Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 14841 

Electronic files should avoid the use of 

special characters, any form of 

encryption, and be free of any defects or 

viruses. For additional instructions on 

submitting comments, go to Section II of 

the SUPPLEMENTARY INFORMATION section 

of this document. 

Docket: All documents in the docket 

are listed in the http://

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http://

www.regulations.gov or in hard copy at 

the Improving Regulations Docket, EPA/ 

DC, EPA West, Room 3334, 1301 

Constitution Ave., NW., Washington, 

DC. The Public Reading Room is open 

from 8:30 a.m. to 4:30 p.m., Monday 

through Friday, excluding legal 

holidays. The telephone number for the 

Public Reading Room is (202) 566–1744, 

and the telephone number for the 

Improving Regulations Docket is (202) 

566–1752. 

FOR FURTHER INFORMATION CONTACT: For 

further information on this document, 

please contact Stuart Miles-McLean, 

Office of Regulatory Policy and 

Management (1803A), Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue, NW., Washington, DC 20460; 

telephone number: 202–564–6581; fax 

number: 202–564–7322; e-mail address: 

ImprovingRegulations.

SuggestionBox@epa.gov. 

SUPPLEMENTARY INFORMATION: EPA 

extending its comment period for 

feedback on the design of its 

retrospective review plan under 

Executive Order 13563 to April 4, 2011. 

To assist you in focusing your 

comments or recommendations, EPA 

has provided various categories relating 

to issue/impact, program area, or a 

multipurpose general area. These 

categories are not intended to restrict 

the issues that you may wish to address. 

The following list provides the category 

of each docket. If you wish to submit 

comments, please select one of the 

appropriate dockets listed below or send 

by mail as described in the ADDRESSES

section above. 

1. Integration and Innovation 

Submit a comment on ‘‘Improving 

Regulations: Integration and Innovation’’ 

at docket # EPA–HQ–OA–2011–0161. 

2. Environmental Justice/Children’s 

Health/Elderly 

Submit a comment related to 

‘‘Improving Regulations: EJ, Children & 

Elderly’’ at docket # EPA–HQ–OA– 

2011–0168. 

3. Science/Obsolete/Technology 

Outdated 

Submit a comment on ‘‘Improving 

Regulations: Science/Obsolete/ 

Technology Outdated’’ at docket # EPA– 

HQ–OA–2011–0162. 

4. State, Local and Tribal Governments 

Submit a comment related to 

‘‘Improving Regulations: State, Local 

and Tribal governments’’ at docket # 

EPA–HQ–OA–2011–0163. 

5. Least Burdensome/Flexible 

Approaches 

Provide comment on ‘‘Improving 

Regulations: Least Burden/Flexible 

Approaches’’ at docket # EPA–HQ–OA– 

2011–0165. 

6. Benefits and Costs 

Submit a comment related to benefits 

and costs in ‘‘Improving Regulations: 

Benefits and Costs’’ at docket # EPA– 

HQ–OA–2011–0158. 

7. Small Business 

Submit a comment related to 

‘‘Improving Regulations: Small 

Business’’ at docket # EPA–HQ–OA– 

2011–0164. 

8. Compliance 

Submit a comment related to 

‘‘Improving Regulations: Compliance’’ at 

docket # EPA–HQ–OA–2011–0166. 

9. Economic Conditions/Market 

Submit a comment about ‘‘Improving 

Regulations: Economic Conditions/ 

Market’’ at docket # EPA–HQ–OA– 

2011–0167. 

10. Program Area: Air 

Submit a comment about ‘‘Improving 

Regulations: Air’’ at docket # EPA–HQ– 

OA–2011–0155. 

11. Program Area: Pesticides 

Submit a comment about ‘‘Improving 

Regulations: Pesticides’’ at docket # 

EPA–HQ–OA–2011–0157. 

12. Program Area: Toxic Substances 

Submit a comment about ‘‘Improving 

Regulations: Toxic Substances’’ at 

docket # EPA–HQ–OA–2011–0159. 

13. Program Area: Waste 

Submit a comment about ‘‘Improving 

Regulations: Waste’’ at docket # EPA– 

HQ–OA–2011–0160. 

14. Program Area: Water 

Submit a comment about ‘‘Improving 

Regulations: Water’’ at docket 

# EPA–HQ–OA–2011–0154. 

15. Use the ‘‘Improving Regulations: 

General’’ docket # EPA– 

HQ–OA–2011–0156 to submit an idea 

for how best to promote retrospective 

analysis of rules. This docket may also 

be used for any comment that: 

• Pertains to more than one issue/ 

impact and/or program area. 

• Doesn’t relate to any of the other 

docket categories listed in this section. 

EPA welcomes comment and 

feedback from all parties on the issues 

listed herein. The Agency is collecting 

this information for its planning 

purposes and is not bound to further 

action or response. All submissions will 

be made publically available on http:// 

www.regulations.gov. 

Dated: March 15, 2011. 

Michael Goo, 

Associate Administrator, Office of Policy. 

[FR Doc. 2011–6413 Filed 3–17–11; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 1305 

RIN 0970–AC46 

Head Start Program 

AGENCY: Office of Head Start (OHS), 

Administration for Children and 

Families (ACF), Department of Health 

and Human Services (HHS). 

ACTION: Notice of proposed rulemaking. 

SUMMARY: This proposed rule would 

amend Head Start program regulations 

to codify statutory eligibility 

requirements for Head Start and Early 

Head Start program enrollment and 

strengthen procedures to determine, 

verify, certify, and maintain records 

regarding eligibility for Head Start and 

Early Head Start program enrollment. It 

also proposes to create new 

requirements for the person seeking 

services to certify in a signed and dated 

statement that the documents and 

information that the person provided 

concerning eligibility are accurate to the 

best of the person’s knowledge, as well 

as new requirements for program staff 

who make the eligibility determination 

to certify in a signed and dated 

statement that the information on 

eligibility in the file is accurate to the 


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14842 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

best of the person’s knowledge, and 

based on that information, the person 

has determined the pregnant woman or 

child to be eligible for services. In 

addition, it proposes to create a new 

requirement for agencies to establish 

policies and procedures describing the 

actions that will be taken against staff 

who violate eligibility determination 

requirements and requires agencies to 

provide training related to eligibility 

requirements and the legal 

consequences of committing fraud. The 

intent of this rule is to reduce 

substantially the risk that children or 

pregnant women who are ineligible for 

participation in Head Start or Early 

Head Start programs are enrolled in 

these programs. 

DATES: In order to be considered, 

comments on this proposed rule must 

be received on or before April 18, 2011. 

ADDRESSES: Interested persons are 

invited to submit comments to the 

Office of Head Start, 1250 Maryland 

Avenue, SW., Washington, DC 20024, 

Attention: Colleen Rathgeb, Office of 

Head Start, or electronically via the 

Internet at http://www.regulations.gov. 

If you submit a comment, please include 

your name and address, identify the 

docket number for this rulemaking 

(ACF–2010–XXXXX), indicate the 

specific section of this document to 

which each comment applies, and give 

the reason for each comment. You may 

submit your comments and material by 

electronic means, mail, or delivery to 

the address above, but please submit 

your comments and material by only 

one means. A copy of this Notice of 

Proposed Rulemaking may be 

downloaded from http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Colleen Rathgeb, Office of Head Start, 

202–205–7378 (not a toll-free call). Deaf 

and hearing impaired individuals may 

call the Federal Dual Party Relay 

Service at 1–800–877–8339 between 8 

a.m. and 7 p.m. Eastern Time. 

SUPPLEMENTARY INFORMATION: 

I. Statutory Authority 

This Notice of Proposed Rulemaking 

is published under the authority granted 

to the Secretary of Health and Human 

Services by section 644(c) of the Head 

Start Act, as amended by the Improving 

Head Start for School Readiness Act of 

2007, as well as sections 645(a)(1)(A) 

and 645A(c) of the Act. 

II. Comment Procedures 

The Head Start Act provides for a 

period of at least 30 days for public 

comment. In making any modifications 

to this Notice of Proposed Rulemaking, 

we will not consider comments received 

beyond the 30-day comment period. To 

make sure your comments are fully 

addressed, we suggest the following: 

• Be specific rather than general; 

• Address only issues raised by the 

proposed rule; 

• Explain reasons for any objections 

or recommended changes; 

• Propose specific alternative 

language, as appropriate; and 

• Reference the specific section of the 

proposed rule being addressed. 

III. Background 

The Head Start program is a national 

program that promotes school readiness 

of low-income children by enhancing 

their cognitive, social, and emotional 

development through the provision of 

health, educational, nutritional, social, 

and other services that are determined, 

based on family needs assessments, to 

be necessary. 

The Head Start program provides 

grants to local public and private nonprofit and for-profit agencies to provide 

comprehensive child development 

services to economically disadvantaged 

children and families, with a special 

focus on helping preschoolers develop 

the skills they need to be successful in 

school. In FY 1995, the Early Head Start 

program was established to serve 

families of economically disadvantaged 

children from birth to three years of age 

and pregnant women from such families 

in recognition of the mounting evidence 

that the earliest years matter a great deal 

to children’s growth and development. 

On December 12, 2007, the President 

signed the Improving Head Start for 

School Readiness Act of 2007, Public 

Law 110–134. The law reauthorized the 

Head Start program through September 

30, 2012, and built on the program’s 

many successes. The reauthorization 

addressed the needs of children and 

families by focusing efforts on building 

increased systems of accountability, 

improving quality, and expanding 

program access. The 2007 

reauthorization also made several 

changes to the eligibility criteria and 

related policies for participation in 

Head Start and Early Head Start 

programs described in Section 645 and 

645A of the Act. The Act included 

homeless children as a category of 

individuals who are deemed to be from 

low-income families and therefore 

categorically eligible for enrollment in 

Head Start and Early Head Start, but 

who were not included explicitly in the 

previous version of the Act. Homeless 

children are among the most 

disadvantaged children in the country. 

Since the reauthorization, grantees have 

been informed of these changes through 

a Program Instruction and various 

policy clarifications related to categories 

of individuals that are categorically 

eligible and the definition of homeless 

child to be used to determine eligibility. 

However, the current regulations do not 

specify how agencies are required to 

verify or certify that a child is homeless. 

The proposed revisions to 45 CFR 

1305.2 and 1305.4 directly respond to 

the findings of a recent investigation by 

the Government Accountability Office 

(GAO) that the Head Start program is at 

risk of having over-income children 

enrolled while legitimate under-income 

and categorically eligible children are 

put on wait lists. GAO presented its 

preliminary results about its ongoing 

investigation in testimony entitled, 

‘‘Head Start: Undercover Testing Finds 

Fraud and Abuse at Selected Head Start 

Centers’’ before the House Education 

and Labor Committee on May 18, 2010, 

which is available at: http:// 

www.gao.gov/new.items/d10733t.pdf. 

GAO published its final report on 

September 28, 2010, which reiterated 

many of the findings disclosed in the 

May testimony and discussed new 

findings related to specific fraud 

allegations at two Head Start grantees. 

This report is available at: ;http:// 

www.gao.gov/products/GAO-10-1049. 

Specifically, in its investigation, GAO 

followed up on received allegations of 

fraud and abuse involving two Head 

Start grantees, including that Head Start 

centers allegedly manipulated recorded 

income to make over-income applicants 

appear under-income; encouraged 

families to report that they were 

homeless when they were not; enrolled 

more than 10 percent of over-income 

children allowed by the Head Start Act; 

and counted children as enrolled in 

more than one center at a time. In its 

final report, GAO states that it was able 

to substantiate that ‘‘children were 

enrolled in both the grantee and 

delegate sites,’’ indicating that the 

grantee did not comply with the Head 

Start requirement to report an 

unduplicated count of its funded 

enrollment numbers. After further 

investigation of the programs alleged to 

have enrolled ineligible children by 

designating them as ‘‘homeless,’’ GAO 

was unable to substantiate the fraud 

claim because not all of the records 

reviewed contained sufficient 

information to determine whether a 

given family was homeless. However, 

GAO noted that the lack of requirements 

related to verifying and documenting a 

child’s homeless status raised concerns 

about the risk of fraud in the Head Start 

program. 

In order to ascertain if this type of 

fraud was occurring at other Head Start 


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centers, GAO attempted to register 

fictitious children as part of 15 

undercover test scenarios at centers in 

six States and the District of Columbia. 

GAO found that in eight instances, staff 

at the Head Start centers fraudulently 

misrepresented information, including 

disregarding part of the families’ income 

to register over-income children into 

under-income slots. The undercover 

tests revealed that seven Head Start 

employees lied about applicants’ 

employment status or misrepresented 

their earnings. GAO concluded that 

‘‘this leaves Head Start at risk that overincome children may be enrolled while 

legitimate under-income children are 

put on wait lists.’’ GAO also noted that 

‘‘at no point during our registrations was 

information submitted by GAO’s 

fictitious parents verified, leaving the 

program at risk that dishonest persons 

could falsify earnings statements and 

other documents in order to qualify.’’ 

Upon learning of GAO’s investigation, 

we immediately took numerous actions 

within our statutory and regulatory 

authority to respond to GAO’s findings 

and to bolster program integrity efforts 

across the Head Start and Early Head 

Start programs; prevent future fraud and 

mismanagement; and ensure that every 

slot is reserved for an eligible child. For 

example, ACF issued a Program 

Instruction on May 10, 2010, entitled, 

‘‘Income Eligibility for Enrollment’’ 

(ACF–PI–HS–10–01), which reminds 

grantees of their legal obligations to 

verify the eligibility of each child served 

and determine eligibility in accordance 

with the Head Start statute and 

regulations, as well as the serious 

consequences for falsifying eligibility 

determinations. The Program 

Instruction is available at: http:// 

eclkc.ohs.acf.hhs.gov/hslc/

Program%20Design%

20and%20Management/ 

Head%20Start%20Requirements/PIs/

2010/resour_pri_002_051010.html. On 

May 17, 2010, the Secretary of HHS, 

Kathleen Sebelius, sent a letter to every 

Head Start and Early Head Start grantee 

in the country to underscore the serious 

nature of GAO’s allegations and notify 

them that HHS is intensifying its 

oversight and enforcement actions. This 

letter is available at: http:// 

www.hhs.gov/news/press/2010pres/05/

head_start_letter.html. We also have 

begun to conduct more unannounced 

monitoring visits to Head Start grantees; 

have created a Web-based ‘‘hotline’’ that 

will allow those with information of 

impropriety of any kind to report 

directly to the Secretary of HHS; have 

begun to increase oversight and reviews 

of programs with identified risk factors; 

and will continue to use our authority 

to suspend or terminate grantees where 

pervasive fraud or misuse of funds is 

found. 

However, we believe GAO’s findings 

necessitate the implementation of new 

enrollment procedures, as proposed by 

this regulation, in order to reiterate and 

strengthen the requirements. Therefore, 

we are proposing new requirements for 

Head Start and Early Head Start agency 

staff regarding verification, 

documentation, and certification of the 

information submitted by the applicants 

prior to determining if a pregnant 

woman or child is eligible for 

participation in a Head Start or Early 

Head Start program. This proposed 

regulation will ensure that taxpayer 

dollars are spent in conformance with 

the purpose and requirements of the 

Head Start Act and that the neediest 

children and families in our country 

benefit from the program’s services. The 

purpose of the program, as stated in 

section 636 of the Head Start Act, is to 

‘‘promote the school readiness of lowincome children’’ and provide ‘‘lowincome children and their families of 

health, educational, nutritional, social, 

and other services that are determined, 

based on family needs assessments, to 

be necessary.’’ As stated in sections 645 

and 645A of the Head Start Act and Part 

1305 of the current Head Start 

regulations, the eligibility requirements 

of the program require that, with limited 

exceptions, participants must be either 

‘‘income eligible,’’ meaning the pregnant 

woman or family’s income is equal to, 

or less than, the income guidelines (the 

‘‘official poverty line’’) or ‘‘categorically 

eligible,’’ meaning that the individuals 

are eligible for participation in a Head 

Start or Early Head Start program even 

if the income of the pregnant woman or 

family exceeds the income guidelines 

due to being a member of one of the 

specific categories of individuals 

authorized under the Act and current 

regulations—being eligible for public 

assistance; being a homeless child; or 

being a child in foster care. While the 

Head Start Act provides authority for 

grantees to enroll a certain portion of 

pregnant women and children who are 

not income or categorically eligible, the 

statute nonetheless makes clear that the 

primary target populations for the Head 

Start and Early Head Start programs are 

low-income and categorically eligible 

children and their families, and, in the 

case of Early Head Start, low-income 

pregnant women. Therefore, most of the 

enrollment slots are reserved for 

pregnant women and children who are 

income or categorically eligible. 

In particular, we believe GAO’s 

findings regarding the apparent 

fraudulent enrollment of ineligible 

children in Head Start slots that are 

reserved for children who are income 

and categorically eligible necessitate the 

implementation of new enrollment 

procedures to ensure eligible children 

receive Head Start services in a timely 

fashion and to prevent harm resulting 

from being denied access to these 

services. In the case of Head Start, if an 

eligible child misses all or a part of the 

year of Head Start services because an 

ineligible child is enrolled in a slot 

intended for the eligible child, the 

eligible child suffers real harm by being 

deprived of an essential educational 

experience needed to prepare him or her 

for success in elementary school. In the 

case of Early Head Start, if an eligible 

infant or toddler misses all or a part of 

the year of Early Head Start services, the 

child suffers harm by being denied 

participation in a program that has been 

shown by research to help children 

perform significantly better on a range 

of measures of cognitive, language, and 

social-emotional development than 

those in a randomly assigned control 

group and potentially to reduce the risk 

of poor cognitive, language, and school 

outcomes later on in life. 

GAO identified the lack of verification 

requirements as a concern related to 

enrollment fraud as they found evidence 

that ‘‘Head Start staff encouraged 

parents to report that they were 

homeless when they were not in order 

to qualify them for the program.’’ 

Therefore, we believe it is essential to 

issue this proposed rule to prevent cases 

of fraud in which staff intentionally 

enroll children based on being 

homeless, despite knowing they are 

ineligible. Specifically, this proposed 

regulation reflects the status of homeless 

children as categorically eligible for 

participation in Head Start and Early 

Head Start in order to conform to the 

Head Start Act and specifies how 

agency staff must verify, certify, and 

document in a child’s record how they 

explored a claim by a child’s parent, 

guardian, or other person(s) seeking 

services for the child who has 

knowledge of the family’s situation that 

the child is homeless. 

We note that since GAO’s findings 

were released, we have kept the Head 

Start grantee community, Congress, and 

the general public apprised of our 

increased focus on program integrity 

and our planned changes in operating 

procedures. In addition, these proposed 

requirements would place a minimal 

burden on grantees. For example, this 

proposed regulation would add a 

requirement for grantees to maintain 

source documents in each child and 

pregnant woman’s record; grantees 


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already are required to review these 

source documents for the purposes of 

income eligibility determination, so the 

proposed new requirement would be to 

review source documents for categorical 

eligibility, as well as maintain copies of 

all source documents used to determine 

eligibility in each pregnant woman and 

child’s eligibility determination record. 

IV. Discussion of Regulatory Provisions 

As discussed, the findings of a recent 

investigation by GAO identified 

weaknesses in existing eligibility 

verification and documentation 

requirements that allegedly resulted in 

the enrollment of ineligible children. 

The proposed revisions to § 1305.2 and 

§ 1305.4 are intended to reiterate and 

strengthen Head Start and Early Head 

Start agency procedures for determining 

eligibility for program enrollment, 

including procedures to verify, certify, 

and document such eligibility, and 

eliminate such weaknesses. In addition, 

the regulation proposes to create a new 

requirement for pregnant women and 

parents, guardians, or other person(s) 

seeking services for the child who have 

knowledge of the family’s situation to 

certify that they have submitted factual 

and accurate documents to be used to 

verify their eligibility. The regulation 

proposes to create new requirements for 

program staff who make the eligibility 

determination to certify that the 

information relied on in making the 

decision is accurate to the best of his or 

her knowledge. The regulation proposes 

to initiate new requirements for 

agencies to establish policies describing 

the actions that will be taken against 

agency staff who intentionally violate 

Federal and agency eligibility 

determination regulations, policies, and 

procedures. The regulation also 

proposes new requirements for agencies 

to provide training related to eligibility 

requirements and the legal 

consequences of committing fraud. The 

proposed revisions also change the 

definitions of ‘‘Head Start eligible,’’ 

‘‘income guidelines,’’ and ‘‘low-income 

family’’ and add a definition of 

‘‘homeless children’’ to conform to 

statutory requirements and provisions. 

Note that we use the term ‘‘we’’ 

throughout the regulatory text and 

preamble. The term ‘‘we’’ means the 

Secretary of the Department of Health 

and Human Services in consultation 

with the Assistant Secretary for 

Children and Families and other 

officials within the Department. 

Likewise, the term ‘‘Act’’ refers to the 

Head Start Act, as amended. 

Section 1305.2—Definitions 

This regulation proposes to modify 

the definitions of ‘‘Head Start eligible,’’ 

‘‘income guidelines,’’ and ‘‘low-income 

family’’ to comply with statutory 

requirements and provisions. The 

current definitions contain outdated 

information regarding eligibility 

guidelines and/or incorrect statutory 

citations that we believe must be 

updated in order to ensure all grantees 

have correct and clear information 

related to participant eligibility and 

enrollment. Otherwise, the Head Start 

program will be vulnerable to incorrect 

eligibility and enrollment 

determinations. To provide clarification 

for grantees, we also propose to add the 

definition of ‘‘homeless children’’ as 

paragraph (i) from section 725(2) of the 

McKinney-Vento Homeless Assistance 

Act (42 U.S.C. 11434a(2)), which was 

added as a definition in section 637(11) 

of the Head Start Act in the 2007 

reauthorization, and to redesignate the 

subsequent definitions accordingly. 

The current definition of ‘‘Head Start 

eligible’’ states that: ‘‘A child that meets 

the requirements for age and family 

income as established in this regulation 

or, if applicable, as established by 

grantees that meet the requirements of 

section 645(a)(2) of the Head Start Act. 

Up to 10 percent of the children 

enrolled may be from families that 

exceed the low-income guidelines. 

Indian Tribes meeting the conditions 

specified in 45 CFR 1305.4(b)(3) are 

excepted from this limitation.’’ This 

definition does not reflect current 

statutory eligibility requirements. For 

example, the rule that ‘‘up to 10 percent 

of the children enrolled may be from 

families that exceed the low-income 

guidelines’’ was changed when the 2007 

reauthorization created several other 

eligibility provisions. In addition, the 

definition does not include ‘‘Early Head 

Start’’ in the lead-in language. Therefore, 

the new definition of ‘‘Head Start and 

Early Head Start eligible’’ at § 1305.2(g) 

is proposed to read as follows: ‘‘Head 

Start or Early Head Start eligible means 

a pregnant woman or child who meets 

the requirements for age and family 

income or categorical eligibility or, if 

applicable, the requirements established 

by a grantee under section 645(a)(2) of 

the Head Start Act or by a Head Start 

program operated by an Indian Tribe 

under 45 CFR § 1305.4(d).’’ 

As indicated, we propose to add a 

definition in § 1305.2 of ‘‘homeless 

children.’’ The 2007 reauthorization 

expanded eligibility to include 

homeless children as categorically 

eligible for participation in Head Start. 

The definition of ‘‘homeless children’’ 

also was added to section 637(11) of the 

Head Start Act, which states that ‘‘[t]he 

term ‘‘homeless children’’ has the 

meaning given the term ‘‘homeless 

children and youth’’ in section 725(2) of 

the McKinney-Vento Homeless 

Assistance Act (42 U.S.C. 11434a(2)).’’ 

To improve clarity for grantees and 

enable them to have the necessary 

references related to eligibility 

determination in one regulation, we 

propose to include a definition of 

‘‘homeless children’’ based on the 

McKinney-Vento Homeless Assistance 

Act as § 1305.2(i) to mean individuals 

who lack a fixed, regular, and adequate 

nighttime residence (within the 

meaning of 42 U.S.C. 11302(a)(1)); and 

include (i) children and youths who are 

sharing the housing of other persons 

due to loss of housing, economic 

hardship, or a similar reason; are living 

in motels, hotels, trailer parks, or 

camping grounds due to the lack of 

alternative adequate accommodations; 

are living in emergency or transitional 

shelters; are abandoned in hospitals; or 

are awaiting foster care placement; 

(ii) children and youths who have a 

primary nighttime residence that is a 

public or private place not designed for 

or ordinarily used as a regular sleeping 

accommodation for human beings 

(within the meaning of 42 U.S.C. 

11302(a)(2)(C)); (iii) children and youths 

who are living in cars, parks, public 

spaces, abandoned buildings, 

substandard housing, bus or train 

stations, or similar settings; and (iv) 

migratory children (as such term is 

defined in 20 U.S.C. 6399) who qualify 

as homeless for the purposes of this part 

because the children are living in 

circumstances described in paragraphs 

(i) through (iii). 

The current definition of ‘‘income 

guidelines’’ at § 1305.2(j) references an 

outdated section of the Head Start Act. 

The current definition defines ‘‘income 

guidelines’’ as ‘‘the official poverty line 

specified in section 652 of the Head 

Start Act.’’ However, the official poverty 

line in the Act now is referenced in the 

definitions section (section 637(19)) of 

the Head Start Act. Therefore, we 

propose to update § 1305.2(j) to 

reference the correct Head Start Act 

citation and to redesignate it as 

paragraph (k). The proposed new 

definition of income guidelines at 

§ 1305.2(k) means the official poverty 

line specified in section 637(19) of the 

Head Start Act. The U.S. Department of 

Health and Human Services publishes 

the income guidelines each year in the 

Federal Register; they also are available 

at http://aspe.hhs.gov/poverty/. 

The current definition of ‘‘low-income 

family’’ at § 1305.2(l) states that lowVerDate Mar<15>2010 15:53 Mar 17, 2011 Jkt 223001 PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 E:\FR\FM\18MRP1.SGM 18MRP1

jlentini on DSKJ8SOYB1PROD with PROPOSALS
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income family means a family whose 

total annual income before taxes is 

equal to, or less than, the income 

guidelines. The definition also states 

that, for the purpose of eligibility, a 

child from a family that is eligible for 

public assistance or a child in foster 

care is eligible even if the family income 

exceeds the income guidelines. Public 

assistance and foster care, as well as 

being a homeless child, are classified as 

the three types of ‘‘categorical 

eligibility’’ that are authorized by 

current statute and regulations and 

further specified in this regulation. We 

propose to remove the public assistance 

and foster care categories of recipients 

currently included in the definition of 

‘‘low-income family’’ to prevent 

confusion and mistakes because 

agencies are not required to verify 

family income in these cases. We also 

propose to redesignate paragraph (l) as 

paragraph (m). The proposed definition 

of ‘‘low-income family’’ at § 1305.2(m) 

only refers to eligibility based on the 

income guidelines and reads as follows: 

‘‘Low-income family means a family 

whose total income before taxes is equal 

to, or less than, the income guidelines.’’ 

Section 1305.4—Determining, Verifying, 

and Documenting Eligibility 

In order to update and strengthen the 

content of § 1305.4 related to 

determining, verifying, and 

documenting Head Start and Early Head 

Start program eligibility consistent with 

the changes made through the 2007 

reauthorization of the Head Start Act, 

we propose to revise the heading of 

§ 1305.4, ‘‘Age of child and family 

income eligibility’’ to read ‘‘Determining, 

verifying, and documenting eligibility.’’ 

Because the current regulations 

regarding eligibility were updated last 

on March 16, 1998, prior to the 2007 

reauthorization of the Head Start Act, 

these proposed revisions represent the 

full scope of actions Head Start and 

Early Head Start agencies are required 

now by statute to undertake related to 

determining participant eligibility. We 

propose to revise § 1305.4 to incorporate 

the new income eligibility criteria 

added in the 2007 reauthorization. 

These proposed determination 

requirements are described in 

paragraphs (a) through (d). We believe 

that the lack of updated and accurate 

descriptions of eligibility criteria in the 

current regulations otherwise would 

contribute to confusion and enrollment 

determination errors by Head Start and 

Early Head Start programs. 

The current regulations require 

programs to verify family income 

(§ 1305.4(c)); identify which documents 

should be reviewed (§ 1305.4(d)); and 

establish rules under which an agency 

must maintain a signed statement by an 

employee that identifies which 

documents were examined and stating 

the child is eligible (§ 1305.4(e)). The 

current regulations only specify that 

income eligibility based on having 

income below the Federal poverty line, 

has to be verified and do not require 

that copies of documentation be 

maintained in the agency records. We 

believe that the lack of clear up-to-date 

rules governing eligibility 

determination, verification, 

certification, and documentation 

requirements in the current regulations 

exposes the Head Start and Early Head 

Start programs to an unacceptable risk 

of fraud, as revealed by GAO’s 

investigation. 

Therefore, as detailed later in this 

preamble, in paragraphs (e) to (g), we 

describe proposed requirements for 

agency staff to verify income and 

categorical eligibility and propose 

specific instructions about the required 

certification and documentation steps 

program staff must take. In paragraph 

(g), the regulation proposes new 

requirements for pregnant women and 

person(s) seeking services for individual 

children to certify that the documents 

and information that they provided 

concerning eligibility are accurate to the 

best of their knowledge, as well as a 

new requirement for the program staff 

persons who made the eligibility 

determination also to certify that the 

information on eligibility in the file is 

accurate to the best of their knowledge. 

Paragraph (g) also proposes to add new 

requirements related to documentation 

to ensure that agency staff maintains 

eligibility determination records for 

each pregnant woman or child, 

including copies of all documents 

submitted by a pregnant woman or 

persons seeking services on behalf of a 

child to the program relating to the 

pregnant woman’s or child’s eligibility 

for services and any staff member’s 

notes recording any other information 

related to eligibility received from any 

source; documentation establishing that 

an agency staff member verified the 

accuracy of the information on 

eligibility; a record of the category 

under which the pregnant woman or 

child was determined eligible; and the 

required beneficiary and staff 

certifications. Additionally, paragraph 

(g) explains the retention and access 

requirements related to eligibility 

determination records. 

In paragraph (h) we propose a new 

requirement that all Head Start and 

Early Head Start agencies must establish 

policies and procedures describing the 

actions that will be taken against agency 

staff who commit intentional violations 

of Federal and agency eligibility 

determination requirements, including 

enrolling pregnant women and children 

who staff have not documented as 

eligible to participate in the program. 

In paragraph (i), we propose to extend 

current regulatory training requirements 

at § 1304.52(l) to specify that such 

training for all governing body, policy 

council, management and those staff 

members who have the responsibility to 

make eligibility determinations must 

include an explanation of the legal 

consequences of committing fraud and 

information on methods for obtaining 

facts necessary for complete and 

accurate eligibility determinations. 

Specifically, proposed paragraph (a) 

reflects the statutory requirements at 

section 638 of the Act regarding age 

eligibility for participation in the Head 

Start program. Following the statute, we 

begin paragraph (a) by noting the 

exception stated in section 645(a)(2) of 

the Head Start Act, which authorizes 

qualifying communities to develop their 

own eligibility criteria within statutory 

limits. Section 645(a)(2) applies to a 

Head Start program that is operated in 

a community with a population of 1,000 

or less individuals and the following 

conditions apply: There is no other 

preschool program in the community; 

the community is located in a medically 

underserved area, as designated by the 

Secretary pursuant to section 330(b)(3) 

of the Public Health Service Act [42 

U.S.C. 254c(b)(3)], and is located in a 

health professional shortage area, as 

designated by the Secretary pursuant to 

section 332(a)(1) of such Act [42 U.S.C. 

254e(a)(1)]; the community is in a 

location which, by reason of 

remoteness, does not permit reasonable 

access to preschool and medical 

services; and not less than 50 percent of 

the families to be served in the 

community are eligible under the 

eligibility criteria established by the 

Secretary under paragraph in section 

645(a)(1) of the Act. A Head Start 

program in such a locality is required to 

establish the eligibility criteria to be 

used, except that no child residing in 

such community whose family is 

eligible under such eligibility criteria 

shall, by virtue of regular eligibility 

criteria, be denied an opportunity to 

participate in such program. 

Section 645A(c) of the Act provides 

that to be eligible for participation in 

Early Head Start programs, an 

individual must be a pregnant woman 

or a child under the age of three. Section 

645(a)(5)(A) of the Act provides that 

children who are at least three years old 

through the age of compulsory school 

attendance are age eligible for 


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participation in Head Start programs. 

The current regulations at § 1305.4(a) 

describe age eligibility requirements as 

follows: ‘‘To be eligible for Head Start 

services, a child must be at least three 

years old by the date used to determine 

eligibility for public school in the 

community in which the Head Start 

program is located, except in cases 

where the Head Start program’s 

approved grant provides specific 

authority to serve younger children. 

Examples of such exceptions are 

programs serving children of migrant 

families and Early Head Start programs.’’ 

However, the paragraph is outdated and 

needs to be changed in order to reflect 

current statutory provisions. We believe 

the lack of thorough and clear 

descriptions of age eligibility criteria 

could contribute to confusion and 

enrollment mistakes by Head Start and 

Early Head Start programs as they 

respond to the new verification 

procedures proposed through this 

regulation. In addition, in order to 

clarify which age eligibility 

requirements apply to Early Head Start 

participation versus those that apply to 

Head Start participation, we propose to 

create two paragraphs to distinguish the 

different age eligibility requirements for 

each program. 

Since the current paragraph (a) does 

not refer to the specific age eligibility 

requirements for Early Head Start 

programs, we propose in paragraph 

(a)(1)(i) that to be eligible for Early Head 

Start services, ‘‘a child must be an infant 

or toddler between the ages of zero and 

three years old.’’ Current paragraph (a) 

also does not refer to the age eligibility 

of pregnant women. Therefore, we 

propose to add a provision in (a)(1)(ii) 

to specify that a pregnant woman may 

be any age in order to be eligible for 

enrollment in an Early Head Start 

program. 

In proposed paragraph (a)(2), we 

primarily state the same eligibility 

requirements currently found in 

paragraph (a). Specifically, proposed 

(a)(2) states that ‘‘To be age eligible for 

Head Start services, a child must be at 

least three years old by the date used to 

determine eligibility for public school in 

the community in which the Head Start 

program is located and not older than 

the age of required school attendance, 

except in cases where the Head Start 

program’s approved grant provides 

specific authority to serve younger 

children. Examples of such exceptions 

are programs serving children of 

migrant and seasonal farmworker 

families.’’ The date to be used for age 

determination remains the same as the 

current regulation. We propose to 

remove the current exception of Early 

Head Start programs since we now 

explain the Early Head Start 

requirements separately in proposed 

paragraph (a)(1). We also propose to add 

reference to ‘‘seasonal farmworker 

families’’ to reflect statutory 

terminology. 

Under proposed paragraph (b)(1), we 

describe the statutory income eligibility 

requirements found in section 645(a)(1) 

of the Act. As described above with 

regard to paragraph (a), we begin 

proposed paragraph (b) with the 

exception stated in section 645(a)(2) of 

the Head Start Act, which authorizes 

qualifying communities to develop their 

own eligibility criteria. Proposed 

paragraph (b)(1) reflects the 

requirements for Head Start and Early 

Head Start eligibility that pregnant 

women and age eligible children from 

low-income families shall be eligible for 

participation in Head Start and Early 

Head Start programs. 

Proposed paragraph (b)(2) reflects the 

new statutory authority at section 

645(a)(1)(B)(iii)(I) established by the 

2007 reauthorization of the Head Start 

Act. This paragraph explains that to a 

reasonable extent, but not to exceed 10 

percent of participants, participants may 

include age eligible children and 

pregnant women in the area served who 

would benefit from Head Start or Early 

Head Start programs, but who are not 

eligible under paragraphs (b)(1) or (c) 

[income or categorically eligible]. In 

order to conform to the new statutory 

authority that was provided in section 

645(a)(1)(B)(iii)(I) through the 2007 

reauthorization, we reiterate in 

proposed paragraph (b) that programs 

may enroll pregnant women or children 

from over-income families ‘‘in the area 

served who would benefit from such 

programs.’’ 

Proposed paragraph (b)(3) reflects the 

new statutory authority at section 

645(a)(1)(B)(iii)(II) established by the 

2007 reauthorization of the Head Start 

Act. This paragraph explains that from 

the area served, programs may enroll an 

additional 35 percent of participants 

beyond the 10 percent eligible under 

proposed paragraph (b)(2) that are 

pregnant women and age eligible 

children whose families have incomes 

over 100 percent but below 130 percent 

of the income guidelines, who do not 

satisfy the eligibility requirements 

described under paragraphs (b)(1) or (c) 

[income or categorically eligible]. We 

are reiterating the provision in this 

proposed rule to conform to the new 

statutory authority that was provided 

through the 2007 reauthorization. 

Proposed paragraph (b)(3)(i) specifies 

that agencies that choose to serve 

individuals eligible under this 

paragraph must establish and 

implement outreach, prioritization, and 

enrollment policies and procedures that 

ensure they are meeting the needs of 

children and pregnant women eligible 

based on being a member of a lowincome family, as defined in this 

proposed rule, and enrolling at least 

10 percent of children with disabilities 

who are eligible under proposed 

paragraph (b)(2), prior to serving the 

pregnant women and children from 

families with incomes over 100 percent 

to 130 percent of the income guidelines. 

In order to align the Head Start 

regulations with the Act, proposed 

paragraph (b)(3)(ii) also references the 

annual reporting requirements stated in 

section 645(a)(1)(B)(iv) of the Act for 

agencies that choose to serve additional 

children and pregnant women per the 

authority granted at section 

645(a)(1)(B)(iii)(II) of the Act. The 2007 

reauthorization added the reporting 

requirement under section 

645(a)(1)(B)(iv) for all Head Start and 

Early Head Start agencies that serve 

additional pregnant women and 

children under section 

645(a)(1)(B)(iii)(II) to document how the 

grantees enrolling additional overincome children are meeting the needs 

of children from low-income families, 

homeless children, children in foster 

care, and pregnant women and children 

from families eligible for public 

assistance, as well as to document that 

they have implemented outreach and 

enrollment policies and procedures that 

ensure the agency is enrolling at least 10 

percent of children with disabilities 

prior to serving children from families 

with incomes over 100 percent and 

under 130 percent of the income 

guidelines. 

Proposed paragraph (c) describes the 

three types of categorical eligibility for 

Head Start and Early Head Start based 

on section 645(a)(1)(B)(i) and (ii) of the 

Act and 45 CFR 1305.4(l). 

The first proposed type of categorical 

eligibility reiterates the eligibility 

condition stated in section 

645(a)(1)(B)(i) of the Act that a child is 

eligible if the child’s family is ‘‘eligible 

or, in the absence of child care, would 

potentially be eligible for public 

assistance.’’ In addition, children and 

pregnant women are eligible under the 

proposed regulation for Early Head Start 

based on section 645A(c) of the Head 

Start Act, which makes the eligibility 

criteria in section 645(a)(1) of the Act 

applicable to the enrollment of children 

and pregnant women in Early Head 

Start programs. As provided in policy 

guidance, TANF and SSI are the only 

two programs that are considered as 


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public assistance for determining Head 

Start Eligibility. 

The second proposed type of 

categorical eligibility specifies that a 

homeless child is eligible for 

participation, as stated in section 

645(a)(1)(B)(ii) of the Act. Section 

645A(c) of the Head Start Act makes the 

eligibility criteria in section 645(a)(1) of 

the Act applicable to the enrollment of 

children and pregnant women in Early 

Head Start programs. As described 

earlier, the 2007 reauthorization added 

the provision stating that homeless 

children are categorically eligible for 

participation in Head Start. The 

definition of ‘‘homeless children’’ also 

was added to section 637(11) of the 

Head Start Act, which states that ‘‘[t]he 

term ‘‘homeless children’’ has the 

meaning given the term ‘‘homeless 

children and youth’’ in section 725(2) of 

the McKinney-Vento Homeless 

Assistance Act (42 U.S.C. 11434a(2)).’’ 

As stated previously, we propose to add 

this definition of ‘‘homeless children’’ to 

§ 1305.2(i) to improve clarity for 

grantees. 

The third type of categorical 

eligibility proposes that children in 

foster care are eligible for participation, 

which already is specified in the current 

definition of ‘‘low-income family’’ in 

§ 1305.2(l) (proposed to be redesignated 

as § 1305.2(m)). It has been longstanding 

Head Start policy for foster children to 

be eligible for participation in Head 

Start, without regard to their foster 

family’s income. We propose in 

paragraph (c) to add a reference to the 

regulatory definition of foster care used 

for Federal child welfare programs to 

this Head Start rule to enable grantees 

to conduct the eligibility determination 

process accurately and consistently. We 

propose to reference 45 CFR 1355.20(a), 

which defines foster care to mean ‘‘24- 

hour substitute care for children placed 

away from their parents or guardians 

and for whom the State agency has 

placement and care responsibility. This 

includes, but is not limited to, 

placements in foster family homes, 

foster homes of relatives, group homes, 

emergency shelters, residential 

facilities, child care institutions, and 

preadoptive homes. A child is in foster 

care in accordance with this definition 

regardless of whether the foster care 

facility is licensed and payments are 

made by the State or local agency for the 

care of the child, whether adoption 

subsidy payments are being made prior 

to the finalization of an adoption, or 

whether there is Federal matching of 

any payments that are made.’’ 

In summary, proposed paragraph (c) 

provides that pregnant women and age 

eligible children are categorically 

eligible for enrollment in Head Start and 

Early Head Start if: (1) The pregnant 

woman or the child’s family is eligible 

or, in the absence of child care, would 

potentially be eligible for public 

assistance; (2) the child is homeless, as 

defined in § 1305.2(i); or (3) the child is 

in foster care. 

In proposed paragraph (d), we move 

the requirements and procedures related 

to the special income eligibility rules 

governing Indian Tribes that are 

reflected currently in § 1305.4(b)(3) and 

(4) to proposed paragraph (d)(1) through 

(5). The current paragraph only includes 

references to income eligibility based on 

the low-income guidelines, but does not 

include references to categorical 

eligibility. Therefore, we also propose to 

update this paragraph to conform to the 

statutory authority. 

Under the proposed paragraph, a 

Head Start or Early Head Start program 

operated by an Indian Tribe may enroll 

more than 10 percent of its children 

from families whose incomes exceed the 

low-income guidelines or are not 

categorically eligible when: 

• All children from Indian and nonIndian families living on the reservation 

that meet the low-income guidelines or 

are categorically eligible who wish to be 

enrolled in the program are served by 

the program; 

• All children from income-eligible or 

categorically-eligible Indian families 

native to the reservation living in nonreservation areas, approved as part of 

the Tribe’s service area, who wish to be 

enrolled in the program are served by 

the program. In those instances in 

which the non-reservation area is not 

served by another Head Start or Early 

Head Start program, the Tribe must 

serve all of the income-eligible and 

categorically-eligible Indian and nonIndian children whose families wish to 

enroll them in the program prior to 

serving over-income children; 

• The Tribe has the resources within 

its grant or from other non-Federal 

sources to enroll children from families 

whose incomes exceed the low-income 

guidelines or are not categorically 

eligible without using additional funds 

from HHS intended to expand Head 

Start or Early Head Start services; and 

• At least 51 percent of the children 

to be served by the program are from 

families that meet the income-eligibility 

guidelines or are categorically eligible. 

Proposed paragraph (d)(5) maintains 

the content from current § 1305.4(b)(4), 

but updates the reference in this 

provision from paragraph (b)(3) to 

paragraph (d). The paragraph proposes 

that programs which meet the 

conditions of paragraph (d) must 

annually set criteria that are approved 

by the Policy Council and the Tribal 

Council for selecting over-income 

children who would benefit from such 

a program. 

Proposed paragraph (e) would 

establish requirements for family 

income to be verified before a child or 

pregnant woman is determined to be 

eligible for Head Start or Early Head 

Start participation based on being a 

member of a low-income family. We 

propose adding these income 

verification requirements to respond to 

GAO’s findings and concerns related to 

the lack of requirements in many 

programs to verify, document, and 

maintain records. This proposed income 

verification process would reduce the 

risk GAO cited whereby ‘‘dishonest 

persons could falsify earnings 

statements and other documents in 

order to qualify.’’ This responds directly 

to GAO’s recommendation that we 

establish ‘‘more stringent income 

verification requirements, 

documentation requirements, or both by 

Head Start employees responsible for 

certifying family eligibility, such as 

maintaining income documentation 

provided by the applicant (e.g., pay 

stubs or W–2s).’’ Moreover, we have 

communicated to the public and to 

grantees on several occasions that we 

would be addressing GAO’s findings by 

strengthening our verification 

requirements. For example, Secretary 

Sebelius provided notice to all grantees 

through her May 17, 2010 letter that we 

would be developing new regulations 

‘‘that will address verification 

requirements.’’ 

Proposed paragraph (e) incorporates 

the current regulatory requirement 

related to income verification in 

§ 1305.4(c), which requires that family 

income must be verified by the Head 

Start or Early Head Start program before 

determining that a child is eligible 

based on income guidelines. We 

propose to continue the longstanding 

requirement that family income must be 

verified prior to determining eligibility 

for enrollment in a Head Start or Early 

Head Start program. As defined in 

proposed § 1305.2(b), the term 

‘‘enrollment’’ means ‘‘the official 

acceptance of a family by a Head Start 

program and the completion of all 

procedures necessary for a child and 

family to begin receiving services.’’ 

Paragraph (e) proposes a new 

requirement related to a pregnant 

woman’s or family’s declaration that the 

pregnant woman or family has no 

income. Currently, there are no 

regulations that specify what actions 

agencies should take when a pregnant 

woman or a child’s parent, guardian, or 

other person(s) seeking services for the 


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14848 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

child who has knowledge of the family’s 

finances states that the pregnant woman 

or family has no income to report. We 

recognize the difficulty Head Start and 

Early Head Start agencies face in 

obtaining documentation supporting a 

declaration that an individual has no 

income. Therefore, in such cases when 

a pregnant woman or family reports 

having no income and submits no 

documentation proving that the 

pregnant woman or family has no 

income, proposed paragraph (e) would 

require agency staff to document that 

they explored a pregnant woman or 

family’s declaration that they have no 

income. For example, programs should 

gather as much relevant information as 

possible about the pregnant woman or 

family; i.e., the location, living 

arrangements, employment situation, 

etc. of the pregnant woman or family to 

make as informed a judgment as 

possible about the pregnant woman or 

family’s eligibility status. Agencies may 

examine and maintain documentation 

representing relevant evidence of a 

pregnant woman or family’s low-income 

status, such as receipt of Supplemental 

Nutrition Assistance Program (SNAP) or 

Medicaid benefits, or any other 

evidence of public or private assistance 

by which a family with children is 

meeting its ongoing needs for food, 

housing, and health care. 

Accordingly, under proposed 

paragraph (e), before a child or pregnant 

woman is determined to be eligible on 

the basis of family income, the pregnant 

woman or the child’s parent, guardian, 

or other person(s) seeking services for 

the child who has knowledge of the 

family’s finances must submit 

information to the program concerning 

the family’s income. Under the 

proposed rule, verification must include 

examination of documents, such as 

individual income tax forms, W–2 

forms, pay stubs, pay envelopes, or 

written statements from employers (if 

individual income tax forms, W–2 

forms, pay stubs, or pay envelopes are 

not available). Income would be 

required to be compared to the poverty 

guidelines for the appropriate size of 

family, and program staff would need to 

document whether a pregnant woman or 

child’s family qualifies as a low-income 

family under the income guidelines for 

the appropriate size of family. Under the 

proposed rule, when appropriate, in 

cases in which no documentation 

regarding the income eligibility of the 

pregnant woman or child has been 

received by the agency, or when it is 

either more efficient or reliable to do so 

rather than to search for eligibility 

documentation, programs could seek 

information from third parties who have 

first-hand knowledge about the pregnant 

woman’s or child’s eligibility, and 

document the names, titles, and 

relationship to the applicant in the 

participant’s record. Programs also 

could seek third party information in 

cases where documents are not 

submitted to prove a claim that a 

pregnant woman or family has no 

income. We believe all applicants must 

be given the opportunity to withhold 

consent related to each third party the 

program would like to contact. 

Therefore, we propose that if programs 

plan to seek third party verification 

from one or more entities regarding an 

applicant’s eligibility, staff must inform 

the applicant about each entity that they 

intend to contact and have the applicant 

sign a consent form permitting the 

program to contact each of the specified 

third parties; this would provide 

applicants the opportunity to withhold 

their consent for third party verification 

from one or more entities. If applicants 

do not sign the consent form, the Head 

Start program would not be allowed to 

contact that entity and the applicant 

would remain responsible for providing 

appropriate documentation. We also 

propose that when programs contact 

third parties, they should limit the 

information discussed and questions 

posed to the third party to the 

information necessary to obtain the 

required eligibility information. 

Programs should be especially sensitive 

to any potential domestic violence 

issues prior to seeking verification of the 

required eligibility information. 

In paragraph (f), we propose to require 

agencies to verify and document 

categorical eligibility before a pregnant 

woman or child is determined to be 

eligible for Head Start or Early Head 

Start participation. We propose to 

require the pregnant woman or the 

child’s parent, guardian or other 

person(s) seeking services for the child 

who has knowledge of the family’s 

situation to submit information to the 

program concerning the family’s 

categorical eligibility. As proposed, 

verification of categorical eligibility by 

the program must include examination 

of the relevant documents submitted by 

the pregnant woman or family for the 

relevant type of categorical eligibility, as 

described below. If a pregnant woman 

or child could qualify for Head Start or 

Early Head Start participation based on 

more than one eligibility criterion, then 

the program should enroll the child 

under the criterion that is easiest to 

verify and document; it would not be 

necessary to verify and document 

multiple eligibility criteria. 

The first requirement in proposed 

paragraph (f)(1) addresses categorical 

eligibility based on eligibility for public 

assistance. This proposal aligns with the 

requirement currently at § 1305.4(d), 

which specifies that verification of 

family income ‘‘must include 

examination of * * * documentation 

showing current status as recipients of 

public assistance.’’ Under proposed 

paragraph (f)(1), we require agency staff 

to examine any official documents 

submitted for the purpose of 

demonstrating that the pregnant woman, 

the child, or child’s parent or guardian, 

is eligible or, in the absence of child 

care, would potentially be eligible for 

public assistance. Based on Federal 

Head Start grantee monitoring 

experience, we are aware that some 

agencies already have developed 

policies and procedures, or practices, 

for verifying public assistance eligibility 

or receipt status. Since the substance of 

this proposed requirement is based on 

current practice by many grantees, we 

do not believe this would impose a large 

burden. 

Under proposed paragraph (f), in 

cases in which a child is in foster care, 

we add a new requirement for agency 

staff to review a copy of a court order, 

other legal or government-issued 

document, or a statement of a State, 

Tribal, or local child welfare official 

demonstrating the child is in foster care. 

The current regulations do not require 

agencies to verify or document foster 

care status. Based on Federal Head Start 

grantee monitoring experience, we are 

aware that some agencies already have 

developed policies and procedures, or 

practices, for verifying foster care status 

through their collaborations with local 

child welfare agencies. Since the 

substance of this requirement is based 

on current practice by many grantees, 

we do not believe this proposed 

requirement would impose a large 

burden. 

Proposed paragraph (f) also adds a 

new provision to address cases when 

documents are not submitted to provide 

evidence of a child’s status as homeless. 

Under proposed paragraph (f)(3), in lieu 

of other source documents, the program 

could substitute a written statement of 

a program staff member certifying that 

he or she has made reasonable effort to 

confirm a declaration by the parent, 

guardian, or other person(s) seeking 

services for the child that the child is a 

‘‘homeless child,’’ as defined in 

§ 1305.2(i). As stated previously, the 

2007 reauthorization added homeless 

children as a category of individuals 

that are categorically eligible for 

enrollment. The current regulations do 

not specify how agencies should verify 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 14849 

that a child is homeless. We believe it 

is essential for program integrity, 

especially in light of GAO’s recent 

investigation into allegations that 

grantees enrolled children who were 

known by agency staff not to be 

homeless, to require that homelessness 

must be verified, and documentation 

must be maintained in the agency’s files 

(as described in proposed paragraph 

(g)), in order to prevent cases of fraud 

in which staff intentionally enroll 

children based on being homeless 

despite knowing they are not. We 

recognize that obtaining verification and 

documentation of the circumstances 

that fall within the Federal definition of 

homeless children can present unique 

challenges to Head Start and Early Head 

Start agencies and to vulnerable 

families. We would encourage agencies 

to enroll homeless children based on the 

families’ description of their living 

situation, if that description meets the 

definition and documentation is not 

readily available. Statements that 

describe the living situation also could 

be accepted from family members and 

other individuals that are cohabitating 

temporarily with the family. As 

proposed, verification of circumstances 

and collection of documents should be 

obtained within a reasonable timeframe. 

In order to verify homelessness, we 

would encourage grantees to conduct 

the following types of efforts: Engage 

their school district homeless liaisons, 

private and public shelter providers, 

HUD Continuums of Care, and other 

homeless service agencies in their 

service area to assist in the verification 

and documentation process. We also 

would urge agencies to exercise care to 

ensure that their verification activities 

do not increase the risk that families 

may be evicted or suffer other resulting 

adverse consequences. In addition, we 

would urge agencies to ensure that these 

efforts do not impose barriers to the 

enrollment and participation of 

homeless children in Head Start 

programs, an important goal expressed 

in the Head Start Act. 

Paragraph (f) proposes that, before a 

child or pregnant woman is determined 

to be eligible on the basis of categorical 

eligibility, the pregnant woman or the 

child’s parent, guardian, or other 

person(s) seeking services for the child 

who has knowledge of the family’s 

situation must provide the program 

with: (1) A copy of official documents 

demonstrating current eligibility or 

receipt of public assistance benefits or 

services by the pregnant woman’s or the 

child’s family; (2) a copy of the court 

order or other legal or governmentissued document or statement of 

government child welfare official 

demonstrating the child is in foster care; 

or (3) a copy of any other source 

document that establishes categorical 

eligibility. Under the proposal, in place 

of the foregoing documents, the program 

could substitute a written statement of 

a program staff member certifying that 

the staff member has made reasonable 

efforts to confirm a child is homeless, as 

defined in proposed § 1305.2(i). The 

lack of documentation of homelessness 

should not be a barrier to enrollment. 

Under the proposal, when appropriate, 

in cases in which no documentation 

regarding the income eligibility of the 

pregnant woman or child has been 

received by the agency, or when it is 

either more efficient or reliable to do so 

rather than to search for eligibility 

documentation, programs could seek 

information from third parties who have 

first-hand knowledge about the pregnant 

woman’s or child’s eligibility, and 

document the names, titles, and 

relationship to the applicant in the 

participant’s record. As proposed, 

programs also could seek third party 

information in cases where documents 

are not submitted to prove a claim that 

a pregnant woman or family has no 

income. We propose that if programs 

plan to seek third party verification 

from one or more entities regarding an 

applicant’s eligibility, staff must inform 

the applicant about each entity that they 

intend to contact. In addition, the 

applicant would be required to sign a 

consent form permitting the program to 

contact specified third parties; this 

would provide applicants the 

opportunity to withhold their consent 

for third party verification from one or 

more entities. An applicant must be 

given the opportunity to withhold 

consent related to each entity the 

program would like to contact. If 

applicants do not sign the consent form 

the Head Start program could not 

contact that entity and the applicant 

would remain responsible for providing 

appropriate documentation. We propose 

that when programs contact third 

parties, they should limit the 

information discussed and questions 

posed to the third party to the 

information necessary to obtain the 

required eligibility information. 

Programs should be especially sensitive 

to any potential domestic violence 

issues prior to seeking verification of the 

required eligibility information. 

In proposed paragraph (g), we 

strengthen and supplement current 

regulatory requirements related to 

eligibility certification and 

documentation to respond to GAO’s 

finding that ‘‘the lack of documentation 

made it virtually impossible to 

determine whether only under-income 

children were enrolled in spots reserved 

for under-income children’’ and its 

recommendations that we establish 

‘‘more stringent income verification 

requirements, documentation 

requirements, or both by Head Start 

employees responsible for certifying 

family eligibility, such as maintaining 

income documentation provided by the 

applicant (e.g., pay stubs or W–2s).’’ As 

previously mentioned, current 

regulations require a signed statement 

by an employee of the Head Start 

program, identifying which documents 

were examined and stating that the 

child is eligible to participate in the 

program, but do not require staff to 

maintain copies of the documents. 

First, this proposed paragraph 

requires all Head Start and Early Head 

Start programs to keep an eligibility 

determination record for each child or 

pregnant woman as part of the record 

maintained by the agency on that 

individual. Proposed paragraph (g)(1) 

requires this record to include copies of 

all documents submitted by a pregnant 

woman or persons seeking services on 

behalf of a child to the program by such 

persons or other persons relating to the 

pregnant woman’s or child’s eligibility 

for services and any staff member’s 

notes recording any other information 

related to eligibility received from any 

source. 

Proposed paragraph (g)(2) requires the 

record to include a copy of the 

statements and documents required 

under proposed paragraphs (e) and (f) 

(related to income and categorical 

eligibility). Based on Federal Head Start 

grantee monitoring experience, we are 

aware that some agencies already have 

developed policies and procedures, or 

practices, for maintaining copies of 

documents verified during eligibility 

determination. Since the substance of 

this requirement is based on current 

practice by some grantees, we do not 

believe this proposed requirement 

would impose a large burden. 

Proposed paragraph (g)(3) requires 

that the record also includes a signed 

and dated statement by the person 

seeking services, i.e., the pregnant 

woman or the child’s parent, guardian, 

or other person seeking services for the 

child who has knowledge of the family’s 

situation that ‘‘the documents and 

information that the person provided 

concerning eligibility are accurate to the 

best of the person’s knowledge.’’ 

Proposed paragraph (g)(4) requires the 

record to include documentation 

establishing that an agency staff member 

has sought to verify the accuracy of the 

information on eligibility provided to 


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the agency by: (i) Conducting an inperson interview with the pregnant 

woman or the child’s parent, guardian, 

or other person seeking services for the 

child who has knowledge of the family’s 

situation; and (ii) when appropriate, in 

cases in which no documentation 

regarding the income eligibility of the 

pregnant woman or the child’s family or 

regarding the categorical eligibility of 

the child based on being homeless has 

been received by the agency, or when it 

is either more efficient or reliable to do 

so rather than to search for eligibility 

documentation, seeking information 

from third parties who have first-hand 

knowledge about the pregnant woman’s 

or child’s eligibility, whose names, 

titles, and affiliations would be recorded 

in the record. If programs seek third 

party verification regarding an 

applicant’s eligibility, the record would 

be required to include the applicant’s 

signed consent form permitting the 

program to contact each particular third 

party, as required under proposed 

paragraphs (e) and (f). 

Proposed paragraph (g)(5) requires the 

eligibility determination record to 

include documentation of the specific 

eligibility criterion under which the 

child or pregnant woman was 

determined eligible for participation. As 

stated above, under the proposed rule, 

if a pregnant woman or child could 

qualify for Head Start or Early Head 

Start participation based on more than 

one eligibility criterion, then the 

program should enroll the child under 

the criterion that is easiest to verify and 

document; it would not be necessary to 

verify and document multiple eligibility 

criteria. This includes a record of the 

income level or relevant eligibility 

category, as addressed in proposed 

paragraphs (b) and (c). The first criterion 

under which the child or pregnant 

woman could be determined eligible is 

based on having income below the 

income guideline for the family size, 

with the family size used documented, 

as described in proposed paragraph (b). 

The second criterion under which the 

child or pregnant woman could be 

determined eligible is whether the 

child’s family or pregnant woman is 

eligible or, in the absence of child care, 

would potentially be eligible for public 

assistance, as described in proposed 

paragraph (c)(1). The third criterion, as 

stated in proposed paragraph (c)(2), is 

based on being a homeless child, as 

defined in proposed § 1305.2(i). The 

record also would need to include the 

provision of proposed § 1305.2(i) under 

which the child was determined to be 

homeless. The fourth criterion is 

whether the child is in foster care, as 

proposed in paragraph (c)(3). The fifth 

criterion, as proposed in paragraph 

(b)(2), is being a pregnant woman or 

child in the area served who would 

benefit from such programs but who is 

not eligible otherwise for services (total 

enrollment in this category not to 

exceed 10 percent of the enrollment 

slots). The sixth criterion under which 

the pregnant woman or child could be 

determined eligible, which is described 

in proposed paragraph (b)(3), is whether 

the pregnant woman or child’s family 

has income over 100 percent to 130 

percent of the income guidelines (total 

enrollment in this category not to 

exceed 35 percent of the enrollment 

slots, in addition to any slots filled 

under paragraph (b)(2)). The final 

proposed criterion under which the 

pregnant woman or child could be 

determined eligible is whether the 

pregnant woman or child meets 

alternative eligibility criteria as 

permitted under § 1305.4(d) or section 

645(a)(2) of the Act. 

Proposed paragraph (g)(6) also adds a 

new Head Start staff certification 

requirement in direct response to GAO’s 

aforementioned recommendation to 

establish ‘‘more stringent income 

verification requirements, 

documentation requirements, or both by 

Head Start employees responsible for 

certifying family eligibility.’’ The 

proposed paragraph requires the record 

to include a signed and dated statement 

by the program staff person who made 

the eligibility determination certifying 

that the information on eligibility in the 

file is accurate to the best of the person’s 

knowledge, and based on that 

information, the person has determined 

the pregnant woman or child to be 

eligible for services. 

Finally, proposed paragraph (g)(7) 

specifies the record retention and access 

requirements for the documents and 

certifications maintained in each child 

and pregnant woman’s record under this 

paragraph. These record retention and 

access practices must be consistent with 

section 647 of the Head Start Act and 

the uniform administrative requirement 

regulations regarding HHS grant awards 

implemented at 45 CFR 74.53 for 

awards and subawards to institutions of 

higher education, hospitals, other 

nonprofit organizations, and 

commercial organizations and 45 CFR 

92.42 for grants and cooperative 

agreements to State, local, and Tribal 

governments. Among other 

requirements, Section 647 states that all 

grant recipients to ‘‘keep such records as 

the Secretary shall prescribe’’ and 

provide ‘‘access for the purpose of audit 

and examination to any books, 

documents, papers, and records of the 

recipients that are pertinent to the 

financial assistance received’’ under the 

Head Start Act. A key requirement 

explained in both 45 CFR 74.53 and 

92.42 is that documents shall be 

retained for a period of three years. 

Additionally, both of these sections 

state requirements related to the right of 

access by the HHS awarding agency, the 

U.S. Comptroller General, or any of their 

authorized representatives, to any 

pertinent books, documents, papers, or 

other records of recipients in order to 

make audits, examinations, excerpts, 

transcripts and copies of such 

documents. We have included a 

reference to these longstanding 

Departmental policies in order to 

respond to GAO’s concerns that 

agencies were not required to maintain 

documents related to enrollment. This 

requirement will ensure that documents 

and certifications required to be 

maintained under this paragraph are 

retained for the appropriate amount of 

time and are accessible to the Office of 

Head Start and other Federal agencies, 

such as the HHS Inspector General and 

the GAO, as needed for monitoring, 

audit, investigative, and other purposes. 

Proposed paragraph (h) addresses the 

establishment of agency policies 

regarding violation of eligibility 

determination regulations, policies, and 

procedures. Under this paragraph, we 

propose that all Head Start and Early 

Head Start agencies must establish 

policies and procedures describing the 

actions that will be taken against agency 

staff who commit intentional violations 

of Federal and agency eligibility 

determination regulations, policies and 

procedures including enrolling children 

and pregnant women who staff have not 

documented as eligible to participate in 

the program. We believe this proposed 

requirement is necessary in order to 

prevent future incidents of fraud like 

those found in the GAO investigation 

and to make clear to all agency staff the 

legal consequences of intentionally 

committing enrollment fraud. 

Proposed paragraph (i), ‘‘Training,’’ 

requires that all Head Start and Early 

Head Start agencies train all governing 

body, policy council, management and 

those staff members who have the 

responsibility to make participant 

eligibility determinations on Federal 

and agency eligibility regulations, 

policies, and procedures, including 

verification, certification, and 

documentation requirements. The 

requirements in proposed paragraph (i) 

are an extension of current requirements 

stated at § 1304.50(g)(1) that grantee and 

delegate agencies must have written 

policies that define the roles and 

responsibilities of the governing body 


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members and inform them of the 

management procedures and functions 

necessary to implement a high-quality 

program. They also would expand on 

current requirements stated at 

§ 1304.52(l) that the training and 

development requirements that grantee 

and delegate agencies must implement, 

including to provide an orientation to 

new staff, consultants, and volunteers; 

provide training or orientation to Head 

Start and Early Head Start governing 

body members; and provide orientation 

and ongoing training to Head Start and 

Early Head Start Policy Council and 

Policy Committee members to enable 

them to carry out their program 

governance responsibilities effectively. 

We have communicated to the public 

and to grantees on several occasions that 

we would be addressing GAO’s findings 

by strengthening our training 

requirements. For example, we told 

GAO after it shared its investigation 

findings that we would ‘‘make sure that 

grantee staff received training regarding 

the proper way to validate income 

documentation;’’ this assurance was 

documented and shared publicly in 

GAO’s May 18, 2010 testimony in the 

section entitled ‘‘Corrective Action 

Briefing.’’ In addition, Secretary 

Sebelius provided notice to all grantees 

through her May 17, 2010 letter that we 

would be developing new regulations to 

address ‘‘staff training on eligibility 

criteria and procedures.’’ 

Proposed paragraph (i) specifies that 

the training must be conducted within 

30 days following the effective date of 

this final rule, and within 30 days of 

hiring or beginning of tenure of new 

governing body, policy council, 

management and those staff members 

who have the responsibility to make 

participant eligibility determinations. 

We propose to require agencies to 

develop policies regarding how often 

such training would be provided after 

the initial training to ensure that 

governing body, policy council, 

management and those staff members 

who have the responsibility to make 

participant eligibility determinations are 

aware of all current eligibility 

determination regulations, policies and 

procedures. The National Center on 

Program Management and Fiscal 

Operations will be developing training 

assistance on this topic to assist 

grantees. 

We propose to require the training to 

include explanations of the legal 

consequences for individuals and 

agencies that commit fraud related to 

eligibility determinations, including by 

intentionally enrolling children or 

pregnant women that they know are 

ineligible. Examples of legal 

consequences to be explained during 

training include the disallowance of the 

agency’s Head Start or Early Head Start 

funds; the determination of deficiencies 

through the monitoring review process; 

the suspension or termination of the 

grant; or individual consequences for 

the staff involved who intentionally 

commit fraud. We also would require 

such training to address methods and 

strategies for obtaining facts necessary 

for complete and accurate eligibility 

determinations. These methods and 

strategies would need to address 

treating families with dignity and 

respect and give due regard for possible 

issues of domestic violence, stigma, and 

privacy. We propose to require all 

agencies to maintain ongoing records of 

training sessions. Examples of 

information that would need to be 

documented include: The dates sessions 

were conducted, instructor names and 

titles, and attendee names. 

V. Paperwork Reduction Act 

This proposed rule establishes new 

information collection requirements in 

§ 1305.4(b), (e), (f), and (g). As required 

by the Paperwork Reduction Act of 

1995, codified at 44 U.S.C. 3507, the 

Administration for Children and 

Families will submit a copy of these 

sections to the Office of Management 

and Budget (OMB) for review and they 

will not be effective until they have 

been approved and assigned a clearance 

number. 

Requirement Respondents Annual 

Average 

burden per 

respondent 

(hours) 

Total burden 

hours 

§ 1305.4(b)(3)(ii) .............................................................. 10 1 ..................................................... 2 20 

§ 1305.4(e) and (f) ........................................................... 1,600 (should reflect info collections for 

each applicant).

2 3,200 

§ 1305.4(g) ....................................................................... 1,600 (should reflect info collections for 

each applicant).

2 3,200 

We estimate the costs of 

implementing these proposed 

requirements would be approximately 

$132,188 annually. We calculated this 

estimate by multiplying the average 

hourly salary for family services 

coordinators ($20.59) by the estimated 

total burden hours (6,420). 

With respect to these provisions, the 

Administration for Children and 

Families will consider comment by the 

public on this collection of information 

in the following areas: 

• Evaluating whether the proposed 

collection is necessary for the proper 

performance of the functions of ACF, 

including whether the information will 

have practical utility; 

• Evaluating the accuracy of ACF’s 

estimate of the proposed collection of 

information, including the validity of 

the methodology and the assumptions 

used; 

• Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and 

• Minimizing the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technology, e.g., permitting electronic 

submission of responses. 

OMB is required to make a decision 

concerning the collection of information 

contained in this proposed regulation 

between 30 and 60 days after 

publication of this document in the 

Federal Register. Therefore, a comment 

is best assured of having its full effect 

if OMB receives it within 30 days of 

publication. This does not affect the 

deadline for the public to comment to 

the Department on the regulations. 

Written comments to OMB for the 

proposed information collection should 

be sent directly to the following: Office 

of Management and Budget, either by 

fax to 202–395–6974 or by e-mail to 

OIRA at submission@omb.eop.gov. 

Please mark faxes and e-mails to the 

attention of the desk officer for ACF. 

VI. Regulatory Flexibility Act 

The Secretary certifies that, under 

5 U.S.C. 605(b), as enacted by the 

Regulatory Flexibility Act (Pub. L. 96– 

354), this proposed rule will not result 

in a significant economic impact on a 

substantial number of small entities. 


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This proposed rule primarily is 

intended to ensure accountability for 

Federal funds consistent with the 

purposes of the Head Start Act and is 

not duplicative of other requirements. 

We believe this proposed rule 

implements the aims of the Head Start 

Act, as amended, to improve the 

effectiveness of Head Start programs 

while preserving the ability of Head 

Start grantees to continue using 

creativity and innovation to promote the 

school readiness of low-income 

children. 

Specifically, as noted under the 

Paperwork Reduction Act section of this 

preamble, we estimate the cost of 

implementing the proposed new 

reporting requirements would be 

approximately $132,188 annually, 

which when applied to all 1,600 

grantees nationally, results in a cost per 

grantee of less than $85. In developing 

this estimate, we assumed that each of 

the 1,600 Head Start and Early Head 

Start grantees would spend an 

additional four hours beyond what they 

spend currently to conduct the 

proposed new eligibility verification, 

certification, and documentation 

procedures, as required by paragraphs 

(e) through (g). Included in our 

estimated annual costs are the minimal 

costs incurred by those grantees that 

choose to serve additional pregnant 

women and children per the authority 

granted at section 645(a)(1)(B)(iii)(II) of 

the Head Start Act, and therefore would 

be required to comply with the annual 

reporting requirements described in 

section 645(a)(1)(B)(iv) of the Head Start 

Act and paragraph (b)(3)(ii) of this 

proposed rule. Since no grantees have 

taken the opportunity to serve 

additional pregnant women and 

children per the authority granted at 

section 645(a)(1)(B)(iii)(II) of the Head 

Start Act to date, our reasonable 

expectation is that approximately 10 

grantees per year might choose to use 

this authority in the future, at a total 

estimated cost of $412 per year. 

We request public comments on 

whether we have adequately considered 

all costs for small entities. 

VII. Regulatory Impact Analysis 

Executive Order 12866 requires that 

regulations be reviewed to ensure that 

they are consistent with the priorities 

and principles set forth in the Executive 

Order. The Department has determined 

that this Notice of Proposed Rulemaking 

is consistent with these priorities and 

principles. These regulations 

incorporate statutory changes to the 

Head Start program enacted in the 

Improving Head Start for School 

Readiness Act of 2007 and strengthen 

procedures to determine, verify, certify, 

and maintain records regarding 

eligibility for Head Start and Early Head 

Start program enrollment. We have 

consulted with the Office of 

Management and Budget (OMB) and 

determined that these proposed rules 

meet the criteria for a significant 

regulatory action under E.O. 12866. 

ACF does not believe there would be 

a significant economic impact from this 

proposed regulatory action. Based on 

our estimate described under the 

Paperwork Reduction Act section of this 

preamble, the total cost would fall well 

below the $100 million threshold. The 

estimated total cost of implementation 

of these rules for all grantees is 

approximately $132,188 annually. 

VIII. Unfunded Mandates Reform Act 

of 1995 

Section 202 of the Unfunded 

Mandates Reform Act of 1995 requires 

that a covered agency prepare a 

budgetary impact statement before 

promulgating a rule that includes any 

Federal mandate that may result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of $100 million or more 

in any one year. If an agency must 

prepare a budgetary impact statement, 

section 205 requires that it select the 

most cost-effective and least 

burdensome alternative that achieves 

the objectives of the rule consistent with 

the statutory requirements. Section 203 

requires a plan for informing and 

advising any small government that may 

be significantly or uniquely impacted. 

The Department has determined that 

this proposed rule would not impose a 

mandate that will result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of more than $100 

million in any one year. 

IX. Congressional Review 

This regulation is not a major rule as 

defined in 5 U.S.C. Chapter 8. 

X. Executive Order 13132 

Executive Order 13132, Federalism, 

requires that Federal agencies consult 

with State and local government 

officials in the development of 

regulatory policies with federalism 

implications. This proposed rule will 

not have substantial direct impact 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. Therefore, in 

accordance with section 6 of Executive 

Order 13132, it is determined that this 

proposed rule does not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

XI. Treasury and General Government 

Appropriations Act of 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act of 1999 (Pub. L. 105–277) requires 

Federal agencies to issue a Family 

Policymaking Assessment for any rule 

that may affect family well-being. This 

proposed rule would not have any 

impact on the autonomy or integrity of 

the family as an institution. 

Accordingly, HHS has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

List of Subjects in 45 CFR Part 1305 

Education of disadvantaged, Grant 

programs/social programs, Individuals 

with disabilities. 

(Catalog of Federal Domestic Assistance 

Program Number 93.600, Project Head Start) 

Dated: September 14, 2010. 

David A. Hansell, 

Acting Assistant Secretary for Children and 

Families. 

Approved: December 22, 2010. 

Kathleen Sebelius, 

Secretary. 

For the reasons set forth in the 

preamble, we propose to amend Part 

1305 of 45 CFR Chapter XIII as follows: 

PART 1305—ELIGIBILITY, 

RECRUITMENT, SELECTION, 

ENROLLMENT, AND ATTENDANCE IN 

HEAD START 

1. The authority citation for part 1305 

is revised to read as follows: 

Authority: 42 U.S.C. 9801 et seq., 5 U.S.C. 

553(b). 

2. Amend § 1305.2 by: 

a. Revising paragraph (g) 

b. Redesignating paragraphs (i) 

through (s) as paragraphs (j) through (t); 

b. Adding a new paragraph (i); and 

c. Revising newly redesignated 

paragraphs (k) and (m). 

The revisions and addition read as 

follows: 

§ 1305.2 Definitions. 

* * * * * 

(g) Head Start or Early Head Start 

eligible means a child or pregnant 

woman who meets the requirements for 

age and family income or categorical 

eligibility or, if applicable, the 

requirements established by a grantee 

under section 645(a)(2) of the Head Start 

Act or by a Head Start program operated 

by an Indian Tribe under 45 CFR 

1305.4(d). 

* * * * * 


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(i) Homeless children: 

(1) Means individuals who lack a 

fixed, regular, and adequate nighttime 

residence (within the meaning of 42 

U.S.C. 11302(a)(1)); and 

(2) Includes— 

(i) Children and youths who are 

sharing the housing of other persons 

due to loss of housing, economic 

hardship, or a similar reason; are living 

in motels, hotels, trailer parks, or 

camping grounds due to the lack of 

alternative adequate accommodations; 

are living in emergency or transitional 

shelters; are abandoned in hospitals; or 

are awaiting foster care placement; 

(ii) Children and youths who have a 

primary nighttime residence that is a 

public or private place not designed for 

or ordinarily used as a regular sleeping 

accommodation for human beings 

(within the meaning of 42 U.S.C. 

11302(a)(2)(C)); 

(iii) Children and youths who are 

living in cars, parks, public spaces, 

abandoned buildings, substandard 

housing, bus or train stations, or similar 

settings; and 

(iv) Migratory children (as such term 

is defined in 20 U.S.C. 6399) who 

qualify as homeless for the purposes of 

this part because the children are living 

in circumstances described in 

paragraphs (i)(2)(i) through (iii) of this 

section. 

* * * * * 

(k) Income guidelines means the 

official poverty line specified in section 

637(19) of the Head Start Act. 

* * * * * 

(m) Low-income family means a 

family whose total income before taxes 

is equal to, or less than, the income 

guidelines. 

* * * * * 

3. Revise § 1305.4 to read as follows: 

§ 1305.4 Determining, verifying, and 

documenting eligibility. 

(a) Age eligibility. Except as provided 

in section 645(a)(2) of the Head Start 

Act: 

(1) To be age eligible for Early Head 

Start services: 

(i) A child must be an infant or 

toddler between the ages of zero and 

three years old. 

(ii) A pregnant woman may be any 

age. 

(2) To be age eligible for Head Start 

services, a child must be at least three 

years old by the date used to determine 

eligibility for public school in the 

community in which the Head Start 

program is located and not older than 

the age of required school attendance, 

except in cases where the Head Start 

program’s approved grant provides 

specific authority to serve younger 

children. Examples of such exceptions 

are programs serving children of 

migrant and seasonal farmworker 

families. 

(b) Income eligibility. Except as 

provided in section 645(a)(2) of the 

Head Start Act: 

(1) Age eligible children and pregnant 

women from low-income families shall 

be eligible for participation in Head 

Start and Early Head programs. 

(2) To a reasonable extent, but not to 

exceed 10 percent of participants, 

participants may include age eligible 

children and pregnant women in the 

area served who would benefit from 

Head Start or Early Head Start programs, 

who are not eligible under paragraphs 

(b)(1) or (c) of this section. 

(3) From the area served, an 

additional 35 percent of participants 

may include pregnant women and age 

eligible children whose families have 

incomes over 100 percent but below 130 

percent of the income guidelines who 

also are not eligible under paragraphs 

(b)(1) or (c) of this section, if: 

(i) Prior to serving the children and 

pregnant women eligible under 

paragraph (b)(3) of this section, the 

agency involved establishes and 

implements outreach, prioritization, and 

enrollment policies and procedures that 

ensure such agency is meeting the needs 

of children and pregnant women 

eligible under paragraphs (b)(1) or (c) of 

this section and children with 

disabilities eligible under paragraph 

(b)(2) of this section; and 

(ii) Any agency serving additional 

children and pregnant women under 

this paragraph must report annually to 

the Secretary the information required 

at section 645(a)(1)(B)(iv) of the Head 

Start Act. 

(c) Categorical eligibility. Pregnant 

women and age eligible children are 

categorically eligible for enrollment in 

Head Start and Early Head Start if: 

(1) The pregnant woman or the child’s 

family is eligible or, in the absence of 

child care, would potentially be eligible 

for public assistance; 

(2) The child is homeless, as defined 

in § 1305.2(i); or 

(3) The child is in foster care, as 

defined in § 1355.20(a). 

(d) Special rule for Indian Tribes. 

Notwithstanding paragraph (b)(2) of this 

section, a Head Start or Early Head Start 

program operated by an Indian Tribe 

may enroll more than 10 percent of its 

children from families whose incomes 

exceed the low-income guidelines or are 

not categorically eligible when the 

following conditions are met: 

(1) All children from Indian and nonIndian families living on the reservation 

that meet the low-income guidelines or 

are categorically eligible who wish to be 

enrolled in the program are served by 

the program; 

(2) All children from income-eligible 

or categorically-eligible Indian families 

native to the reservation living in nonreservation areas, approved as part of 

the Tribe’s service area, who wish to be 

enrolled in the program are served by 

the program. In those instances in 

which the non-reservation area is not 

served by another Head Start or Early 

Head Start program, the Tribe must 

serve all of the income-eligible and 

categorically-eligible Indian and nonIndian children whose families wish to 

enroll them in the program prior to 

serving over-income children. 

(3) The Tribe has the resources within 

its grant or from other non-Federal 

sources to enroll children from families 

whose incomes exceed the low-income 

guidelines or are not categorically 

eligible without using additional funds 

from HHS intended to expand Head 

Start or Early Head Start services; and 

(4) At least 51 percent of the children 

to be served by the program are from 

families that meet the income-eligibility 

guidelines or are categorically eligible. 

(5) Programs which meet the 

conditions of this paragraph (d) must 

annually set criteria that are approved 

by the Policy Council and the Tribal 

Council for selecting over-income 

children who would benefit from such 

a program. 

(e) Income verification. Before a 

pregnant woman or child is determined 

to be eligible on the basis of family 

income, the pregnant woman or the 

child’s parent, guardian or other 

person(s) seeking services for the child 

who has knowledge of the family’s 

finances must submit information to the 

program concerning the family’s 

income. Verification must include 

examination of documents such as 

individual income tax forms, W–2 

forms, pay stubs, pay envelopes, or 

written statements from employers (if 

Individual Income Tax Forms, W–2 

forms, pay stubs, or pay envelopes are 

not available). Income must be 

compared to the poverty guidelines for 

the appropriate size of family, and 

program staff must document whether a 

pregnant woman or child’s family 

qualifies as a low-income family under 

the income guidelines for the 

appropriate size of family. When 

appropriate, in cases in which no 

documentation regarding the income 

eligibility of the pregnant woman or 

child has been received by the agency, 

or when it is either more efficient or 

reliable to do so rather than to search for 

eligibility documentation, programs 


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14854 Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 

may seek information from third parties 

who have first-hand knowledge about 

the pregnant woman’s or child’s 

eligibility, and document the names, 

titles, and relationship to the applicant 

in the participant’s record. Programs 

also may seek third party information in 

cases where documents are not 

submitted to prove a claim that a 

pregnant woman or family has no 

income. If programs plan to seek third 

party verification from one or more 

entities regarding an applicant’s 

eligibility, staff must inform the 

applicant about each entity that they 

intend to contact. In addition, the 

applicant must sign a consent form 

permitting the program to contact 

specified third parties; this provides 

applicants the opportunity to withhold 

their consent for third party verification 

from one or more entities. An applicant 

must be given the opportunity to 

withhold consent related to each entity 

the program would like to contact. If 

applicants do not sign the consent form 

the Head Start program may not contact 

that entity and the applicant remains 

responsible for providing appropriate 

documentation. When programs contact 

third parties, they should limit the 

information discussed and questions 

posed to the third party to the 

information necessary to obtain the 

required eligibility information. 

Programs should be especially sensitive 

to any potential domestic violence 

issues prior to seeking verification of the 

required eligibility information. 

(f) Verification of categorical 

eligibility. (1) Before a pregnant woman 

or child is determined to be eligible on 

the basis of categorical eligibility, the 

pregnant woman or the child’s parent, 

guardian, or other person(s) seeking 

services for the child who has 

knowledge of the family’s situation 

must submit information to the program 

concerning the family’s categorical 

eligibility. Verification of categorical 

eligibility by the program must include 

examination of the following 

documents: 

(i) A copy of official documents 

demonstrating that the pregnant woman 

or the child, child’s parent, or guardian, 

is eligible, or in the absence of child 

care, would potentially be eligible for 

public assistance; 

(ii) A copy of the court order or other 

legal or government-issued document or 

statement of a government child welfare 

official demonstrating the child is in 

foster care; or 

(iii) A copy of any other source 

document that establishes categorical 

eligibility. 

(2) In place of the foregoing 

documents, the program can substitute 

a written statement of a program staff 

member certifying that the staff member 

has made reasonable efforts to confirm 

a child is homeless, as defined in 

§ 1305.2(i). The lack of documentation 

of homelessness should not be a barrier 

to enrollment. When appropriate, in 

cases in which no documentation 

regarding the eligibility of the pregnant 

woman or child has been received by 

the agency, or when it is either more 

efficient or reliable to do so rather than 

to search for eligibility documentation, 

programs may seek information from 

third parties who have first-hand 

knowledge about the pregnant woman’s 

or child’s eligibility, and document the 

names, titles, and relationship to the 

applicant in the participant’s record. 

Programs also may seek third party 

information in cases where documents 

are not submitted to prove a claim that 

a pregnant woman or family has no 

income. If programs plan to seek third 

party verification from one or more 

entities regarding an applicant’s 

eligibility, staff must inform the 

applicant about each entity that they 

intend to contact and the applicant must 

sign a consent form permitting the 

program to contact each of the specified 

third parties; this provides applicants 

the opportunity to withhold their 

consent for third party verification 

related to each entity the program 

would like to contact. If applicants do 

not sign the consent form the Head Start 

program may not contact that entity and 

the applicant remains responsible for 

providing appropriate documentation. 

When programs contact third parties, 

they should limit the information 

discussed and questions posed to the 

third party to the information necessary 

to obtain the required eligibility 

information. Programs should be 

especially sensitive to any potential 

domestic violence issues prior to 

seeking verification of the required 

eligibility information. 

(g) Records and Certification. A Head 

Start or Early Head Start program must 

keep an eligibility determination record 

for each pregnant woman or child as 

part of the record maintained by the 

agency on that individual, which must 

include: 

(1) Copies of all documents submitted 

by a pregnant woman or persons seeking 

services on behalf of a child to the 

program by such persons or other 

persons relating to the pregnant 

woman’s or child’s eligibility for 

services and any staff member’s notes 

recording any other information related 

to eligibility received from any source; 

(2) A copy of the statements and 

documents required under paragraphs 

(e) and (f) of this section; 

(3) A signed and dated statement by 

the person seeking services certifying 

that the documents and information that 

the person provided concerning 

eligibility are accurate to the best of the 

person’s knowledge; 

(4) Documentation establishing that 

an agency staff member has sought to 

verify the accuracy of the information 

on eligibility provided to the agency by: 

(i) Conducting an in-person interview 

with the pregnant woman or the child’s 

parent, guardian, or other person(s), 

seeking services for the child who has 

knowledge of the family’s situation; and 

(ii) When appropriate, in cases in 

which no documentation regarding the 

income eligibility of the pregnant 

woman or the child’s family or 

regarding the categorical eligibility of 

the pregnant woman or child has been 

received by the agency, or when it is 

either more efficient or reliable to do so 

rather than to search for eligibility 

documentation, seeking information 

from third parties who have first-hand 

knowledge about the pregnant woman’s 

or child’s eligibility, whose names, 

titles, and affiliations will be 

documented in the record, and the 

applicant’s signed consent form 

permitting the program to contact each 

particular third party, as required under 

paragraphs (e) and (f) of this section; 

(5) A record of the eligibility criterion 

under which the pregnant woman or 

child was determined eligible as: 

(i) Having income below the income 

guideline for the family size, with the 

family size used documented; 

(ii) Being eligible or, in the absence of 

child care, being potentially eligible for 

public assistance; 

(iii) Being a homeless child, including 

the specific provision of § 1305.2(i) 

under which the child was determined 

to be homeless; 

(iv) Being a child in foster care; 

(v) Being a pregnant woman or child 

in the area served who would benefit 

from such programs but who is not 

otherwise eligible for services (total 

enrollment in this category not to 

exceed 10 percent of the enrollment 

slots); 

(vi) Being a pregnant woman or child 

from a family with income over 100 

percent but below 130 percent of the 

income guidelines (total enrollment in 

this category not to exceed 35 percent of 

the enrollment slots, in addition to any 

slots filled under paragraph (b)(2) of this 

section; or 

(vii) Meeting alternative eligibility 

criteria as permitted under paragraph 

(d) of this section or section 645(a)(2) of 

the Head Start Act; and 

(6) A signed and dated statement by 

the program staff person who made the 


jlentini on DSKJ8SOYB1PROD with PROPOSALS
Federal Register / Vol. 76, No. 53 / Friday, March 18, 2011 / Proposed Rules 14855 

eligibility determination certifying that 

the information on eligibility in the file 

is accurate to the best of the person’s 

knowledge, and based on that 

information, the person has determined 

the pregnant woman or child to be 

eligible for services. 

(7) Retention and access practices for 

the eligibility determination record for 

each pregnant woman or child 

described under this paragraph must be 

consistent with section 647 of the Head 

Start Act and the uniform 

administrative requirement regulations 

regarding HHS grant awards 

implemented at 45 CFR 74.53 for 

awards and subawards to institutions of 

higher education, hospitals, other 

nonprofit organizations, and 

commercial organizations and 45 CFR 

92.42 for grants and cooperative 

agreements to State, local, and Tribal 

governments. 

(h) Establishment of agency policies 

regarding violation of eligibility 

determination regulations, policies and 

procedures. All Head Start and Early 

Head Start agencies must establish 

policies and procedures describing the 

actions that will be taken against agency 

staff who commit intentional violations 

of Federal and agency eligibility 

determination regulations, policies and 

procedures, including enrolling 

pregnant women and children who staff 

have not documented as eligible to 

participate in the program. 

(i) Training. Head Start and Early 

Head Start agencies must train all 

governing body, policy council, 

management and those staff members 

who have the responsibility to make 

participant eligibility determinations on 

Federal and agency eligibility 

determination regulations, policies and 

procedures, including verification, 

certification, and documentation 

requirements within 30 days following 

the effective date of this rule, and 

within 30 days of hiring or beginning of 

tenure of new governing body, policy 

council, management and those staff 

members who have the responsibility to 

make participant eligibility 

determinations. Agencies must develop 

policies regarding how often such 

training will be provided after the initial 

training is conducted to ensure that 

governing body, policy council, 

management and those staff members 

who have the responsibility to make 

participant eligibility determinations are 

aware of all current eligibility 

determination regulations, policies and 

procedures. Agencies shall maintain 

ongoing records of training. The training 

must include: 

(1) Explanation of the legal 

consequences for individuals and 

agencies that commit fraud related to 

eligibility determination; and 

(2) Information on methods and 

strategies for obtaining facts necessary 

for complete and accurate eligibility 

determinations. Such methods and 

strategies must address treating families 

with dignity and respect and give due 

regard for possible issues of domestic 

violence, stigma, and privacy. 

[FR Doc. 2011–6326 Filed 3–17–11; 8:45 am] 

BILLING CODE P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

[MB Docket No. 11–29, RM–11622; DA 11– 

335] 

Television Broadcasting Services; 

Nashville, TN 

AGENCY: Federal Communications 

Commission. 

ACTION: Proposed rule. 

SUMMARY: The Commission has before it 

a petition for rulemaking filed by 

NewsChannel 5 Network, LLC, the 

licensee of station WTVF(TV), channel 

5, Nashville, Tennessee, requesting the 

substitution of channel 25 for channel 5 

at Nashville. NewsChannel 5 lost 

service to many of its analog viewers 

when the station transitioned to digital 

operations and now requests this 

channel substitution in order to 

permanently resume service to these 

viewers. 

DATES: Comments must be filed on or 

before April 18, 2011, and reply 

comments on or before May 2, 2011. 

ADDRESSES: Federal Communications 

Commission, Office of the Secretary, 

445 12th Street, SW., Washington, DC 

20554. In addition to filing comments 

with the FCC, interested parties should 

serve counsel for petitioner as follows: 

Christopher G. Tygh, Esq., Covington & 

Burling LLP, 1201 Pennsylvania 

Avenue, Washington, DC 20004–2401. 

FOR FURTHER INFORMATION CONTACT: 

Joyce L. Bernstein, 

joyce.bernstein@fcc.gov, Media Bureau, 

(202) 418–1600. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Notice of 

Proposed Rule Making, MB Docket No. 

11–29, adopted February 18, 2011, and 

released February 23, 2011. The full text 

of this document is available for public 

inspection and copying during normal 

business hours in the FCC’s Reference 

Information Center at Portals II, CY– 

A257, 445 12th Street, SW., 

Washington, DC, 20554. This document 

will also be available via ECFS (http:// 

www.fcc.gov/cgb/ecfs/). (Documents 

will be available electronically in ASCII, 

Word 97, and/or Adobe Acrobat.) This 

document may be purchased from the 

Commission’s duplicating contractor, 

Best Copy and Printing, Inc., 445 12th 

Street, SW., Room CY–B402, 

Washington, DC 20554, telephone 

1–800–478–3160 or via e-mail http:// 

www.BCPIWEB.com. To request this 

document in accessible formats 

(computer diskettes, large print, audio 

recording, and Braille), send an e-mail 

to fcc504@fcc.gov or call the 

Commission’s Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 (voice), (202) 418–0432 

(TTY). This document does not contain 

proposed information collection 

requirements subject to the Paperwork 

Reduction Act of 1995, Public Law 104– 

13. In addition, therefore, it does not 

contain any proposed information 

collection burden ‘‘for small business 

concerns with fewer than 25 

employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002, 

Public Law 107–198, see 44 U.S.C. 

3506(c)(4). 

Provisions of the Regulatory 

Flexibility Act of 1980 do not apply to 

this proceeding. Members of the public 

should note that from the time a Notice 

of Proposed Rule Making is issued until 

the matter is no longer subject to 

Commission consideration or court 

review, all ex parte contacts (other than 

ex parte presentations exempt under 47 

CFR 1.1204(a)) are prohibited in 

Commission proceedings, such as this 

one, which involve channel allotments. 

See 47 CFR 1.1208 for rules governing 

restricted proceedings. 

For information regarding proper 

filing procedures for comments, see 47 

CFR 1.415 and 1.420. 

List of Subjects in 47 CFR Part 73 

Television, Television broadcasting. 

Federal Communications Commission. 

Kevin R. Harding, 

Associate Chief, Video Division, Media 

Bureau. 

Proposed Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission proposes to amend 47 CFR 

part 73 as follows: 

PART 73—RADIO BROADCAST 

SERVICES 

1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 303, 334, 336, 

and 339. 


jlentini on DSKJ8SOYB1PROD with PROPOSALS