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[Federal Register Volume 80, Number 27 (Tuesday, February 10, 2015)]
[Rules and Regulations]
[Pages 7368-7380]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-02491]

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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: Final rule.

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SUMMARY: This rule will ensure the neediest children and families in 
our country benefit from Head Start services first.

DATES: This final rule becomes effective March 12, 2015.

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. Program Purpose

    The national Head Start program funds local organizations to 
provide comprehensive school readiness services to preschool-age 
children from low-income families. These services enhance children's 
social and cognitive development, through health, educational, 
nutritional and other social services. These services also are designed 
to respond to children's ethnic, cultural, and linguistic heritages. 
Many Head Start programs also provide Early Head Start, which serves 
infants, toddlers, and pregnant women whose families have incomes below 
the Federal poverty level.

II. Background

    We published a Notice of Proposed Rulemaking (NPRM) on March 18, 
2011 to propose provisions that ensure only the neediest families 
receive Head Start services first.\1\ We received great feedback during 
the 30-day comment period and, in response, made changes, where 
appropriate. These changes clarify Head Start's eligibility procedures 
and enrollment requirements, and reinforce Head Start's overall mission 
to support low-income families and early learning. We believe this 
final rule, which is published under the authority granted to the 
Secretary of Health and Human Services under the Head Start Act (Act) 
\2\ at sections 644(c), 645(a)(1)(A), and 645A(c), provides a balanced 
approach to program administration, improves overall program 
effectiveness, and better aligns us with current practices in the 
field.
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    \1\ See a copy of the NPRM at https://www.federalregister.gov/articles/2011/03/18/2011-6326/head-start-program.
    \2\ See The Improving Head Start for School Readiness Act of 
2007, Public Law 110-134, December 12, 2007 at http://www.govtrack.us/congress/bills/110/hr1429/text .
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III. General Comments and the Final Rule

    We received comments in general about this rule. Below, we 
summarized the comments and responded to them accordingly.
    Comment: Many commenters supported the notice of proposed 
rulemaking. They believe the rule strengthens Head Start programs and 
program accountability. Some programs currently verify eligibility in a 
similar manner to what we proposed. In addition, a national 
organization asked us to consider five guiding principles--
accountability, efficiency, clarity, do no harm, and flexibility.
    Response: We appreciate the positive comments, and we believe we 
have met the five guiding principles. In this final rule, we include 
provisions that improve Federal oversight and ensure accountability for 
purposes consistent with the Act. We make the process programs must use 
to determine eligibility more efficient and clear so there is less room 
for programs to err. The ``do no harm'' principle derives from medical 
ethics. It reminds health care providers to consider the possible harm 
that any intervention might do. We carefully considered any possible 
harm that this regulation might do. Finally, we are less prescriptive 
so as to

[[Page 7369]]

allow programs flexibility to better accomplish program and statutory 
goals.
    Comment: Some respondents believed the rule is unnecessary and 
overreaching. Others suggested that it did not go far enough to 
effectively ensure families with incomes below the poverty level are 
served first. One commenter thought the measures seemed excessive and 
contrary to current trends in other Federal programs that serve similar 
populations. Other commenters were concerned the regulation will impose 
time and cost burdens on programs.
    Response: We believe this rule does not overreach; but is rather 
necessary to support Head Start's overall mission. Furthermore, other 
Federal programs that serve similar populations have more rigorous and 
exhaustive regulatory requirements than what we proposed here. 
Moreover, we have struck the appropriate balance between reasonable 
cost burden and effective oversight. In fact, some Head Start programs 
currently conduct processes similar to what we require here with 
existing staff and resources. For example, programs currently collect 
and retain documents they use to determine family eligibility. Programs 
also already contact third parties to verify family eligibility.
    Comment: Some respondents believed the rule will reduce enrollment, 
particularly for Latino and dual language learner children. Others 
stated the provisions for programs to document and certify eligibility 
are too restrictive. A commenter stated that if we required families to 
provide documents that are not always readily available, we may create 
an environment where the neediest families may not receive services.
    Response: We believe the rule establishes reasonable expectations 
for families without causing unnecessary burdens. For example, if a 
family cannot prove income or homelessness, the family can declare its 
eligibility in writing. If so, we require program staffs to make 
reasonable efforts to verify the family's eligibility. In addition to 
verifying eligibility, staffs must also create eligibility 
determination records for each participant. We also require programs to 
train and to monitor staffs who make eligibility decisions. We believe 
these requirements are enough to ensure staffs only enroll eligible 
children. We removed requirements for staffs to certify that they have 
made reasonable efforts to verify information.
    Comment: A few commenters asked us to reference Migrant or Seasonal 
Head Start each time we refer to Head Start and Early Head Start 
programs and to use the term party rather than the term entity 
throughout the rule when we refer to third parties.
    Response: Unless otherwise specified, when we mention Head Start, 
we mean Head Start, Early Head Start, and Migrant or Seasonal Head 
Start. We use the word party, when appropriate.
    Comment: Commenters asked us to clarify what enrolled child means 
and how programs should report end of the month enrollment. Other 
commenters suggested that we include all eligibility requirements from 
Head Start guidance materials in this regulation.
    Response: We define enrolled and we believe the definition 
clarifies how programs report end of the month enrollment. We also 
redefined enrollment, in an effort to be consistent with the definition 
used for reporting. We did not include eligibility requirements from 
Head Start guidance materials; because once this regulation becomes 
final, it will supersede all other previously issued guidance. The 
definitions for enrolled and enrollment in this regulation are 
consistent with current guidance and practice.
    Comment: Some commenters were concerned about: (1) Linking to the 
service area in which a family lives, rather than where a parent works; 
(2) questions about disability determinations related to enrollment; 
(3) setting priorities for enrollment and selection including over-
income requirements; (4) attendance regulations at Sec.  1305.8; and 
(5) under enrollment.
    Response: We did not make any changes based on these concerns 
because they are outside the scope of this regulation. This regulation 
is narrow in scope. It only revises Sec.  1305.2 Definitions and Sec.  
1305.4 Eligibility. It does not address recruitment, selection, 
enrollment and attendance, which are addresses in other sections of 45 
CFR 1305.
    Comment: Respondents asked whether this regulation, when it becomes 
effective, will apply to families on Head Start waiting lists.
    Response: Programs must determine each wait listed families' 
eligibility, according to this regulation when it becomes effective, 
before the family is enrolled.
    Comment: Respondents suggested that we allow a phase-in period so 
programs can receive technical support; issue a national Head Start 
application and standardized forms to minimize varying interpretations; 
and create a toll-free technical assistance hotline.
    Response: We do not believe an additional phase-in period is 
necessary. We provided notice with the proposed rule. And, the final 
rule will not become effective until 30 days after it is published. 
This should give programs ample time to adjust their practices. 
However, we will continue to provide technical support. We also issued 
a standard checklist to help programs navigate the verification 
process.\3\ We will not issue any national applications. We would 
rather allow programs to develop applications appropriate for their 
communities and services, provided they meet Head Start requirements.
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    \3\ See http://eclkc.ohs.acf.hhs.gov/hslc/standards/PIs/2010/Head%20Start%20Eligibiliy%20Verification%20Form,%20expires%2002-28-2013.pdf.
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IV. Section-by-Section Discussion and the Final Rule

    We received comments about changes we proposed to specific sections 
in the regulation. Below, we identified each section, summarized the 
comments, and responded to them accordingly.

Section 1305.2--Definitions

    We show how this entire section will look below. We removed 
paragraph designations and we added new definitions for: accepted, 
enrolled, foster care, homeless children, Migrant or Seasonal Head 
Start Program, participant, relevant time period, and verify. We also 
revised these current definitions: enrollment, family, and Head Start 
eligible. We believe our efforts here make the regulation easier to 
understand.
    Comment: One commenter suggested that we clarify who is authorized 
to apply for Head Start Services on behalf of a child.
    Response: We redefined family for this purpose. Any family member 
may apply for Head Start services on a child's behalf.
    Comment: Commenters suggested we define family, parent, and 
guardian for the purposes of determining income.
    Response: As stated above, we redefined family to clarify who could 
apply for Head Start services. The revised definition also clarifies 
for programs whose income to consider when they determine whether a 
pregnant woman or a child is eligible for services. For example, in the 
case of a pregnant woman, the definition requires programs to consider 
income from those who financially support the woman. In the case of a 
child, the definition requires programs to consider income from the 
child's family. We define family, for a child, to mean all persons that 
live with child, who are financially supported by the child's parents 
or guardians and who are related to the child by blood marriage or 
adoption, or the child's authorized caregiver or

[[Page 7370]]

legally responsible party. We did not define parent because the term 
has no special meaning for Head Start purposes. Moreover, we did not 
define guardian because we believe our revised definition for family is 
broad enough to include various situations.
    Comment: A commenter requested that we define foster care, so 
programs will not have to cross reference child welfare regulations. 
Similarly, other commenters suggested we consult with tribal leadership 
to determine if the definition should be adjusted for tribal 
populations. Some commenters asked that we revise Head Start eligible 
to include Migrant or Seasonal Head Start Program. Other commenters 
suggested that we define Migrant or Seasonal Head Start Program.
    Response: We added the foster care definition used by Federal child 
welfare programs. This definition encompasses all children that fall 
under this definition, tribal or otherwise. We revised Head Start 
eligible to include Migrant or Seasonal Head Start Program. We also 
defined Migrant or Seasonal Head Start Program.
    Comment: We received comments about the phrase ``is eligible for 
or, in the absence of child care, would be potentially eligible for 
public assistance.'' Commenters asked us to define average daily 
attendance and eligibility period. We also received comments about 
trailer parks as proposed in the homeless children definition.
    Response: We did not define the phrase ``is eligible for or, in the 
absence of child care, would be potentially eligible for public 
assistance.'' We took the phrase directly from section 645(a)(1)(B)(i) 
of the Act.\4\ As always, we expect programs to continue to enroll the 
neediest families first. We did not define average daily attendance 
because attendance is beyond the scope of this regulation. This 
regulation focuses on eligibility. It does not address attendance, 
which is addressed in another section of 45 CFR 1305. We did not define 
eligibility period, but we clarified how long a participant remains 
eligible in Sec.  1305.4(k). We defined relevant time period to 
alleviate any confusion. We did not define trailer parks because we 
changed our proposed homeless children definition to correspond with 
section 637(11) of the Act.\5\
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    \4\ See 42 U.S.C. 9840(a)(1)(B)(i).
    \5\ See 42 U.S.C. 9832(11).
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    Comment: One commenter asked why we require a child to attend at 
least one day of classes to be considered enrolled when the current 
definition for enrollment does not mention anything about attendance.
    Response: In light of this comment, we redefined enrollment. And we 
defined enrolled and accepted. We referred to the PIR for guidance. In 
the PIR, a child or a pregnant woman is enrolled once they have 
attended class or received a service. A child or pregnant woman is 
considered accepted when they have met the eligibility criteria and 
have completed the process for enrolling in the program. Consequently, 
persons on Head Start waiting lists have been accepted but are not yet 
enrolled.
    Comment: Overwhelmingly, commenters were pleased that we used the 
definition of ``homeless children'' from the McKinney-Vento Homeless 
Assistance Act, but believed we should provide additional guidance and 
technical assistance on homeless children. In addition, a few 
commenters asked how the definition applies to migrant or seasonal farm 
worker populations.
    Response: We will continue to provide training and technical 
assistance on homeless children. The McKinney-Vento Homeless Assistance 
Act does not specifically define homelessness for migrant or seasonal 
populations. However, the definition in this regulation also applies to 
Migrant or Seasonal Head Start programs.

Section 1305.4--Determining, Verifying, and Documenting Eligibility

    This section focuses on eligibility requirements, procedures for 
how programs determine eligibility, and staff training. Based on 
comments, we reorganized this section to make it easier to understand 
by adding new paragraphs: (a) Process Overview; (d) Additional 
allowances for programs; (g) Migrant or Seasonal eligibility 
requirements; and (k) Eligibility Duration.
Section 1305.4(a)
    This paragraph describes overall how programs must determine 
families' eligibility. This is a new paragraph. We did not propose a 
similar paragraph in the NPRM.
    Comment: An organization stated that the proposed structure of this 
section may be confusing because programs must determine age before any 
other eligibility requirements.
    Response: We reorganized the section. Paragraph (a) provides an 
overview of the eligibility process and paragraph (b) now speaks to age 
eligibility requirements.
    Comment: A few commenters were concerned the in-person interview 
may be burdensome for families.
    Response: We allow programs to waive the in-person interview for a 
telephonic interview, if the in-person interview poses a burden for 
families. In these instances, programs are required to note in the 
eligibility determination record the reasons why an in-person interview 
was not possible. Incidentally, we did not specify where program staffs 
must conduct the in-person interview. Programs may conduct the in-
person interview at a mutually agreed upon location.
    Comment: One commenter expressed concern that the proposed rule did 
not state what qualified as an ``official document.''
    Response: We removed the term official as it related to documents. 
However, program staffs must create an eligibility determination record 
in accordance with paragraph (l) of this section for each enrolled 
participant. Paragraph (l) describes what each eligibility 
determination record must contain and for how long it must be kept.
    Comment: Commenters asked us to clarify who is authorized to apply 
for program services. They suggested we change the phrase ``. . . 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'' to ``. . . the pregnant woman or the child's parent, 
guardian, authorized caregiver, or legally responsible party.''
    Response: We replaced the phrase ``. . . 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'' with the term 
family. As stated above, we redefined family. For a child, family means 
``all persons living in the same household who are: Supported by the 
child's parent(s)' or guardian(s)' income, and related to the child's 
parent(s) or guardian(s) by blood, marriage, or adoption; or the 
child's authorized caregiver or legally responsible party. For a 
pregnant woman, family means all persons who financially support the 
pregnant woman. We believe this change makes the regulation easier to 
understand and clarifies who is authorized to apply for services.
Section 1305.4(b)
    This paragraph outlines Head Start and Early Head Start age 
requirements. It was proposed as paragraph (a) Age Eligibility in the 
NPRM.
    Comment: Commenters offered edits to titles and language in this 
paragraph

[[Page 7371]]

in order to reduce confusion. Commenters also recommended that we 
summarize section 645(a)(2) of the Act because we reference it in the 
introductory paragraph.
    Response: We changed the title to, ``Age eligibility 
requirements,'' and we removed the reference to section 645(a)(2) of 
the Act.
    Comment: Many commenters asked us to define age eligibility 
specifically for Migrant or Seasonal Head Start programs.
    Response: We defined age requirements for Migrant or Seasonal Head 
Start programs under paragraph (b)(3).
    Comment: Commenters wanted to know how programs could verify age 
eligibility particularly in relation to the date used by the school 
district in the community where the Head Start program operates. One 
respondent suggested that we use ``the date used to determine 
eligibility for public school'' language in Early Head Start as well as 
Head Start.
    Response: We reinforced in paragraph (h) that program staffs must 
verify a child's age according to program policies and procedures. We 
emphasize that these policies cannot require staffs to collect 
documents if doing so prevents a family from enrolling an otherwise 
eligible child. We did not add the ``public school'' eligibility date 
to the Early Head Start description because it does not apply. 
Generally, eligible children transition from Head Start programs to 
public school. Consequently, ``the date used to determine eligibility 
for public school'' applies for Head Start not Early Head Start, which 
serves children birth to age three.
    Comment: One commenter was concerned that basing age requirements 
on public school criteria could delay a child from moving to Head Start 
for an entire year, rather than beginning the transition six months 
before his third birthday. Respondents asked how to address situations 
when a public school district uses a date to determine eligibility that 
is after the date Head Start classes begin. Other commenters wanted 
flexibility to enroll children who are old enough to attend 
kindergarten in their school districts, but have Individualized 
Education Plans (IEP) that state they need another year of preschool. 
Another commenter suggested that if we allow programs to enroll 
infants, we should require that infants not attend group care for at 
least four to six weeks.
    Response: We exempt children who transition from Early Head Start 
to Head Start from age eligibility requirements. Current regulations at 
Sec.  1304.41(c)(2) require ``As appropriate, a child may remain in 
Early Head Start, following his or her third birthday, for additional 
months until he or she can transition into Head Start or another 
program.'' Even though age eligibility requirements do not apply when a 
child transitions from Early Head Start to Head Start, programs must 
verify the family's income again. We added children that are ``at least 
three years old or will turn three by the date used to determine 
eligibility for public school'' in paragraph (b)(2) to allow programs 
to enroll children who are slightly younger, as appropriate. Section 
645A(c)(2) of the Act \6\ specifies that ``children under three'' may 
be eligible to participate in Early Head Start programs; the Act also 
requires Early Head Start programs to serve children from birth to age 
three. Programs do not have flexibility to enroll children who are old 
enough to attend kindergarten in their school districts, but have IEPs 
that state they need another year of preschool. If a program intends to 
enroll a child with an IEP, it must ensure the child meets Head Start 
age requirements. We do not have a minimum age requirement for infants 
to enroll in group care; however, programs that provide infant group 
care must comply with state licensing requirements regarding the age at 
which infants can enter group care.
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    \6\ See 42 U.S.C. 9832(11).
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    Comment: One commenter asked us to reimburse programs for obtaining 
birth certificates.
    Response: We did not make any changes to address this comment 
because we do not require programs to collect birth certificates.
Section 1305.4(c)
    This paragraph describes income eligibility requirements. It was 
proposed as paragraph (b) Income Eligibility in the NPRM.
    Comment: Commenters found this paragraph rather confusing, because 
it contained program requirements and program options. Other commenters 
asked us to explain when programs can enroll children with disabilities 
and children whose family incomes are over the poverty line.
    Response: In order to make this paragraph clearer, we removed 
program options and placed them under new paragraph (d) Additional 
allowances for programs. We hope this clarifies that a program can 
enroll families under paragraph (d) options only after it has satisfied 
requirements listed here in paragraph (c) or requirements in paragraph 
(f). We also removed migrant or seasonal family eligibility 
requirements and placed them under paragraph (g) Migrant or Seasonal 
eligibility requirements. We also removed language that describes how 
long participants remain eligible for services and placed it under 
paragraph (k) Eligibility Duration. We believe these changes make the 
regulation easier to read.
Section 1305.4(d)
    We created this new paragraph with language from proposed paragraph 
(b) Income Eligibility. We believe this new paragraph will clarify 
conditions under which programs may enroll families who do not 
otherwise qualify for services. A program can only use these options 
after it has enrolled homeless children, or pregnant women and children 
whose family incomes fall below the poverty line, or pregnant women and 
children whose families are eligible for, or in the absence of child 
care, would be potentially eligible for public assistance.
    Comment: An organization suggested we include specific language 
from the Act that describes what programs are required to report 
annually if they choose to enroll families between 100 and 130 percent 
of the poverty line. Another commenter requested that the rule state 
when the report is due, what annual cycle should be used for the 
report, and where and to whom should the report be submitted. A 
commenter suggested that we allow 12.5 percent of participants to be 
over-income and remove all ``35 percent'' regulations.
    Response: We included specific language from the Act that describes 
what a program is required to report if it chooses to enroll families 
under the eligibility option allowing for inclusion of families between 
100 and 130 percent of the poverty line. We also indicated when these 
reports are due and where they must be submitted. However, we do not 
have authority to remove all ``35 percent regulations.'' These 
regulations are required by statute.
Section 1305.4(e)
    This paragraph lists additional options specifically for tribes 
operating Head Start programs. It was proposed as paragraph (d) Special 
Rule for Indian Tribes in the NPRM.
    Comment: One commenter suggested the special rule for Indian tribes 
be used for all programs.
    Response: We have not made any changes in response to this comment 
because the Act specifically applies these allowances to Indian tribes.

[[Page 7372]]

Section 1305.4(f)
    This paragraph identifies what makes a family categorically 
eligible for services. It was proposed as paragraph (c) Categorical 
Eligibility in the NPRM.
    Comment: We received comments about families experiencing 
homelessness. Many were concerned about how to identify and actually 
provide services to these families.
    Response: We defined homeless children at Sec.  1305.2 and we added 
language that aligned with the Act to help programs better serve these 
families.
    The Act identifies homeless children as categorically eligible for 
Head Start services. In light of the Act, we add homelessness as 
category for eligibility at Sec.  1305.4(f). We also offer several 
methods, from service provider statements to self-declarations that 
programs can use to verify a family's circumstances.
    The Act also requires programs to allow homeless children to attend 
Head Start classrooms, without birth certificates, proof of residency, 
or immunization records. Congress recognizes that sporadic living 
conditions can make it difficult for these families to track 
information. It does not want to bar homeless families from enrolling 
in Head Start programs just because they do not have these documents.
    Here, we require programs to allow families of homeless children to 
apply to, enroll in, and attend Head Start programs, even if they do 
not have proof of residency, immunization and other medical records, 
and birth certificates. We require programs to give these families 
reasonable time to collect these and other required documents. Head 
Start is based on the premise that all children share certain needs, 
and that children from low-income families can benefit from 
comprehensive developmental services to meet those needs. Homeless 
children are particularly vulnerable and need the services that a Head 
Start program can offer.
    Comment: Numerous respondents asked us to define public assistance. 
Some commenters suggested that we include child-care, Supplemental 
Nutrition Assistance Program (SNAP, formerly known as food stamps) and 
Medicaid rather than TANF and SSI in the definition.
    Response: Public assistance includes TANF and SSI. We believe this 
is consistent with longstanding Head Start guidance. We appreciate the 
suggestion that we to extend the public assistance definition to 
include Medicaid, SNAP, child care and other benefits. However, we have 
narrowly construed public assistance in the past and believe that our 
interpretation of public assistance is consistent with the overall 
thrust of the eligibility requirements, which emphasize serving 
children from families in the lowest income brackets. Some forms of 
public assistance such as Medicaid, SNAP and child care have 
eligibility levels higher than the Head Start eligibility level. For 
example, SNAP eligibility is 130 percent of the poverty line and child-
care eligibility in some states is higher than 150 percent of poverty. 
Further, when Congress expanded eligibility to include the ability for 
grantees to serve families with incomes between 100 and 130 percent of 
the poverty level, they provided very narrow authority to do so. This 
indicates that Congress's intent was not to broadly expand eligibility 
to higher incomes. Therefore, Head Start considering TANF and SSI as 
public assistance is consistent with the statute and the intent of 
Congress that Head Start programs should serve families with the lowest 
income and the greatest need.
    Comments: Some commenters asked us to explain how programs can 
determine a family's potential eligibility for public assistance.
    Response: If a family gives written consent, the program could 
verify the family's potential eligibility for public assistance with 
third parties, like TANF or SSI officials. Moreover, if a family does 
not have proof of income, the program can accept a family member's 
written declaration that states the family is potentially eligible for 
public assistance. In these instances, program staffs are required to 
verify the family's eligibility.
    Comment: Commenters asked us to clarify how children in foster care 
are considered categorically eligible for services.
    Response: We believe our categorical eligibility discussion is 
sufficient. However, to clarify what it means for a child to be in 
foster care, we defined foster care in Sec.  1305.2. Our foster care 
definition is consistent with the definition used by ACF's Children's 
Bureau at 45 CFR 1355.20.
    Comment: One commenter urged us to expand the definition of 
homeless and the income eligibility guidelines to include families with 
medically fragile and autistic children because they often face 
financial and emotional struggles and unstable living situations.
    Response: While we are sensitive to these concerns, we lack the 
authority to modify either the statutory definition of homeless or the 
income eligibility requirements for Head Start that are specified in 
the Act. Furthermore, programs can fill at least 10 percent of their 
enrollment with disabled or medically fragile children, even if their 
families' incomes are above the poverty guideline. Consequently, these 
children may be served, if the program has slots available.
Section 1305.4(g)
    This is a new paragraph. It describes eligibility requirements for 
migrant or seasonal families.
Section 1305.4(h)
    This is a new paragraph. It reinforces that staffs must verify a 
child's age according to program policies and procedures.
Section 1305.4(i)
    We proposed the language here under paragraph (e) Income 
Verification in the NPRM. This paragraph explains how program staffs 
verify family income. It also describes the documents families can 
present to prove income eligibility.
    Comment: Commenters asked what to do when families do not have 12 
months of pay stubs readily available. Commenters also asked how 
programs could judge whether a family's income accurately reflects 
current circumstances.
    Response: When families are missing any pay stubs or other 
documentation to prove income, programs may use the information 
provided to calculate total annual income by using appropriate 
multipliers. To do this, the program will multiply the family's income 
earned in a certain time period by the number of weeks or months the 
family worked during the time period being considered. We also revised 
the regulation to provide that if the family can demonstrate a 
significant change in income, such as job loss, the program may 
consider the family's current income circumstances.
    Comment: Respondent asked us to clarify the parameters programs 
have to investigate families' circumstances when they report no income. 
Other commenters stated that SNAP and Medicaid have much higher income 
guidelines than Head Start and as a result they should not be used to 
determine eligibility.
    Response: We intentionally did not provide examples of how to 
verify that a family has no income. We believe our silence in this 
instance will afford programs greater flexibility in their efforts to 
make informed eligibility decisions.
    Comment: We received comments from program managers about using

[[Page 7373]]

third parties to verify whether families are categorically eligible for 
services. They asked us to clarify who, i.e. what third party, could 
verify whether a family is homeless. These commenters believed that 
homeless families often lack close ties with family members who 
potentially could verify the family's circumstances. Consequently, 
programs would have to exert tremendous ``man hours'' to verify a 
family's circumstances. Other commenters recommended that we allow 
families, who do not have income or who are unable to prove income, to 
attest to their eligibility in writing, either as an alternative to, or 
in addition to third party verification.
    Response: Programs may use third parties to verify a family's 
circumstances, if the family gives written consent. In these cases, 
programs may contact family members, shelter workers, employers, and 
social workers. We do not prescribe who programs should use as third 
parties to verify a family's circumstances. Instead, we afford programs 
flexibility to determine which third parties they could rely on to get 
information about the families they serve. Moreover, we allow programs 
to accept written declarations from families who do not have income or 
who cannot prove income. However, in this and in all other instances, 
we require program staffs to make reasonable efforts to verify the 
family's eligibility.
    Comment: Commenters were concerned about how long it could take to 
verify income, noting that programs are working with limited funds, and 
may require more staff.
    Response: We do not believe these requirements will cause undue 
burdens for program staff. Programs currently verify family income with 
existing staffs. They collect supporting documents and contact third 
parties when necessary.
    Comment: A commenter wanted to know how to determine income 
eligibility for various household situations, including custody and 
incarceration.
    Response: We believe the definition for family addresses this 
concern.
    Comment: Commenters asked how often programs must verify whether a 
migrant family's income comes primarily from agricultural work.
    Response: We did not address income verification for Migrant or 
Seasonal Head Start (MSHS) programs in the NPRM and we do not address 
the issue here in the final rule. We realize MSHS programs verify 
family income eligibility annually in order to ensure children from 
migrant or seasonal farm worker families receive services that are 
specifically designed to address the needs of families that perform 
agricultural work. However, MSHS programs are not exempt from the two 
year eligibility requirement in the Act. Due to the Act's two year 
eligibility requirement, if an MSHS program determines a child is no 
longer eligible for its services after the first year, the child can be 
enrolled in a non-MSHS program in the community for a second year. But 
if the child cannot be enrolled in a non-MSHS program, the MSHS program 
must continue to serve him.
Section 1305.4(j)
    We proposed language here under paragraph (f) Verification of 
categorical eligibility in the NPRM. This paragraph explains how 
programs must verify categorical eligibility.
    Comment: A few commenters stated that this paragraph is 
inconsistent with the requirement that authorizes, ``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.'' Commenters were 
concerned that proving homelessness would be particularly difficult for 
some populations and sought guidance on the meaning of ``reasonable 
efforts'' to confirm that a child is homeless. One organization 
recommended that we require families experiencing homelessness to 
present additional documents to establish eligibility under this 
category. Another commenter believed the process of verifying 
homelessness should mirror the processes used by the local education 
authorities in the community and the National Center for the Education 
of Homeless Children.
    Response: We removed requirements for staffs to certify that they 
have made reasonable efforts to verify family eligibility. 
Consequently, we removed: ``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.'' We specify the types of documents programs are 
required to use in order to verify homelessness. However, in cases 
where these documents are not available, the family may declare in 
writing that the child or pregnant woman is homeless. In these 
instances, we require staff to verify the family's status and to 
describe the child's living situation. We did not specify how programs 
should inquire about a family's housing status. However, we will 
continue to provide best practices tips through training and technical 
assistance. We believe the phrase ``reasonable efforts'' is clear. But 
we also provide training and technical assistance on what constitutes 
``reasonable efforts'' on the Head Start Early Childhood Learning & 
Knowledge Center Web site and other resources.
    Comment: One commenter explained that trying to verify homelessness 
as a categorical eligibility factor and to document the income of the 
same family may result in undue pressure on program staff. Staff may 
fear repercussions despite having made reasonable efforts to collect 
accurate documentation.
    Response: We did not require programs to verify both income and 
homelessness. Programs are required to verify whether a family is 
either ``income eligible'' or ``categorically eligible.''
    Comment: A commenter noted that in proposed paragraph (f)(2), the 
phrase ``to prove a claim that a pregnant woman or family has no 
income'' should read ``to prove a claim that a pregnant woman or family 
is homeless.''
    Response: This was an error. But we grammatically restructured this 
paragraph in a way so that it is clear we are referring to categorical 
eligibility and not income eligibility. We also clarified that a 
program may use third parties to prove a claim that a family is 
categorically eligible.
    Comment: We received comments, concerns, and recommendations about 
using third parties to verify a family's categorical eligibility. While 
some commenters supported this provision, many more were concerned that 
the use of third parties could create unintended consequences such as 
deterring enrollment or making families and Head Start staff 
uncomfortable. Some commenters wanted us to offer more guidance on who 
could serve as a third party contact and whether it had to be someone 
in a professional capacity or if the program has discretion to decide. 
Numerous respondents questioned the value of using other family members 
and friends as third party verifiers. Commenters asked us to explain 
how to collect acceptable information from third parties, and what 
documents are considered appropriate. Another respondent asked us to 
clarify whether programs that already have self-declaration procedures 
are required to use third party verification as well. One commenter 
suggested that we do not require families to consent to third party 
verification when third party verification could prove detrimental.
    Response: We believe third parties may be helpful to verify 
eligibility in

[[Page 7374]]

cases where families lack documentation. Programs should only use third 
party verification if the family consents and if other verification 
methods are not feasible. Beyond what is specified in the rule, 
programs may use their own process for verifying information, keeping 
in mind the purpose, goals, and other rules related to eligibility. 
Furthermore, throughout the verification process, we require program 
staff to adhere to program safety and privacy policies outlined in 45 
CFR 1304.52(h).
    Comment: Commenters supported having program staff certify that he 
or she made reasonable efforts to confirm that a child is homeless. 
They suggested programs use this method to verify income and other 
forms of categorical eligibility as well.
    Response: As we mentioned above, we removed requirements for staffs 
to certify that they have made reasonable efforts to verify a family's 
eligibility. However, if a family declares that it is either income or 
categorically eligible for services, we require staffs to make 
reasonable efforts to verify the family's situation and to describe the 
family's living situation.
Section 1304(k)
    This is a new paragraph. It explains how long participants remain 
eligible for services.
Section 1305.4(l)
    This paragraph describes what eligibility determination records 
must contain and how long they must be kept. It was proposed as (g) 
Records and Certification in the NPRM.
    Comment: Some commenters recommended we require programs to store 
data and eligibility determination records electronically. One 
commenter asked us to explain what an ``eligibility determination 
record'' is as used in proposed paragraph (g), and how long these 
records must be kept.
    Response: We clarified in paragraph (l) that eligibility 
determination records may be maintained either electronically or in 
hard copy. Programs may choose whichever system is appropriate for 
their needs so long as the system provides accurate information and 
ensures confidentiality. We believe the term ``eligibility 
determination record'' defines itself. However, we describe what 
eligibility determination records must contain. Programs must keep 
these records according to 45 CFR 74.53 and 45 CFR 92.42. These are 
general HHS rules on records retention that stem from Office of 
Management and Budget Circulars A-110 and A-102 respectively.
    Comment: Numerous commenters recommended that the language in 
proposed paragraph (g)(1) that states ``copies of all documents 
submitted . . .'' be changed to ``all documents used to verify 
eligibility'' to limit the scope. Commenters also wanted to know how 
programs are supposed to copy documents when recruiting and intake 
usually take place where there is no access to photocopy machines.
    Response: A program must be able to show in the eligibility 
determination record what documents it used to find a participant 
eligible for services. However, if a staff does not have access to a 
copier, he may review documents and verify their contents. He can then 
allow the family to present those documents up until the child's first 
day of class, when he can make copies.
    Comment: One commenter proposed changing proposed paragraph (g)(1) 
to remove reference to ``any staff member's notes recording any other 
information'' believing the term is difficult to define, implement 
uniformly or monitor for compliance. Another commenter related to 
``staff member's notes'' questioned whether staff notes are considered 
valid documentation, and if so, what rules govern them.
    Response: We removed the reference to ``staff member's notes.'' 
Even without staff member notes, program staffs should be able to 
capture all pertinent information as they determine family eligibility.
    Comment: Commenters recommended that we remove proposed paragraph 
(g)(4)(ii), which required programs to maintain documents related to 
third party verification.
    Response: We require programs to keep documents related to third 
party verification in paragraph (l)(2)(C). Third party verification 
allows programs more flexibility and families more options to prove 
eligibility. However, we reinforce that staff limit the scope of 
verifying to that which is relevant to prove eligibility and adhere to 
program safety and security policies.
    Comment: A commenter was concerned about the requirement in 
proposed paragraph (g)(5) to maintain ``a record of the eligibility 
criterion under which the pregnant woman or the child was determined 
eligible.'' The commenter explained this may be particularly difficult 
in the over-income categories. For example, the program may verify a 
family's income level throughout the spring and summer recruiting 
season, but enroll and assign them to either paragraph (g)(5)(v) (10 
percent allowed over-income category) or paragraph (g)(5)(vi) (over 100 
percent but below 130 percent of poverty category) in the fall.
    Response: If a program enrolls a child whose family is over income 
under one of the two over income categories, in paragraph (l)(2)(iii), 
we require staff to say as much in a written statement and to make that 
statement a part of the eligibility determination record. However, we 
do not require staff to specify which of the two over-income 
eligibility categories applies or when, i.e. when the family is 
determined eligible for services or when the family is enrolled. 
Programs must, however, make this distinction for reporting purposes.
    Comment: We received a few comments about proposed paragraph (g)(6) 
that requires ``a signed and dated statement by the program staff 
person.'' Supporters believe this will strengthen the integrity of Head 
Start programs nationwide and increase accountability. Another 
commenter was concerned about this requirement because her program uses 
multiple staffs to collect eligibility information, but only one staff 
to determine eligibility.
    Response: We removed this requirement as proposed in paragraph 
(g)(6). However, in (l)(2)(ii), we require staffs to provide a 
statement that he or she made reasonable efforts to verify information. 
We do not prescribe any particular method for how programs may collect 
eligibility information. We want to make it clear that we hold program 
management ultimately responsible for each eligibility determination.
    Comment: We received a comment about proposed paragraph (g)(7), 
which required programs to maintain eligibility determination records 
for three years. The commenter recommended that these records be kept 
only as long as the child or pregnant woman is enrolled in the program.
    Response: We took the three-year record retention requirement from 
45 CFR 74.53 and 45 CFR 92.42. These regulations require grantees to 
keep financial records, supporting documents, statistical records, and 
all other records pertinent to their grant for three years. Eligibility 
determination records do not fit these criteria. Therefore, we require 
programs to keep eligibility determination records for those currently 
enrolled, for as long as they are enrolled, and for one year after they 
have stopped receiving services or are no longer enrolled.
Section 1305.4(m)
    This paragraph requires programs to establish policies and 
procedures that describe what happens when staffs

[[Page 7375]]

violate this rule. It was proposed as (h) Establishment of agency 
policies regarding violation of eligibility determination regulations, 
policies, and procedures in the NPRM.
    Comment: Commenters expressed concern about requiring programs to 
establish policies that describe actions taken against staffs who 
intentionally violate Federal and program eligibility regulations. They 
believe this requirement is overreaching. Other respondents recommended 
that programs must have a general policy against fraud.
    Response: We do not believe this requirement is overreaching. 
Current regulations require programs to establish and implement written 
staff personnel policies that describe appropriate penalties for 
violating standards of conduct. Programs that already have related 
policies in place will be in compliance with these new rules as long as 
their policies cover what is specified in this rule.
    Comment: One commenter applauds our efforts to inform the Head 
Start workforce about fraud, and the consequences for committing fraud. 
However, the commenter does not believe we have articulated what it 
means to commit fraud clearly. In order to avoid a ``chilling effect on 
hiring.'' the commenter suggested we discuss ``intent'' more in the 
preamble.
    Response: We believe we are quite clear about who is eligible for 
Head Start services and about how a program must determine eligibility. 
Staffs that intentionally enroll ineligible families should be held 
accountable. We believe the intent requirement as stated should be 
sufficient to weed out inadvertent or mistaken enrollments.
Section 1305.4(n)
    We initially proposed this language under paragraph (i) Training in 
the NPRM. This paragraph details training requirements for staff and 
others responsible for making eligibility decisions.
    Comment: Many commenters were concerned 30 days after the effective 
date of the rule was not enough time for programs to design and conduct 
training. Some respondents acknowledged the importance of their roles, 
but explained that governing body and policy council members should 
have more time to implement procedures because they are not involved 
directly in the eligibility verification process. A few commenters 
suggested that training should be ongoing for some staff.
    Response: Programs are required to train program management and all 
staffs who make eligibility determinations, within 90 days after the 
effective date of this rule. After the initial training, programs must 
train each newly hired staff member as soon as possible, but within 90 
days of hire. Programs must train all governing body and policy council 
members, within 180 days of the rule being effective. Or, after the 
initial training, programs must train a new governing body member or a 
new policy council member, within 180 days of his or her term. We have 
not added specific flexibility for programs with shorter operating 
periods because we believe programs will be able to complete the 
training requirements in the time allowed. We require programs to 
develop their own policies on how often training is provided, after the 
initial training, to allow flexibility in training frequency.
    Comment: A commenter recommended that we require training to 
include consequences for families who commit or attempt to commit fraud 
by providing false documents or eligibility information.
    Response: We agree. We require program training to include 
consequences for families who commit or attempt to commit fraud by 
providing false documents or eligibility information.
    Comment: Commenters suggested that we provide training and 
technical assistance materials, such as webinars, PowerPoint 
presentations, and guidelines with consistent goals, measures, or 
outcomes for training.
    Response: We did not make any changes to the rule as a result of 
these comments. However, the National Center on Program Management and 
Fiscal Operations will develop training assistance to help programs 
implement these new training requirements. We believe these 
requirements are reasonable and will not cause undue burdens. In 
addition, we allow programs flexibility to determine appropriate 
training for their operational needs. We do not specify exactly how 
training must be delivered, the length of training, or specific content 
beyond what topics must be covered.

V. Impact Analyses

Paperwork Reduction Act

    This rule establishes new information collection requirements in 
Sec.  1305.4(c), (f), (g), (h), (i), and (j). 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.

----------------------------------------------------------------------------------------------------------------
                                                                                      Average
                                                                                    burden  per    Total  burden
              Requirement                 Respondents            Annual             respondent         hours
                                                                                      (hours)
----------------------------------------------------------------------------------------------------------------
Sec.   1305.4(d)(2)...................              20  1.......................               2              40
Sec.   1305.4(h)(i), and (j)..........           1,600  (should reflect info                  15          24,000
                                                         collections for each
                                                         applicant).
Sec.   1305.4(l)......................           1,600  (should reflect info                  15          24,000
                                                         collections for each
                                                         applicant).
----------------------------------------------------------------------------------------------------------------

    We estimate costs to implement these requirements will be 
approximately $1,103,959 annually. We used the average hourly salary 
for an assistant teacher, which is closest to the salary for a family 
worker, who would be doing this work. The estimated hourly salary for a 
family worker including overhead and fringe benefits is $22.98. We 
multiplied this hourly rate by the estimated total burden hours, 
48,040, to get the total estimated cost. We reevaluated the cost burden 
and the cost burden increased in both the hours of burden and the cost 
to each program. We also determined that the family services 
coordinator would not be the staff person who would verify family 
eligibility. Instead, the family service worker would conduct intake 
and determine eligibility. The average salary for a family service 
worker is closest to that of an assistant teacher. When we adjusted the 
family service worker's

[[Page 7376]]

salary, we included fringe benefits which we did not include in our 
original estimate.

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 rule will not 
result in a significant economic impact on a substantial number of 
small entities. This 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 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.
    Respondents commented that they thought the estimated costs of $85 
per grantee were too low, considering the new costs of maintaining 
copies of documents; revamping agency polices and systems; creating 
additional human resource procedures and policies to address violations 
of regulations, keeping and filing additional documents in the file, 
and training on these elements. One organization that commented said 
that it did not have exact numbers to confirm or refute the amount, but 
asked HHS to reconsider this estimate. Other respondents shared 
calculations of their estimated costs of implementing these new 
requirements. In response to these comments, we have adjusted the 
number of burden hours and the total calculation of the cost of meeting 
the new requirements.
    Specifically, as noted under the Paperwork Reduction Act section of 
this preamble, we estimate the cost of implementing the new reporting 
requirements will be approximately $1,103,959 annually, which when 
applied to all 1,600 grantees nationally, results in a cost per grantee 
of less than $1,236. In developing this estimate, we assumed that each 
of the 1,600 Head Start and Early Head Start grantees would spend an 
additional 30 hours beyond what they spend currently to verify 
eligibility. The total burden hours for each program would be 30 
additional hours for the expanded requirements on verifying eligibility 
(15) and record keeping (15) as noted in the chart. We anticipate that 
some of the additional 30 hours would include time needed for grantees 
to training staff, ensuring record keeping systems complied with the 
new requirements and maintaining records. We included in our estimated 
annual costs 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) in the Act, and therefore would be 
required to comply with the annual reporting requirements described in 
section 645(a)(1)(B)(iv) of the Act and paragraph (c)(3)(ii) of this 
rule. Since no grantees have taken the opportunity to serve additional 
pregnant woman and children per the authority granted at section 
645(a)(1)(B)(iii)(II) in the Act to date, our reasonable expectation is 
that approximately 20 grantees per year might choose to use this 
authority in the future, at a total estimated cost of $1,236 per year.

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 
Final Rule is consistent with these priorities and principles. These 
regulations incorporate statutory changes to the Head Start program 
enacted in the Act and strengthens procedures by which programs 
determine who is eligible for Head Start services. We have consulted 
with OMB and determined that these rules meet criteria for a 
significant regulatory action under Executive Order 12866.
    We do not believe there will be a significant economic impact from 
this regulatory action. Based on our estimate described under the 
Paperwork Reduction Act section of this preamble, the total cost will 
fall well below the $100 million threshold. The estimated total cost of 
implementation of these rules for all grantees is approximately 
$1,103,959 annually.

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 rule will 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.

Congressional Review

    This regulation is not a major rule as defined in 5 U.S.C. chapter 
8.

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 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 rule does not have sufficient federalism 
implications to warrant the preparation of a federalism summary impact 
statement.

Treasury and General Government Appropriations Act of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
Family Policymaking Assessment for any rule that may affect family 
well-being. This rule will 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: January 14, 2015.
Mark H. Greenberg,
Acting Assistant Secretary for Children and Families.
    Approved: January 27, 2015.
Sylvia M. Burwell,
Secretary.
    For the reasons set forth in the preamble, part 1305 of 45 CFR 
chapter XIII is amended to read as follows:

[[Page 7377]]

PART 1305--ELIGIBILITY, RECRUITMENT, SELECTION, ENROLLMENT, AND 
ATTENDANCE IN HEAD START

0
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).

0
2. Revise Sec.  1305.2 to read as follows:

Sec.  1305.2  Definitions.

    Accepted means a child or pregnant woman has met the eligibility 
criteria and has completed the enrollment process.
    Children with disabilities means children with mental retardation, 
hearing impairments including deafness, speech or language impairments, 
visual impairments including blindness, serious emotional disturbance, 
orthopedic impairments, autism, traumatic brain injury, other health 
impairments or specific learning disabilities who, by reason thereof 
need special education and related services. The term ``children with 
disabilities'' for children aged three to five, inclusive, may, at a 
state's discretion, include children experiencing developmental delays, 
as defined by the state and as measured by appropriate diagnostic 
instruments and procedures, in one or more of the following areas: 
physical development, cognitive development, communication development, 
social or emotional development, or adaptive development; and who, by 
reason thereof, need special education and related services.
    Enrolled means a child has been accepted and attended at least one 
class, has received at least one home visit, or has received at least 
one direct service while pending completion of necessary documentation 
for attendance in a center, based on state and local licensing 
requirements. For Early Head Start, enrollment includes all pregnant 
women that have been accepted and received at least one direct service.
    Enrollment means the number of participants in an Early Head Start, 
a Head Start, a Migrant or Seasonal, or an American Indian Alaska 
Native Head Start program.
    Enrollment opportunities mean vacancies that exist at the beginning 
of the enrollment year, or during the year because of children who 
leave the program, that must be filled for a program to achieve and 
maintain its funded enrollment.
    Enrollment year means the period of time, not to exceed twelve 
months, during which a Head Start program provides center or home-based 
services to a group of children and their families.
    Family, for a child, means all persons living in the same household 
who are:
    (1) Supported by the child's parent(s)' or guardian(s)' income; and
    (2) Related to the child's parent(s) or guardian(s) by blood, 
marriage, or adoption; or
    (3) The child's authorized caregiver or legally responsible party.
    Family, for a pregnant woman, means all persons who financially 
support the pregnant woman.
    Foster care means 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 pre-adoptive 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.
    Funded enrollment means the number of children which the Head Start 
grantee is expected to serve, as indicated on the grant award.
    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(e). Unless otherwise noted, 
references to Head Start eligible include Early Head Start and Migrant 
or Seasonal Head Start programs.
    Head Start program means a Head Start grantee or its delegate 
agency(ies).
    Homeless children means the same as homeless children and youths in 
section 725(2) of the McKinney-Vento Homeless Assistance Act at 42 
U.S.C. 11434a(2). The definition in this regulation also applies to 
Migrant or Seasonal Head Start programs.
    Income means gross cash income and includes earned income, military 
income (including pay and allowances), veterans' benefits, Social 
Security benefits, unemployment compensation, and public assistance 
benefits. Additional examples of gross cash income are listed in the 
definition of ``income'' which appears in U.S. Bureau of the Census, 
Current Population Reports, Series P-60-185.
    Income guidelines means the poverty line specified in section 
637(19) of the Act (42 U.S.C. 9832).
    Indian Tribe means any tribe, band, nation, pueblo, or other 
organized group or community of Indians, including any Native village 
described in section 3(c) of the Alaska Native Claims Settlement Act 
(43 U.S.C. 1602(c)) or established pursuant to such Act (43 U.S.C. 1601 
et seq.), that is recognized as eligible for special programs and 
services provided by the United States to Indians because of their 
status as Indians.
    Low-income family means a family whose total income before taxes is 
equal to, or less than, the income guidelines.
    Migrant family means, for purposes of Head Start eligibility, a 
family with children under the age of compulsory school attendance who 
changed their residence by moving from one geographic location to 
another, either intrastate or interstate, within the preceding two 
years for the purpose of engaging in agricultural work that involves 
the production and harvesting of tree and field crops and whose family 
income comes primarily from this activity.
    Migrant or Seasonal Head Start Program means:
    (1) With respect to services for migrant farmworkers, a Head Start 
program that serves families who are engaged in agricultural labor and 
who have changed their residence from one geographic location to 
another in the preceding 2-year period; and
    (2) With respect to services for seasonal farmworkers, a Head Start 
program that serves families who are engaged primarily in seasonal 
agricultural labor and who have not changed their residence to another 
geographic location in the preceding 2-year period.
    Participant means a pregnant woman or a child who is enrolled in 
and receives services from a Head Start, an Early Head Start, a Migrant 
Seasonal Head Start, or an American Indian Alaska Native Head Start 
program.
    Recruitment means the systematic ways in which a Head Start program 
identifies families whose children are eligible for Head Start 
services, informs them of the services available, and encourages them 
to apply for enrollment in the program.
    Recruitment area means that geographic locality within which a Head 
Start program seeks to enroll Head Start children and families. The 
recruitment area can be the same as the service area or it can be a 
smaller area or areas within the service area.

[[Page 7378]]

    Relevant time period means:
    (1) The 12 months preceding the month in which the application is 
submitted; or
    (2) During the calendar year preceding the calendar year in which 
the application is submitted, whichever more accurately reflects the 
needs of the family at the time of application.
    Responsible HHS official means the official of the U.S. Department 
of Health and Human Services having authority to make Head Start grant 
awards, or his or her designee.
    Selection means the systematic process used to review all 
applications for Head Start services and to identify those children and 
families that are to be enrolled in the program.
    Service area means the geographic area identified in an approved 
grant application within which a grantee may provide Head Start 
services.
    Vacancy means an unfilled enrollment opportunity for a child and 
family in the Head Start program.
    Verify or any variance of the word means to check or determine the 
correctness or truth by investigation or by reference.

0
3. Revise Sec.  1305.4 to read as follows:

Sec.  1305.4  Determining, verifying, and documenting eligibility.

    (a) Process overview. (1) Program staff must:
    (i) Conduct an in-person interview with each family, unless 
paragraph (a)(2) of this section applies;
    (ii) Verify information as required in paragraphs (h) through (j) 
of this section; and,
    (iii) Create an eligibility determination record for each enrolled 
participant according to paragraph (l) of this section.
    (2) Program staff may interview the family over the telephone if an 
in-person interview is not possible. In addition to meeting the 
criteria provided in paragraph (a)(1) of this section, program staff 
must note in the eligibility determination record reasons why the in-
person interview was not possible.
    (b) Age eligibility requirements. (1) For Early Head Start, except 
when the child is transitioning to Head Start, a child must be an 
infant or a toddler younger than three years old. A pregnant woman may 
be any age.
    (2) For Head Start, a child must:
    (i) Be at least three years old; or,
    (ii) Turn 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,
    (iii) Not be older than compulsory school age.
    (3) For Migrant or Seasonal Head Start, a child must be younger 
than compulsory school age by the date used to determine public school 
eligibility for the community in which the program is located.
    (c) Income eligibility requirements. (1) A pregnant woman or a 
child is eligible, if:
    (i) The family's income is equal to or below the poverty line; or,
    (ii) The family is eligible or, in the absence of child care, would 
be potentially eligible for public assistance.
    (2) If the family's income is above the poverty line, a program may 
enroll a pregnant woman or a child who would benefit from services. 
These participants can only make up to 10 percent of a program's 
enrollment in accordance with paragraph (d) of this section.
    (d) Additional allowances for programs. (1) A program may enroll an 
additional 35 percent of participants whose families are neither income 
nor categorically eligible and whose family incomes are below 130 
percent of the poverty line, if the program:
    (i) Establishes and implements outreach, and enrollment policies 
and procedures to ensure it is meeting the needs of income or 
categorically eligible pregnant women, children, and children with 
disabilities, before serving ineligible pregnant women or children; and
    (ii) Establishes criteria that ensures eligible pregnant women and 
children are served first.
    (2) If a program chooses to enroll participants, who are neither 
income nor categorically eligible, and whose family incomes are between 
100 and 130 percent of the poverty line, it must be able to report to 
the Head Start Regional Program Office:
    (i) How it is meeting the needs of low-income families or families 
potentially eligible for public assistance, homeless children, and 
children in foster care, and include local demographic data on these 
populations;
    (ii) Outreach and enrollment policies and procedures that ensure it 
is meeting the needs of income eligible or categorically eligible 
children or pregnant women, before serving over-income children or 
pregnant women;
    (iii) Efforts, including outreach, to be fully enrolled with income 
eligible or categorically eligible pregnant women or children;
    (iv) Policies, procedures, and selection criteria it uses to serve 
eligible children;
    (v) Its current enrollment and its enrollment for the previous 
year;
    (vi) The number of pregnant women and children served, 
disaggregated by whether they are either income or categorically 
eligible or meet the over-income requirements of paragraph (c)(2) of 
this section; and,
    (vii) The eligibility criteria category of each child on the 
program's waiting list.
    (e) Additional Allowances for Indian tribes. (1) Notwithstanding 
paragraph (c)(2) of this section, a tribal Head Start or Early Head 
Start program may fill more than10 percent of its enrollment with 
participants whose family incomes exceed the low-income guidelines or 
who are not categorically eligible, if:
    (i) The program has served all pregnant women or children who wish 
to be enrolled from Indian and non-Indian families living on the 
reservation who either meet low-income guidelines or who are 
categorically eligible;
    (ii) The program has served all pregnant women or children who wish 
to be enrolled from income-eligible or categorically-eligible Indian 
families native to the reservation, but living in non-reservation areas 
the tribe has approved as part of its service area;
    (iii) The tribe has resources within its grant or from other non-
Federal sources, without using additional funds from HHS intended to 
expand Early Head Start or Head Start services, to enroll pregnant 
women or children whose family incomes exceed low-income guidelines or 
who are not categorically eligible; and,
    (iv) At least 51 percent of the program's participants are either 
income or categorically eligible.
    (2) If another Early Head Start or Head Start program does not 
serve a non-reservation area, the program must serve all income-
eligible and categorically-eligible Indian and non-Indian pregnant 
women or children who wish to enroll before serving over-income 
pregnant women or children.
    (3) A program that meets the conditions of this paragraph must 
annually set criteria that are approved by the policy council and the 
tribal council for selecting over-income pregnant women or children who 
would benefit from Early Head Start or Head Start services.
    (f) Categorical eligibility requirements. (1) A family is 
categorically eligible for Head Start, if:
    (i) The child is homeless, as defined in Sec.  1305.2; or,
    (ii) The child is in foster care, as defined in Sec.  1305.2.
    (2) If a program determines a child is categorically eligible under 
paragraph (f)(1)(i) of this section, it must allow the child to attend 
a Head Start program, without immunization and other medical records, 
proof of residency, birth certificates, or other documents.

[[Page 7379]]

The program must give the family reasonable time to present these 
documents.
    (g) Migrant or Seasonal eligibility requirements. A child is 
eligible for Migrant or Seasonal Head Start, if:
    (1) The family meets an income eligibility requirement in paragraph 
(c) of this section; or
    (2) The family meets a categorical requirement in paragraph (f) of 
this section; and
    (3) The family's income comes primarily from agricultural work.
    (h) Verifying age. Program staff must verify a child's age 
according to program policies and procedures. A program's policies and 
procedures cannot require staff to collect documents that confirm a 
child's age, if doing so creates a barrier for the family to enroll the 
child.
    (i) Verifying income. (1) If the family can provide all W-2 forms, 
pay stubs, or pay envelopes for the relevant time period, program staff 
must:
    (i) Use all family income for the relevant time period to determine 
eligibility according to income guidelines;
    (ii) State the family income for the relevant time period; and
    (iii) State whether the pregnant woman or child qualifies as low-
income.
    (2) If the family cannot provide all W-2 forms, pay stubs, or pay 
envelopes for the relevant time period, program staff may accept 
written statements from employers for the relevant time period and use 
information provided to calculate total annual income with appropriate 
multipliers.
    (3) If the family reports no income for the relevant time period, a 
program may:
    (i) Accept the family's signed declaration to that effect, if 
program staff:
    (A) Describes efforts made to verify the family's income; and,
    (B) Explains how the family's total income was calculated; or,
    (ii) Seeks information from third parties about the family's 
eligibility, if the family gives written consent. If a family gives 
consent to contact third parties, program staff must adhere to program 
safety and privacy policies and procedures and ensure the eligibility 
determination record adheres to paragraph (l)(2)(ii)(C) in this 
section.
    (4) If a child moves from an Early Head Start program to a Head 
Start program, program staff must verify the family's income again.
    (5) If the family can demonstrate a significant change in income 
for the relevant time period, program staff may consider current income 
circumstances.
    (j) Verifying categorical eligibility. (1) A family can prove 
categorical eligibility, with:
    (i) A court order or other legal or government-issued document or a 
written statement from a government child welfare official 
demonstrating the child is in foster care;
    (ii) A written statement from a homeless services provider, school 
personnel, or other service agency attesting that the child is homeless 
or any other documentation that indicates homelessness, including 
documentation from a public or private agency, a declaration, 
information gathered on enrollment or application forms, or notes from 
an interview with staff to establish the child is homeless, as defined 
in Sec.  1305.2 or,
    (iii) Any other document that establishes categorical eligibility.
    (2) If a family can provide one of documents described in paragraph 
(j)(1) of this section, program staff must:
    (i) Describe efforts made to verify the accuracy of the information 
provided; and,
    (ii) State whether the family is categorically eligible.
    (3) If a family cannot provide one of the documents described in 
paragraph (j)(1) of this section to prove the child is homeless, a 
program may accept the family's signed declaration to that effect, if, 
in a written statement, program staff:
    (i) Describes the efforts made to verify that a child is homeless, 
as defined in Sec.  1305.2; and,
    (ii) Describes the child's living situation, including the specific 
condition described in Sec.  1305.2 under which the child was 
determined to be homeless.
    (4) Program staff may seek information from third parties who have 
first-hand knowledge about a family's categorical eligibility, if the 
family gives consent. If the family gives consent to contact third 
parties, program staff must adhere to program safety and privacy 
policies and procedures and ensure the eligibility determination record 
adheres to paragraph (l) (2)(ii)(C) in this section.
    (k) Eligibility duration. (1) If a child is determined eligible 
under this section and is participating in a Head Start program, he or 
she will remain eligible through the end of the succeeding program 
year.
    (2) If a program operates both an Early Head Start and a Head Start 
program, and the parents wish to enroll their child who has been 
enrolled in the program's Early Head Start, the program must ensure, 
whenever possible, the child receives Head Start services until 
enrolled in school.
    (l) Records. (1) A program must keep eligibility determination 
records for each participant and on-going training records for program 
staffs. A program may keep these records electronically.
    (2) Each eligibility determination record must include:
    (i) Copies of any documents or statements, including declarations, 
that are deemed necessary to verify eligibility under paragraphs (h) 
through (j) of this section;
    (ii) A statement that program staff has made reasonable efforts to 
verify information by:
    (A) Conducting either an in-person, or a telephonic interview with 
the family as described under paragraph (a) of this section;
    (B) Describing efforts made to verify eligibility, as required 
under paragraphs (h) through (j) of this section; and,
    (C) Collecting documents required for third party verification 
under paragraphs (i)(3)(ii) and (j)(4) of this section, that includes:
    (1) The family's written consent to contact each third party;
    (2) The third parties' names, titles, and affiliations; and,
    (3) Information from third parties regarding the family's 
eligibility.
    (iii) A statement that identifies whether:
    (A) The family's income is below income guidelines for its size, 
and lists the family's size;
    (B) The family is eligible for or, in the absence of child care, 
potentially eligible for public assistance;
    (C) The child is homeless child, as defined at Sec.  1305.2 
including the specific condition described in Sec.  1305.2 under which 
the child was determined to be homeless;
    (D) The child is in foster care;
    (E) The family meets the over-income requirement in paragraph 
(c)(2) of this section; or,
    (F) The family meets alternative criteria under paragraph (d) of 
this section.
    (3) A program must keep eligibility determination records:
    (i) For those currently enrolled, as long as they are enrolled; 
and,
    (ii) For one year after they have either stopped receiving 
services; or,
    (iii) Are no longer enrolled.
    (m) Program policies and procedures on violating eligibility 
determination regulations. A program must establish policies and 
procedures that describe all actions taken against staff who 
intentionally violate Federal and program eligibility determination 
regulations and who enroll pregnant women and children that are not 
eligible to receive Early Head Start or Head Start services.

[[Page 7380]]

    (n) Training. (1) A program must train all governing body, policy 
council, management, and staff who determine eligibility on applicable 
Federal regulations and program policies and procedures. Training must, 
at a minimum:
    (i) Include methods on how to collect complete and accurate 
eligibility information from families and third party sources;
    (ii) Incorporate strategies for treating families with dignity and 
respect and for dealing with possible issues of domestic violence, 
stigma, and privacy; and,
    (iii) Explain program policies and procedures that describe actions 
taken against staff, families, or participants who intentionally 
attempt to provide or provide false information.
    (2) A program must train management and staff members who make 
eligibility determinations within 90 days following the effective date 
of this rule, and as soon as possible, but within 90 days of hiring new 
staff after the initial training has been conducted.
    (3) A program must train all governing body and policy council 
members within 180 days following the effective date of this rule, and 
within 180 days of the beginning of the term of a new governing body or 
policy council member after the initial training has been conducted.
    (4) A program must develop policies on how often training will be 
provided after the initial training.

[FR Doc. 2015-02491 Filed 2-9-15; 8:45 am]
BILLING CODE P
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