**U.S. Department of Education**

**Retrospective Review Plan Report**

**July 14, 2014**

## U.S. Department of Education

# Retrospective Review Plan Report

**July 14, 2014**

The U.S. Department of Education (ED or the Department) submits this report in response to the President’s Executive Order 13610, “Identifying and Reducing Regulatory Burdens,” (EO) directing agencies to report to the Office of Information and Regulatory Affairs (OIRA) on the status of their retrospective review efforts.  The EO directs agencies to invite comments from the public on a regular basis about regulations in need of retrospective review, including appropriate modifications to regulations.  The EO also directs agencies, in implementing and revising their retrospective review plans, to give priority to those initiatives that will produce significant quantifiable monetary savings or significant quantifiable reductions in paperwork burden while protecting public health, welfare, safety, and the environment and to give special consideration to those initiatives that would reduce unjustified regulatory burden on small businesses.  In accordance with the EO, the Department is also including in this report (Items 12-13) a description of two initiatives (previously reported in the Department’s September 10, 2012, report) that are anticipated to produce significant quantifiable reductions in paperwork and reporting burdens. 

**Retrospective Review**

## Updated Responses to Public Comments on Retrospective Review:

On July 9, 2011, ED published a notice in the Federal Register requesting comment on ED’s “Preliminary Plan for Retrospective Analysis of Existing Rules.”  Twenty commenters responded, including several who provided comments on specific regulations identified in the Preliminary Plan as candidates for retrospective review.  We responded to those comments in our August 22, 2011, “Plan for Retrospective Analysis of Existing Regulations,” and we update responses pertaining to specific regulations here.

### Updated Responses To Comments on Specific Regulations.

#### Individuals with Disabilities Education Act (IDEA).

*Comments*:  One commenter suggested that ED revise the IDEA Part B regulations requiring public agencies to seek parental consent to bill Medicaid each time the local educational agency (LEA) seeks to access a student’s public insurance benefits.

*Response*:  ED did so, and on February 14, 2013, issued final regulations (78 FR 10525) that permit a public agency to access a child’s or parent’s benefits under a public benefits or insurance program in which the child participates to provide or pay for services required under Part B of IDEA without obtaining parental consent each time it seeks access to those benefits or insurance. Instead, a public agency is required to provide parents a written notification prior to seeking access to the child’s or parent’s public benefits or insurance for the first time and annually thereafter.  This written notification must describe the protections available to parents if a public agency seeks to access their or their child’s public benefits or insurance to provide or pay for services under Part B of IDEA.  Also, after providing this written notification to the child’s parents, the public agency is required to obtain written parental consent once, before accessing a child’s or parent’s public benefits or insurance for the first time.  This consent now must meet the requirements of 34 CFR §§99.30 and 300.622 governing the disclosure of personally identifiable information from education records to the public benefits or insurance program and must specify that the parent understands and agrees that the public agency may access the parent’s or child’s public benefits or insurance to pay for services under 34 CFR part 300.

*Comments:*  Several commenters requested that ED review the IDEA State performance plan requirements to determine whether all of the IDEA performance indicators continue to be necessary or useful.

*Response:* We determined that certain indicators are no longer necessary for reporting and that certain previously required elements of the State Performance Plan were no longer required.  Eliminating these reporting requirements would significantly reduce reporting burdens on States in the amount of over 200,000 hours.  We completed our review of public comments on this information collection, made minor revisions, and posted the information collection for the 30-day comment period on March 25, 2014.  The comment period closed on April 24, 2014, and a few minor edits were made based on the comments received.  We eliminated four compliance indicators and 20 individual improvement plans from the collection, resulting in a burden reduction of 200,000 hours (the amount originally estimated).  OMB approved the collection on May 9, 2014.

#### Elementary and Secondary Education Act of 1965, as amended (ESEA).   

*Comments*:  We received a number of comments recommending that ED specifically review our Title I regulations regarding alternate assessments based on modified academic achievement standards for students with disabilities.  

*Response*:  On August 23, 2013, ED issued a notice of proposed rulemaking (78 FR 69336) to amend the Title I regulations to no longer authorize States to define modified academic achievement standards and develop alternate assessments based on those modified academic achievement standards in order to satisfy ESEA assessment and accountability requirements.  ED received approximately 150 comments in response to the NPRM.  ED anticipates issuing final regulations in August/September 2014.

#### Higher Education Act of 1965, as amended (HEA).

*Comments*:  Several commenters asked ED to review several of its Program Integrity regulations that were issued in the fall of 2010.  

*Response*:  ED has undertaken a review of these regulations.  In 2013, we held four meetings across the country to allow the public to provide input on program integrity and improvement issues, such as cash management of Title IV funds, State authorization of programs offered through distance education, clock-to-credit-hour conversion, and the definition of “adverse credit history” under the PLUS Loan program, and to suggest additional topics for consideration.  On November 20, 2013, ED announced the formation of a negotiated rulemaking committee to develop regulations that would address program integrity issues (78 FR 69612).  Negotiation sessions were held from February through May 2014.  The negotiating committee did not reach consensus on the proposed regulations.  The Department anticipates issuing an NPRM regarding the definition of “adverse credit history” under the PLUS Loan program in August 2014 and final regulations in October 2014.  The Department anticipates issuing an NPRM regarding the remaining program integrity issues in early 2015.  

#### Family Educational Rights and Privacy Act (FERPA).

*Comment:*  One commenter noted that privacy laws can restrict data collection and sharing to the detriment of program evaluation and research and recommended that privacy regulations be amended to allow more data sharing across agencies for legitimate educational, program, or research needs. 

*Response:*  On December 2, 2011, ED published final regulations under FERPA (76 FR 75604).  These final regulations****facilitate the disclosure, without written consent, of students’ personally identifiable information (PII) from education records for the purposes of auditing or evaluating Federal- or State-supported education programs and enforcing or ensuring compliance with Federal legal requirements related to these programs.  

# Update on Other Retrospective Review Efforts:

In January 2014, the Department launched a new webpage on regulatory review.  The Improving Regulation and Regulatory Review webpage offers a link to ED regulations open for public comment via regulations.gov, a link to all existing ED regulations via the electronic Code of Federal Regulations (e-CFR), and a link to an easy-to-use form for submitting comments on existing regulations.  All links are conveniently found in the same location as the Department’s plan for retrospective analysis, status reports, and relevant contact information.

**Paperwork and Reporting Burden Initiatives**

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