii) A teacher meets the requirement in paragraphs (a)(1)(i) or
(ii) of this section if the teacher--
(A) Has fulfilled the State's certification and licensure
requirements applicable to the years of experience the teacher
possesses; or
(B) Is participating in an alternate route certification program
under which the teacher is--
(1) Permitted by the State to assume functions as a teacher; and
(2) Making satisfactory progress toward full certification as
prescribed by the State and the program.
(2) A teacher teaching in a public charter school in a State must
meet the certification and licensure requirements, if any, contained in
a State's charter school law.
(3) 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 must--
(1) Hold at least a bachelor's degree; and
(2) At the elementary level, demonstrate, by passing a State 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 middle and high school levels, demonstrate a high level
of competency by--
(i) Passing a State test in each academic subject in which the
teacher teaches; 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 credentials.
(c) Teachers not new to the profession. A teacher covered under
Sec. 200.55 who is not new to the profession must--
(1) Hold at least a bachelor's degree;
(2) Meet the applicable requirements in paragraph (b) of this
section; and
(3) Based on a high, objective, uniform State standard of
evaluation in accordance with section 9101(23)(C)(ii) of the Act,
demonstrate competence in all the academic subjects in which the
teacher teaches.
(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 a plan to ensure that all 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--
(i) Must 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 as
[[Page 51019]]
defined in section 9101(34) of the Act; and
(ii) 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 a plan to ensure that all teachers in the LEA who
teach core academic subjects are highly qualified not later than the
end of the 2005-2006 school year.
(Authority: 20 U.S.C. 6319(a)(2)-(3); 7801(34))
Sec. 200.58 Qualifications of paraprofessionals.
(a)(1) Applicability. An LEA must ensure that each paraprofessional
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 paragraph (c) or (d) of this section.
(2) For purposes 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; or
(ii) Any paraprofessional in a schoolwide program school.
(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
before January 8, 2002 must meet the requirements in paragraph (c) of
this section within four years after that date.
(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 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 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--that is, not during the regular school day.
(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 any instructional support
service 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))
27. Revise Sec. 200.60 and place it 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) Unless a lesser amount is needed because most teachers and
paraprofessionals covered under Secs. 200.55 and 200.58 meet the
requirements in those sections, an LEA must use funds it receives under
subpart A of this part for professional development activities to
ensure that teachers and paraprofessionals meet the requirements of
Secs. 200.56 and 200.58.
(2) The LEA must use these funds as follows:
(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.
(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 Act, 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))
27a. Add a new undesignated center heading following Sec. 200.60 to
read as follows:
Participation of Eligible Children in Private Schools
28. Revise Sec. 200.61 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. 200.61 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 Secs. 200.61 through 200.66 and section 1120
of the Act, provide special educational services or other benefits
under subpart A of this part, on an equitable basis and
[[Page 51020]]
in a timely manner, to eligible children who are enrolled in private
elementary and secondary schools; and
(2) Ensure that teachers and families of these children
participate, on a basis equitable to the participation of teachers and
families of other children receiving these services in accordance with
Sec. 200.53.
(b) Eligible private school children are children who--
(1) Reside in participating public school attendance areas of the
LEA, regardless of whether the private school they attend is located in
the LEA; and
(2) Meet the criteria in section 1115(b) of the Act.
(c) Among the eligible private school children, the LEA must select
children to participate, consistent with Sec. 200.63.
(Authority: 20 U.S.C. 6315(b); 6320(a))
29. 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 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 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 private
school children, 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 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 from a survey.
(8) The equitable services the LEA will provide to teachers and
families of private school participating 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 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 shall have 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 officials of the private school.
(Authority: 20 U.S.C. 6320(b))
30. Revise Secs. 200.63 through 200.65 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. 200.63 Factors for determining equitable participation of private
school children.
(a) Equal expenditures. (1) In the aggregate, 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.
(2) An LEA must meet this requirement as follows:
(i) In reserving funds off the top of its allocation to carry out
the provisions of Sec. 200.77, if the LEA reserves funds for
instructional activities for public elementary or secondary school
students at the district level, the LEA must provide equitable services
to eligible private school children. The LEA must base equitable
services from these reserved funds on the proportion of private school
children from low-income families residing in participating public
school attendance areas.
(ii) The LEA must reserve the amounts of 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 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.
(3) The LEA must provide services to eligible private school
children either directly or through arrangements with another LEA or a
third-party provider.
(4) 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(a))
[[Page 51021]]
Sec. 200.64 Determining equitable participation of teachers and
families of participating private school children.
(a)(1) From 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 parent involvement and professional development
activities, respectively.
(2) The LEA must base equitable services on the proportion 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 families and teachers 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))
Sec. 200.65 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 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))
31. Add a new Sec. 200.66 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. 200.66 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))
32. Place reserved Secs. 200.67 through 200.69 under the
undesignated center heading ``Participation of Eligible Children in
Private Schools'' in subpart A of part 200.
33-34. 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
35. Add new Secs. 200.70 through 200.75 and place them under the
revised 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 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 Secs. 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 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
population of less than 20,000 persons.
(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 counted for allocation purposes 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.
(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 redetermine eligibility for the
LEAs on the Census list, as appropriate, based on the number of formula
children and
[[Page 51022]]
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.
(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 Act, 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 its total population Hold-harmless Applicable grant
of children ages 5 to 17, percentage formulas
inclusive
------------------------------------------------------------------------
(i) 30% or more................... 95 Basic Grants,
Concentration
Grants, Targeted
Grants, and
Education Finance
Incentive Grants.
(ii) 15% or more but less than 30% 90
(iii) Less than 15%............... 85
------------------------------------------------------------------------
(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 Act.
(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 basic grants, targeted grants, and
education finance incentive grants under Sec. 200.71 in order for any
hold-harmless provision to apply.
(2) An LEA not meeting the eligibility requirements for
concentration grants under Sec. 200.71 must be paid its hold-harmless
amount for four consecutive years.
(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 population of
less than 20,000 persons (hereinafter 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 across the State for all Title I, part A programs.
(d) Based on the alternative poverty data selected, the SEA must--
(1) Redetermine 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 Act, 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 Act 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.
(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, an SEA may
either--
(1) Allocate concentration grants among eligible LEAs in the State
in accordance with Secs. 200.72 and 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 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 meeting the criteria described in
paragraph (a) of this section 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.
(Authority: 20 U.S.C. 6334(b))
36. 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.
36a. Add a new undesignated center heading following Sec. 200.76 to
read as follows:
Procedures for the Within-District Allocation of LEA Program Funds
37. Add new Secs. 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:
[[Page 51023]]
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 Act,
financial incentives and rewards to teachers who serve students in
Title I schools identified for school improvement, corrective action,
and restructuring;
(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)(2)(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 Act;
(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),
and (e)(6), 6318(a)(3), 6319(l), 6320).
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 Act, 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 different source such as
a private school survey that, to the extent possible, protects the
identity of families of private school students; and
(2) Extrapolate data from the survey based on a representative
sample if complete actual data are unavailable;
(C) 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
(D) 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) 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
Act.
(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.
(e) If an LEA contains two or more counties in their entirety, the
LEA shall 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)).
38. 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
39. 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 Act, 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 children are expected to meet;
(iii) Is designed to meet the educational needs of all children in
the school, particularly the needs of children who are failing, or most
at risk of failing, to meet the State's challenging
[[Page 51024]]
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 children who are failing, or most at risk of
failing, to meet the State's challenging academic achievement
standards;
(ii) Provides supplementary services designed to meet the special
educational needs of the children who are participating in the program
to support their achievement toward meeting the State's 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 Act.
(Authority: 20 U.S.C. 6321(b) and (c))
40. 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) are those who 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)
41. 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 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 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 service delivery; and
(f) Supervision of instructional and support staff.
(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
[[Page 51025]]
(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 childrens' migratory lifestyle; and
(ii) Other needs of migratory students.
(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) First, the unique educational needs of migratory children
consistent with paragraph (a)(2)(i) of this section; and
(ii) Then, the general educational 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.
(c) Each SEA receiving MEP funds must ensure that its local
operating agencies comply with the comprehensive State plan.
(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 Act.
(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 Act 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 Act 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 Act.
(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 Act, 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 Act;
(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 Act, 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; and
(4) The grantee monitors program performance to ensure that these
requirements are met.
(Authority: 20 U.S.C. 6321(d))
Sec. 200.89 [Reserved]
42. 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 Act:
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 Act:
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 Act:
Immigrant children and youth and limited English proficiency have
the same meanings as the term ``immigrant children'' is defined in
section 3301 of the Act and the term ``limited English proficient'' is
defined in section 9101 of the Act, 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
[[Page 51026]]
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
Act, 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.
(Authority: 20 U.S.C. 6432)
Secs. 200.92--200.99 [Reserved]
43. 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 award program.
200.101-200.102 [Reserved]
200.103 Definitions.
200.104-200.109 [Reserved]
Subpart E--General Provisions
Sec. 200.100 Reservation of funds for school improvement, State
administration, and the State academic achievement award 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 Act, an SEA
must first reserve--
(i) Two percent from the sum of the amounts allocated to the State
under section 1002(a) of the Act 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 Act 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 Act 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).
(b) State administration. (1) An SEA may reserve for State
administrative activities authorized in sections 1004 and 1903 of the
Act 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 Act; 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 Act.
(ii) If an SEA reserves funds from the amounts allocated to the
State or Outlying Area under section 1002 (c) or (d) of the Act, 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 Act.
(3) If the sum of the amounts allocated to all the States under
section 1002 (a), (c), and (d) of the Act 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 Act.
(4) An SEA may use the funds it has reserved under this paragraph
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 Act.
(c) State academic achievement awards program. To operate the State
academic achievement award program authorized under section 1117 (b)(1)
and (c)(2)(A) of the Act, an SEA may reserve up to five percent of the
excess amount the State receives under section 1002(a) of the Act when
compared to the amount the State received under section 1002(a) of the
Act 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 Act 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 Act even if an LEA's total allocation
falls below its hold-harmless percentage under Sec. 200.74(a)(3).
(Authority: 20 U.S.C. 6303, 6304, 6317(c)(2)(A))
Secs. 200.101-200.102 [Reserved]
Sec. 200.103 Definitions.
The following definitions apply to programs and projects 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
[[Page 51027]]
period normally used by the SEA for record-keeping.
(Authority: 20 U.S.C. 6315, 6571)
Secs. 200.104-200.109 [Reserved]
[FR Doc. 02-19539 Filed 7-31-02; 4:01 pm]
BILLING CODE 4000-01-P