70010 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Administration for Children and 

Families 

45 CFR Part 1307 

RIN 0970–AC44 

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. 

SUMMARY: This final rule amends the 

Head Start Program regulations to 

implement statutory provisions of the 

Improving Head Start for School 

Readiness Act of 2007 to establish a 

system of designation renewal to 

determine if Head Start and Early Head 

Start agencies are delivering highquality and comprehensive Head Start 

and Early Head Start programs that meet 

the educational, health, nutritional, and 

social needs of the children and families 

they serve and meet program and 

financial management requirements and 

standards. This system of designation 

renewal will determine which grantees 

must compete for on-going funding. 

This final rule is consistent with 

Executive Order 13563 and in particular 

its requirement, in section 6, of 

‘‘periodic review of existing significant 

regulations.’’ 

DATES: This regulation is effective on 

December 9, 2011. 

FOR FURTHER INFORMATION CONTACT: 

Colleen Rathgeb, Office of Head Start, 

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

Deaf and hearing impaired individuals 

may call the Federal Dual Party Relay 

Service at 1–(800) 877–8339 between 

8 a.m. and 7 p.m. Eastern time. 

SUPPLEMENTARY INFORMATION: 

I. Statutory Authority 

This final rule is published under the 

authority granted to the Secretary of 

Health and Human Services by sections 

641, 645A(b)(12), 645A(d) and 644(c) of 

the Head Start Act (the Act) (42 U.S.C. 

9801 et seq.), as amended by the 

Improving Head Start for School 

Readiness Act of 2007 (Pub. L. 110– 

134). 

II. Background 

The Head Start program is a national 

program administered by the Office of 

Head Start (OHS), Administration for 

Children and Families (ACF), 

Department of Health and Human 

Services (HHS), which promotes school 

readiness of children from low-income 

families by enhancing their cognitive, 

physical, social, and emotional 

development through the provisions of 

health, educational, nutritional, social, 

and other services determined necessary 

based on family needs assessments. 

The Head Start program provides 

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

comprehensive child development 

services to economically disadvantaged 

children and families, with a special 

focus on helping preschoolers develop 

the necessary skills for school success. 

The Early Head Start program 

established in FY 1995 serves families 

of economically disadvantaged children 

from birth to three years of age and 

pregnant women from such families 

based on the mounting evidence that 

indicate the great importance of the 

early years of a child’s growth and 

development. 

On December 12, 2007, the Improving 

Head Start for School Readiness Act of 

2007 (Public Law 110–134) amended 

the Head Start Act (the Act) to direct 

HHS to recompete certain Head Start 

grants. The Head Start Act, as amended, 

establishes that Head Start grantees will 

be awarded grants for a five-year period 

and only grantees delivering highquality services will be given additional 

five-year grants non-competitively. 

Section 641 of the Act requires the 

Secretary of HHS to develop and 

implement a system for designation 

renewal (e.g., Designation Renewal 

System (DRS)) to determine if a Head 

Start agency is delivering a high-quality 

and comprehensive Head Start program 

that meets the educational, health, 

nutritional, and social needs of the 

children and families it serves. This 

regulation defines, for purposes of the 

Designation Renewal System, what 

comprises delivering a high quality 

comprehensive Head Start program—if a 

program does not meet any of the seven 

conditions, they are de facto a high 

quality program for purposes of the 

Designation Renewal System. 

Section 641(c)(1) of the Act requires 

that the DRS be developed to determine 

whether a grantee is providing highquality services and meets the program 

and financial management requirements 

and standards described in section 

641A(a)(1) of the Act, based on: 

(A) Annual budget and fiscal 

management data; 

(B) Program review conducted under 

section 641A(c); 

(C) Annual audits required under 

section 647; 

(D) Classroom quality as measured 

under section 641A(c)(2)(F); and 

(E) Program Information Reports. 

The Act also requires that the system 

is fair, consistent and transparent and 

that the Secretary periodically evaluate 

whether the criteria of the system are 

being applied in a manner that is 

transparent, reliable and valid. 

This final rule responds to those 

requirements and was developed after 

consideration of public comments 

received in response to the Notice of 

Proposed Rulemaking (NPRM) issued 

September 22, 2010, in the Federal 

Register [75 FR 57704]. This final rule 

is also consistent with Executive Order 

13563, section 6, which calls for 

‘‘periodic review of existing significant 

regulations,’’ and which directs agencies 

to engage in ‘‘retrospective analysis of 

rules’’ in order to improve them ‘‘in 

accordance with what has been 

learned.’’ In brief, the NPRM proposed 

seven conditions that would signal that 

a Head Start or Early Head Start agency 

was not delivering high-quality and 

comprehensive services and ‘‘trigger’’ 

the grant for competition. The 

conditions in the NPRM were: one or 

more deficiencies under section 

641A(c)(1)(A), (C), or (D) of the Act; 

failure to establish school readiness 

goals; failure to meet minimum 

thresholds on CLASS: Pre-K domains; 

revocation of a license to operate a 

center or program; suspension from the 

program; debarment from receiving 

Federal or State funds or disqualified 

from the Child and Adult Care Food 

Program; or, one or more material 

weaknesses or at risk for failing to 

function as a going concern. The NPRM 

also proposed adding an eighth criterion 

to ensure that a minimum threshold of 

25 percent of grants would be subject to 

competition. 

Head Start is the largest federal 

investment in early childhood 

education, serving nearly one million of 

our nation’s most vulnerable young 

children and their families. It is the 

federal government’s responsibility to 

make sure that these children and 

families get the highest quality services 

possible. This final rule makes 

structural changes in Head Start that 

will drive significant improvements in 

program quality. Specifically, for the 

first time in the history of Head Start, 

individual grantees whose programs fall 

short of certain standards will be 

required to compete with other 

organizations to continue receiving 

funding. Funds will be awarded to the 

organization that can best meet the 

needs of Head Start children and 

families. 


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III. Summary Description of Regulatory 

Provisions 

The following is a summary of the 

most significant regulatory changes 

included in this final rule resulting from 

public comment. The Section-bySection Discussion of the Regulations 

(Section IV) provides a detailed listing 

of the comments and responses. We 

considered each comment and where 

appropriate made amendments in this 

final rule. Specifically, changes include: 

In § 1307.3 of the NPRM, ACF 

proposed that a minimum of 25 percent 

of grantees reviewed in each cycle 

would be required to compete and 

proposed adding an eighth condition to 

achieve this. In response to comments, 

this threshold is replaced in the final 

rule. The final rule retains the seven 

criteria for recompetition in section 

1307.3 with some modification, and 

adds a second sub-part to the CLASS: 

PreK condition, but does not add an 

eighth criterion. Most significantly, with 

respect to the third criterion at 

§ 1307.3(c), the final rule provides that, 

in addition to grantees that will be 

required to compete based on CLASS: 

Pre-K scores below minimum quality 

thresholds, those grantees reviewed by 

ACF in the same year that score in the 

lowest decile in any of the three 

domains of the Classroom Assessment 

Scoring System: Pre-K (CLASS: Pre-K) 

will also be required to compete. Taken 

together, these changes ensure rigorous 

competition in the Head Start program 

and provide an approach that is 

transparent and based on the most valid 

and reliable indicators of performance 

currently available to ACF. Current data 

from Head Start monitoring and CLASS 

reviews suggest that roughly a third of 

grantees would have been designated for 

competition based on the revised 

criteria. While there are limitations on 

the precision of estimates with current 

data, it is clear that this approach will 

hold grantees to high standards and lead 

to rigorous competition. 

As discussed in the Section-bySection Discussion that follows, in 

response to comments this final rule 

also revises definitions included in the 

NPRM; modifies the timeframe for the 

school readiness criteria; and modifies 

reporting requirements. 

IV. Section-by-Section Discussion of 

Comments and Regulatory Provisions 

This section provides a detailed 

discussion of the comments received on 

the proposed rule and describes changes 

made to the proposed rule. We received 

approximately 16,000 comments on the 

NPRM from Head Start grantees, 

parents, teachers and State associations; 

national organizations; and some 

academic institutions and legal entities. 

Most comments focused on: the 

proposed 25 percent minimum 

requirement for recompetition; 

retrospective review criteria; proposed 

conditions related to licensing, 

deficiencies, and audits; and, the 

proposed timing and method for using 

CLASS: Pre-K. Many respondents 

submitted comments in support of 

competition, stating that requiring 

grantees to compete would ensure that 

Head Start and Early Head Start 

children across the country receive 

high-quality services and that dollars 

invested are spent well. 

General Comments 

Comments not attributable to specific 

sections of the regulation are discussed 

below. 

Concerns Over Competition 

1. Comment: Many respondents 

endorsed the principle that grantees not 

conducting high quality programs 

should be required to compete for 

further funding. However, others 

opposed competition among Head Start 

and Early Head Start grantees for a 

variety of reasons, including costs vs. 

benefits; hardship and stress for staff 

resulting from the loss of jobs and loss 

or disruption of employee benefits; 

disruption of services; and the 

possibility that grantees required to 

compete will be stigmatized. Some 

commenters stated that to avoid 

potential stigma it would be better to 

compete all programs. Additionally, 

commenters expressed concerns that 

recompetition could be a disincentive 

for organizations to collaborate with 

Head Start because of the potential 

instability of the funding. 

Response: We appreciate the concerns 

expressed by commenters and the 

suggestions provided (discussed more 

specifically later in this section) to 

utilize alternative means of holding 

grantees accountable. However, the 

2007 reauthorization of the Head Start 

Act required the establishment of fiveyear grants and a Designation Renewal 

System by which grantees would 

compete for renewed funding if they 

were not determined to be providing 

high quality services. We can assure 

commenters that we intend to make 

every effort to ensure continuity of 

services to children and families, 

although we acknowledge that it is 

possible that some short-term disruption 

of services might occur if and when 

service providers change. 

We think it is important to note that 

requiring a Head Start or Early Head 

Start grantee to compete for continued 

funding is not the same as taking a grant 

away or defunding a grantee. Requiring 

a grantee to compete means that if a 

grantee wants to continue to provide 

Head Start or Early Head Start services 

to the community, it must apply, along 

with any other entities that choose to do 

so, for on-going funding and 

demonstrate that it is the most capable 

entity to do so. 

Use of Retroactive Data 

2. Comment: We received many 

comments regarding the provision that 

most of the DRS conditions would be 

based on data regarding grantee 

performance starting on June 12, 2009. 

Commenters claimed that by 

considering pre-regulation events, ACF 

was imposing the DRS retroactively and 

in a manner inconsistent with 

Congressional intent, that ACF’s delay 

in proposing the regulation should 

disqualify ACF from imposing 

retroactive requirements, and that the 

statute did not require ACF to consider 

events between June 12, 2009, and the 

effective date of the regulation. Some 

commenters objected to the 

consideration of performance beginning 

on June 12, 2009 for only certain 

conditions, such as the establishment of 

school readiness goals. 

Response: In the NPRM we proposed, 

with one exception, application of data 

collected starting on June 12, 2009, 

because that is the date specified in the 

Act before which the system for 

designation renewal cannot apply. We 

have maintained in the final rule that 

data collected beginning on June 12, 

2009, may be considered for all of the 

conditions, with the exception of the 

condition related to school readiness 

goals, as discussed later in this 

preamble, and the CLASS: Pre-K 

condition that we already proposed in 

the NPRM to apply after the effective 

date of the rule. The five conditions for 

which data collected prior to the 

effective date of the regulation will be 

considered are based on Head Start 

requirements that pre-date this 

regulation, and were known to grantees 

as requirements for which they would 

be held accountable. 

Failure to comply with these 

requirements, even before this 

regulation was effective, could lead to 

adverse consequences, such as 

termination or suspension. Specifically 

with respect to licensing, Section 

641A(a)(D)(i) requires that ‘‘facilities 

used by Head Start agencies for 

regularly scheduled * * * classroom 

activities shall meet or exceed State and 

local requirements concerning licensing 

for such facilities.’’ These requirements 

to meet state and local licensing 


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standards are echoed in Head Start 

regulations 1306.30(c). Clearly the 

revocation of a license to operate—a 

licensing entity actually shutting down 

a center—is clear and direct evidence 

that a program is not meeting or 

exceeding state and local licensing 

requirements. With respect to 

disqualification from USDA to 

participate in the CACFP, Head Start 

regulations at 1304.23(b)(i) require that 

all programs ‘‘must use funds from the 

USDA Food and Consumer Services 

Child Nutrition Programs as the primary 

source of payment for meal services.’’ A 

program disqualified from CACFP 

would be unable to comply with this 

long standing requirement. With respect 

to audit findings potentially 

jeopardizing a Head Start grant predating this regulation, the Act and 

existing Head Start regulations at 

§ 1301.12 require an annual audit of all 

programs to ensure that statements are 

accurate, that they are complying with 

the terms and conditions of the grant 

and that financial and administrative 

procedures and controls have been 

installed and are operating effectively. 

On the ‘‘one deficiency’’ condition, the 

concept of a ‘‘deficiency’’ and the 

process for correcting a deficiency have 

been part of the Head Start Act (section 

641A(e)) and the Head Start 

Performance Standards (45 CFR 

1304.60) for many years. Deficiency was 

defined in Section 637 of the Act and a 

process for identifying and correcting 

deficiencies clarified and revised in 

Section 641A. Therefore, grantees 

reasonably had notice that a deficiency 

finding was important and could 

jeopardize their grant. Grantees also had 

notice before the adoption of the 

Designation Renewal System regulation 

that both debarment and suspension 

were evidence of programming that was 

not high quality because debarment is 

defined in section 637(2) of the Head 

Start Act as a deficiency and suspension 

was associated with violations of Head 

Start requirements under 45 CFR 

1303.10(a). In addition, the Federal 

Uniform Administrative Requirements 

at 45 CFR 74.13 clearly states that 

‘‘Federal agencies shall not award 

assistance to applicants that are 

debarred or suspended, or otherwise 

excluded from or ineligible for 

participation in Federal assistance 

programs under Executive Order 

12549.’’ 

We also believe that the Act gave 

grantees clear and sufficient notification 

of the potential consequences of failing 

to deliver a high quality and 

comprehensive Head Start program and 

that their performance beginning on 

June 12, 2009, could be considered 

under the DRS to determine whether a 

grantee must recompete for a five-year 

grant. We believe that not considering 

important performance data as soon as 

allowable by the Act would delay this 

important mechanism for ensuring 

grantee accountability and could result 

in re-awarding grants non-competitively 

to entities that are not the best equipped 

to provide high-quality services in that 

community. 

Designation Renewal System Final 

Decision 

3. Comment: A number of 

commenters also expressed concern that 

the decision that a grantee must 

compete for renewal of funding would 

be final and suggested that grantees 

should have the ability to appeal the 

determination. Other commenters 

suggested that each condition should be 

appealable or correctable. Other 

comments stated that the requirement to 

compete could injure grantee’s 

reputation which could result in a loss 

of funding from other sources and 

therefore due process rights should be 

afforded. (Condition-specific comments 

are discussed more in the Section-bySection Discussion below.) 

Response: Congress did not require 

that grantees designated to compete for 

further funding be given an opportunity 

to appeal. Congress did require appeals 

for grantees that are terminated or 

suspended for more than 30 days and 

for delegate agencies that are terminated 

or who have their applications rejected. 

Because Congress did not require appeal 

rights for grantees required to compete 

for further funding, apparently Congress 

did not believe that the requirement that 

a grantee compete for further funding 

was on a par with termination or other 

actions for which Congress did require 

appeals. 

Additionally, all eligible entities that 

have not been terminated from 

providing Head Start or Early Head Start 

services in the preceding five years— 

including the grantees designated for 

competition—are able and encouraged 

to apply through that competition. 

Unlike a grant termination, a 

requirement to compete provides a 

mechanism for a current grantee to 

demonstrate its capacity to provide a 

high quality program while providing 

ACF the ability to shift funding to more 

capable entities if such entities exist in 

the community. Further, a grantee that 

competed and lost a competition would 

remain eligible for future competitions. 

Because of this the grantee that is 

required to compete for further funding 

is one whose level of compliance is 

sufficient to justify continuance in the 

Head Start program, provided that there 

is no other organization in the same 

community that establishes, via a 

competitive process that it is better able 

to provide a high quality and 

comprehensive program. Thus the 

decision to require competition cannot 

reasonably be expected to damage the 

grantee’s reputation in such a way as to 

deprive it of funding from another 

source. 

In response to the suggestions for 

training and technical assistance for 

those grantees that meet one of the 

seven DRS conditions, we note that all 

grantees already receive training and 

technical assistance on a variety of 

related topics and grantees also may 

request special assistance as needed. 

Large Grantees and Delegate Agencies 

4. Comment: A number of 

commenters raised concerns about 

designation renewal as it relates to 

supergrantees (e.g., grantees that serve 

over 5,000 children or administer grants 

that cover a large geographic region) or 

large grantees that have a great number 

of programs or agencies that provide 

Head Start services on behalf of the 

grantee. Concerns were raised that large 

grantees are more likely to be required 

to compete because they have more 

classrooms and provide services to a 

greater number of families. Several 

commented that ACF should limit 

competition to only the service area 

found to have met one of the seven 

conditions, rather than requiring the 

grantee to recompete for its entire 

service area. Concerns that the problems 

of a single delegate agency would cause 

an entire grantee to compete were raised 

by a number of respondents. 

Response: All grantees are responsible 

for ensuring that all children and 

families participating in the program 

receive high-quality services, regardless 

of how many children are served, where 

the children are served or by whom the 

children are directly served. Section 

1304.51(i)(2), a longstanding regulation, 

requires grantees to establish and 

implement procedures for the on-going 

monitoring of their programs, regardless 

of the size or structure of that grantee. 

A grantee’s failure to ensure high 

quality services are being provided to 

children that are served in any of their 

locations indicates that the grantee has 

failed to maintain a high-quality Head 

Start program through their on-going 

monitoring. Thus, we have made no 

changes in response to these comments. 

Specifically with respect to 

deficiencies identified through Head 

Start monitoring, a deficiency reflects a 

very serious program violation. In a 

large grantee a deficiency would not be 


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cited for an isolated incident unless it 

is very severe or was not corrected when 

identified as a non-compliance. Since 

the statutory definition includes that a 

deficiency is a ‘‘systemic or substantial 

material failure,’’ it accounts for 

differences in the size of grantees in that 

an issue that might be material or 

systemic in a very small grantee may not 

meet the thresholds of material or 

systemic in a very large grantee. For 

example, ten child health records being 

incomplete in a program serving 20 

children could indicate substantial 

material and systemic problems; 

however, ten child health records being 

incomplete in a program serving 10,000 

children would not indicate substantial 

material and systemic problems. 

Migrant and Seasonal Head Start 

Programs 

5. Comment: A number of comments 

mentioned that the NPRM was silent on 

Migrant and Seasonal Head Start 

(MSHS) programs and questioned 

whether the rule applied to MSHS. 

Some thought that MSHS programs 

should be subject to competition under 

the same rules in place for non-MSHS 

programs while others requested special 

considerations for MSHS programs 

because of the unique challenges MSHS 

programs face delivering services to 

children of migrant and seasonal farm 

workers. 

Some respondents expressed concern 

with the reliability and clarity of the 

seven conditions proposed in the NPRM 

for MSHS programs such as whether the 

CLASS: Pre-K conditions are culturally 

and linguistically appropriate for MSHS 

programs or other dual language learner 

children. 

Response: The statute is clear that the 

length of all grants awarded under the 

Act is five years and that all Head Start 

grants should be subject to the DRS to 

determine if they are required to 

compete for their grants. Congress did 

not include an exception for MSHS 

programs. As a result, this entire rule 

applies to MSHS programs and we have 

not established separate conditions or a 

different standard for any program type. 

However, under § 1307.3(b)(2)(i), we 

allow programs operating less than 90 

days, as many MSHS programs do, to 

aggregate and analyze their child-level 

assessment data at least two times 

within their operating program period, 

rather than at least three times per year 

as is required for other Head Start 

programs. ACF encourages programs 

facing difficulties with requirements 

where waivers are authorized under 

statute or current regulations to submit 

a request for a waiver. 

Alternatives to the Proposed DRS 

6. Comment: Some commenters 

offered alternative methods to 

determine which grantees should be 

required to compete. For example, 

several recommended an external 

review process similar to that used to 

review hospitals and healthcare 

organizations by the Joint Commission 

on Accreditation of Healthcare 

Organizations (JCAHO). Others 

recommended alternative systems such 

as (1) Alternate criteria and an alternate 

timeline over the five-year grant period, 

(2) using a tiered system to rate grantees, 

(3) considering additional information 

such as national accreditation and (4) 

randomly assigning some grantees to 

competition. 

Response: We appreciate the 

alternatives suggested by commenters. 

However, ACF does not believe that any 

of the systems proposed could be 

implemented in a fair, consistent and 

reliable manner within the parameters 

of the Act. We continue to believe the 

system for designation renewal 

proposed in the NPRM, with the 

adaptations made in this final rule, 

provides a fair, transparent and 

evidence-based approach for 

determining whether Head Start and 

Early Head Start agencies are delivering 

high-quality and comprehensive 

programs that meet the educational, 

health, nutritional, and social needs of 

the children and families they serve and 

meet program and financial 

management requirements and 

standards. 

V. Section-by-Section Discussion of 

Comments and the Final Rule 

Proposed § 1307.1—Purpose and Scope 

1. Comment: Some commenters 

questioned the authority to apply the 

Designation Renewal System to Early 

Head Start grantees. 

Response: HHS has the authority to 

establish requirements for the scope and 

design of Early Head Start programs 

under section 645A(b)(12) of the Act 

and to establish requirements for the 

time, manner, and content of 

applications under section 645A(d) of 

the Act. ACF believes that requiring 

Early Head Start grantees that are not 

providing high-quality, comprehensive 

services to compete for further funding 

is necessary to assure that all children 

receive high-quality services under the 

program. 

Proposed § 1307.2—Definitions 

1. Comment: A number of comments 

were received on definitions proposed 

in the NPRM. Commenters requested 

modification of the proposed definitions 

of ‘‘agency’’ and ‘‘material weakness.’’ 

Others requested that we add new 

definitions including: ‘‘aggregate child 

assessment data,’’ ‘‘child-level 

assessment data,’’ ‘‘Migrant and 

Seasonal Head Start,’’ ‘‘redesignation 

assessment,’’ and ‘‘school readiness 

goals.’’ 

Response: Based on the comments 

received, we have added definitions of 

the following terms to the rule: 

‘‘aggregate child-level assessment data,’’ 

‘‘child-level assessment data,’’ and 

‘‘school readiness goals.’’ For the 

reasons explained below, we also have 

removed the proposed terms: 

‘‘designated ACF official’’ and ‘‘material 

weakness.’’ We also made a minor 

technical change to the definition of 

‘‘transition period’’ to conform to other 

changes in the final rule. 

2. Comment: Commenters stated that 

the proposed definition of ‘‘agency’’ is 

inconsistent with the definitions of 

‘‘Head Start agency’’ in 45 CFR part 

1301 and the definition of ‘‘Head Start 

agency’’ in the proposed regulation. 

Commenters stated that ACF should add 

the word ‘‘local’’ to the definition of 

‘‘agency’’ to make it correct. 

Response: We have not modified this 

definition because the term ‘‘agency’’ is 

being adopted in part 1307 to refer to 

both Head Start and Early Head Start 

grantees. Inserting the term ‘‘local’’ in 

the definition would make the term 

inapplicable to Early Head Start 

grantees. Under section 645A(d) of the 

Act, an organization does not have to 

qualify as a ‘‘local’’ organization in 

order to be funded under the Early Head 

Start program. The definition of 

‘‘agency’’ in 45 CFR part 1301 was 

adopted in 1979, before establishment of 

the Early Head Start program in 1995. In 

future regulations, ACF will be 

proposing changes to that definition and 

several other provisions of Part 1301 

that are now obsolete. 

3. Comment: Commenters suggested 

that, for the sake of consistency, ACF 

use the term ‘‘responsible HHS official,’’ 

which is used in other Head Start 

regulations, instead of ‘‘designated ACF 

official.’’ 

Response: As suggested, ACF has 

changed the term used throughout this 

final rule to ‘‘responsible HHS official’’ 

to be consistent with other regulations. 

As such, we also have deleted the 

definition of ‘‘designated ACF official’’ 

proposed in the NPRM. 

4. Comment: Commenters suggested 

adopting the definition of ‘‘material 

weakness’’ in the Government 

Accountability Office ‘‘Government 

Auditing Standards,’’ in place of the 

definition proposed in the NPRM. 


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Response: In the final rule, we are 

deleting the proposed definition of 

material weakness since, as discussed 

below, we are modifying § 1307.3(g) to 

remove a finding of material weakness 

as a condition for recompetition, as had 

been proposed in the NPRM. 

5. Comment: Commenters also 

suggested that ‘‘redesignation 

assessment’’ be a defined term in the 

final regulation. Commenters expressed 

confusion about the process of the 

designation review or assessment. 

Response: We have modified § 1307.7 

to clarify what the designation review 

entails, i.e., that it is a review by ACF 

of grantee data to determine if one or 

more of the conditions specified under 

§ 1307.3 were met by the agency’s 

program during the relevant time 

periods also described in that section. 

6. Comment: Commenters asked for a 

definition of ‘‘school readiness goals’’ as 

used under proposed § 1307.3(b)(2). 

Response: We have added a definition 

to the rule to specify that ‘‘school 

readiness goals’’ mean the expectations 

of children’s status and progress across 

domains of learning and literacy 

development, cognition and general 

knowledge, approaches to learning, 

physical well-being and motor 

development, and social and emotional 

development that will improve their 

readiness for kindergarten. This 

definition is consistent with guidance 

from the Office of Head Start, section 

641A(g) of the Act, and draws from 

comments. 

7. Comment: Some commenters asked 

about what constituted ‘‘child-level 

assessment data’’ as the term was used 

in proposed § 1307.3(b)(2). Specifically, 

commenters asked if the term includes 

only data gathered through direct 

standardized assessment of children. 

Response: The definition added in the 

final rule clarifies that ‘‘child-level 

assessment data’’ means ‘‘the data 

collected by an agency on an individual 

child from one or more valid and 

reliable assessments of a child’s status 

and progress, including but not limited 

to direct assessment, structured 

observations, checklists, staff- or parentreport measures, and portfolio records 

or work samples.’’ This definition is 

intended to make it clear that we are not 

imposing a new requirement to use only 

direct standardized assessment data; 

rather, agencies may use any one of a 

number of different methods to gather 

child-level assessment data (including 

but not limited to the methods 

identified in the definition). This is 

consistent with long standing Head Start 

regulations at § 1304.20(b), (d) and (e) 

on on-going assessment of children. 

8. Comment: Some commenters 

requested that ‘‘aggregate child-level 

assessment data’’ be defined to 

understand the term as it was used in 

proposed § 1307.3(b)(2). 

Response: In response to comments, 

we have added a definition of 

‘‘aggregate child-level assessment data’’ 

to mean ‘‘the data collected by an 

agency on the status and progress of the 

children it serves that have been 

combined to provide summary 

information about groups of children 

enrolled in specific classrooms, centers, 

home-based or other options, groups, or 

setting, or other groups of children such 

as dual language learners or to provide 

summary information by specific 

domains of development.’’ This 

definition will help programs 

understand how to utilize this data to 

understand the status and progress of 

children in their program and 

implement appropriate program 

improvements. It is consistent with best 

practices in the early childhood 

education field. 

9. Comment: Some respondents 

requested that ACF include a definition 

of Migrant and Seasonal Head Start 

(MSHS) and proposed the following 

definition: ‘‘A MSHS agency is an entity 

of a local public or private not-for-profit 

organization, which is designed by ACF 

to operate programs that serve children 

from birth to compulsory school age.’’ 

Response: The term ‘‘Migrant or 

Seasonal Head Start Program’’ is defined 

in section 637(17) of the Act and 

therefore we do not have the authority 

to change the definition of this term 

through regulation. 

Proposed § 1307.3—Basis for 

determining whether a Head Start 

agency will be subject to an open 

competition. (Note that proposed 

§ 1307.3(a) and (c) have been removed 

in the final rule. As a result, proposed 

§ 1307.3(b)(1) to (7) have been 

redesignated as final § 1307.3(a) to (g).) 

Proposed § 1307.3(a)—Minimum of 25 

Percent 

1. Comment: The vast majority of 

comments received on the NPRM 

pertained to the proposed criterion to 

ensure that a minimum of 25 percent of 

grantees are required to compete each 

year. Respondents stated that the 25 

percent requirement is arbitrary, 

capricious, and unfair. Many of these 

respondents claimed the minimum 

percent results in an unfair quota 

system. Some expressed concern that 

the quota itself rather than the quality 

of programs would drive decisions. 

Others stated that quotas in almost any 

setting generally are perceived as 

leading to unfair and inappropriate 

determinations and are inconsistent 

with the intent to identify individual 

low-performing grantees for 

competition. Respondents also stated 

that the approach is not transparent 

because it fails to articulate a specific 

standard of quality that programs can 

aim to meet. Some respondents stated 

that they may be inclined to support the 

25 percent or some minimum percent if 

it was demonstrated using relevant data 

how this percent was derived. 

Other respondents expressed concern 

that the standards for running a 

successful program could change during 

the school year to meet the 25 percent 

minimum. Commenters noted that 

Congress specifically required the 

development of a merit-based system, 

and that competing 25 percent of all 

grantees reviewed in a given year 

regardless of the quality of those 

programs does not meet the statutory 

requirement for a program-by-program 

determination of whether ‘‘a Head Start 

grantee is successfully delivering a highquality and comprehensive Head Start 

program.’’ 

The most frequently expressed 

consequence of the 25 percent 

minimum is that it could cause highquality programs to be required to 

compete for continued funding. 

Other respondents requested more 

clarification on this provision. 

Specifically, a number said it is not 

clear from the NRPM whether the 

proposed 25 percent minimum is a 

national figure or whether it would be 

applied equally across all twelve 

Federal regions. Others offered 

alternatives to the minimum 25 percent 

provision. Some recommended ACF use 

standard, objective, absolute measures 

only. Others suggested that ACF 

establish a new review system that 

would recognize high quality and 

innovation and ‘‘weed out’’ the lowest 

performing programs. 

Respondents also offered suggestions 

if the 25 percent minimum remains in 

the final rule. Some asked that high 

performers be exempt from competition 

and that the remaining 25 percent of 

grantees be chosen by lottery. Others 

suggested creating a tiered system of 

quality, which would identify programs 

along a quality spectrum rather than 

drawing a single line between high- and 

low-quality programs. There were also a 

number of comments in favor of the 25 

percent minimum noting it would 

ensure robust levels of competition and 

drive all programs to strive for 

excellence. A few commenters 

suggested a higher percentage 

requirement. 

Response: ACF carefully considered 

all the comments received and we have 


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replaced the 25 percent minimum 

provision in the final rule with a revised 

CLASS: Pre-K condition. The revised 

two-part condition will ensure robust 

competition and guard against potential 

score inflation, using this valid, 

evidence based classroom evaluation 

tool. As discussed further below, under 

the final rule, in addition to those 

programs that score below a minimum 

threshold, programs that score in the 

bottom ten percent in any of the three 

domains of classroom quality measured 

by CLASS: Pre-K will be required to 

compete for further funding. This will 

ensure that standards remain high, but 

that grantees are held to objective, 

meaningful standards. Furthermore, to 

respond to comments received that the 

25 percent provision could result in 

high-performing programs being 

required to compete, the CLASS-based 

criteria further stipulates that in the 

unlikely event that a program that 

scores in the bottom decile in a domain 

but whose score in the domain meets 

the ‘‘standards of excellence’’ will not 

be required to compete. 

Taken together, the revised CLASSbased criteria and the other six 

conditions meet the same goal of 

ensuring high standards and driving 

continuous quality improvement, which 

was specified in the NPRM. Namely, 

these criteria ensure robust competition 

and, based on currently available data, 

will result in roughly a third of all 

programs being designated for 

competition. Additionally these criteria 

are transparent and guard against 

potential score inflation while 

addressing legitimate concerns raised by 

commenters. 

Proposed § 1307.3(b)(1)—Deficiency 

(Note that proposed § 1307.3(b)(1) has 

been changed to § 1307.3(a) in the final 

rule.) 

1. Comment: A significant number of 

comments received related to the 

proposed condition that an agency that 

has been determined by ACF to have 

one or more deficiencies on a single 

review conducted under section 

641A(c)(1)(A), (C), or (D) of the Act 

would be required to compete. Some 

commenters shared support for the 

proposal, while other respondents 

stated that there is insufficient data on 

monitoring findings available to 

evaluate the merits of this condition. 

Many respondents stated that the 

definition of deficiency is unclear. A 

number of these respondents said ACF 

should publish a list of deficiencies on 

its Web site annually. 

Response: In response to concerns 

that there is insufficient data on 

monitoring findings available and 

suggestions that ACF should publish a 

list of deficiencies on an annual basis, 

we note that we publish an annual 

report that provides a description of the 

monitoring review process, a summary 

of findings of the monitoring reviews 

conducted in each fiscal year (including 

a list showing the number of 

noncompliances and deficiencies by 

Head Start requirement), the outcomes 

of follow-up actions on grantees with 

required corrective actions, and any 

recent steps taken regarding monitoring 

and program integrity. The annual 

report on Head Start monitoring can be 

found at the following link: http:// 

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

2. Comment: Other respondents noted 

that there are inconsistencies in the 

OHS monitoring review system and 

process for determining deficiencies. As 

a result, they believe the criteria for 

determining a deficiency finding is 

subjective and varies among on-site 

monitoring teams or the ACF official. 

ACF received nearly 5,000 comments 

related to monitoring reviews. A 

number of Tribes noted that many 

reviewers do not understand the 

concept of Tribal sovereignty. 

Response: ACF stands behind the 

integrity of the monitoring review 

process used for all Head Start and Early 

Head Start grantees. As required by the 

Act, OHS consistently reviews and 

revises its monitoring process and 

protocol. Each year, OHS makes some 

changes to its monitoring protocol and 

trains all reviewers on the changes. In 

order to ensure interrater reliability, 

OHS annually trains reviewers before 

the monitoring year begins. The 

determination that a finding constitutes 

a deficiency is not made on-site by 

monitoring review teams, but rather is 

made after OHS and ACF experts and 

senior staff conduct a deliberative and 

rigorous review of the evidence. The 

results of the monitoring process are 

tested when grantees that have been 

terminated based on a failure to correct 

deficiencies appeal their terminations. 

In the overwhelming majority of these 

appeals, ACF’s judgment that a 

deficiency existed, and that the grantee 

had failed to correct the deficiency, 

have been upheld by the Departmental 

Appeals Board. These rulings have often 

been made without the necessity of 

conducting a hearing because the 

grantee has not challenged ACF’s factual 

findings. When a program is cited for a 

deficiency, it is an indication of a 

significant failure to meet program 

requirements. We believe that when a 

program fails to meet these standards, it 

is entirely appropriate to require them 

to compete for funding to determine if 

children would be better served by a 

different entity. 

3. Comment: Other comments 

objected to the standard of one 

deficiency triggering competition. Some 

respondents stated that ACF has not 

articulated clearly its rationale for using 

a single deficiency condition. 

Response: As stated in the preamble 

to the NPRM, ACF firmly believes that 

a grantee determined to have one or 

more deficiencies in a single review has 

demonstrated that it does not meet the 

requirement of being a high-quality 

program. ACF believes it is a reasonable 

standard that programs identified as 

having a deficiency, which, in 

summary, is defined as a systemic or 

material failure to meet program 

performance standards, a systemic or 

material failure of the governing body of 

an agency to fully exercise its legal and 

fiduciary responsibilities, or an 

unresolved area of noncompliance, 

should be required to compete for 

funding to determine if they are the 

most capable entity to provide Head 

Start or Early Head Start services to that 

community. This condition also is 

grounded in the Secretary’s Advisory 

Committee’s recommendations related 

to ‘‘Key Quality Indicators.’’ It is 

important to note that as stated in the 

NPRM, ACF will consider data from 

triennial reviews, follow-up reviews, 

and other reviews—and not first-year 

reviews. 

It is ACF’s position that grantees 

should have systems in place to avoid 

the types of failures that constitute 

deficiencies as defined in the Act, 

including the ability to resolve a 

noncompliance in the specified 

corrective action timeframe before it is 

considered a deficiency. 

4. Comment: Some respondents stated 

that different deficiencies do not 

represent problems of equal severity; 

some are more serious or systemic 

issues than others. These respondents 

argued that establishing a specific 

number of deficiencies to trigger 

competition is inappropriate because of 

differences in the severity of problems 

identified as deficiencies. Some 

respondents stated that only matters 

that present a systemic threat to health 

and safety or acts of financial 

irresponsibility should be considered 

deficiencies for purposes of 

competition. 

Response: While it is true that 

deficiencies can reflect problems of 

varying levels of severity, all 

deficiencies represent a significant 

failure to provide services consistent 

with Head Start Program Performance 

Standards and therefore it is appropriate 

to require a competition to determine if 


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the current grantee or another entity is 

the most qualified provider in that 

community. 

5. Comment: A large number of 

respondents stated that grantees should 

have the opportunity to appeal 

deficiencies before a grantee is required 

to compete. 

Response: The Act does not provide 

for an appeal of deficiency findings, 

unlike terminations and suspensions 

lasting more than 30 days. Although 

there is no statutory right to an appeal, 

grantees currently have the opportunity 

to discuss the progress of the monitoring 

review while the review team is on site. 

Although the final determination is not 

made during the on-site review, grantees 

consistently are informed of the 

opportunity to provide additional input 

when concerns are identified while the 

team is on-site. 

6. Comment: Some respondents 

recommended that a weighting system 

be applied for findings from 

unannounced visits versus those found 

during announced monitoring reviews. 

Some respondents recommended that 

ACF revise the condition to focus on a 

pattern of deficiencies, deficiencies 

based on their severity, deficiencies that 

directly impact services to children and 

families, or multiple deficiencies in a 

single review. 

Response: In 2007, Congress 

specifically added authority in section 

641A(c)(1)(D) of the Act for ACF to 

conduct unannounced site inspections 

and consistent with this the number of 

unannounced reviews has increased as 

an added quality assurance measure. 

Programs should always be following 

Program Performance Standards and be 

ready for a review at any time. Grantees 

are always required to follow 

requirements of the Act and regulations 

and can be cited for not complying with 

regulations at any time during the year. 

While we appreciate the comments 

received on this provision, the final rule 

maintains the provision as proposed. As 

stated above, a deficiency is by 

definition a ‘‘substantial or systemic 

material failure.’’ ACF firmly stands 

behind the integrity of the monitoring 

and review process through which 

deficiencies are established and this has 

been consistently validated by rulings 

supporting ACF findings in the appeals 

process. ACF strongly believes that a 

grantee found to have a deficiency 

should compete to determine if it or 

another entity is the strongest provider 

in the community. 

Proposed § 1307.3(b)(2)—School 

Readiness Goals (Note that proposed 

§ 1307.3(b)(2) has been changed to 

§ 1307.3(b) in the final rule.) 

1. Comment: Many comments were 

received related to the establishment of 

goals and utilization of data on 

children’s school readiness. While the 

majority of commenters expressed 

support for this requirement, numerous 

commenters raised concerns about how 

the condition will be implemented. For 

example, nearly all of the comments 

received on this condition requested 

that ACF issue guidance to clarify the 

requirements and explain how grantees’ 

adherence to those requirements will be 

measured (discussed in further detail 

below). Many of the commenters also 

recommended that ACF not implement 

the condition until after such guidance 

has been issued and training and 

technical assistance has been provided 

to grantees. 

Response: We agree with these 

concerns and have revised the date of 

implementation of the condition to be 

after the effective date of the final rule. 

Therefore, in evaluating whether a 

grantee has met this condition, we will 

not rely on data beginning on June 12, 

2009, as had been proposed in the 

NPRM, but rather beginning on the 

effective date of this final rule. In the 

NPRM, ACF proposed that grantees 

would be evaluated on establishing 

school readiness goals (§ 1307.3(b)(1)) at 

the June 2009 date, and on the steps to 

achieve school readiness (§ 1307.3(b)(2)) 

after the effective date of the regulation. 

We have changed the final rule to reflect 

that all of § 1307.3(b) related to school 

readiness will be considered after the 

effective date of this regulation. Since 

the publication of the NPRM in 

September 2010, there has been steady 

communication with Head Start 

grantees about school readiness goals 

through webcasts, two national 

institutes in February and October of 

2011, training and technical assistance 

materials (including The Guide to 

Resources for Developing School 

Readiness Goals) and other material 

created by the National Center for 

Quality Teaching and Learning (http:// 

eckkc.ohs.acf.hhs.gov/hslc/tta-system/ 

teaching). We also will continue to 

provide technical assistance and other 

supports for implementation of this 

condition. 

Establishing and using school 

readiness goals are central to providing 

high-quality services to children and 

families, and the high quality 

implementation of activities to meet this 

requirement will be the focus of 

training, technical assistance and ongoing oversight by federal staff. 

However, compliance with the 

requirements and determinations about 

whether grantees meet the school 

readiness goals condition of the DRS 

will only be measured by evidence 

collected in reviews conducted under 

section 641A(c) of the Head Start Act. 

Evidence in these reviews is collected 

by monitoring teams, including regional 

staff, but determinations regarding 

evidence collected in any reviews are 

made only by the responsible HHS 

official. 

2. Comment: Numerous commenters 

requested that ACF issue guidance on 

the implementation of the requirement 

to establish and take steps to achieve 

school readiness goals. For example, 

many of these comments requested 

clarification on the definition of ‘‘school 

readiness goals,’’ what they should look 

like, how to determine what they should 

look like, and how to measure 

children’s progress against them. Some 

commenters suggested that ACF 

establish national goals and benchmarks 

for children’s school readiness that 

would be applied to all grantees. Other 

commenters stated that there should not 

be a uniform definition because what it 

means to be ready for school may vary 

by State, community, or population. 

Response: In response to these 

comments on the need for a definition, 

we have added a definition of ‘‘school 

readiness goals’’ to the final rule. The 

definition clarifies that school readiness 

goals are expectations of children’s 

status and progress across domains of 

language and literacy development, 

cognition and general knowledge, 

approaches to learning, physical wellbeing and motor development, and 

social and emotional development that 

will improve their readiness for 

kindergarten. This definition is 

consistent with section 641A(g) of the 

Act and guidance provided by the Office 

of Head Start and draws on comments 

received. With respect to comments on 

national goals, in section 641A(g)(2)(A) 

the Act requires that school readiness 

goals be ‘‘agency determined.’’ 

3. Comment: Some commenters were 

unclear about whether the goals for 

improving the school readiness of 

children were meant to be individual 

plans for each child or global goals for 

all children in a program. Some 

commenters misinterpreted this section 

in the NPRM as requiring grantees to 

meet benchmarks for children’s 

outcomes and progress, rather than 

requiring grantees to demonstrate how 

child-level assessment data is used to 

individualize children’s experiences 

and inform continuous quality 

improvement. Others asked for guidance 


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around how to analyze school readiness 

data and requested that training and 

technical assistance be provided to 

increase grantees’ capacity for analyzing 

child-level assessment data. Some also 

asked for ACF to provide a schedule 

that includes when grantees should 

analyze child-level assessment data 

within the year (e.g., within the first 45 

days of the program year). 

Response: In response to these 

comments on program or individual 

child goals, we have clarified in the 

final rule that the School Readiness 

Goals are for improving the school 

readiness of children in their program 

and are global or program goals for all 

of their children. We also reorganized 

the provision in the final rule to make 

it clearer that individual child-level data 

is critical in how programs take steps to 

help each individual child to make 

progress and to achieve overall program 

school readiness goals. Specifically for 

individual children, programs must 

analyze individual child-level data in 

order to determine each child’s status 

and progress on those goals in order to 

individualize instruction for those 

children and to inform parents and 

families. Furthermore, we clarify in the 

final rule that aggregated child-level 

assessment data must be used to inform 

curriculum, instruction, professional 

development, program design, and other 

program decisions. 

4. Comment: Some commenters 

requested guidance on the process for 

aligning school readiness goals with the 

Head Start Child Outcomes Framework 

(Framework). In particular, commenters 

were concerned about the requirement 

to align with the Framework because, at 

the time the NPRM was open for public 

comment, the Framework was 

undergoing revision by ACF. 

Response: ACF since has published 

the revised framework (now called the 

Head Start Child Development and 

Early Learning Framework (available at 

http://eclkc.ohs.acf.hhs.gov/hslc/ttasystem/teaching/eecd/Assessment/

Child%20Outcomes/HS_Revised_Child_

Outcomes_Framework.pdf)). We also 

have addressed these concerns in the 

OHS training and technical assistance, 

which discusses grantees’ 

responsibilities and processes for 

ensuring alignment between agencyestablished school readiness goals and 

the revised framework. 

5. Comment: Other commenters had 

concerns about using the Early Head 

Start Performance Measures Framework 

in determining children’s status on the 

child competencies. In particular, there 

were questions about whether grantees 

need to set goals and measure progress 

on ‘‘parents as the primary nurturer’’ 

and ‘‘parent-child relationships’’ as 

described in the Framework. 

Response: In response to these 

comments, the final rule clarifies that 

children’s progress on the five essential 

domains is what should be measured by 

both Head Start and Early Head Start 

grantees. While the Framework is 

comprehensive and includes many 

elements, it is organized so that all the 

elements fit under the five essential 

domains of child development. 

Programs will continue to be instructed 

on using the essential domains as a 

framework for their goals and 

assessment of meeting the goals. 

6. Comment: Some commenters 

misinterpreted the language in the 

NPRM as requiring grantees to conduct 

a formal assessment of children three 

times per year (or two times per year for 

programs operating less than 90 days), 

rather than requiring them to aggregate 

and examine child-level assessment 

data regardless of the method of 

assessment three times each year. 

Response: In response to these 

concerns, ACF has added a definition of 

‘‘child-level assessment data’’ to the 

final regulation. We also have addressed 

these comments in the training and 

technical assistance ACF provides by 

including information about the 

methods and types of assessment, 

assessment instruments, and other 

strategies for understanding children’s 

development and learning that grantees 

should utilize in meeting the 

requirements to establish and take steps 

to achieve school readiness goals. 

Training and technical assistance also 

included a clear distinction between the 

process of child assessment and the 

process for collecting, aggregating, and 

analyzing child-level assessment data. 

7. Comment: Numerous comments 

were received related to how programs 

are to show compliance with the 

requirement to establish and take steps 

to achieve school readiness goals and 

utilize data for individualization and 

program improvement. Specifically, 

commenters requested guidance on 

what information needs to be 

documented and maintained to 

demonstrate compliance; how programs 

can self-assess; and what criteria ACF 

will use to evaluate compliance. 

Response: We appreciate these 

suggestions and drew on them in 

preparing technical assistance for 

grantees, which includes information 

regarding how grantees can self-assess, 

how they can examine school readiness 

goals as part of ongoing monitoring and 

use that information to guide program 

improvements to curricula and 

professional development, and how 

grantees can document and demonstrate 

compliance with these requirements for 

the triennial monitoring review. 

Additional information is available to 

grantees in the monitoring protocol. 

Proposed § 1307.3(b)(3)—Classroom 

Assessment Scoring System (CLASS): 

Pre-K (Note that proposed § 1307.3(b)(3) 

has been changed to § 1307.3(c) in the 

final rule.) 

Section 641A(c)(2)(F) of the Act 

requires the Secretary to include as part 

of the Head Start monitoring review 

process ‘‘a valid and reliable research 

based observational instrument, 

implemented by qualified individuals 

with demonstrated reliability, that 

assesses classroom quality, including 

assessing multiple dimensions of 

teacher-child interactions that are 

linked to positive child development 

and later achievement.’’ Section 

641(c)(1)(D) requires that such an 

instrument be used as part of the system 

for designation renewal. CLASS: Pre-K, 

a system that uses observation to rate 

the interactions between adults and 

children in the classroom as high-, 

middle- or low-quality, meets the 

statutory requirements for ‘‘a valid and 

reliable research-based observational 

instrument.’’ Before selecting an 

instrument to fulfill this requirement, 

ACF consulted with leading early 

childhood assessment experts who all 

advised that the CLASS: Pre-K was the 

instrument that best met the statutory 

requirement. The Conference Report 

accompanying the Act also suggested 

that ACF consider using the CLASS: 

Pre-K (H.R. Conference Report No. 220– 

439 at 111 (2007), as reprinted in 2007 

U.S.C.C.A.N. 442, 462). Ultimately, ACF 

selected the CLASS: Pre-K instrument 

because, as discussed in the ‘‘CLASS 

Implementation Guide: Measuring and 

Improving Classroom Interactions in 

Early Childhood Settings’’ CLASS: PreK has been validated by over ten years 

of research in educational settings. 

1. Comment: ACF received a large 

number of comments related to CLASS: 

Pre-K. While there was general support 

for the tool, some commenters raised a 

range of concerns related to using 

CLASS: Pre-K for program 

accountability purposes. 

Response: As discussed in the CLASS: 

Pre-K manual, the purpose of CLASS: 

Pre-K is to measure ‘‘the quality of the 

classroom environment’’ and uses of 

CLASS: Pre-K include research, 

accountability efforts, program planning 

and evaluation, and professional 

development and supervision. ACF 

recognizes that while CLASS: Pre-K was 

developed for a range of purposes, it has 

been used primarily for research and 

professional development purposes. It is 


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also being used in some state 

accountability and quality improvement 

efforts in Quality Rating and 

Improvement Systems, in which CLASS 

scores are used as a measure in rating 

the quality of an early childhood 

program. ACF is working closely with 

the developers to ensure CLASS: Pre-K 

is used in ways that inform programs 

and accurately reflect classroom quality. 

2. Comment: A number of 

respondents requested that ACF delay 

the inclusion of CLASS: Pre-K in the 

Designation Renewal System. 

Respondents stated that CLASS: Pre-K 

has not been in use long enough with 

Head Start grantees to elevate scores to 

such high importance and that the 

science has not provided a basis yet for 

selecting the threshold for competition. 

Others said it should not be 

implemented until after the transition 

period in order to hold all grantees to 

the same standard. 

Response: While we appreciate the 

public comments received on the timing 

for considering CLASS: Pre-K, ACF has 

decided not to delay the inclusion of 

CLASS: Pre-K as a condition for 

designation renewal due to the critical 

importance of classroom quality. As was 

included in the NPRM, the CLASS: PreK condition will be implemented in the 

second year of the transition period 

using data from observations conducted 

after the effective date of the final rule. 

However, no grantees will be awarded 

non-competitive extensions without 

being evaluated against the two-part 

CLASS criterion. We based the decision 

to utilize CLASS in the Designation 

Renewal System on the following: (1) 

Research has shown that teacher-child 

interaction is critical for children’s 

social and academic development, (2) a 

measure of classroom quality is critical 

to ensuring that children are in high 

quality programs, and (3) there is an 

extensive research base for CLASS: PreK. ACF notified grantees in August 2008 

that CLASS: Pre-K would begin to be 

used in Head Start monitoring reviews 

(see ACF–IM–HS–08–11). In addition, 

ACF has provided all grantees the 

opportunity to be trained on the 

protocol and grantees have been 

monitored on CLASS: Pre-K instrument 

for two years. Moreover, ACF–IM–HS– 

08–21 provided further information 

regarding the importance of childteacher interaction. ACF also provides 

training resources to each Head Start 

grantee as part of its annual funding, 

consistent with requirements in the Act. 

Finally, ACF’s inclusion of a relative 

threshold, as well as a minimum 

threshold of quality and a standard of 

excellence, are responsive to comments 

about the current state of the science. 

While research has not yet identified a 

specific CLASS score necessary to 

impact positive outcomes, research has 

shown, (1) That low levels of quality are 

not related to children’s outcomes, and 

(2) that there is no ‘‘good enough’’ level 

of quality above which additional 

quality improvements do not matter for 

children’s outcomes (i.e., higher levels 

of quality are related to better outcomes 

for children) (Burchinal, M., Xue, Y., 

Tien, H., Auger, A., & Mashburn, A. 

(March, 2011)). 

3. Comment: A number of 

respondents raised concerns with the 

use and reliability of CLASS: Pre-K with 

culturally and linguistically diverse 

classrooms. Some respondents 

commented that CLASS: Pre-K is 

inappropriate with specific populations 

or programs, such as American Indian/ 

Alaska Native, Migrant and Seasonal 

Head Start, or dual language learners. 

Response: Research consistently 

shows that children in classrooms with 

higher CLASS: Pre-K scores demonstrate 

more positive social and early academic 

development.(Burchinal, M., 

Vandergrift, N., Pianta, R., & Mashburn, 

A. (2010), and Burchinal, M., Xue, Y., 

Tien, H., Auger, A., & Mashburn, A. 

(March, 2011)). While the CLASS: PreK was not designed to measure specific 

practices in multi-lingual classrooms, 

the tool has been used in classrooms 

with diverse populations. For example, 

findings from the National Center for 

Early Development and Learning 

(NCEDL)’s research conducted in nearly 

700 pre-kindergarten classrooms and 

700 kindergarten classrooms, including 

linguistically diverse classrooms, 

suggest that CLASS: Pre-K functions 

well as an assessment of the quality of 

teacher-child interactions in classrooms 

with language diversity, and that 

CLASS: Pre-K predicts gains in dual 

language learners children’s school 

readiness skills (Downer, 2011). ACF 

will continue to examine concerns 

regarding the use of CLASS: Pre-K in 

culturally and linguistically diverse 

classes. ACF is providing additional 

cross-cultural training to CLASS: Pre-K 

reviewers to ensure reviewers are 

familiar with the culture of the families 

served and that they are fluent in the 

predominant teaching language used in 

the class where they conduct 

observations. 

4. Comment: Some respondents raised 

other concerns with the CLASS: Pre-K 

instrument itself, aside from culture or 

language. Respondents stated, for 

example, that CLASS: Pre-K scores are 

reliable within one number above or 

below the actual score and that CLASS: 

Pre-K was developed with a national 

norming sample and data primarily 

from State-funded pre-kindergarten 

programs. 

Response: ACF is confident of the 

reliability and appropriateness of the 

CLASS: Pre-K tool for use in Head Start 

classrooms based on the extensive and 

growing use of the instrument to assess 

a wide range of early childhood 

programs (e.g., in numerous research 

studies as well as State Quality Rating 

and Improvement Systems) and ACF’s 

experience using the instrument over 

the last 2 years. With respect to 

concerns about the norming sample 

used for the development of CLASS: 

Pre-K, we note that the developers 

included Head Start programs among 

the sample of programs they tested. 

5. Comment: ACF specifically 

requested comments on alternative 

methods to the CLASS: Pre-K condition, 

including the use of an absolute 

threshold versus a relative threshold 

that compares each grantee’s score to 

the scores of other grantees reviewed in 

the same year, or the use of different 

absolute thresholds for each domain. A 

smaller subset of respondents 

commented on these issues. Those in 

support of absolute thresholds 

emphasized that identifying lowperforming grantees is achieved best by 

defining a minimum level of quality all 

grantees must meet. Those 

recommending a relative threshold 

indicated that comparing grantees to 

their peers is the most appropriate 

approach, particularly absent clear 

research indicating what an absolute 

threshold should be. Several 

respondents proposed using national 

averages to determine scores to trigger 

competition or focusing on significant 

variances from the national averages. 

Some respondents asked for further 

clarification on what was meant by 

‘‘low’’ scores or requested a justification 

for why the proposed scores were 

chosen. Other respondents commented 

that the proposed scores for competition 

establish either unrealistic standards in 

some domains or inadequate standards 

of quality in other domains. 

Response: In response to comments, 

ACF has revised the proposed CLASS: 

Pre-K condition from being solely an 

absolute threshold of scores below a 3 

on any of the three CLASS: Pre-K 

domains (Emotional Support, 

Instructional Support, and Classroom 

Organization) during the two most 

recent CLASS: Pre-K observations to a 

two-part criterion, that consists of both 

a relative and an absolute threshold 

based on the most recent CLASS: Pre-K 

observation for all three domains of 

CLASS: Pre-K. 

Specifically, ACF will require 

grantees whose average scores across 


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classrooms fall in the lowest 10 percent 

on any of the three CLASS: Pre-K 

domains in that year to compete. ACF 

will determine the lowest deciles by 

comparing the scores in each of the 

three CLASS: Pre-K domains of all 

grantees reviewed in the same year 

under section 641A(c)(1)(A), (C), and 

(D). If a program scores in the bottom 10 

percent of all Head Start programs, this 

indicates that the vast majority of 

organizations operating Head Start are 

providing a higher quality program for 

children. For a program with an average 

score in the lowest ten percent in the 

domain of Emotional Support, it means 

that ninety percent of Head Start 

programs assessed were shown to be 

doing a better job helping children 

develop positive relationships, 

enjoyment of learning, and appropriate 

levels of independence. For a program 

with an average score in the lowest ten 

percent in Classroom Organization it 

means that ninety percent of Head Start 

programs assessed were rated higher on 

how well teachers manage classrooms to 

maximize learning and keep children 

engaged. And for a program with an 

average score in the lowest ten percent 

in the domain of Instructional Support, 

it means that ninety percent of Head 

Start programs were assessed to be 

doing a better job promoting children’s 

thinking and problem solving, using 

feedback to deepen understanding and 

helping children develop more complex 

language skills. If ninety percent of 

Head Start programs are doing better in 

these areas, it is certainly reasonable to 

require that these programs compete to 

determine if there is another provider in 

that community that can provide 

children a higher quality experience. 

In addition, the final rule establishes 

a minimum quality threshold, or 

‘‘floor,’’ for each of the three domains 

under § 1307.3(c)(1). Grantees will be 

required to compete if, in the most 

recent CLASS: Pre-K observation, the 

average score across all classrooms 

observed by ACF in any CLASS: Pre-K 

domain falls below the minimum 

quality threshold for that domain 

established in the regulations, even if it 

does not fall into the lowest 10 percent 

of grantees assessed on that domain. For 

reasons described below, for the 

Emotional Support domain, the 

minimum quality threshold is an 

average score across all classrooms of a 

4. For the Instructional Support domain, 

the minimum quality threshold is an 

average score across all classrooms of a 

2. For the Classroom Organization 

domain, the minimum quality threshold 

is an average score across all classrooms 

of a 3. 

ACF sets a clear minimum quality 

threshold grantees must achieve, 

consistent with research that 

demonstrates the lack of improvement 

in child outcomes when the quality of 

child-teacher interactions measured by 

the CLASS fell below certain levels in 

the different CLASS domains. There is 

a growing body of research showing that 

at least moderate quality is necessary in 

Instructional Support for improving 

children’s outcomes (i.e., there is no 

evidence demonstrating a link between 

CLASS Instructional Support scores and 

children’s outcomes when CLASS 

Instructional Support scores fall below 

a 2). Conversely, research suggests 

moderate to high-quality is necessary in 

Emotional Support for improving 

children’s outcomes. (See, for example, 

Burchinal, M., Vandergrift, N., Pianta, 

R., & Mashburn, A. (2010). Threshold 

analysis of association between child 

care quality and child outcomes for lowincome children in pre-kindergarten 

programs. Early Childhood Research 

Quarterly, 25(2), 166–176.) Based on 

this research, as well as comments 

received on the NPRM, we consulted 

the CLASS manual to identify the 

CLASS scores that most closely 

correspond to ‘‘at least moderate 

quality’’ for the Instructional Support 

domain and ‘‘moderate to high quality’’ 

for Emotional Support domain. As a 

result, we revised the minimum 

thresholds for Instructional Support and 

Emotional Support proposed in the 

NPRM (i.e., 2 for Instructional Support 

and 4 for Emotional Support). The 

minimum threshold for Classroom 

Organization stays at 3, the same as the 

NPRM. 

Finally, ACF is establishing an 

exceptional level of quality to ensure 

that the relative threshold does not 

result in exceptionally high quality 

programs being required to compete. In 

the unlikely event that a grantee’s score 

in a domain falls in the lowest 10 

percent but the score equals or exceeds 

the exceptional level of quality, then the 

grantee will not be required to compete 

on the basis of its score on that domain. 

The exceptional level of -quality 

threshold or standard of excellence for 

each three CLASS: Pre-K domains is an 

average score across all classrooms of 6 

or above. ACF selected this particular 

threshold because the developers of the 

CLASS: Pre-K established these scores 

on the instrument’s seven point scale 

expressly to identify those grantees 

functioning at the highest levels of 

quality (with scores of 1 to two being in 

the low range; three to five in the midrange; and six to seven in the high range 

of quality). The following is an example 

of how the absolute thresholds would 

work in conjunction with the relative 

threshold in Emotional Support. The 

lowest 10 percent of grantees as well as 

all grantees that have an average score 

below a 4 will be required to recompete 

based on their Emotional Support 

average score. If more than 10 percent 

of grantees had an average score in that 

domain below a 4, all of those grantees 

would have to compete. If a grantee in 

the lowest 10 percent in that domain 

had an average score of 6 or above, they 

would not be required to compete on 

the basis of the Emotional Support score 

because they have achieved the 

exceptional quality threshold in that 

domain. Grantees with an average score 

between a 4 and a 6 on Emotional 

Support but that are not in the lowest 

10 percent would not be required to 

compete on the basis of their Emotional 

Support score. 

In summary, this revised CLASS 

condition combines the merits of both 

the relative and absolute threshold 

concepts. It includes a relative 

threshold, which is responsive to 

comments that research has not yet 

identified the specific threshold of 

quality that is needed to impact positive 

outcomes, while recognizing research 

showing that there is no ‘‘good enough’’ 

level of quality (i.e., higher levels of 

quality are related to better outcomes for 

children) (Burchinal, M., Xue, Y., Tien, 

H., Auger, A., & Mashburn, A. (March, 

2011)). It also guards against score 

inflation, which, if it occurred, would 

result in less rigorous standards over 

time. The rule also sets a minimum 

quality threshold based on research 

findings that show a minimum level of 

quality must be achieved before positive 

changes can be made in children’s 

outcomes and it establishes a highquality standard above which grantees 

would be exempt from competition. In 

setting the minimum quality thresholds 

and exceptionally high-quality 

standards ACF compared CLASS: Pre-K 

scores for Head Start programs to 

national data and to data on other early 

childhood programs, examined the 

CLASS: Pre-K user manual, considered 

the Office of Head Start’s expectations 

for what should be taking place in early 

childhood classrooms, and embraced 

the latest research findings. 

As will be discussed in more detail in 

Section § 1307.8, ACF is implementing 

a significantly improved approach to 

each grantees’ CLASS assessment 

including even more rigorous training 

and reliability assurance, a more 

rigorous random sampling of each 

grantee’s classes to determine which to 

observe, and more consistent protocols 

for implementation. For these reason, 


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determinations for designation renewal 

will be made based on the most recent 

CLASS: Pre-K observations, rather than 

the two most recent CLASS: Pre-K 

observations as was proposed in the 

NPRM. 

6. Comment: A number of 

respondents had questions about 

whether or how the CLASS Pre-K would 

be implemented in Early Head Start 

programs and/or in the Home-based 

program option. 

Response: CLASS: Pre-K will not be 

used in Early Head Start programs or in 

programs that operate the Home-based 

option only. ACF will consider 

incorporating a valid and reliable 

measure of teacher-child interaction in 

Early Head Start and in the Home-based 

program option when such a tool 

becomes available. ACF would 

incorporate such a tool only after 

soliciting public input through an 

NPRM. 

7. Comment: Some commenters 

expressed concerns about how the 

‘‘negative climate’’ dimension of the 

Emotional Support domain of the 

CLASS Pre-K would be included in 

grantees’ average scores in that domain. 

Response: The ‘‘negative climate’’ 

dimension high and low scores have the 

opposite meaning than for all of the 

other CLASS dimensions. Specifically, 

for negative climate a low score means 

that there is a low level of negative 

climate in the classroom—which is 

good. For that reason, the negative 

climate score is reversed when 

averaging dimension scores to obtain a 

domain score, as is explained in the 

CLASS: Pre-K manual—so that a grantee 

receiving a good negative climate score 

will likewise receive a higher score on 

the overall domain of Emotional 

Support of which negative climate is 

one part. ACF will use that methodology 

for obtaining averaging as prescribed in 

the CLASS: Pre-K manual to ensure that 

average domain scores are accurate. 

Proposed § 1307.3(b)(4)—License 

Revocation (Note that proposed 

§ 1307.3(b)(4) has been changed to 

§ 1307.3(d) in the final rule.) 

1. Comment: ACF received a 

significant number of comments in 

response to the proposed licensing 

condition described at § 1307.3(b)(4). A 

number of commenters expressed 

support for licensing revocation as a 

trigger for competition. Others raised 

concerns about the trigger and what 

constitutes a license revocation as 

discussed in § 1307.3(b)(4). 

A common theme among comments 

on this condition was that variations 

among State licensing requirements 

would make it impossible to implement 

it in an equitable manner across Head 

Start and Early Head Start grantees. 

Many remarked that ACF should set a 

standard for all Head Start programs 

rather than relying on separate State 

standards. 

There were a number of comments 

that mentioned that the fate of an entire 

grantee and all of its delegates would be 

in jeopardy when one delegate agency 

loses its license. Many respondents 

noted that the condition is duplicative 

since OHS already would learn about a 

licensing revocation during an on-site 

monitoring review. Finally, a common 

theme among commenters was a 

concern that the licensing condition in 

particular could create challenges to 

collaborations because of concerns over 

potential loss of funding due to loss of 

individual center licenses. 

Response: We would like to clarify 

that it is the revocation of a license, not 

the suspension of a license, that will 

require a grantee to compete. Revocation 

is a process that varies by State and 

local standards. However, despite these 

variations, removing a licensing or 

forbidding a center to continue 

operating is the final step in a series of 

corrective actions for an agency in all 

jurisdictions. Revocation is the removal 

of a license, meaning that a center no 

longer is allowed to operate in caring for 

children in that jurisdiction. The 

revocation of a license to operate is a 

serious indication of an agency’s 

inability to operate a high-quality 

program. 

Section 641A(a)(1)(D)(i) of the Act 

and Head Start regulations implemented 

at 45 CFR 1306.30(c) require that ‘‘the 

facilities used by Early Head Start and 

Head Start grantees and delegate 

agencies for regularly scheduled centerbased and combination program option 

classroom activities or home-based 

group socialization activities must 

comply with State and local 

requirements concerning licensing. In 

cases where these licensing standards 

are less comprehensive or less stringent 

than the Head Start regulations, or 

where no State or local licensing 

standards are applicable, grantee and 

delegate agencies are required to assure 

that their facilities are in compliance 

with the Head Start Program 

Performance Standards related to health 

and safety as found in 45 CFR 

1304.53(a).’’ ACF would be remiss if it 

did not require a grantee whose license 

had been revoked to demonstrate its 

fitness to continue to receive Head Start 

funding following such a determination 

by State or local authorities. Given the 

serious nature of revocation and given 

that the consequence for the grantee is 

not termination from the program or 

even suspension, but only a requirement 

to compete for further funding, it should 

not be necessary to require exhaustion 

of appeal opportunities before ACF 

requires the grantee to compete to prove 

through a competition they are the most 

qualified entity in the community. 

ACF will maintain this condition as 

laid out in the NPRM, regardless of 

appeal status since it is such a serious 

condition with one exception. It merits 

repeating here that requiring a grantee to 

compete for continued funding is not 

equivalent to terminating the grant. In 

the final rule ACF is allowing for a 

longer period to resolve appeals than 

was proposed. The final rule would 

allow a grantee that has had its license 

revoked to continue to receive further 

funding without competing if the 

revocation was overturned or 

withdrawn any time ‘‘before the 

announcement of the competition in 

which the grantee would be required to 

compete for renewed funding.’’ If a 

decision on appeal is not made by that 

point then ACF is justified in requiring 

the grantee to compete since 

competitions have to be held within 

certain time periods to ensure that 

either the existing grantee or a new 

grantee has been selected by the time 

the existing grant expires. It does not 

make sense to delay a competition based 

on the possibility that a revocation of a 

license may be overturned or withdrawn 

sometime in the indefinite future. 

If the license of any center where a 

grantees is serving Head Start or Early 

Head Start children is revoked, the 

grantee would be required to compete. 

As mentioned previously, each grantee 

is responsible for ensuring that every 

child it serves, no matter where or by 

whom, receives high-quality early 

childhood services. Delegate agencies 

are required to follow licensing 

regulations, and grantees should be 

aware of issues that may jeopardize a 

delegate agency’s license before that 

license is revoked. 

Proposed § 1307.3(b)(5)—Suspended by 

ACF (Note that proposed § 1307.3(b)(5) 

has been changed to § 1307.3(e) in the 

final rule.) 

1. Comment: Many commenters 

agreed that agencies that have been 

suspended by ACF should have to 

compete for renewed funding. Other 

commenters stated that the condition 

only should apply after an agency has 

exercised all of its due process rights 

afforded under the appeals process and 

after final decisions have been made in 

that appeal process. A few commenters 

raised the concern that smaller entities 

may not have adequate resources to 

appeal a suspension. One commenter 


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suggested that suspension should not be 

counted as meeting the condition if a 

grantee was reinstated. One commenter 

stated that ACF should ensure that the 

reason for the suspension was related to 

the Head Start program. Another 

commented that suspension was already 

a tool ACF could use in finding a 

grantee unsuited for maintaining 

Federal funding. 

Response: Under 45 CFR 1303.12(a), a 

grantee can be subject to summary 

suspension if it is at ‘‘[a] serious risk of: 

(1) Substantial injury to property or loss 

of project funds; or (2) Violation of a 

Federal, State or local criminal statute; 

or (3) If staff or participants’ health and 

safety are at risk.’’ Suspension under 45 

CFR 1303.11 only can be based on 

‘‘circumstances related to a particular 

grant, such as ineffective or improper 

use of Federal funds or for failure to 

comply with applicable laws, 

regulations, policies, instructions, 

assurances, terms and conditions or, in 

accordance with Part 1302 of this 

chapter, upon loss by the grantee of 

legal status or financial viability.’’ 

Regulations implemented at 45 CFR 

1303.10(a) specify that a suspension of 

either type involves a finding by ACF 

that a grantee has either failed to live up 

to one or more standards applicable to 

Head Start grantees or is at risk for 

misusing Head Start funds, violating a 

criminal statute, or harming its staff or 

program participants. The grounds for 

suspension and summary suspension 

are also grounds for finding that the 

grantee is not conducting a high quality 

program and should be required to 

compete for funding. 

ACF considered all the comments 

submitted related to suspension and is 

making one change in the final rule. We 

have modified the rule so that if there 

is a pending appeal and the agency did 

not have an opportunity to show cause 

as to why the suspension should not 

have been imposed or why the 

suspension should have been lifted if it 

had already been imposed under 45 CFR 

Part 1303, the agency will not be 

required to compete based on this 

condition. If an agency has received an 

opportunity to show cause, the 

condition will be implemented 

regardless of appeal status, since the 

performance issues that would lead ACF 

to suspend a grantee are so serious—and 

are exercised with such infrequency— 

that to delay a competition in that 

service area would not be in the best 

interest of the children and families in 

that community. 

Proposed § 1307.3(b)(6)—Debarred 

From Receiving Federal Funds or 

Disqualified From CACFP (Note that 

proposed § 1307.3(b)(6) has been 

changed to § 1307.3(f) in the final rule.) 

1. Comment: In § 1307.3(b)(6) of the 

NPRM, ACF proposed that a grantee be 

required to compete that ‘‘has been 

debarred from receiving Federal or State 

funds from any Federal or State 

department or agency or has been 

disqualified from the Child and Adult 

Care Food Program (CACFP) any time 

during the period covered by the 

designated ACF official’s review under 

§ 1307.7 but has not yet been terminated 

or denied refunding by ACF.’’ A 

majority of respondents were supportive 

of this condition. Some respondents 

raised questions about aspects of 

debarment and disqualification and 

implementation of this condition such 

as noting that the debarment condition 

is duplicative because an agency that 

has been debarred from receiving 

Federal funds already would have lost 

its Head Start grant. One commenter 

suggested that programs disqualified 

from CACFP due to errors should not 

have to recompete. 

A number of respondents raised 

concerns that only a final debarment or 

disqualification decision should be 

considered, allowing the grantee to go 

through the entire appeal process and 

exercise all due process rights. Several 

commenters recommended that if a 

delegate agency is debarred, the grantees 

should terminate the delegate and the 

grantee should not be required to 

compete. 

Response: ACF considered the 

comments received and has not changed 

the policy in the final rule. Debarment 

is grounds for a deficiency finding 

under the statutory definition of that 

term, and indicates an agency’s failure 

to administer a high-quality program. 

Head Start grantees are eligible to 

receive funding under the Department 

of Agriculture’s (USDA) Child and 

Adult Care Food Program (CACFP) for 

the food served to children at the meals 

provided by the Head Start program. If 

a grantee were disqualified from the 

USDA program, the grantee would not 

receive funding for the food served to 

children in the program. Under 45 CFR 

1304.23(b)(1)(i), all grantees are required 

to use CACFP funds as the first source 

of funding for program meals under the 

regulations; therefore, disqualification 

would mean that the grantee had lost a 

major funding source for the meals and 

snacks served in the programs. In 

addition to requiring grantees to report 

on this condition, ACF will work with 

USDA’s Food and Nutrition Services 

(FNS) to receive information about 

grantees that have been disqualified and 

will check that information against 

grantee reporting. 

Proposed § 1307.3(b)(7)—Audit 

Findings (Note that proposed 

§ 1307.3(b)(7) has been changed to 

§ 1307.3(g) in the final rule.) 

1. Comment: Commenters raised 

concerns about the performance of the 

audits. Many focused on the issue of 

using A–133 audit findings or State 

agency audit, review or investigation 

findings to trigger recompetition 

automatically. Many commenters stated 

that ACF would be delegating its 

statutory duties to third parties. Others 

stated that by accepting the findings of 

outside sources, ACF would be denying 

the grantee’s due process. Although 

many agreed with the intent of this 

condition, they recommended that 

qualified fiscal officers or Certified 

Public Accountants within the Office of 

Head Start be tasked with reviewing the 

outside audit results. 

A small number of commenters 

expressed concerns that auditors could 

lose some of their independence if they 

realized that their findings could cause 

grantees to face competition. 

Other commenters supported the need 

to have strong, financially sound 

grantees. Some commenters were 

concerned with the idea of allowing 

only one material weakness, which 

might be a minor problem, to lead to a 

recompetition. They stated that ACF 

should instead look for a pattern of 

problems indicating a grantee’s financial 

weakness that could place Federal funds 

at risk. 

Response: In response to comments, 

ACF is removing the material weakness 

component from the proposed 

condition. ACF has concluded that 

while in many instances a single finding 

of material weakness represents a 

serious issue, that there are instances 

where a material weakness finding 

would not be adequate as a singular 

indicator of program quality that would 

trigger competition. 

Nevertheless, ACF takes audit 

findings seriously and for any year in 

which an entity’s audit as required by 

OMB Circular A–133 classifies Head 

Start as a major program and the report 

to the Federal Audit Clearinghouse 

(FAC) shows other than an unqualified 

(‘‘clean’’) opinion (e.g., qualified 

opinion, adverse opinion, or disclaimer 

of opinion) for the Head Start program, 

ACF will consider this as a ‘‘red flag’’ 

that will trigger additional fiscal 

oversight through on-going monitoring 

and-additional targeted review, 

including unannounced on-site 


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monitoring reviews, to make a 

determination (concurred in by program 

officials and senior ACF management) 

as to whether the issue identified raises 

to the level of a deficiency as defined in 

the Act. Failure to complete the 

required audit under OMB Circular A– 

133 and submit the results to the FAC 

will be considered a ‘‘red flag’’ in the 

same manner. If the fiscal issue 

identified does lead to a deficiency in 

Head Start monitoring, that deficiency 

finding would lead to competition 

under § 1307.3(a). 

Since inability to continue to operate 

as a going concern is a more serious 

problem, ACF is maintaining this part of 

the proposed condition with the same 

definition and the same time frame as 

proposed in the NPRM. 

Aside from that modification, this 

condition remains unchanged. In 

response to concerns commenters raised 

that ACF is impermissibly delegating its 

responsibility to non-federal auditors, 

note that the final regulation still 

requires that ACF review the auditor’s 

findings before making the final 

decision to require the grantee to 

compete based upon an auditor’s 

findings. 

Proposed § 1307.3(c)—Possible Eighth 

Condition 

1. Comment: ACF received a 

significant number of comments related 

to possible additional criteria (an eighth 

condition) that would be utilized if the 

seven conditions outlined in proposed 

§ 1307.3(b)(1)–(7) of the NPRM did not 

result in 25 percent of grantees 

competing in a given review cycle. 

Nearly all of the comments opposed, the 

inclusion of additional criteria for the 

purpose of reaching a minimum percent 

of grantees competing because of 

concerns about setting a 25 percent 

quota for redesignation. These 

comments stated that a 25 percent quota 

does not reflect Congressional intent. 

Response: As explained above in the 

discussion regarding proposed 

§ 1307.3(a), we replaced the 25 percent 

minimum requirement with the twopart CLASS criteria and have made a 

conforming change to § 1307.3(c). A 

discussion of comments received on the 

proposed additional criteria that were 

open for public comment and our 

responses to these comments follows, 

although neither of these criteria was 

incorporated into the final rule. 

2. Comment: In the preamble text of 

the NPRM, ACF requested comments on 

two possible approaches to defining 

additional criteria to be met if needed to 

satisfy the 25 percent minimum 

standard. Commenters stated that even 

though ACF described in general terms 

two approaches under consideration for 

reaching the minimum requirement of 

grantees competing (i.e., assigning 

values to noncompliances, using 

evidence-based rating tools or some 

combination), the NPRM does not 

describe adequately these criteria or 

how they would be used in the 

Designation Renewal System. 

Comments also were received specific 

to each of the two possible approaches 

to defining additional criteria. The first 

approach would use noncompliance 

findings from monitoring reviews by 

assigning a value to each 

noncompliance, weighting more serious 

or problematic noncompliances more 

heavily, and giving each grantee an 

overall score for noncompliances. Many 

respondents objected to the inclusion of 

noncompliances entirely, stating that 

the term ‘‘noncompliance’’ is broad and 

captures such a continuum of 

violations—from minor infractions to 

more serious health and safety issues— 

which respondents stated might not be 

indicative of poor performance. 

Respondents emphasized that using 

such a broad framework is inappropriate 

as a basis for measuring program 

quality. 

Many respondents stated that an 

approach that involves a ranking system 

and complex scoring of noncompliances 

would be burdensome to ACF and to 

grantees and contrary to the requirement 

that the Designation Renewal System be 

reliable and transparent. Several 

comments questioned why ACF would 

create a separate ranking system, in 

addition to the existing review 

processes in place. ACF also requested 

public comment specifically on the 

relative weighting of noncompliance 

findings, whether some noncompliances 

should be weighted more heavily than 

others, and whether the size of the 

grantee should be a factor taken into 

consideration in the ranking system. In 

response, many respondents stated that 

selecting which noncompliance findings 

should be included and what their 

relative weighting should be is arbitrary 

and introduces a high level of 

subjectivity that makes measuring 

quality consistently across programs 

difficult. Respondents questioned how 

ACF would distinguish between 

noncompliance findings and determine 

which are most important. Other 

comments, while objecting generally to 

using noncompliance findings, stated 

that weighting noncompliances would 

be a logical step if noncompliances were 

used. These respondents stated that 

some noncompliance should be 

weighted more heavily than others and 

doing so would prevent minor issues 

from requiring grantees to compete. 

Response: We appreciate the 

comments and recommendations 

respondents offered regarding the use of 

noncompliances as an additional 

criterion to reaching a 25 percent 

minimum of grantees competing. While 

ACF believes that noncompliance 

findings as a category are integral to the 

monitoring process and that such 

findings are critical to understanding 

whether grantees are meeting the Head 

Start Program Performance Standards, 

we are not using them for the purpose 

of designation renewal, provided that 

grantees correct them in the specified 

timeframes; uncorrected noncompliance 

findings that become deficiencies still 

will be included in the Designation 

Renewal System as part of the 

deficiency condition under § 1307.3(a). 

We agree that noncompliances represent 

a broad range of areas and believe that 

assigning values for purposes of 

determining which grantees compete 

would be difficult and imprecise. In 

response to comments and because the 

deficiency condition already is 

inclusive of uncorrected 

noncompliances, we have not added a 

condition related to noncompliance in 

the final rule. 

3. Comment: Many comments also 

were received related to the second 

approach to defining additional criteria 

that would introduce the use of 

evidence-based rating instruments (e.g., 

the Early Childhood Environmental 

Rating Scale, Infant and Toddler 

Environment Rating Scale, and the 

Family Child Care Environment Rating 

Scale) into the Head Start monitoring 

review system. Some of the comments 

received expressed a preference for use 

of the environment rating scales (ERS) 

over noncompliance data if the 

proposed 25 percent minimum standard 

is maintained in the final rule and one 

of the two proposed additional criteria 

must be selected. 

Although comments supporting the 

use of ERS were received and many 

stated that they held the ERS 

instruments in high regard, the majority 

of commenters expressed concerns and 

objected to the use of ERS as criteria for 

determining whether grantees would 

have to compete for renewed funding. 

Commenters viewed the ERS as 

primarily input driven (e.g., focusing on 

furnishings, personal care, and the 

structure of activities) and would not 

capture some of the central features of 

the program, such as comprehensive 

services. A concern also was raised that 

the ERS focuses on the classroom 

environment and does not give attention 

to governance or administrative 

structures. Many commenters also 

expressed concerns that the ERS does 


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not provide a thorough assessment of 

the central element of quality for 

children under three—the relationship 

between caregiver, child, and family. 

We also received numerous comments 

expressing concerns about the 

implementation of ERS in the 

monitoring review system and as a 

condition for designation renewal. Some 

commenters expressed concerns over 

the complexity of the administration of 

the ERS, noting that they are 

sophisticated instruments, requiring 

reviewers to make subjective judgments 

on some 40 different dimensions of 

classroom quality. Concerns were raised 

around the cost and burden associated 

with the need for appropriate training of 

teams of outside professional reviewers 

and ongoing monitoring of inter-rater 

reliability. 

Response: We appreciate the 

comments and suggestions received 

regarding the proposed use of ERS as 

additional criteria to identify grantees 

for competition if the 25 percent 

minimum standard is not met through 

the seven conditions. We believe the 

ERS instruments are high quality, 

research-based measures of the quality 

of the environment in early childhood 

settings, including Head Start and Early 

Head Start. However, we also agree with 

comments regarding the limitations of 

the instruments (i.e., they are not able to 

capture some of the key features of 

quality of Head Start and Early Head 

Start programs) and view them as 

overlapping to some extent with 

existing measures, such as the 

monitoring reviews. As a result, as 

indicated previously, we replaced the 

proposed 25 percent threshold in this 

final rule and modified the CLASS: PreK related criteria to have two subparts 

to ensure that there is robust 

competition. 

Proposed § 1307.4—Grantee Reporting 

Requirements Concerning Certain 

Conditions 

1. Comment: In the NPRM, we 

proposed that Head Start agencies must 

report in writing to the designated ACF 

official within 10 working days of the 

occurrence any of the following events: 

(1) The agency has had a revocation of 

a license to operate a center by a State 

or local licensing entity; (2) the agency 

has filed for bankruptcy or agreed to a 

reorganization plan as part of a 

bankruptcy settlement; (3) the agency 

has been debarred from receiving 

Federal or State funds from any Federal 

or State department or agency or has 

been disqualified from the Child and 

Adult Care Food Program (CACFP); and 

(4) the agency has received an audit, 

audit review, investigation or inspection 

report from the agency’s auditor, a State 

agency, or the cognizant Federal audit 

agency containing a determination that 

the agency is at risk for ceasing to be a 

going concern. Commenters raised 

concern that it is an undue burden on 

programs to provide this information 

and that ACF should be able to collect 

this information. In addition, some 

commenters agreed that reporting this 

information was necessary but that the 

10-day time frame was not feasible. 

Response: We are not making any 

changes to the requirement for grantees 

to report to ACF on these four 

conditions. We believe that each of 

these conditions indicates a serious 

problem and that ACF should know 

about them as soon as possible so that 

appropriate action can be taken. The 

most efficient method for ACF to learn 

of these conditions is to require grantees 

to report them directly. 

However, in response to comments, 

we have made a couple of changes to 

the final reporting requirements. First, 

based on comments that license 

revocation is a serious and problematic 

occurrence, we have modified the 

reporting requirements for certain 

events based on whether they occurred 

before or after the effective date of the 

Part. Specifically, for licensing 

revocations, we require that Head Start 

agencies must report in writing to the 

responsible HHS official within 30 

working days of the effective date of this 

Part if the agency has had a revocation 

of a license to operate a center by a State 

or local licensing entity during the 

period between June 12, 2009, and the 

effective date of this Part. This 

modification to the NPRM was made 

since there is not a source of 

information for ACF to check to 

determine whether a grantee had its 

license revoked. 

Regarding reporting of debarment and 

disqualification from CACFP, many 

commenters suggested that HHS use 

existing sources of information rather 

than having grantees report. In the case 

of debarment from Federal funds, there 

is a database that is publicly available. 

As proposed in the NPRM, ACF still 

will still require grantees to report on 

this condition. We also will check the 

information grantees provide against the 

national List of Excluded Parties. 

Regarding CACFP disqualification, the 

National Disqualified List is not part of 

the other Federal funding database nor 

is the list publicly available or available 

to other Federal agencies. Grantees will 

be required to report CACFP 

disqualification and ACF will work with 

USDA (administering agency for 

CACFP) to acquire this information as 

well. 

While we appreciate comments asking 

for a longer timeframe to report, we 

have retained the 10 day requirement 

due to the very serious nature of these 

events. HHS believes that each of these 

conditions is so serious that we should 

be notified as soon as possible. We 

believe that it does not put an undue 

burden on programs to report within 10 

working days. 

Proposed § 1307.5—Requirements To Be 

Considered for Designation for a Fiveyear Period When the Existing Entity in 

a Community Is Not Determined To Be 

Delivering a High-quality and 

Comprehensive Head Start Program and 

Is Not Automatically Renewed 

1. Comment: A few comments were 

received on the application process 

described in this section for cases where 

the existing grantee in a community is 

not determined to be delivering a highquality program and so there will be a 

competition in that community. Those 

comments expressed confusion about 

the provision and asked for clarification 

in the final rule. The commenters on 

this provision expressed strong concern 

in all cases when there is a transition 

between grantees. Commenters also 

asked whether grantees that voluntarily 

relinquished their grant would be 

considered a terminated grantee and 

therefore prohibited from applying from 

competition. 

Response: This language is taken 

directly from the description of DRS in 

the Act at section 641(d) but we have 

added additional language for 

clarification. We also clarify that the 

criteria at section 641(d) of the Act 

apply to Head Start. 

As proposed in the NPRM, terminated 

grantees will be excluded from 

competing for funding for the next five 

years. This provision applies beginning 

with the effective date of the regulation 

and that exclusion is for a five-year 

period beginning with the former 

grantee’s termination by ACF. We have 

clarified that this only applies to 

grantees terminated for cause. ACF has 

made one modification to 1307.5, 

however; similar to terminated grantees, 

a Head Start or Early Head Start agency 

that has had a ‘‘denial of refunding,’’ 

defined in 45 CFR 1303.2, is also 

excluded from competing for the next 

five years. ACF has added the reference 

to denials of refunding because denials 

of refunding are made on the same 

grounds as terminations and have the 

same effect under 45CFR 1303.15(c). A 

determination that a grantee will not be 

awarded funding noncompetitively is 

not a denial of refunding and in no way 

limits the ability of that grantee to apply 

for funding. 


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70024 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

ACF acknowledges concerns about 

continuity of Head Start services and 

always seeks to minimize disruption in 

services to children and families. In 

cases in which a new grantee is selected 

as a result of recompetition, ACF 

believes that the transition generally 

will proceed without significant 

disruption of services to children and 

families in the community served. If 

ACF determines that a particular 

transition poses a risk of disruption of 

services, ACF may exercise its statutory 

authority to appoint an interim grantee 

in exceptional circumstances. 

Proposed § 1307.6—Tribal Government 

Consultation Under the Designation 

Renewal System for When an Indian 

Head Start Is Being Considered for 

Competition 

1. Comment: Many commenters 

expressed concern that there had not 

been appropriate Tribal consultation on 

the proposed regulation. Some 

commenters mentioned that all grantees 

should have the same process for Tribal 

programs. Commenters said that MSHS 

grantees and rural grantees especially 

should be allowed to comply with the 

same provisions as described for Tribal 

programs. 

Response: Because this rule simply 

implements the specific redesignation 

provisions related to Tribes that are 

required by the Act, the policies related 

to Tribal programs proposed in the 

NPRM are maintained. 

Regarding concerns about 

consultation, consistent with Executive 

Order 13175, the Department of Health 

and Human Services (HHS) has 

established a Tribal Consultation Policy 

(Policy). 

This Policy affirms the authority of 

HHS to utilize notice and comment 

rulemaking as one form of consultation. 

ACF consulted with Tribes by raising 

the issues related to the Designation 

Renewal System at OHS Tribal 

consultations in 2009 and 2010 and by 

providing the 90-day opportunity to 

submit comments on this NPRM. 

Proposed § 1307.7—Designation 

Request and Review Process. (Note that 

the proposed title of § 1307.7 

‘‘Designation request and review 

process’’ has been changed to 

‘‘Designation request, review and 

notification process’’ in the final rule.) 

1. Comment: Commenters raised 

concerns that requiring grantees to 

apply to have their funding renewed 

without competition is burdensome to 

grantees and could result in programs 

not being considered if they miss the 

deadline to submit the paperwork. 

Response: While ACF appreciates the 

comments on this provision, we are 

unable to change this provision because 

of the statutory requirement at Section 

641(b) entitled ‘‘Application for 

Designation Renewal’’ which states ‘‘to 

be considered for designation renewal, 

an entity shall submit an application to 

the Secretary, at such time and in such 

manner as the Secretary may require.’’ 

ACF has tried to make this requirement 

that grantees officially apply for 

designation renewal as least 

burdensome as possible. We have 

modified the final rule to only require 

that grantees submit their intent to be 

considered for designation renewal once 

during the transition period and during 

the period after the transition only once 

during the five year grant period. 

2. Comment: Commenters also 

expressed concern over the proposed 

three-year transition period and 

suggested that the transition period be 

lengthened to five years. Commenters 

suggested ACF make it clear that 

reviews under the Designation Renewal 

System taking place after the transition 

period focus on findings since the 

beginning of a grantee’s current grant. 

Response: Since the transition period 

of three years is established under 

section 641(c)(9) of the Act, we do not 

have the authority to modify its length. 

Therefore, we have not made any 

changes to the timeframe of the 

transition period in the final regulation. 

After the transition period, the time 

periods for relevant data will be only 

within that five-year grant period, as 

explained in final § 1307.7(b)(3). 

3. Comment: Some commenters were 

confused about whether the designation 

review process was another on-site 

review separate from the on-site 

monitoring reviews required under 

section 641A(c)(1) of the Act. 

Response: In response to comments, 

ACF has amended this section to 

explain the process more clearly. We 

also note that the DRS review is separate 

from the monitoring reviews required 

under section 641A(c)(1)(A), (C), or (D) 

of the Act. The language in final 

§ 1307.7(b) explains that the DRS 

reviews under Part 1307 consist of an 

ACF review of data to determine if one 

or more of the conditions under § 1307.3 

had been met by the Head Start and 

Early Head Start agency’s program. This 

DRS review is a review of all 

performance data available on a grantee, 

and is consistent with the focus on 

continuous program improvement by 

Head Start. It is not intended to 

comprise an additional on-site review, 

data from the monitoring reviews 

required under section 641A(c)(1)(A), 

(C), or (D) of the Act will be used in the 

DRS determination. 

Final § 1307.7(b) also describes the 

data that will be reviewed by ACF for 

three distinct time periods. First, 

§ 1307.7(b)(1) explains that during the 

first year of the transition period, ACF 

will review the data on each Head Start 

and Early Head Start agency to 

determine if any of the conditions under 

final § 1307.3(a) or (d)–(g) (i.e., the five 

conditions excluding the school 

readiness goals and CLASS: Pre-K 

conditions) were met by the agency’s 

program since June 12, 2009. As 

explained previously, we have 

maintained the beginning date of June 

12, 2009, on which data will be 

considered for the conditions described 

under final § 1307.3(a) and (d)–(g) 

(proposed § 1307.3(b)(1) and (4)–(7)). 

However we will not consider the 

school readiness condition described 

under § 1307.3(b) (proposed 

§ 1307.3(b)(2)) during the timeframe that 

had been proposed in the NPRM. 

Instead, this condition will be applied 

using data beginning after the effective 

date of this part during the second year 

of the transition period, as explained 

below. We maintain the provision in the 

NPRM that we will use data for the 

condition described under final 

§ 1307.3(c) (proposed § 1307.3(b)(3)) 

beginning on the effective date of this 

part but have changed the timing of 

when this will be used in the transition. 

In the final regulation, the results of the 

CLASS: Pre-K Instrument obtained in 

on-site reviews under Section 641A of 

the Act after the effective date of the 

regulation will be used to determine if 

grantees will have to compete for further 

funding. For reasons already noted, we 

will use CLASS: Pre-K data in the 

second year of the transition. 

Then, during the remainder of the 

transition period, § 1307.7(b)(2) explains 

that ACF will review the data on each 

Head Start and Early Head Start agency 

still operating under grants with 

indefinite project periods and for whom 

ACF has relevant data on the conditions 

in § 1307.3(a) through (g) to determine 

if any of the conditions under 

§ 1307.3(a) or (d) through (g) were met 

by the agency’s program since June 12, 

2009, or if the conditions under 

§ 1307.3(b) or (c) existed in the agency’s 

program since the effective date of this 

Part. This means, that over the course of 

the transition period, no program will 

receive a Head Start or Early Head Start 

grant automatically before being judged 

on all of the criteria. If a program meets 

one or more of the criteria, the program 

will have to compete to receive 

continued funding. 


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Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 70025 

The table below is provided to 

illustrate which criteria will be 

considered during the relevant periods. 

Time period 

1307.3 Conditions to be considered 

(specific provisions in 1307.3 have been abbreviated in this table, 

see 1307.3 for full text of conditions) 

Designation renewal review 

Year 1 of Transition ...... (a) A deficiency on a review conducted under Section 641A ..............

(d) Revocation of a License to Operate. 

(e) Suspension by OHS. 

(f) Debarred from receiving state or federal funds or Disqualified from 

CACFP. 

(g) Audit finding of being at risk of failing to continue functioning as a 

Going Concern. 

• Data on all grantees will be reviewed. 

• Those meeting any of the conditions of 

1307.3(a), (d), (e), (f) or (g) from data collected since June 12, 2009 will be required 

to compete. 

• No grantees will be moved to five year 

grants non-competitively this year. 

Remainder of Transition (a) A deficiency on a review conducted under Section 641A ..............

(b) Failure to establish program goals for improving the school readiness of children and taking steps to achieve those school readiness goals. 

(c) Low CLASS scores as described in 1307.3(c). 

(d) Revocation of a License to Operate. 

(e) Suspension by OHS. 

(f) Debarred from receiving state or federal funds or Disqualified from 

CACFP. 

(g) Audit finding of being at risk of failing to continue functioning as a 

Going Concern. 

• All grantees still under continuous grants 

and that ACF has complete data on the 

conditions of 1307.3(b)–(c) will have their 

data reviewed to determine if they meet 

those conditions since the effective date of 

this rule. 

• All grantees still under continuous grants 

will have their data reviewed to determine if 

they meet the conditions of 1307.3(a), (c), 

(d), (e), (f) or (g) since June 12, 2009. 

Five Year Grant Period (a) A deficiency on a review conducted under Section 641A ..............

(b) Failure to establish program goals for improving the school readiness of children and taking steps to achieve those school readiness goals. 

(c) Low CLASS scores as described in 1307.3(c). 

(d) Revocation of a License to Operate. 

(e) Suspension by OHS. 

(f) Debarred from receiving state or federal funds or Disqualified from 

CACFP. 

(g) Audit finding of being at risk of failing to continue functioning as a 

Going Concern. 

• ACF will review the data on each Head 

Start and Early Head Start agency in the 

fourth year of the grant to determine if any 

of the conditions under § 1307.3 existed in 

the agency’s program during the period of 

that grant. 

We explain in § 1307.7(b)(3) that 

following the transition period, ACF 

will review the data on each Head Start 

and Early Head Start agency in the 

fourth year of the grant to determine if 

any of the conditions under § 1307.3 

existed in the agency’s program during 

the period of that grant. 

In final § 1307.7(c), we explain the 

method ACF will follow to provide 

notice to grantees on their Designation 

Renewal System status during each of 

the time periods. We also note that this 

process does not apply for Tribal Head 

Start programs; the process for those 

grantees is described under § 1307.6. In 

the NPRM, ACF proposed sending 

grantees a preliminary notice 6 months 

prior to the ending of their grant to 

indicate whether they would be 

required to recompete. In response to 

public comment, this provision has 

been removed from the final rule 

because it is not necessary and causes 

additional burden on ACF and grantees. 

In § 1307.7(c)(1), we explain that 

during the first year of the transition 

period, ACF will give written notice to 

all grantees meeting any of the 

conditions under § 1307.3(a) or (d)–(g) 

since June 12, 2009, by certified mail 

return receipt requested or other system 

that establishes the date of receipt of the 

notice by the addressee, stating that the 

agency will be required to compete for 

funding for an additional five-year 

period. All other grantees that did not 

meet any of the conditions under 

§ 1307.3(a) or (d)–(g) will remain under 

indefinite project periods until the time 

period specified in § 1307.7(c)(2). 

In § 1307.7(c)(2), we explain that 

during the remainder of the transition 

period, ACF will give written notice to 

all grantees still under grants with 

indefinite project periods on the 

conditions in § 1307.3(a)–(g) by certified 

mail return receipt requested or other 

system that establishes the date of 

receipt of the notice by the addressee. 

This written notice will state either that 

the agency will be required to compete 

for funding for an additional five-year 

period because ACF finds that one or 

more conditions under § 1307.3 has 

been met during the relevant time 

period described in paragraph (b) of this 

section, will identify the conditions 

ACF found, and will summarize the 

basis for the finding or that such agency 

has been determined on a preliminary 

basis to be eligible for renewed funding 

for five years without competition 

because ACF finds that none of the 

conditions under § 1307.3 have been 

met during the relevant time period 

described in paragraph (b) of this 

section. However, we specify that if 

prior to the award of that grant, ACF 

determines that the grantee has met one 

of the conditions, this determination 

will change and the grantee will receive 

notice that it will be required to 

compete for funding for an additional 

five-year period. 

In § 1307.7(c)(3), we explain that 

following the transition period, ACF 

will give written notice to all grantees 

at least 12 months before the expiration 

date of an agency’s five year grant 

period by certified mail return receipt 

requested or other system that 

establishes the date of receipt of the 

notice by the addressee, stating the same 

information described under 

§ 1307.7(b)(2). In addition, we specify 

that if prior to the award of that grant, 

ACF determines that the grantee has met 

one or more of the conditions, this 

determination will change and the 

grantee will receive notice that it will be 

required to compete for funding for an 

additional five-year period. 


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70026 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

Proposed § 1307.8—Use of CLASS: PreK Instrument in the Designation 

Renewal System 

1. Comment: Section 1307.8 

specifically addresses the 

implementation of CLASS: Pre-K in the 

Designation Renewal System. Many 

commenters raised concerns that OHS 

does not follow the University of 

Virginia’s protocol in its use of CLASS: 

Pre-K. These comments stated that ACF 

must adhere strictly to the protocol with 

respect to the number of observation 

cycles, length and frequency of 

observations and timing, and training of 

reviewers in order to maintain the 

integrity of the CLASS: Pre-K tool in 

monitoring. 

Response: ACF has worked with the 

developers in determining the most 

appropriate number of observations. 

Although the Classroom Assessment 

Scoring System manual describes that 

the recommended protocol for 

conducting CLASS observations is four 

cycles in each class that are each 30 

minutes (i.e., 20-minute observe, 10 

minute record), the University of 

Virginia (UVA) has advised ACF that 

four cycles with a single teacher, while 

appropriate for research, is not the best 

use of resources when ACF’s objective 

is to get a picture of classroom quality 

at the grantee level. Instead, UVA has 

recommended a protocol that involves 

fewer cycles per teacher, but that 

includes more teachers. Given the 

importance of observing more classes, 

rather than fewer classes for a longer 

period of time, ACF will conduct two 

cycles in each class in the sample. 

Further, data from the HHS Family 

and Child Experiences Survey (FACES) 

study, which provides descriptive data 

on a nationally representative sample of 

three and four-year olds entering Head 

Start, reinforced ACF’s decision to 

conduct two rather than four CLASS 

observations. FACES data indicates that 

four CLASS observations were not 

consistently conducted of all grantees, 

even though that was the intention in 

the study design. Attempting to conduct 

four observations in every monitoring 

review when it could not be 

accomplished in FACES, and doing so 

on a scale much larger than the FACES 

study, likely would result in differential 

treatment of grantees since some 

grantees would likely get four 

observations and others would get 

fewer. Given the importance of 

observing more classrooms, rather than 

fewer classrooms for a longer period of 

time, ACF will conduct two cycles in 

each classroom in the sample. 

2. Comment: A number of 

respondents also raised concerns 

regarding inconsistencies in how 

CLASS: Pre-K is used in monitoring and 

how reviewers conduct the 

observations. Grantees from a particular 

State relayed their experiences with a 

reviewer who did not follow the process 

specified in the CLASS: Pre-K protocol. 

Other respondents raised concern with 

the reliability of the CLASS: Pre-K 

instrument when it is used at different 

times during the day or year. These 

comments expressed concerns that 

grantees would be treated differently 

depending on the time of day or season 

of the review or observations at a certain 

point in time would not be a fair 

representation of classroom quality. 

These comments stated that CLASS: 

Pre-K scores were lower, for example, 

for programs reviewed in the spring 

than those reviewed in the winter. 

Others raised concerns about the 

continued reliability of the reviewers. 

Response: ACF has focused 

considerable attention on its 

implementation of the CLASS: Pre-K in 

the monitoring review system to ensure 

that CLASS: Pre-K observations are 

conducted consistently across 

monitoring reviews. In addition to 

developing a random sampling 

methodology, ACF has integrated 

ongoing training for CLASS: Pre-K 

reviewers to ensure their continued 

reliability, as well as a reviewer double 

coding process to assure the consistency 

of the implementation. ‘‘Double coding’’ 

is a technical term that refers to the 

process of using two reviewers during 

observational measures to ensure that 

both reviewers reach the same 

conclusion, and it offers evidence of 

reliability and consistency. ACF also 

has made the determination that 

reviews will not be conducted in the 

first two and last two weeks of the 

program year, as well as the two weeks 

surrounding the winter holidays 

because grantees’ classrooms when the 

program is beginning and concluding its 

year, and preparing for the winter break, 

is not representative of the environment 

during the program year. While ACF has 

made some adjustments for time of year, 

we believe strongly that children need 

to be in high-quality early childhood 

settings for the entire length of their 

day; thus, we will continue to conduct 

CLASS: Pre-K observations at any time 

throughout the day with the exception 

of naptime and outdoor unstructured 

free play. Since all programs will be 

observed at all points when they are 

operating, with the exception of nap 

time and outdoor free play, we are 

confident that this is a fair standard that 

will yield consistent results. 

3. Comment: Many respondents raised 

concerns about the sampling 

methodology used to determine which 

classrooms would be observed. 

Respondents requested clarification on 

the ‘‘subset of classrooms’’ referenced as 

the sample in the NPRM and urged that 

the sample be statistically valid. 

Response: ACF has worked with 

statisticians to develop a statistically 

sound methodology for sampling the 

center-based preschool classes of 

grantees that will be observed using 

CLASS: Pre-K. This methodology will 

select a random sample (subset) of each 

grantee’s classes and that subset will be 

representative of the grantee. The 

sampling methodology ensures that a 

sufficient number of classes are selected 

from across the grantee’s total classes; as 

a result, the resulting score will be 

generalizable to the grantee’s total 

classes overall. This approach also was 

vetted through an external review 

process. For more information on ACF’s 

sampling methodology, please reference 

the following link: http:// 

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

previously, since ACF is implementing 

a significantly improved and more 

rigorous random sampling of each 

grantee’s classes, determinations for 

designation renewal will be made based 

on the most recent CLASS: Pre-K 

observation, rather than the two most 

recent CLASS: Pre-K observations as 

was proposed in the NPRM. 

VI. Paperwork Reduction Act 

This rule establishes new information 

collection requirements in § 1307.4. As 

required by the Paperwork Reduction 

Act of 1995, codified at 44 U.S.C. 3507, 

ACF 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. 


jlentini on DSK4TPTVN1PROD with RULES5
Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 70027 

Requirement Respondents Annual 

Average burden per 

respondent 

(hours) 

Total burden 

hours 

Per § 1307.4, Head Start and Early 

Head Start agencies must report in 

writing to the responsible HHS official 

within 30 working days of the effective 

date of this Part if the agency has 

had a revocation of a license to operate a center by a State or local licensing entity during the period between 

June 12, 2009 and the effective date 

of this Part.

20–40 grantees ............ 1 hour or less .............. 1 hour or less .............. 20–40 hours. 

Following the effective date of this Part, 

Head Start and Early Head Start 

agencies must report to ACF within 

10 working days of occurrence of any 

of the following: 

(1) The agency has had a license 

to operate a center revoked by a 

State or local licensing entity.

(2) The agency has filed for bankruptcy or agreed to a reorganization plan as part of a bankruptcy 

settlement.

(3) The agency has been debarred 

from receiving Federal or State 

funds from any Federal or State 

agency or has been disqualified 

from The Child and Adult Care 

Food Program (CACFP).

(4) The agency has received an 

audit, audit review, investigation 

or inspection report from the 

agency’s auditor, a State agency, 

or the cognizant Federal audit 

agency containing a determination that the agency is at risk of 

failing to function as a going concern.

Per section 1307.7(a) each Head Start 

or Early Head Start agency wishing to 

be renewed for five years without 

competition shall request that status 

from ACF.

1,600 grantees ............. 1 hour or less .............. 1 hour or less .............. 1,600 hours. 

Agencies required to compete will have 

to complete applications consistent 

with the criteria at 1307.5.

480 grantees ................ 40 hours ....................... 40 hours ....................... 19,200 hours. 

In the NPRM we estimated the costs 

of implementing these requirements to 

be approximately $481,000 annually 

across all 1,600 grantees. This estimate 

includes approximately $1,000 across 

all grantees and $480,000 across those 

grantees that are required to submit 

competitive applications. 

We do not anticipate that Head Start 

agencies will be gathering new 

information to accomplish these 

changes. They only will be required to 

inform ACF if one of four events 

specified in § 1307.4 has occurred. 

In the NPRM, ACF asked for public 

comments on collection of information 

in the following areas: 

(a) Evaluating whether the proposed 

collection is necessary for the proper 

performance of the functions of ACF, 

including whether the information will 

have practical utility; 

(b) Evaluating the accuracy of ACF’s 

estimate of the proposed collection of 

information, including the validity of 

the methodology and the assumptions 

used; 

(c) Enhancing the quality, usefulness, 

and clarity of the information to be 

collected; and 

(d) Minimizing the burden of the 

collection of information on those who 

are to respond, including through the 

use of appropriate automated, 

electronic, mechanical, or other 

technology, e.g., permitting electronic 

submission of responses. 

We received some comments 

regarding the reporting requirements 

proposed in § 1307.4, which explained 

the grantee reporting requirements 

concerning certain conditions. In the 

NPRM, we had proposed that Head Start 

agencies must report in writing to the 

designated ACF official within 10 

working days of the occurrence any of 

the following events: (1) The agency has 

had a revocation of a license to operate 

a center by a State or local licensing 

entity; (2) the agency has filed for 

bankruptcy or agreed to a reorganization 

plan as part of a bankruptcy settlement; 

(3) the agency has been debarred from 

receiving Federal or State funds from 

any Federal or State department or 

agency or has been disqualified from the 

Child and Adult Care Food Program 

(CACFP); and (4) The agency has 

received an audit, audit review, 

investigation or inspection report from 

the agency’s auditor, a State agency, or 

the cognizant Federal audit agency 

containing a determination that the 

agency is at risk for ceasing to be a going 

concern. The specific concerns with this 


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70028 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

proposed provision included: That it 

was an undue burden on programs to 

provide this information, that ACF had 

not made clear what it intends to do 

with this information and why it 

requires agencies to report, that ACF 

had underestimated the cost to grantees 

of the reporting requirements, and that 

ACF should be able to collect this 

information. ACF has considered these 

comments and will maintain this 

provision in the final regulation 

requiring grantees to report to ACF on 

these four conditions. ACF believes that 

each of these conditions is a serious 

problem and that ACF should know 

about the occurrence as soon as possible 

so that appropriate action can be taken. 

The most efficient method for ACF to 

learn of these conditions is to require 

grantees to report them directly. As 

stated in the preamble to § 1307.4, the 

reporting timelines remain unchanged. 

Commenters also stated that requiring 

grantees to apply to have their funding 

renewed without competition is 

burdensome to grantees and could result 

in programs not being considered if they 

miss the deadline to submit the 

paperwork. As indicated earlier in this 

preamble, while ACF appreciates the 

comments on this provision, we are 

unable to change this provision because 

of the statutory requirement at section 

641(b) which states ‘‘to be considered 

for designation renewal, an entity shall 

submit an application to the Secretary.’’ 

ACF has tried to make this as least 

burdensome as possible and has 

modified the final rule to only require 

grantees to submit their intent once 

during the transition period and once 

during the five year grant period. 

Consistent with comments received on 

the burden of preparing applications for 

competitions, ACF has added an 

estimate of 40 hours of burden for the 

roughly one-third of grantees that will 

be required to compete. This has 

increased the burden estimate 

significantly. 

VII. 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. 

The actions required of grantees to 

comply with the reporting, 

recordkeeping, and other requirements 

of this rule do not require significant 

expenditures of funds. 

Specifically, as noted under the 

Paperwork Reduction Act section of this 

preamble, we estimate the cost of 

implementing new reporting 

requirements to be approximately 

$481,000 annually, which when applied 

to all 1,600 grantees nationally, results 

in a cost per grantee of less than $300. 

This reflects approximately $1,000 in 

reporting requirements across all 

grantees for the unusual events such as 

debarment or license revocation and the 

estimated 480,000 in costs associated 

with competitive applications for those 

grantees required to compete. As in the 

NPRM, this assumes that agencies 

would not be gathering any new 

information, since such information 

would have to be known to grantees in 

order to efficiently manage their 

programs. In addition, only a subset of 

the 1,600 grantees will be required to 

compete for renewal of a grant under 

these regulations. We estimate that 

roughly one-third of grantees reviewed 

in a review cycle will be affected by the 

regulation. Those grantees that need to 

compete for another five-year grant are 

required to submit an application. Since 

all grantees currently are required to 

submit a refunding application each 

year for their noncompetitive grant, 

there only will be an incremental 

increase in costs for grantees that must 

prepare and submit a competitive 

application. We estimate those costs to 

be less than $3,000 for each grantee 

submitting a competitive application. In 

developing this estimate, we assumed 

that it would take 40 hours for two 

senior level staff and one administrative 

staff person to complete a refunding 

application. Further, we assumed that 

grantees could spend more than twice as 

much time preparing this competitive 

application as they do on their regular 

annual refunding application. 

These rules primarily are intended to 

ensure accountability for Federal funds 

consistent with the purposes of the 

Head Start Act, to ensure that 

communities receive the highest quality 

services available, and are not 

duplicative of other requirements. In 

developing this rule, we sought to 

implement the new and expanded 

requirements of the Head Start Act in a 

manner that does not impinge on a 

small entity’s ability to design and 

manage effective and responsive Head 

Start programs. At the same time, we 

sought to focus renewed attention on 

strengthening accountability for Head 

Start programs and increasing program 

quality and improving outcomes for 

low-income families. We believe this 

rule implements the aims of the Head 

Start Act, as amended, to improve the 

effectiveness of Head Start programs 

while preserving Head Start grantees’ 

abilities to continue using creativity and 

innovation to promote the school 

readiness of children from low-income 

families. In the NPRM, we had 

requested public comments on whether 

we have adequately considered all costs 

for small entities and achieved the 

balance described above. We received 

comments that we under-estimated the 

costs associated with the application. In 

response, we have increased the 

estimate significantly to assure we are 

adequately reflecting the potential costs. 

VIII. Regulatory Impact Analysis 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 in 

particular emphasizes the importance of 

quantifying both costs and benefits, of 

reducing costs, of harmonizing rules, 

and of promoting flexibility. The 

Department has determined that this 

rule is consistent with these priorities 

and principles. 

These regulations primarily 

implement statutory changes to the 

Head Start program enacted in the 

Improving Head Start for School 

Readiness Act of 2007 (Pub. L. 110– 

134). ACF does not believe there will be 

a significant economic impact from this 

regulatory action. We estimate that 

roughly one-third of grantees reviewed 

in each review cycle will be affected by 

the regulation. The costs of 

implementation of these rules for the 

subset of grantees that would be 

required to compete in any year 

(estimated to be no more than $1,500 for 

each grantee), the total cost per year 

resulting from this regulation is well 

under $1 million. This rule has been 

designated a ‘‘significant regulatory 

action’’ although not economically 

significant, under section 3(f) of 

Executive Order 12866. Accordingly, 

the rule has been reviewed by the Office 

of Management and Budget. 

These regulations are also consistent 

with section 6 of Executive Order 

13563, which directs agencies to engage 

in ‘‘periodic review of existing 

significant regulations’’ and to ‘‘promote 

retrospective analysis of rules.’’ These 

regulations grow out of a careful process 

of review and retrospective analysis, 

and hence are part of a general effort, in 

HHS and government-wide, to improve 

regulatory programs as a result of ‘‘what 

has been learned.’’ 


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Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 70029 

IX. 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 $136 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, in implementing the new 

statutory requirements, would not 

impose a mandate that will result in the 

expenditure by State, local, and Tribal 

governments, in the aggregate, or by the 

private sector, of more than $136 

million in any one year. 

X. Congressional Review 

This regulation is not a major rule as 

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

XI. 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. 

XII. 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 would not have any impact on the 

autonomy or integrity of the family as 

an institution. Accordingly, ACF has 

concluded that it is not necessary to 

prepare a Family Policymaking 

Assessment. 

List of Subjects in 45 CFR Part 1307 

Education of disadvantaged, Grant 

programs—social programs. 

(Catalog of Federal Domestic Assistance 

Programs Number 93.600, Head Start) 

Dated: September 8, 2011. 

George H. Sheldon, 

Acting Assistant Secretary for Children and 

Families. 

Approved: September 30, 2011. 

Kathleen Sebelius, 

Secretary. 

For the reasons set forth in the 

preamble, we amend 45 CFR Chapter 

XIII by adding part 1307 to read as 

follows: 

PART 1307—POLICIES AND 

PROCEDURES FOR DESIGNATION 

RENEWAL OF HEAD START AND 

EARLY HEAD START GRANTEES 

Sec. 

1307.1 Purpose and scope. 

1307.2 Definitions. 

1307.3 Basis for determining whether a 

Head Start agency will be subject to an 

open competition. 

1307.4 Grantee reporting requirements 

concerning certain conditions. 

1307.5 Requirements to be considered for 

designation for a five-year period when 

the existing grantee in a community is 

not determined to be delivering a highquality and comprehensive Head Start 

program and is not automatically 

renewed. 

1307.6 Tribal government consultation 

under the Designation Renewal System 

for when an Indian Head Start grant is 

being considered for competition. 

1307.7 Designation request, review and 

notification process. 

1307.8 Use of CLASS: Pre-K Instrument in 

the Designation Renewal System. 

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

§ 1307.1 Purpose and scope. 

The purpose of this Part is to set forth 

policies and procedures for the 

designation renewal of Head Start and 

Early Head Start programs. It is 

intended that these programs be 

administered effectively and 

responsibly; that applicants to 

administer programs receive fair and 

equitable consideration; and that the 

legal rights of current Head Start and 

Early Head Start grantees be fully 

protected. The Designation Renewal 

System is established in this Part to 

determine whether Head Start and Early 

Head Start agencies deliver high-quality 

services to meet the educational, health, 

nutritional, and social needs of the 

children and families they serve; meet 

the program and financial requirements 

and standards described in section 

641A(a)(1) of the Head Start Act; and 

qualify to be designated for funding for 

five years without competing for such 

funding as required under section 641(c) 

of the Head Start Act with respect to 

Head Start agencies and pursuant to 

section 645A(b)(12) and (d) with respect 

to Early Head Start agencies. A 

competition to select a new Head Start 

or Early Head Start agency to replace a 

Head Start or Early Head Start agency 

that has been terminated voluntarily or 

involuntarily is not part of the 

Designation Renewal System 

established in this Part, and is subject 

instead to the requirements of part 1302. 

§ 1307.2 Definitions. 

As used in this Part— 

ACF means the Administration for 

Children and Families in the 

Department of Health and Human 

Services. 

Act means the Head Start Act, 45 

U.S.C. 9831 et seq. 

Agency means a public or private 

non-profit or for-profit entity designated 

by ACF to operate a Head Start or Early 

Head Start program. 

Aggregate child-level assessment data 

means the data collected by an agency 

on the status and progress of the 

children it serves that have been 

combined to provide summary 

information about groups of children 

enrolled in specific classrooms, centers, 

home-based or other options, groups or 

settings, or other groups of children 

such as dual language learners, or to 

provide summary information by 

specific domains of development. 

Child-level assessment data means 

the data collected by an agency on an 

individual child from one or more valid 

and reliable assessments of a child’s 

status and progress, including but not 

limited to direct assessment, structured 

observations, checklists, staff or parent 

report measures, and portfolio records 

or work samples. 

Early Head Start agency means a 

public or private non-profit or for-profit 

entity designated by ACF to operate an 

Early Head Start program to serve 

pregnant women and children from 

birth to age three, pursuant to section 

645A(e) of the Head Start Act. 

Going concern means an organization 

that operates without the threat of 

liquidation for the foreseeable future, a 

period of at least 12 months. 

Head Start agency means a local 

public or private non-profit or for-profit 

entity designated by ACF to operate a 

Head Start program to serve children 

age three to compulsory school age, 

pursuant to section 641(b) and (d) of the 

Head Start Act. 

School readiness goals mean the 

expectations of children’s status and 


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progress across domains of language and 

literacy development, cognition and 

general knowledge, approaches to 

learning, physical well-being and motor 

development, and social and emotional 

development that will improve their 

readiness for kindergarten. 

Transition period means the threeyear time period after December 9, 2011, 

on the Designation Renewal System 

during which ACF will convert all of 

the current continuous Head Start and 

Early Head Start grants into five-year 

grants after reviewing each grantee to 

determine if it meets any of the 

conditions under section 1307.3 that 

require recompetition or if the grantee 

will receive its first five-year grant noncompetitively. 

§ 1307.3 Basis for determining whether a 

Head Start agency will be subject to an 

open competition. 

A Head Start or Early Head Start 

agency shall be required to compete for 

its next five years of funding whenever 

the responsible HHS official determines 

that one or more of the following seven 

conditions existed during the relevant 

time period covered by the responsible 

HHS official’s review under § 1307.7 of 

this part: 

(a) An agency has been determined by 

the responsible HHS official to have one 

or more deficiencies on a single review 

conducted under section 641A(c)(1)(A), 

(C), or (D) of the Act in the relevant time 

period covered by the responsible HHS 

official’s review under section 1307.7. 

(b) An agency has been determined by 

the responsible HHS official based on a 

review conducted under section 

641A(c)(1)(A), (C), or (D) of the Act 

during the relevant time period covered 

by the responsible HHS official’s review 

under § 1307.7 not to have: 

(1) After December 9, 2011, 

established program goals for improving 

the school readiness of children 

participating in its program in 

accordance with the requirements of 

section 641A(g)(2) of the Act and 

demonstrated that such goals: 

(i) Appropriately reflect the ages of 

children, birth to five, participating in 

the program; 

(ii) Align with the Head Start Child 

Development and Early Learning 

Framework, State early learning 

guidelines, and the requirements and 

expectations of the schools, to the extent 

that they apply to the ages of children, 

birth to five, participating in the 

program and at a minimum address the 

domains of language and literacy 

development, cognition and general 

knowledge, approaches toward learning, 

physical well-being and motor 

development, and social and emotional 

development; 

(iii) Were established in consultation 

with the parents of children 

participating in the program. 

(2) After December 9, 2011, taken 

steps to achieve the school readiness 

goals described under paragraph (b)(1) 

of this section demonstrated by: 

(i) Aggregating and analyzing 

aggregate child-level assessment data at 

least three times per year (except for 

programs operating less than 90 days, 

which will be required to do so at least 

twice within their operating program 

period) and using that data in 

combination with other program data to 

determine grantees’ progress toward 

meeting its goals, to inform parents and 

the community of results, and to direct 

continuous improvement related to 

curriculum, instruction, professional 

development, program design and other 

program decisions; and 

(ii) Analyzing individual ongoing, 

child-level assessment data for all 

children birth to age five participating 

in the program and using that data in 

combination with input from parents 

and families to determine each child’s 

status and progress with regard to, at a 

minimum, language and literacy 

development, cognition and general 

knowledge, approaches toward learning, 

physical well-being and motor 

development, and social and emotional 

development and to individualize the 

experiences, instructional strategies, 

and services to best support each child. 

(c) An agency has been determined 

during the relevant time period covered 

by the responsible HHS official’s review 

under § 1307.7: 

(1) After December 9, 2011, to have an 

average score across all classrooms 

observed below the following minimum 

thresholds on any of the three CLASS: 

Pre-K domains from the most recent 

CLASS: Pre-K observation: 

(i) For the Emotional Support domain 

the minimum threshold is 4; 

(ii) For the Classroom Organization 

domain, the minimum threshold is 3; 

(iii) For the Instructional Support 

domain, the minimum threshold is 2; 

(2) After December 9, 2011, to have an 

average score across all classrooms 

observed that is in the lowest 10 percent 

on any of the three CLASS: Pre-K 

domains from the most recent CLASS: 

Pre-K observation among those 

currently being reviewed unless the 

average score across all classrooms 

observed for that CLASS: Pre-K domain 

is equal to or above the standard of 

excellence that demonstrates that the 

classroom interactions are above an 

exceptional level of quality. For all three 

domains, the ‘‘standard of excellence’’ is 

a 6. 

(d) An agency has had a revocation of 

its license to operate a Head Start or 

Early Head Start center or program by a 

State or local licensing agency during 

the relevant time period covered by the 

responsible HHS official’s review under 

§ 1307.7 of this part, and the revocation 

has not been overturned or withdrawn 

before a competition for funding for the 

next five-year period is announced. A 

pending challenge to the license 

revocation or restoration of the license 

after correction of the violation shall not 

affect application of this requirement 

after the competition for funding for the 

next five-year period has been 

announced. 

(e) An agency has been suspended 

from the Head Start or Early Head Start 

program by ACF during the relevant 

time period covered by the responsible 

HHS official’s review under § 1307.7 of 

this part and the suspension has not 

been overturned or withdrawn. If there 

is a pending appeal and the agency did 

not have an opportunity to show cause 

as to why the suspension should not 

have been imposed or why the 

suspension should have been lifted if it 

had already been imposed under 45 CFR 

part 1303, the agency will not be 

required to compete based on this 

condition. If an agency has received an 

opportunity to show cause, the 

condition will be implemented 

regardless of appeal status. 

(f) An agency has been debarred from 

receiving Federal or State funds from 

any Federal or State department or 

agency or has been disqualified from the 

Child and Adult Care Food Program 

(CACFP) any time during the relevant 

time period covered by the responsible 

HHS official’s review under § 1307.7 of 

this part but has not yet been terminated 

or denied refunding by ACF. (A 

debarred agency will only be eligible to 

compete for Head Start funding if it 

receives a waiver described in 2 CFR 

180.135.) 

(g) An agency has been determined 

within the twelve months preceding the 

responsible HHS official’s review under 

§ 1307.7 of this part to be at risk of 

failing to continue functioning as a 

going concern. The final determination 

is made by the responsible HHS official 

based on a review of the findings and 

opinions of an audit conducted in 

accordance with section 647 of the Act; 

an audit, review or investigation by a 

State agency; a review by the National 

External Audit Review (NEAR) Center; 

or an audit, investigation or inspection 

by the Department of Health and Human 

Services Office of Inspector General: 


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Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 70031 

§ 1307.4 Grantee reporting requirements 

concerning certain conditions. 

(a) Head Start agencies must report in 

writing to the responsible HHS official 

within 30 working days of December 9, 

2011, if the agency has had a revocation 

of a license to operate a center by a State 

of local licensing entity during the 

period between June 12, 2009, and 

December 9, 2011. 

(b) Head Start agencies must report in 

writing to the responsible HHS official 

within 10 working days of occurrence 

any of the following events following 

December 9, 2011: 

(1) The agency has had a revocation 

of a license to operate a center by a State 

or local licensing entity. 

(2) The agency has filed for 

bankruptcy or agreed to a reorganization 

plan as part of a bankruptcy settlement. 

(3) The agency has been debarred 

from receiving Federal or State funds 

from any Federal or State department or 

agency or has been disqualified from the 

Child and Adult Care Food Program 

(CACFP). 

(4) The agency has received an audit, 

audit review, investigation or inspection 

report from the agency’s auditor, a State 

agency, or the cognizant Federal audit 

agency containing a determination that 

the agency is at risk for ceasing to be a 

going concern. 

§ 1307.5 Requirements to be considered 

for designation for a five-year period when 

the existing grantee in a community is not 

determined to be delivering a high-quality 

and comprehensive Head Start program 

and is not automatically renewed. 

In order to compete for the 

opportunity to be awarded a five-year 

grant, an agency must submit an 

application to the responsible HHS 

official that demonstrates that it is the 

most qualified entity to deliver a highquality and comprehensive Head Start 

or Early Head Start program. The 

application must address the criteria for 

selection listed at section 641(d)(2) of 

the Act for Head Start. Any agency that 

has had its Head Start or Early Head 

Start grant terminated for cause in the 

preceding five years is excluded from 

competing in such competition for the 

next five years. A Head Start or Early 

Head Start agency that has had a denial 

of refunding, as defined in 45 CFR 

1303.2, in the preceding five years is 

also excluded from competing. 

§ 1307.6 Tribal government consultation 

under the Designation Renewal System for 

when an Indian Head Start grant is being 

considered for competition. 

(a) In the case of an Indian Head Start 

or Early Head Start agency determined 

not to be delivering a high-quality and 

comprehensive Head Start or Early Head 

Start program, the responsible HHS 

official will engage in government-togovernment consultation with the 

appropriate Tribal government or 

governments for the purpose of 

establishing a plan to improve the 

quality of the Head Start program or 

Early Head Start program operated by 

the Indian Head Start or Indian Early 

Head Start agency. 

(1) The plan will be established and 

implemented within six months after 

the responsible HHS official’s 

determination. 

(2) Not more than six months after the 

implementation of that plan, the 

responsible HHS official will reevaluate 

the performance of the Indian Head 

Start or Early Head Start agency. 

(3) If the Indian Head Start or Early 

Head Start agency is still not delivering 

a high quality and comprehensive Head 

Start or Early Head Start program, the 

responsible HHS official will conduct 

an open competition to select a grantee 

to provide services for the community 

currently being served by the Indian 

Head Start or Early Head Start agency. 

(b) A non-Indian Head Start or Early 

Head Start agency will not be eligible to 

receive a grant to carry out an Indian 

Head Start program, unless there is no 

Indian Head Start or Early Head Start 

agency available for designation to carry 

out an Indian Head Start or Indian Early 

Head Start program. 

(c) A non-Indian Head Start or Early 

Head Start agency may receive a grant 

to carry out an Indian Head Start 

program only until such time as an 

Indian Head Start or Indian Early Head 

Start agency in such community 

becomes available and is designated 

pursuant to this Part. 

§ 1307.7 Designation request, review and 

notification process. 

(a) Grantees must apply to be 

considered for Designation Renewal 

(1) For the transition period, each 

Head Start or Early Head Start agency 

wishing to be considered to have their 

designation as a Head Start or Early 

Head Start agency renewed for a five 

year period without competition shall 

request that status from ACF within six 

months of December 9, 2011. 

(2) After the transition period, each 

Head Start or Early Head Start agency 

wishing to be considered to have their 

designation as a Head Start or Early 

Head Start agency renewed for another 

five year period without competition 

shall request that status from ACF at 

least 12 months before the end of their 

five year grant period or by such time 

as required by the Secretary. 

(b) ACF will review the relevant data 

to determine if one or more of the 

conditions under § 1307.3 of this part 

were met by the Head Start and Early 

Head Start agency’s program: 

(1) During the first year of the 

transition period, ACF shall review the 

data on each Head Start and Early Head 

Start agency to determine if any of the 

conditions under § 1307.3(a) or (d) 

through (g) of this part were met by the 

agency’s program since June 12, 2009. 

(2) During the remainder of the 

transition period, ACF shall review the 

data on each Head Start and Early Head 

Start agency still under grants with 

indefinite project periods and for whom 

ACF has relevant data on all of the 

conditions in § 1307.3(a) through (g) of 

this part to determine if any of the 

conditions under § 1307.3(a) or (d) 

through (g) were met by the agency’s 

program since June 12, 2009, or if the 

conditions under § 1307.3(b) or (c) 

existed in the agency’s program since 

December 9, 2011. 

(3) Following the transition period, 

ACF shall review the data on each Head 

Start and Early Head Start agency in the 

fourth year of the grant to determine if 

any of the conditions under § 1307.3 of 

this partexisted in the agency’s program 

during the period of that grant. 

(c) ACF will give notice to grantees on 

Designation Renewal System status, 

except as provided in § 1307.6 of this 

part: 

(1) During the first year of the 

transition period, ACF shall give written 

notice to all grantees meeting any of the 

conditions under § 1307.3(a) or (d) 

through (g) of this part since June 12, 

2009, by certified mail return receipt 

requested or other system that 

establishes the date of receipt of the 

notice by the addressee, stating that the 

Head Start or Early Head Start agency 

will be required to compete for funding 

for an additional five-year period, 

identifying the conditions ACF found, 

and summarizing the basis for the 

finding. All grantees that do not meet 

any of the conditions under § 1307.3(a) 

or (d) thorugh (g) will remain under 

indefinite project periods until the time 

period described under § 1307.7(b)(2). 

(2) During the remainder of the 

transition period, ACF shall give written 

notice to all grantees still under grants 

with indefinite project periods and on 

the conditions in § 1307.3(a) through (g) 

by certified mail return receipt 

requested or other system that 

establishes the date of receipt of the 

notice by the addressee stating either: 

(i) The Head Start or Early Head Start 

agency will be required to compete for 

funding for an additional five-year 

period because ACF finds that one or 

more conditions under § 1307.3(a) 

through (g) has been met during the 


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70032 Federal Register / Vol. 76, No. 217 / Wednesday, November 9, 2011 / Rules and Regulations 

relevant time period described in 

paragraph (b) of this section, identifying 

the conditions ACF found, and 

summarizing the basis for the finding; or 

(ii) That such agency has been 

determined on a preliminary basis to be 

eligible for renewed funding for five 

years without competition because ACF 

finds that none of the conditions under 

§ 1307.3 of this part have been met 

during the relevant time period 

described in paragraph (b) of this 

section. If prior to the award of that 

grant, ACF determines that the grantee 

has met one of the conditions under 

§ 1307.3 during the relevant time period 

described in paragraph (b) of this 

section, this determination will change 

and the grantee will receive notice 

under paragraph (c)(2)(i) of this section 

that it will be required to compete for 

funding for an additional five-year 

period. 

(3) Following the transition period, 

ACF shall give written notice to all 

grantees at least 12 months before the 

expiration date of a Head Start or Early 

Head Start agency’s then current grant 

by certified mail return receipt 

requested or other system that 

establishes the date of receipt of the 

notice by the addressee, stating: 

(i) The Head Start or Early Head Start 

agency will be required to compete for 

funding for an additional five-year 

period because ACF finds that one or 

more conditions under § 1307.3 of this 

part were met by the agency’s program 

during the relevant time period 

described in paragraph (b) of this 

section, identifying the conditions ACF 

found, and summarizing the basis for 

the finding; or 

(ii) That such agency has been 

determined on a preliminary basis to be 

eligible for renewed funding for five 

years without competition because ACF 

finds that none of the conditions under 

§ 1307.3 have been met during the 

relevant time period described in 

paragraph (b) of this section. If prior to 

the award of that grant, ACF determines 

that the grantee has met one of the 

conditions under § 1307.3 during the 

relevant time period described in 

paragraph (b) of this section, this 

determination will change and the 

grantee will receive notice under 

paragraph (c)(3)(i) of this section that it 

will be required to compete for funding 

for an additional five-year period. 

§ 1307.8 Use of CLASS: Pre-K Instrument 

in the Designation Renewal System. 

Except when all children are served 

in a single classroom, ACF will conduct 

observations of multiple classes 

operated by the grantee based on a 

random sample of all classes and rate 

the conduct of the classes observed 

using the CLASS: Pre-K instrument. 

When the grantee serves children in its 

program in a single class, that class will 

be observed and rated using the CLASS: 

Pre-K instrument. The domain scores for 

that class will be the domain scores for 

the grantee for that observation. After 

the observations are completed, ACF 

will report to the grantee the scores of 

the classes observed during the CLASS: 

Pre-K observations in each of the 

domains covered by the CLASS: Pre-K 

instrument. ACF will average CLASS: 

Pre-K instrument scores in each domain 

for the classes operated by the agency 

that ACF observed to determine the 

agency’s score in each domain. 

[FR Doc. 2011–28880 Filed 11–8–11; 8:45 am] 

BILLING CODE 4184–01–P 


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