[Federal Register Volume 60, Number 83 (Monday, May 1, 1995)]
[Proposed Rules]
[Pages 21400-21419]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-10663]




[[Page 21399]]

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Part VIII





Department of Education





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34 CFR Part 200, et al.



Title I--Helping Disadvantaged Children Meet High Standards; Proposed 
Rule

Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed 
Rules 
[[Page 21400]] 

DEPARTMENT OF EDUCATION

34 CFR Parts 200, 201, 203, 205, and 212

RIN 1810-AA73


Title I--Helping Disadvantaged Children Meet High Standards

AGENCY: Department of Education.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The U.S. Secretary of Education (Secretary) proposes to issue 
a single set of regulations implementing the programs under Title I of 
the Elementary and Secondary Education Act of 1965, as amended by the 
Improving America's Schools Act of 1994. In order to provide maximum 
flexibility to grantees implementing the programs under Title I, these 
proposed regulations address only those few provisions for which the 
Secretary believes rulemaking is absolutely necessary. These proposed 
regulations would replace the regulations currently found at 34 CFR 
parts 200, 201, 203, 205 and 212.

DATES: Written comments must be received on or before May 31, 1995.

ADDRESSES: All comments for subparts A, B, and D should be addressed to 
Mary Jean LeTendre, Director, Compensatory Education Programs, Office 
of Elementary and Secondary Education, U.S. Department of Education, 
600 Independence Avenue, SW, Portals Building, room 4400, Washington, 
DC 20202-6132. The Internet address for Part A comments is: 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="0b5f627f676e4254545454474e4a4b6e6f256c647d">[email protected]</a>; Part B: Even____S<a href="/cdn-cgi/l/email-protection#11657063655174753f767e67"><span class="__cf_email__" data-cfemail="deaabfacaa9ebbbaf0b9b1a8">[email protected]</span></a>; and Part D: Title 
<a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="feb7a1a1a1a1b0d3babe9b9ad0999188d0">[email protected]</a> The fax number for programs under subparts A, B, and D 
is (202) 260-7764.
    All comments concerning programs under subpart C should be 
addressed to Bayla White, Director, Migrant Education Programs, Office 
of Elementary and Secondary Education, U.S. Department of Education, 
600 Independence Avenue, SW, Portals Building, room 4100, Washington, 
DC 20202-6135. The Internet address for programs under subpart C is 
Title I--M<a href="/cdn-cgi/l/email-protection#39505e4b58574d795c5d175e564f"><span class="__cf_email__" data-cfemail="ef86889d8e819baf8a8bc1888099">[email protected]</span></a>. The fax number for programs under subpart C is 
(202) 205-0089.
    All comments concerning provisions under subpart E may be addressed 
to the addresses above for subparts A or C, depending on the nature of 
the comments.
    A copy of any comments that concern information collection 
requirements should also be sent to the Office of Management and Budget 
at the address listed in the Paperwork Reduction Act section of this 
preamble.

FOR FURTHER INFORMATION CONTACT: For subparts A and E, Wendy Jo New, 
Telephone: (202) 260-0982; for subpart B, Patricia McKee, Telephone: 
(202) 260-0991; for subpart D, Paul Brown, Telephone: (202) 260-0976: 
Compensatory Education Programs, Office of Elementary and Secondary 
Education, U.S. Department of Education, 600 Independence Avenue, SW, 
Portals Building, room 4400, Washington, DC 20202-6132.
    For subparts C and E, James English, Office of Migrant Education, 
Office of Elementary and Secondary Education, U.S. Department of 
Education, 600 Independence Avenue, SW, Portals Building, room 4100, 
Washington, DC 20202-6135. Telephone: (202) 260-1394.
    Individuals who use a telecommunications device for the deaf (TDD) 
may call the Federal Information Relay Services (FIRS) at 1-800-877-
8339 between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.

SUPPLEMENTARY INFORMATION: The 1994 reauthorization of the Elementary 
and Secondary Education Act of 1965 (ESEA) revised extensively Federal 
elementary and secondary education programs to help ensure that all 
children acquire the knowledge and skills they will need to succeed in 
the 21st century. Under the reauthorized ESEA, Federal education 
programs for the first time are designed to work together with, rather 
than separately from, one another. In addition, rather than operating 
apart from the broader education that children receive, the ESEA 
reinforces State and community reform efforts geared to challenging 
State standards, particularly those initiated or supported by the Goals 
2000: Educate America Act. In fact, all of the major ESEA programs are 
redesigned to support comprehensive State and local reforms of teaching 
and learning and ensure that all children--whatever their background 
and whatever school they attend--can reap the benefit of those reforms.
    As the largest by far of all ESEA programs, Title I is the 
centerpiece of the ESEA's efforts to help the neediest schools and 
students reach the same challenging standards expected of all children. 
Effective July 1, 1995, the four Title I programs--the basic program in 
local educational agencies (LEAs) (Part A), the Even Start Family 
Literacy program (Part B), the Migrant Education Program (Part C), and 
the Neglected, Delinquent, and At-Risk Youth program (Part D)--are 
designed to work together in support of this common purpose. Moreover, 
the programs embrace the same fundamental new strategies to help ensure 
that the intended beneficiaries are not left behind in State and local 
efforts to promote higher standards. These strategies include: a 
schoolwide focus on improving teaching and learning, strong program 
coordination by LEAs, flexibility at the local level combined with 
clear accountability for results, more focused targeting of resources 
on the neediest schools, and stronger partnerships between schools and 
communities to support higher achievement for all children.
    The Secretary proposes to issue one set of regulations for all 
Title I programs that is consistent with the U.S. Department of 
Education's (Department) new principles for regulating: to regulate 
only where absolutely necessary and, when regulating, to promote 
flexible approaches to meeting the requirements of the law. Based on 
these principles, and in order to give States and localities maximum 
flexibility to implement statutory provisions, the Secretary proposes a 
regulatory package for Title I that would eliminate regulations for 
both Parts B and D of Title I, other than definitions (34 CFR parts 212 
and 203 respectively), as well as for the Migrant Education 
Coordination Program (34 CFR part 205), and would promulgate few 
regulations for Parts A and C of Title I, in addition to those required 
as part of negotiated rulemaking.

Negotiated Rulemaking Process

    Section 1601(b) of Title I contains procedural requirements that 
the Department must follow in developing and issuing regulations to 
govern the Title I programs. Under section 1601(b)(1), the Secretary 
was required to obtain advice and recommendations of representatives of 
Federal, State, and local administrators, parents, teachers, and 
members of local boards of education involved with the implementation 
and operation of programs under Title I. In accordance with this 
requirement, the Department published in the Federal Register on 
October 28, 1994 (59 FR 54372-74) a request for advice and 
recommendations on regulatory issues under Title I and received over 
200 responses. Following the review of these responses, the Secretary 
submitted policy options on two key issues--``standards, assessment, 
and accountability'' and ``schoolwide programs''--to a negotiated 
rulemaking process in accordance with section 1601(b)(3)-(4). Twenty-
four individuals, representing Federal, State, and local 
[[Page 21401]] administrators, parents, teachers, and members of local 
boards of education from all geographic regions of the United States, 
participated in this process. The sessions were held January 11-13 and 
18-19, 1995 in Washington, D.C.
    The following is a brief synopsis, by topic area, of the major 
issues and outcomes of the five-day negotiations of the negotiated 
rulemaking committee (``Committee''). Under the Committee's protocols, 
``consensus'' meant unanimous agreement on all issues within a 
regulatory section. As a result, the Committee reached consensus only 
on Secs. 200.42 and 200.43 of these proposed regulations, which clarify 
assessment requirements of States and their subgrantees in the Migrant 
Education Program. However, agreement was reached on a majority of the 
issues, and language reflecting those agreements is reflected in 
Secs. 200.1-200.6 concerning standards, assessment, and accountability 
and in Sec. 200.8 concerning schoolwide programs of these proposed 
regulations.

Standards, Assessment, and Accountability

    Part A of Title I aligns instruction, assessment, and 
accountability procedures under Title I with high-quality State content 
standards and challenging performance standards. Under section 1111 of 
Title I, each State must have developed or adopted challenging content 
and student performance standards to be used by the State, its LEAs, 
and its schools to carry out Part A. If a State has developed 
challenging standards for all students, for example, under the Goals 
2000: Educate America Act or adopted challenging standards developed by 
another entity, the State must use those standards for Part A purposes. 
If a State has not developed or adopted content or performance 
standards for all students, the State must develop or adopt State 
content and student performance standards in at least mathematics and 
reading/language arts for children participating under Part A. These 
standards must include the same knowledge, skills, and levels of 
performance expected of all children.
    To track the progress of schools and districts, Part A no longer 
mandates a separate Title I testing system; it relies instead on the 
State's own assessment system to determine whether students are 
progressing toward meeting the challenging State standards. Among other 
things, these assessments must be aligned with the State's content and 
performance standards; be used for purposes for which they are valid 
and reliable; be administered at some time during grades 3-5, 6-9, and 
10-12; and involve multiple measures of student performance. If a State 
has developed its own assessment system under the Goals 2000: Educate 
America Act, for example, or has adopted for its own use assessments 
developed by another entity, the State must use those assessments for 
Part A purposes. If a State has not developed or adopted its own State 
assessment system, the State must develop or adopt a system of 
assessments for Part A purposes. Until a State has met the requirements 
concerning assessments in section 1111(b) of Title I, the State may use 
a transitional set of yearly statewide assessments that will assess the 
performance of complex skills and challenging subject matter.
    Part A refocuses the review of progress from what is currently an 
evaluation of how individual students are performing to an evaluation 
of how well schools and LEAs are helping students meet the challenging 
standards. Each Title I school and LEA must show ``adequate yearly 
progress'' toward enabling children to meet the State's student 
performance standards. Adequate yearly progress must be defined by the 
State in a manner that results in continuous and substantial yearly 
improvement sufficient to achieve the goal of all participating 
children meeting the State's proficient and advanced levels of 
performance, is sufficiently rigorous to achieve that goal within an 
appropriate timeframe, and links progress primarily to performance on 
the State's assessment system.
    Besides reducing the amount of testing, the changes in Title I 
assessments and accountability will help link Title I programs to 
broader State reforms. The changes will also support the efforts of 
high-poverty schools to raise expectations and enrich their curriculum 
and instruction well beyond the basic skills programs that have been 
their traditional focus. In drafting the regulations implementing the 
statutory provisions on standards, assessment, and accountability, the 
goals of the Secretary were to ensure that States develop the same 
system of high-quality standards and assessments for all students, 
including Title I participants; ensure that States develop effective 
accountability systems that promote comprehensive planning and 
improvement; and provide maximum flexibility during the transition 
period to support ongoing development of standards and assessments.
    The following discussion summarizes provisions in the proposed 
regulations that reflect the Committee's debate on issues concerning 
standards, assessment, and accountability:
    1. Section 200.1(b)(1)(i) requires a State plan to provide 
``evidence'' that demonstrates the State has developed or adopted 
challenging content and student performance standards for all students. 
At the suggestion of the Committee, further specification is included 
in Sec. 200.1(b)(1)(i)(B) to require that a State's procedure for 
setting student performance levels apply recognized professional and 
technical knowledge for establishing those levels.
    2. Section 200.1(b)(2)(ii)(A) clarifies the timeline for a State to 
develop and field test its assessment system. This section also 
incorporates the Committee's suggestion that a State be required to 
describe in its State plan its ``quality benchmarks, timetables, and 
reporting schedule'' for completing the development and field testing 
of its assessment system.
    3. Section 200.1(b)(2)(iii) requires a State to indicate in its 
State plan the languages other than English that are spoken by the 
student population participating in Title I and the languages for which 
required yearly student assessments are not available and are needed. 
The Committee added language requiring the State to include in its 
State plan ``a timetable for progress towards the development of these 
assessments.''
    The Secretary specifically requests comment on 
Sec. 200.1(b)(2)(iii), which requires a State to indicate in its State 
plan the languages other than English that are spoken by the student 
population participating in Title I and the languages for which 
required yearly student assessments are not available and are needed.
    4. The Committee agreed to include statutory language on capacity 
building in Sec. 200.1(b)(4). As a result, this provision requires each 
State plan to describe how the SEA will help each LEA and Title I 
school, as applicable, develop the capacity to implement the components 
of a schoolwide or targeted assistance program and meet its 
responsibilities with respect to school improvement. The SEA must also 
describe other factors it deems appropriate to provide students an 
opportunity to achieve the knowledge and skills embodied in the State's 
content standards.
    5. Section 1111(b)(2)(B)(ii) of Title I requires that adequate 
yearly progress be linked primarily to performance on State assessments 
but permits progress to be established ``in part through the use of 
other measures.'' At the Committee's suggestion, Sec. 200.3(b)(3) 
clarifies that ``other measures'' may be [[Page 21402]] measures ``such 
as dropout, retention, and attendance rates.''
    6. Section 200.4(b)(3)(i)(A) requires that State assessments be 
used for purposes for which they are valid and reliable. There was 
considerable debate by the Committee as to whether the proposed 
regulations should clarify that State assessments are not required to 
meet one standard definition of valid and reliable. Because some 
Committee members believed that language to this effect would weaken 
the requirement that assessments be valid and reliable, the proposed 
regulations do not go beyond the statutory language in section 
1111(b)(3)(C) of Title I.
    7. Section 200.4(b)(3)(ii) requires a State, if it uses assessment 
measures that are not valid and reliable, to include ``sufficient'' 
information regarding the State's efforts to validate the measures 
``and to report the results of those validation studies.'' The 
Committee agreed to this language.
    8. Section 200.4(c)(1) makes clear that a State that has developed 
or adopted assessments for all students in mathematics and reading/
language arts under Goals 2000 or another process must use those 
assessments to carry out Part A. By so stating, this provision 
clarifies that assessments in mathematics and reading/language arts are 
sufficient for accountability purposes under Title I. There was lengthy 
debate as to whether Title I schools should also be held accountable 
for other subject areas for which a State develops standards and 
assessments. Some members of the Committee argued that holding Title I 
schools accountable for all subject areas for which standards and 
assessments are developed, even though Title I instruction is not 
provided in those subject areas, would discourage States from 
developing standards and assessments in subjects other than mathematics 
and reading/language arts. Other Committee members argued that, if 
standards and assessments have been developed in other subjects, Title 
I schools should be held to the same expectations that the State places 
on all schools. Agreement was not reached on this issue. Even though 
the regulations do not require accountability for Part A purposes to be 
based on subjects other than mathematics and reading/language arts, 
Sec. 200.4(c)(2) was added to make clear that the State must include 
students served under Part A in assessments in any other subjects the 
State has developed or adopted for all children.
    The Secretary specifically invites comments on whether 
accountability under Title I should be based on all subject areas for 
which a State has developed or adopted standards and assessments for 
all children.
    9. Section 200.4(d)(1)(ii) has been augmented through agreement by 
the Committee to require States that do not yet have assessments that 
meet the Title I requirements to develop a timetable and benchmarks, 
including reports of validity studies, for completing the development 
and field testing of those assessments.
    10. Section 200.4(e)(1) requires that transitional assessments 
assess the performance of complex skills and challenging subject matter 
in at least mathematics and reading/language arts and be administered 
at some time during grades 3 through 5, 6 through 9, and 10 through 12. 
The Committee agreed with this provision. Section 200.4(e)(2) clarifies 
that transitional assessments do not need to meet the other 
requirements that apply to final assessments. After considerable 
debate, there was not agreement with this provision. Several members of 
the Committee dissented, arguing that there would be little 
accountability during the transition period if other requirements of 
final assessments, such as disaggregation of data and valid and 
reliable measures, were not included. On the other hand, most of the 
Committee members argued that transitional assessments should not be 
encumbered by numerous requirements in order to allow States the 
flexibility to develop and test their new assessment systems.
    11. The Committee reached consensus on Secs. 200.42 and 200.43 
which clarify requirements of States and their subgrantees in the 
Migrant Education Program (MEP) relative to assessment and the use of 
assessment results for improving their MEP programs and projects. These 
sections clarify that, while the State assessments required under 
Sec. 200.4 should be used wherever possible, MEP grantees and 
subgrantees have the flexibility to use other assessment procedures 
when conditions warrant doing so. These sections spell out those 
conditions. In any case, assessment results must still be examined and 
used for the purpose of improving services to migratory children.

Schoolwide Programs

    Section 1114 of Title I authorizes a school with a high 
concentration of children from low-income families to use Part A funds 
to upgrade the entire educational program in the school. The 
reauthorization dramatically expanded eligibility for schoolwide 
programs by reducing the poverty threshold a school must meet from 75 
percent poverty to 60 percent poverty for the 1995-1996 school year and 
to 50 percent poverty in subsequent years. The reauthorization also 
made a number of critical changes in the schoolwide program authority 
to help ensure that Part A resources are used to stimulate 
comprehensive reforms of the entire instructional program provided to 
all children in these schools. For example, section 1114 permits a 
schoolwide program to combine Part A funds with other State-
administered, non-competitive formula grant programs (other than the 
Individuals with Disabilities Education Act) and certain Federal 
discretionary grant programs administered by the Department, as well as 
with State and local public education funds. In addition, section 1114 
requires each schoolwide program to include a number of specific 
components. A schoolwide program school, for example, must conduct a 
comprehensive needs assessment of the entire school to determine the 
performance of its children in relation to the State's standards; 
implement schoolwide reform strategies that are based on effective 
means of improving the achievement of children and that address the 
needs of all children in the school, particularly the needs of children 
who are members of the target population of any other Federal education 
program that is included in the schoolwide program; use highly 
qualified professional staff; provide professional development for 
teachers, aides, and other staff; and implement strategies to increase 
parental involvement.
    The proposed regulations for schoolwide programs are designed to 
support comprehensive schoolwide programs that benefit all children in 
schools operating these programs. They include provisions that: 
emphasize the importance of maximizing the resources available for 
schoolwide programs; ensure that Federal funds and services are 
integrated in a comprehensive manner to support the very nature of a 
schoolwide program; and strike a balance between a school's 
responsibility for designing and implementing schoolwide programs and 
an LEA's overall responsibility for providing a high quality education 
to all students.
    The following discussion summarizes provisions in the proposed 
regulations that reflect the Committee's debate on issues concerning 
schoolwide programs:
    1. Section 200.8(a)(1) states that an ``eligible school, in 
consultation with its LEA,'' may use Part A funds or services, in 
combination with other Federal, State, and local funds it receives, to 
[[Page 21403]] operate a schoolwide program. By emphasizing that an 
eligible school makes the decision to operate a schoolwide program, 
albeit in consultation with its LEA, this language recognizes that a 
schoolwide program can be successful only if the school community is 
fully behind that decision. One member of the Committee dissented to 
this language out of concern that it would abrogate an LEA's ultimate 
authority for operating its schools.
    2. Section 200.8(b)(1) makes clear that a school may not decide to 
operate a schoolwide program unless the LEA has determined that the 
school serves a participating attendance area or is a participating 
school. The Committee agreed to this clarification.
    3. Section 200.8(b)(2)(ii) provides LEAs with the flexibility to 
identify areas and schools as eligible for schoolwide program 
participation using a measure of poverty that is different from the 
poverty measure or measures the LEA uses to identify and rank school 
attendance areas for eligibility and participation. The Committee 
agreed to include this flexibility in the proposed regulations.
    4. Section 200.8(c) emphasizes a school's authority to combine Part 
A funds with other Federal education program funds in a schoolwide 
program. If a school combines other Federal program funds, the school 
is exempt from complying with most statutory or regulatory provisions 
of those programs if the intent and purposes of the other programs are 
met. One negotiator argued that the regulations should only exempt 
schools from complying with specific, limited provisions; otherwise, 
the intent and purposes of the programs would be jeopardized. This 
negotiator dissented to the proposed language.
    5. Section 200.8(c)(2) emphasizes that the authority to combine 
funds from other Federal education programs in a schoolwide program 
also applies to services provided to the school with those funds. This 
provision recognizes that, under most programs, funds may not be 
provided directly to schools. Rather, schools may receive services in 
the nature of staff or instructional equipment and materials. With the 
one dissent noted above, the Committee agreed to include this 
provision.
    6. Section 200.8(c)(3)(ii)(B)(1) implements section 1306(b) of 
Title I. The proposed language requires a school that combines Part C 
of Title I funds in its schoolwide program to, ``[i]n consultation with 
parents of migratory children or organizations representing those 
parents, first address the identified needs of migratory children that 
result from the effects of their migratory lifestyle or are needed to 
permit migratory children to participate effectively in school''; and 
to ``[d]ocument that services to address those needs have been 
provided.'' The Committee agreed to this language.
    7. Section 200.8(e)(1)(iv)(A) requires that disaggregated 
assessment results for a schoolwide program be reported only when a 
State's final assessment system is in place and only when those results 
are statistically sound. Several Committee members dissented to this 
provision, arguing that disaggregated data were essential to assessing 
the specific progress of the target populations included in schoolwide 
programs. The other Committee members countered, however, that the 
transition period should not be encumbered with prescriptive 
requirements to preserve States' flexibility to develop new forms of 
assessment. Moreover, these members expressed concern that inaccurate 
conclusions about the progress of target populations would be drawn 
from disaggregated data if those data were not statistically sound.
    8. Section 200.8(f)(1) clarifies that a schoolwide program school 
is not required to identify particular children as eligible to 
participate, document that Federal funds benefit only the intended 
beneficiaries of those funds, or demonstrate that particular services 
supplement the services regularly provided in the school. This 
provision applies both to Part A funds and any other Federal education 
funds included in the schoolwide program. It recognizes that the 
central purpose of a schoolwide program is to use all available 
resources to upgrade the entire instructional program for the benefit 
of all children in the school, rather than focus on specific 
categorical programs with a singular purpose. One negotiator dissented 
to this provision out of concern that the intent and purposes of other 
Federal education programs combined in a schoolwide program would be 
jeopardized if the school did not have to meet these requirements.

Other Regulations Resulting From Reauthorization Subpart A--Improving 
Basic Programs Operated by Local Educational Agencies

    In addition to the schoolwide program provisions and the provisions 
related to standards, assessment, and accountability, Subpart A also 
contains sections on the participation of private school children, 
within-State allocations, and within-district allocations.
    Participation of private school children. Section 1120 of Title I 
continues the requirement that an LEA provide equitable services to 
eligible children enrolled in private schools. Because of other changes 
in Title I, however, some regulatory provisions are necessary to ensure 
that equitable services are provided. For example, section 1113(c) of 
Title I requires an LEA to allocate funds to participating school 
attendance areas or schools on the basis of the total number of 
children from low-income families in each area or school. Section 
200.28 of the proposed regulations makes clear that, in calculating the 
total number of children from low-income families, an LEA must include 
children from low-income families who attend private schools. The LEA 
uses the same poverty data, if available, that it uses to count public 
school children; however, if the same data are not available, 
comparable data collected through alternative means such as a survey 
may be used.
    Although funds are allocated on the basis of poor children, 
Sec. 200.10(b) of the proposed regulations makes clear that, as in 
current practice, private school children eligible to be served are 
children who reside in a participating public school attendance area 
and who have educational needs under section 1115(b) of Title I. 
Section 200.11(a) of the proposed regulations implements the equal 
expenditure requirement in section 1120(a)(4) of Title I. Under the 
proposed regulations, an LEA must reserve the funds generated by poor 
private school children who reside in participating public school 
attendance areas. In consultation with appropriate private school 
officials, the LEA may choose one of two options. The LEA may provide 
services to eligible children in a private school with the funds 
generated by poor children who attend that school. Alternatively, the 
LEA may combine the funds generated by poor private school children in 
all participating areas to create a pool of funds. From this pool, the 
LEA would provide services to eligible private school children who are 
in the greatest educational need of those services. Under this option, 
the services provided to eligible children in a particular private 
school would not be dependent upon the amount of funds generated by 
poor children in the school.
    Section 200.16(a)(1) of the proposed regulations makes clear that 
an LEA first uses funds it receives for capital expenses to cover 
capital expenses it is currently incurring or would incur because of an 
expected increase in the number of private school children to be 
served. If an LEA can demonstrate that [[Page 21404]] its current needs 
for capital expenses have been meet, the LEA may apply to use capital 
expense funds to reimburse itself for capital expenses it incurred in 
past years for which its has not been reimbursed.

Within-State Allocations

    Allocation of funds to LEAs. Sections 200.20 and 200.21 of the 
proposed regulations outline general procedures for a State educational 
agency (SEA) to use in allocating basic grants, concentration grants, 
and targeted grants. Under Section 200.20 an SEA may: (1) Make 
subcounty allocations to LEAs based on county allocations determined by 
the Secretary (adjusted for amounts reserved by the SEA for State 
administration and school improvement); or (2) in the case of basic and 
targeted grants only, allocate funds directly to LEAs without regard to 
counties when a State has a large number of LEAs that overlap county 
boundaries. Any SEA wishing to allocate funds directly to LEAs under 
Sec. 200.20(b) must apply to the Secretary for authorization and obtain 
approval of the data on the number of children from low-income families 
it will use in allocating funds. Unlike Chapter 1, however, an SEA in 
this situation is not limited to using the poverty criteria used in the 
Federal formula.
    Section 200.21(a) requires an SEA to base LEA allocations on the 
number of children ages 5 through 17 from low-income families and 
children residing in local institutions for neglected children. Section 
200.21(b) gives an SEA the flexibility to use the best available data 
on the number of children from low-income families. In selecting the 
best available data, an SEA may use: (1) The factors in the Federal 
formula, which include census poverty data, data on children in 
families above poverty receiving payments under the Aid to Families 
with Dependent Children (AFDC) program, and data on foster children; 
(2) alternative data that an SEA determines best reflect the 
distribution of poor children and are adjusted to be equivalent in 
proportion to the total number of formula children counted under 
section 1124(c) of Title I (excluding neglected or delinquent 
children); and (3) data that more accurately target poverty. The SEA, 
however, must use the same measure of poverty throughout the State for 
basic grants, concentration grants, and targeted grants.
    Finally, Sec. 200.20(c) implements the statutory requirement in 
situations where an LEA contains two or more counties in their 
entirety. Beginning in school year 1995-96, an SEA must treat each 
county as if it were a separate LEA when allocating basic, 
concentration, and targeted grant funds.
    Basic grants. Section 200.22 of the proposed regulations outlines 
the procedures for allocating basic grants to LEAs. Unlike Chapter 1, 
the Title I statute requires for school year 1995-96 that an LEA have 
at least 10 ``formula'' children counted for allocation purposes in 
order to qualify. In order to qualify in school year 1996-97 and 
beyond, an LEA must have at least 10 formula children and the number of 
those children must be greater than two percent of the LEA's total 
population aged 5 through 17 years. Under the Chapter 1 regulations, an 
LEA was required only to be located in a county with 10 or more formula 
children in order to qualify, and the SEA could choose whether to 
allocate funds to LEAs with less than ten formula children.
    Concentration grants. Section 200.23 (a) and (b) of the proposed 
regulations outlines general procedures for allocating concentration 
grant funds to LEAs. These procedures are similar to those provided 
under Chapter 1. To receive concentration grant funds, an LEA must, 
with certain exceptions, be located in whole or in part in a county 
that receives a concentration grant allocation from the Secretary. In 
addition, the number of ``formula'' children in an LEA counted for 
allocation purposes must exceed 6,500 or 15 percent of the LEA's total 
population ages 5 through 17. Unlike Chapter 1, however, eligibility 
for concentration grants is based on current year counts of formula 
children rather than prior year counts. Section 200.23(c) addresses 
special situations in which eligible LEAs are located in ineligible 
counties, eligible counties have no eligible LEAs, and States receive a 
minimum concentration grant. If eligible LEAs are located in ineligible 
counties, for example, Sec. 200.23(c)(1) allows an SEA to reserve two 
percent or less of the concentration grant funds the State receives to 
make direct payments to such LEAs.
    Targeted grants. Section 200.24 provides for how an SEA allocates 
targeted grant funds to LEAs. Allocations must be based on the same 
``formula'' count of children used to allocate basic and concentration 
grants. To qualify, an LEA must have at least 10 children who were 
counted for purposes of allocating basic grants, and the number of such 
children must equal at least five percent of the LEA's total population 
ages 5 through 17 years. To determine an LEA's allocation, the SEA must 
compute a weighted child count using the weights outlined in the tables 
in Sec. 200.24(b) (1) and (2). In weighting each LEA's formula count, 
the SEA must take the larger of the percent-weighted count or the 
number-weighted count and apply the weights in steps so that only those 
children above each threshold receive the higher weight.
    Hold-harmless provisions. Section 200.25 outlines the statutory 
``hold-harmless'' provisions more clearly. The hold-harmless protection 
limits the maximum reduction in an LEA's allocation when compared to 
its prior year's allocation and is applied separately for basic grants, 
concentration grants, and targeted grants. For school year 1995-96, 
each LEA is entitled to receive at least 85 percent of its prior year 
amount for basic grants only. For school year 1996-97, each LEA is 
entitled to receive 100 percent of its prior year amount for basic and 
concentration grants. For school year 1997-98, each LEA is entitled to 
receive a percent of its prior year basic and targeted grants (but not 
concentration grant) that varies according to the percent the LEA's 
number of ``formula'' children is of its total population ages 5 
through 17. Section 200.25 also makes clear that an LEA must be 
eligible to receive a basic grant, concentration grant, or targeted 
grant in order for the respective hold-harmless provisions of this 
section to apply.

Within-District Allocations

    Sections 200.27 and 200.28 of the proposed regulations contain 
procedures for within-district allocation of Part A funds in order to 
clarify the changes made in the new act. Unlike Chapter 1 where LEAs 
allocated funds to schools based on the number and needs of 
educationally deprived children, Title I directs LEAs to allocate funds 
to schools on the basis of the number of children from low-income 
families. Section 200.27 clarifies what funds an LEA may reserve before 
allocating funds to eligible schools. An LEA must, for example, reserve 
funds needed to provide comparable services to children in local 
institutions for neglected children. Where appropriate, the LEA may 
reserve funds to provide services to homeless children, children in 
local institutions for delinquent children, and neglected and 
delinquent children in community-day school programs. An LEA must also 
reserve funds as are reasonable and necessary to meet the parental 
involvement requirements in section 1118 of Title I, administer 
programs for public and private school children, including 
[[Page 21405]] capital expenses, and conduct other authorized 
activities.
    Section 200.28 clarifies the requirements in section 1113(c) of 
Title I concerning how to allocate funds to school attendance areas and 
schools. Section 200.28(a) makes clear that an LEA must allocate funds 
to areas and schools, in rank order, on the basis of the total number 
of children from low-income families in each area or school. In 
calculating the total number of low-income children, the LEA must 
include children from low-income families attending private schools, 
using the same poverty data, if available, as it is using to count 
public school children. If the same poverty data are not available, 
however, the LEA may use comparable data collected through alternative 
means such as a survey.
    Under Sec. 200.28(b), an LEA that serves any school below 35 
percent poverty must allocate to each participating area or school an 
amount for each low-income child that is at least 125 percent of the 
per-pupil amount of funds the LEA received for that year under subpart 
2 of Part A. If an LEA serves only areas or schools above 35 percent 
poverty, however, it does not need to allocate this minimum per-pupil 
amount. Section 200.28(c) makes clear that an LEA is not required to 
allocate the same per-pupil amount to each school attendance area and 
school, provided the LEA allocates higher per-pupil amounts to areas or 
schools with higher concentrations of poverty than to areas or schools 
with lower concentrations of poverty.

Subpart B--Title I Even Start Family Literacy Program

    The President expects to consolidate the Even Start Family Literacy 
program with other Adult Education and Family Literacy programs 
beginning in 1996. Statutory provisions are sufficient to govern FY 
1995 awards and project operation, without specific program 
regulations. Therefore, the Even Start regulations found at 34 CFR Part 
212 will be removed. However, in order to focus continuation awards 
under the Migrant Education Even Start Program (MEES), authorized under 
section 1202(a) of Title I, on migratory children, the Secretary has 
determined that it is necessary to include a definition of eligible 
MEES participants in Sec. 200.30 of the proposed regulations.

Subpart C--Title I Migrant Education Program

    In order to provide the maximum flexibility to the States 
implementing the MEP, the proposed MEP regulations contained in 
Secs. 200.40-200.45, which would supersede those now contained in 34 
CFR Part 201, only address a limited number of specific areas where the 
statute's lack of clarity could undermine proper program 
administration. These regulatory areas are as follows:
    (1) Definitions. Under prior law, the MEP statute required the 
Department to maintain the same definitions relating to eligibility to 
be counted and served as a migratory child as have existed for nearly 
20 years. However, because the new law eliminates this statutory freeze 
on amending the MEP eligibility definitions, the Secretary now proposes 
to amend the definitions in order to better ensure that those children 
who receive MEP services are truly migratory. Specifically, Sec. 200.40 
clarifies that, to be a migratory worker, a person must move to obtain 
(or try to obtain) temporary or seasonal agricultural or fishing work 
as a principal means of livelihood. This change is needed to focus 
program services on children of persons with an actual, significant 
dependency on migratory agricultural or fishing work--as opposed to 
persons who may, from time to time, move across school district lines 
to perform agricultural or fishing activities for a short time, but who 
have other occupations and so are not truly migratory workers.
    (2) Clarifications. In a number of respects, Part C of Title I 
contains ambiguous or unclear requirements that these proposed 
regulations clarify. In this regard--
    (A) Section 200.41 (Use of program funds for unique program 
function costs) clarifies that, under the new law, MEP funds can still 
be used to carry out functions at the State level that are unique to 
the MEP, and provides examples of these functions.
    (B) As discussed in the negotiated rulemaking section, Sec. 200.42 
(Responsibilities of SEAs and operating agencies for assessing the 
effectiveness of the MEP) clarifies that, while MEP grantees shall, 
where feasible, use the same assessment measures as are required under 
the Title I, Part A program, they have the flexibility to use other 
reasonable measures to examine the effectiveness of their MEPs and 
projects in those situations where use of the Statewide assessment is 
not feasible.
    (C) Section 200.43 (Responsibilities of SEAs and operating agencies 
for improving services to migratory children) clarifies that, while MEP 
grantees and subgrantees are not subject to the specific program 
improvement activities required under Title I, Part A, they still have 
the basic responsibility to use assessment results to improve the 
services they provide to migratory children.

Migrant Education Coordination Program

    Section 1308 of Title I authorizes the Secretary, in consultation 
with the States, to make grants or enter into contracts with SEA, LEAs 
and other entities to improve the interstate and intrastate 
coordination of migrant education projects among those agencies. The 
Secretary proposes to delete current regulations as unnecessary at this 
time. Those regulations primarily contain selection criteria for 
awarding new grants that are overly complex for the kinds of grant 
competitions that the Department anticipates conducting for fiscal year 
1995. The Secretary believes that selection criteria in Part 75 of the 
Education Department General Administrative Regulations (EDGAR), or as 
would be contained in proposals for specific competitions, should be 
used to make discretionary grants for this program.

Subpart D--Prevention and Intervention Programs for Children and Youth 
Who Are Neglected, Delinquent, or At-Risk of Dropping Out

    Part D, Subpart 1 of Title I provides financial assistance to State 
agencies for services to neglected or delinquent children in State-
supported institutions or community-day programs to help those children 
meet challenging State content and performance standards. Subpart 2 
authorizes SEAs to retain funds generated by children residing in local 
institutions for delinquent children under Part A of Title I and make 
subgrants to LEAs with high numbers or percentages of those children. 
LEAs may use these funds to meet the educational needs of youth in 
local institutions for delinquent children and adult correctional 
facilities and for dropout prevention programs that serve students at 
educational risk. The Secretary proposes to delete the current 
regulations in 32 CFR Part 203 governing the State Agency Neglected or 
Delinquent Program and issue regulations only to define the count of 
eligible children and youth needed to allocate Subpart 1 funds to the 
States.
    Subpart D specifies and defines the counts of eligible children and 
youth needed to allocate Title I, subpart 1 State agency neglected or 
delinquent (N or D) funds to the States and defines several terms used 
in the Title I, subpart 2 local agency program. The definitions in 
Sec. 200.50 are necessary to ensure that the data used by the Secretary 
to allocate funds are based on common [[Page 21406]] definitions. For 
example, the definition of a regular program of instruction is included 
to ensure that the children counted are enrolled in educational 
programs involving classroom instruction supported by State funds. The 
definitions of institutions for N or D children and youth require that 
the average length of stay in the institution be at least 30 days. This 
continues current policy and is designed to ensure that the children 
counted for allocation purposes are in an institution for a sufficient 
length of time so that educational services provided by the institution 
can be effective. Section 200.51 further provides for when the number 
of N or D children is determined and how that count must be adjusted to 
reflect the relative length of the school year.

Subpart E--General

    State administration and program improvement. Section 200.60 of the 
proposed regulations outlines procedures for how an SEA reserves funds 
for State administration and school improvement. When reserving funds 
for State administration and school improvement under Part A, an SEA 
must ensure that no LEA receives less than its hold-harmless amounts 
for basic grants, concentration grants, and targeted grants unless 
funds are insufficient to meet the hold-harmless amounts and still 
permit the SEA to reserve the full amount for administration and school 
improvement. An SEA also must reserve proportionate amounts from each 
of the State's basic grant, concentration grant, and targeted grant 
allocations. Section 200.61 indicates that those funds reserved for 
State administration are to be used for those general administrative 
activities that are necessary to carry out any of the Title I programs.
    Maintenance of Effort. Section 1120A(a) of Title I allows an LEA to 
receive Part A funds for any fiscal year only if the SEA finds that the 
LEA has maintained its fiscal effort in accordance with section 14501 
of the ESEA--that is, either the combined fiscal effort per student or 
the aggregate expenditures of the LEA and the State with respect to the 
provision of free public education for the preceding fiscal year was 
not less than 90 percent of such combined fiscal effort or aggregate 
expenditures for the second preceding fiscal year. Currently, based on 
the statutory definition of ``current expenditures'', the Chapter 1 
regulations require an SEA to exclude from maintenance of effort 
calculations any expenditures made from funds provided under Chapter 1 
and Chapter 2 of Title I of the ESEA. The Secretary proposes in 
Sec. 200.64(c)(2) to change this provision to exclude any expenditures 
made from funds provided by the Federal Government for which an LEA is 
required to account to the Federal Government directly or through the 
SEA. As a result, an LEA would no longer be responsible for determining 
effort with respect to Federal education funds that may decrease from 
one year to the next and over which the LEA does not have control.
    Supplement, not supplant. Section 1120A(b)(1)(B) of Title I allows, 
for the purpose of complying with the supplement, not supplant 
requirement, an SEA or LEA to exclude supplemental State and local 
funds expended in any eligible school attendance area or school for 
programs that meet the requirements of section 1114 or section 1115 of 
Title I. Section 200.63(c) clarifies under what conditions a program 
supported with State or local supplemental funds will be considered to 
meet the requirements of section 1114 or 1115. These conditions also 
apply to supplemental State and local funds expended under sections 
1113(b)(1)(C) and 1113(c)(2)(B) of Title I.

Executive Order 12866

1. Assessment of Costs and Benefits

    These proposed regulations have been reviewed in accordance with 
Executive Order 12866. Under the terms of the order, the Secretary has 
assessed the potential costs and benefits of this regulatory action.
    The potential benefits associated with the proposed regulations are 
clear. Because the Secretary has chosen to regulate on very few 
statutory provisions, SEAs and LEAs have considerable flexibility in 
implementing the provisions of Title I to meet their particular needs 
and circumstances. Moreover, the potential costs associated with the 
proposed regulations are minimal; they result from specific statutory 
requirements or have been determined by the Secretary to be necessary 
for administering the Title I programs effectively and efficiently.
    Any burdens specifically associated with information collection 
requirements, if any, are identified and explained elsewhere in this 
preamble under the heading Paperwork Reduction Act of 1980. The 
Secretary has also determined that this regulatory action does not 
interfere unduly with State and local governments in the exercise of 
their governmental functions.
    To assist the Department in complying with the specific 
requirements of Executive Order 12866, the Secretary invites comments 
on whether there may be further opportunities to reduce any potential 
costs or increase potential benefits resulting from these proposed 
regulations without impeding the effective and efficient administration 
of the program.

2. Clarity of the Regulations

    Executive Order 12866 requires each Federal agency to write 
regulations that are easy to understand.
    The Secretary invites comment on how to make these regulations 
easier to understand, including answers to questions such as the 
following: (1) Are the requirements in the regulations clearly stated? 
(2) Do the regulations contain technical terms or other wording that 
interfere with the clarity? (3) Does the format of the regulations 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce their clarity? Would the regulations be easier to 
understand if they were divided into more (but shorter) sections? (A 
``section'' is preceded by the symbol ``Sec. '' and a numbered heading; 
for example ``Sec. 200.1 Contents of a State plan.'') (4) Is the 
description of the proposed regulations in the ``Supplementary 
Information'' section of this preamble helpful in understanding the 
proposed regulations? How could this description be more helpful in 
making the proposed regulations easier to understand? (5) What else 
could the Department do to make the regulations easier to understand?
    A copy of any comments that concern whether these proposed 
regulations are easy to understand should also be sent to Stanley 
Cohen, Regulations Quality Officer, U.S. Department of Education, 600 
Independence Avenue, SW. (room 5121, FOB-10), Washington, DC, 20202-
2241.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities.
    The small entities that would be affected by these proposed 
regulations are small LEAs, institutions of higher education, and 
public or nonprofit private agencies receiving Federal funds under the 
Title I programs. The proposed regulations would not have a significant 
economic impact on the small entities affected because the proposed 
regulations would not impose excessive regulatory burden or require 
unnecessary Federal supervision. The proposed regulations would impose 
[[Page 21407]] minimal requirements to ensure the proper expenditure of 
program funds.

Paperwork Reduction Act of 1980

    Section 1116 (a) and (d) requires LEAs and SEAs, respectively, to 
review the progress of Title I participating schools and LEAs to 
determine whether they are making adequate progress toward enabling 
children to meet the State's student performance standards. Sections 
200.5 and 200.6 of the proposed regulations address requirements to 
report the disaggregation of data for school and LEA improvement and 
for 14,111 respondents, the estimated average annual burden is 564,440 
hours.
    In order to receive funds for the operation of a schoolwide 
program, schools must prepare schoolwide program plans, which is 
addressed in Sec. 200.8(e) of the proposed regulations and section 
1114(b)(2) of Title I. Preparation of a one-time plan for 24,244 
respondents is estimated to total 744,760 burden hours.
    To receive its allocation, a State must submit to the Secretary 
data on the number of children enrolled in educational programs of 
State-operated institutions for N or D children, community day programs 
for N or D children, and adult correctional institutions. It must also 
submit the October caseload count of children in local institutions for 
N or D children. Section 200.51 of the proposed regulations addresses 
this collection of data, which is approved under OMB Control Number 
1810-0060 and estimates for 52 respondents an average annual burden of 
a total of 2,000 hours.
    By statute, State educational agencies applying for Title I funds 
must submit State plans or applications. The Secretary needs and uses 
the information provided in these program plans and applications to 
facilitate the Department's oversight of the programs with regard to 
the grantees' administration of the programs under the statute and 
regulations, and to ensure financial accountability for the Federal 
funds. The public reporting burden for the collection of information 
for these programs has been submitted to OMB on the separate State plan 
and consolidated application packages, including the time for reviewing 
instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information. The public reporting burden for the 
collection of information for the Migrant Education Coordination 
Program application will be announced when the Department publishes any 
notices of proposed priorities for the award of grants under section 
1308 of Title I. Section 200.1 of the proposed regulations addresses 
what a State plan must contain, with respect to standards and 
assessments, for a State to receive its Part A allocation. The State 
plan package approved under OMB Control Number 1810-0571 estimates a 
one-time burden of 80 hours for each of 52 respondents.
    Organizations and individuals desiring to submit comments on these 
information collection requirements should direct them to the Office of 
Information and Regulatory Affairs, room 10235, New Executive Office 
Building, Washington, DC 20503; Attention: Wendy Taylor.

Intergovernmental Review

    Grants to SEAs for the MEP and grants to SEAs and LEAs for the 
Migrant Education Coordination Program are subject to the requirements 
of Executive Order 12372 and the regulations in 34 CFR Part 79. The 
objective of the Executive Order is to foster an intergovernmental 
partnership and a strengthened federalism by relying on processes 
developed by State and local governments for coordination and review of 
proposed Federal financial assistance.
    In accordance with this order, this document is intended to provide 
early notification of the Secretary's specific plans and actions for 
these programs.

Invitation To Comment

    Interested persons are invited to submit comments and 
recommendations regarding these proposed regulations. In particular, 
the Secretary invites comments on the following two provisions. The 
Secretary invites comments on Sec. 200.1(b)(2)(iii), which requires a 
State to indicate in its State plan the languages other than English 
that are spoken by the student population participating in Title I and 
the languages for which required yearly student assessments are not 
available and are needed. The Secretary also invites comments on 
whether accountability under Title I should be based on all subject 
areas for which a State has developed or adopted standards and 
assessments for all children, rather than mathematics and reading/
language arts as stated in Sec. 200.4(c)(1).
    All comments submitted in response to these proposed regulations 
will be available for public inspection during and after the comment 
period, in rooms 4400 (subparts A, B, D, and E) and 4100 (subparts C 
and E), Portals Building, 1250 Maryland Avenue, SW., Washington, DC, 
between the hours of 8:30 a.m. and 4 p.m., Monday through Friday of 
each week except Federal holidays.

List of Subjects in 34 CFR Part 200

    Administrative practice and procedure, Adult education, Children, 
Coordination, Education, Education of disadvantaged children, Education 
of individuals with disabilities, Elementary and secondary education, 
Eligibility, Family, Family-centered education, Grant programs--
education, Indians--education, Institutions of higher education, 
Interstate coordination, Intrastate coordination, Juvenile delinquency, 
Local educational agencies, Migratory children, Migratory workers, 
Neglected, Nonprofit private agencies, Private schools, Public 
agencies, Reporting and recordkeeping requirements, State-administered 
programs, State educational agencies, Subgrants.

    Dated: April 4, 1995.
Richard W. Riley,
Secretary of Education.

(Catalog of Federal Domestic Assistance Numbers: 84.010, Improving 
Programs Operated by Local Educational Agencies; 84.011, Migrant 
Education Basic State Formula Grant Program; 84.013, Prevention and 
Intervention Programs for Children and Youth Who Are Neglected, 
Delinquent, or At-Risk of Dropping Out; 84.144, Migrant Education 
Coordination Program; 84.213, Even Start Family Literacy Program)

    The Secretary proposes to amend Title 34 of the Code of Federal 
Regulations by removing Parts 201, 203, 205, and 212 and revising Part 
200 as follows:

Part 201  [Removed]

    1. Part 201 is removed.

Part 203  [Removed]

    2. Part 203 is removed.

Part 205  [Removed]

    3. Part 205 is removed.

Part 212  [Removed]

    4. Part 212 is removed.
    5. Part 200 is revised to read as follows:

PART 200--TITLE I--HELPING DISADVANTAGED CHILDREN MEET HIGH 
STANDARDS

Subpart A--Improving Basic Programs Operated by Local Educational 
Agencies

Standards, Assessment, and Accountability

Sec.
200.1  Contents of a State plan.
200.2  State responsibilities for developing challenging standards.
200.3  Requirements for adequate progress. [[Page 21408]] 
200.4  State responsibilities for assessment.
200.5  Requirements for school improvement.
200.6  Requirements for LEA improvement.
200.7  [Reserved]

Schoolwide Programs

200.8  Schoolwide program requirements.
200.9  [Reserved]

Participation of Eligible Children in Private Schools

200.10  Responsibilities for providing services to children in 
private schools.
200.11  Factors for determining equitable participation of children 
in private schools.
200.12  Requirements to ensure that funds do not benefit a private 
school.
200.13  Requirements concerning property, equipment, and supplies 
for the benefit of private school children.
200.14  [Reserved]

Capital Expenses

200.15  Payments to SEAs for capital expenses.
200.16  Payments to LEAs for capital expenses.
200.17  Use of LEA payments for capital expenses.
200.18-200.19 [Reserved]

Procedures for the Within-State Allocation of LEA Program Funds

200.20  Allocation of funds to LEAs.
200.21  Determination of the number of children eligible to be 
counted.
200.22  Allocation of basic grants.
200.23  Allocation of concentration grants.
200.24  Allocation of targeted grants.
200.25  Applicable hold-harmless provisions.
200.26  [Reserved]

Procedures for the Within-District Allocation of LEA Program Funds

200.27  Reservation of funds by an LEA.
200.28  Allocation of funds to school attendance areas and schools.
200.29  [Reserved]

Subpart B--Even Start Family Literacy Programs

200.30  Migrant Education Even Start program definition.
200.31-200.39  [Reserved]

Subpart C--Migrant Education Program

200.40  Program definitions.
200.41  Use of program funds for unique program function costs.
200.42  Responsibilities of SEAs and operating agencies for 
assessing the effectiveness of the MEP.
200.43  Responsibilities of SEAs and operating agencies for 
improving services to migratory children.
200.44  Use of MEP funds in schoolwide projects.
200.45  Responsibilities for participation of children in private 
schools.
200.46-200.49  [Reserved]
Subpart D--Prevention and Intervention Programs for Children and Youth 
Who Are Neglected, Delinquent, or At-Risk of Dropping Out
200.50  Program definitions.
200.51  SEA counts of eligible children.
200.52-200.59  [Reserved]

Subpart E--General Provisions

200.60  Reservation of funds for State administration and school 
improvement.
200.61  Use of funds reserved for State administration.
200.62  [Reserved]
200.63  Supplement, not supplant.
200.64  Maintenance of effort.
200.65  Definitions.
200.66-200.69  [Reserved]

    Authority: 20 U.S.C. 6301-6514, unless otherwise noted.

Subpart A--Improving Basic Programs Operated by Local Educational 
Agencies

Standards, Assessment, and Accountability


Sec. 200.1  Contents of a State plan.

    (a) (1) A State that desires to receive a grant under this subpart 
shall submit to the Secretary a plan that meets the requirements of 
this section.
    (2) A State plan must be--
    (i) Developed with broad-based consultation throughout the planning 
process with local educational agencies (LEAs), teachers, pupil 
services personnel, other staff, parents, and administrators, including 
principals;
    (ii) Developed with substantial involvement of the Committee of 
Practitioners established under section 1603(b) of the Elementary and 
Secondary Education Act of 1965, as amended (Act), and continue to 
involve the Committee in monitoring the plan's implementation; and
    (iii) Coordinated with other plans developed under the Act, the 
Goals 2000: Educate America Act, and other acts, as appropriate, 
consistent with section 14307 of the Act.
    (3) In lieu of a State plan under this section, a State may include 
programs under this part in a consolidated State plan submitted in 
accordance with section 14302 of the Act.
    (b) A State plan must address the following:
    (1) Challenging standards. The State plan must include--
    (i) Evidence that demonstrates that--
    (A) The State has developed or adopted challenging content and 
student performance standards for all students in accordance with 
Sec. 200.2; and
    (B) The State's procedure for setting the student performance 
levels applies recognized professional and technical knowledge for 
establishing the student performance levels; or
    (ii) The State's strategy and schedule for developing or adopting 
by the beginning of the 1997-1998 school year--
    (A) Challenging content and student performance standards for all 
students in accordance with Sec. 200.2(b); or
    (B) Content and student performance standards for elementary and 
secondary school children served under this subpart in accordance with 
Sec. 200.2(c), if the State will not have developed or adopted content 
and student performance standards for all students by the 1997-1998 
school year or does not intend to develop such standards.
    (iii) For subjects in which students will be served under this 
subpart but for which a State has no standards, the State plan must 
describe the State's strategy for ensuring that those students are 
taught the same knowledge and skills and held to the same expectations 
as are all children.
    (2) Assessments. The State plan must--
    (i) Demonstrate that the State has developed or adopted a set of 
high-quality yearly student assessments, including assessments in at 
least mathematics and reading/language arts, in accordance with 
Sec. 200.4, that will be used as the primary means of determining the 
yearly performance of each school and LEA served under this subpart in 
enabling all children participating under this subpart to meet the 
State's student performance standards; or
    (ii) If a State has not developed or adopted assessments in at 
least mathematics and reading/language arts in accordance with 
Sec. 200.4--
    (A) Describe the State's quality benchmarks, timetables, and 
reporting schedule for completing the development and field-testing of 
those assessments by the beginning of the 2000-2001 school year; and
    (B) Describe the transitional set of yearly statewide assessments 
the State will use to assess students' performance in mastering complex 
skills and challenging subject matter; and
    (iii)(A) Identify the languages other than English that are spoken 
by the student population participating under this subpart; and
    (B) Indicate the languages for which yearly student assessments 
that meet the requirements of this section are not available and are 
needed and develop a timetable for progress towards the development of 
these assessments.
    (3) Adequate yearly progress. The State plan must-- [[Page 21409]] 
    (i) Demonstrate, based on the assessments described under 
Sec. 200.4, what constitutes adequate yearly progress toward enabling 
all children to meet the State performance standards of--
    (A) Any school served under this subpart; and
    (B) Any LEA that receives funds under this subpart; or
    (ii) For any year in which a State uses transitional assessments 
under Sec. 200.4(e), describe how the State will identify schools under 
Sec. 200.5 and LEAs under Sec. 200.6 in accordance with Sec. 200.3.
    (4) Capacity building. Each State plan shall describe--
    (i) How the State educational agency (SEA) will help each LEA and 
school affected by the State plan to develop the capacity to comply 
with each of the requirements of sections 1112(c)(1)(D), 1114(b), and 
1115(c) of the Act that is applicable to the LEA and school; and
    (ii) Other factors the State deems appropriate, which may include 
opportunity-to-learn standards or strategies developed under the Goals 
2000: Educate America Act, to provide students an opportunity to 
achieve the knowledge and skills described in the challenging content 
standards developed or adopted by the State.

(Authority: 20 U.S.C. 6311)


Sec. 200.2  State responsibilities for developing challenging 
standards.

    (a) Standards in general. (1) A State shall develop or adopt 
challenging content and student performance standards that will be used 
by the State, its LEAs, and its schools to carry out this subpart.
    (2) Standards under this subpart must include--
    (i) Challenging content standards in academic subjects that--
    (A) Specify what children are expected to know and be able to do;
    (B) Contain coherent and rigorous content; and
    (C) Encourage the teaching of advanced skills; and
    (ii) Challenging student performance standards that--
    (A) Are aligned with the State's content standards;
    (B) Describe two levels of high performance--proficient and 
advanced--that determine how well children are mastering the material 
in the State's content standards; and
    (C) Describe a third level of performance--partially proficient--to 
provide complete information to measure the progress of lower-
performing children toward achieving to the proficient and advanced 
levels of performance.
    (b) Standards for all children. A State that has developed or 
adopted content standards and student performance standards for all 
students under Title III of the Goals 2000: Educate America Act or 
under another process, or will develop or adopt such standards by the 
beginning of the 1997-1998 school year, shall use those standards, 
modified, if necessary, to conform with the requirements in paragraph 
(a) of this section and Sec. 200.3, to carry out this subpart.
    (c) Standards for children served under this subpart. (1) If a 
State will not have developed or adopted content and student 
performance standards for all students by the beginning of the 1997-
1998 school year, or does not intend to develop those standards, the 
State shall develop content and student performance standards for 
elementary and secondary school children served under this subpart in 
subject areas as determined by the State, but including at least 
mathematics and reading/language arts. These standards must--
    (i) Include the same knowledge, skills, and levels of performance 
expected of all children;
    (ii) Meet the requirements in paragraph (a) of this section and 
Sec. 200.3; and
    (iii) Be developed by the beginning of the 1997-1998 school year.
    (2) If a State has not developed content and student performance 
standards in mathematics and reading/language arts for elementary and 
secondary school children served under this subpart by the beginning of 
the 1997-1998 school year, the State shall then adopt a set of 
standards in those subjects such as the standards contained in other 
State plans the Secretary has approved.
    (3) If and when a State develops or adopts standards for all 
children, the State shall use those standards to carry out this 
subpart.

(Authority: 20 U.S.C. 6311(b))


Sec. 200.3  Requirements for adequate progress.

    (a) Except as provided in paragraph (c) of this section, each State 
shall determine, based on the State assessment system described in 
Sec. 200.1, what constitutes adequate yearly progress of--
    (1) Any school served under this subpart toward enabling children 
to meet the State's student performance standards; and
    (2) Any LEA that receives funds under this subpart toward enabling 
children in schools served under this subpart to meet the State's 
student performance standards.
    (b) Adequate yearly progress must be defined in a manner that--
    (1) Results in continuous and substantial yearly improvement of 
each school and LEA sufficient to achieve the goal of all children 
served under this subpart, particularly economically disadvantaged and 
limited-English proficient children, meeting the State's proficient and 
advanced levels of performance;
    (2) Is sufficiently rigorous to achieve that goal within an 
appropriate timeframe; and
    (3) Links progress primarily to performance on the State's 
assessment system under Sec. 200.4, while permitting progress to be 
established in part through the use of other measures, such as dropout, 
retention, and attendance rates.
    (c) For any year in which a State uses transitional assessments 
under Sec. 200.4(e), the State shall devise a procedure for identifying 
schools under Sec. 200.5 and LEAs under Sec. 200.6 that relies on 
accurate information about the continuous and substantial yearly 
academic progress of each school and LEA.

(Authority: 20 U.S.C. 6311(b)(2), (7)(B))


Sec. 200.4  State responsibilities for assessment.

    (a) Each State shall develop or adopt a set of high-quality yearly 
student assessments, including assessments in at least mathematics and 
reading/language arts, that will be used as the primary means of 
determining the yearly performance of each school and LEA served under 
this subpart in enabling all children participating under this subpart 
to meet the State's student performance standards.
    (b) Assessments under this section must meet the following 
requirements:
    (1) Be the same assessments used to measure the performance of all 
children, if the State measures the performance of all children.
    (2)(i) Be aligned with the State's challenging content and student 
performance standards; and
    (ii) Provide coherent information about student attainment of the 
State's content and student performance standards.
    (3)(i)(A) Be used for purposes for which the assessments are valid 
and reliable; and
    (B) Be consistent with relevant, nationally recognized professional 
and technical standards for those assessments.
    (ii) Assessment measures that do not meet these requirements may be 
included as one of the multiple measures if the State includes in its 
[[Page 21410]] State plan sufficient information regarding the State's 
efforts to validate the measures and to report the results of those 
validation studies.
    (4) Measure the proficiency of students in the academic subjects in 
which a State has adopted challenging content and student performance 
standards.
    (5) Be administered at some time during--
    (i) Grades 3 through 5;
    (ii) Grades 6 through 9; and
    (iii) Grades 10 through 12.
    (6) Involve multiple approaches within an assessment system with 
up-to-date measures of student performance, including measures that 
assess complex thinking skills and understanding of challenging 
content.
    (7) Provide for--
    (i) Participation in the assessment of all students in the grades 
being assessed;
    (ii) Reasonable adaptations and accommodations for students with 
diverse learning needs necessary to measure the achievement of those 
students relative to the State's standards; and
    (iii)(A) Inclusion of limited-English proficient students who shall 
be assessed, to the extent practicable, in the language and form most 
likely to yield accurate and reliable information on what those 
students know and can do to determine the students' mastery of skills 
in subjects other than English.
    (B) To meet this requirement, the State--
    (1) Shall make every effort to use or develop linguistically 
accessible assessment measures; and
    (2) May request assistance from the Secretary if those measures are 
needed.
    (8) Include, for determining the progress of the LEA only, students 
who have attended schools in the LEA for a full academic year, but who 
have not attended a single school in the LEA for a full academic year.
    (9) Provide individual student interpretive and descriptive reports 
that include--
    (i) Individual scores; or
    (ii) Other information on the attainment of student performance 
standards.
    (10) Enable results to be disaggregated within each State, LEA, and 
school by--
    (i) Gender;
    (ii) Each major racial and ethnic group;
    (iii) English proficiency status;
    (iv) Migrant status;
    (v) Students with disabilities as compared to students without 
disabilities; and
    (vi) Economically disadvantaged students as compared to students 
who are not economically disadvantaged.
    (c)(1) If a State has developed or adopted assessments for all 
students in mathematics and reading/language arts under Title III of 
the Goals 2000: Educate America Act or under another process, the State 
shall use those assessments, modified, if necessary, to conform with 
the requirements in paragraph (b) of this section and Sec. 200.3, to 
carry out this subpart.
    (2) Paragraph (c)(1) of this section does not relieve the State 
from including students served under this subpart in assessments in any 
other subjects the State has developed or adopted for all children.
    (d)(1) Except as provided in paragraph (d)(2) and (3) of this 
section, if a State has not developed or adopted assessments in at 
least mathematics and reading/language arts that meet the requirements 
in paragraph (b) of this section, the State shall--
    (i) By the beginning of the 2000-2001 school year, develop those 
assessments and field-test them for one year; and
    (ii) Develop a timetable and benchmarks, including reports of 
validity studies, for completing the development and field testing of 
those assessments.
    (2) The State may request a one-year extension from the Secretary 
to test its new assessments if the State submits a strategy to correct 
problems identified in the field testing of its assessments.
    (3) If a State has not developed assessments in at least 
mathematics and reading/language arts that meet the requirements in 
paragraph (b) of this section by the beginning of the 2000-2001 school 
year and is denied an extension, the State shall adopt a set of 
assessments in those subjects such as assessments contained in the 
plans of other States the Secretary has approved.
    (e)(1) While a State is developing assessments under paragraph (d) 
of this section, the State may propose to use a transitional set of 
yearly statewide assessments that will--
    (i) Assess the performance of complex skills and challenging 
subject matter in at least mathematics and reading/language arts; and
    (ii) Be administered at some time during--
    (A) Grades 3 through 5;
    (B) Grades 6 through 9; and
    (C) Grades 10 through 12.
    (2) Transitional assessments do not need to meet the other 
requirements of this section.

(Authority: 20 U.S.C. 6311(b))


Sec. 200.5  Requirements for school improvement.

    (a) Local review. (1)(i) Each LEA receiving funds under this 
subpart shall review annually the progress of each school served under 
this subpart to determine whether the school is meeting or making 
adequate progress toward enabling its students to meet the State's 
student performance standards described in the State plan.
    (ii) An LEA may review a targeted assistance school on the progress 
of only those students that have been or are served under this subpart.
    (2) In conducting its review, an LEA shall--
    (i)(A) Use the State assessments or transitional assessments 
described in the State plan; and
    (B) Use any additional measures or indicators described in the 
LEA's plan; or
    (ii) If the State assessments are not conducted in a Title I 
school, use other appropriate measures or indicators to review the 
school's progress; and
    (iii)(A) Disaggregate the results of the review according to the 
categories specified in Sec. 200.4(b)(10);
    (B) Seek to produce, in schoolwide program schools, statistically 
sound results for each category through the use of oversampling or 
other means; and
    (C) Report disaggregated data to the public only when those data 
are statistically sound.
    (3) The LEA shall--
    (i) Publicize and disseminate to teachers and other staff, parents, 
students, the community, and administrators, including principals, the 
results of the annual review of all schools served under this subpart 
in individual school performance profiles; and
    (ii) Provide the results of the annual review to schools served 
under this subpart so that the schools can continually refine their 
program of instruction to help all children participating under this 
subpart meet the State's student performance standards.

(Authority: 20 U.S.C. 6317(a))


Sec. 200.6  Requirements for LEA improvement.

    (a) State review. (1)(i) Each SEA shall review annually the 
progress of each LEA served under this subpart to determine whether the 
schools receiving assistance under this subpart are making adequate 
progress toward enabling their students to meet the State's student 
performance standards described in the State plan.
    (ii) An SEA may review the progress of the schools served by an LEA 
only for [[Page 21411]] those students that have been or are being 
served under this subpart.
    (2) In conducting its review, an SEA shall--
    (i) Disaggregate the results of the review according to the 
categories specified in Sec. 200.4(b)(10);
    (ii) Consider other indicators, if applicable, in accordance with 
section 1112(b)(1) of the Act; and
    (iii) Report disaggregated data to the public only when those data 
are statistically sound.
    (3) The SEA shall publicize and disseminate to LEAs, teachers, and 
other staff, parents, students, the community, and administrators, 
including principals, the results of the State review.

(Authority: 20 U.S.C. 6317(d))


Sec. 200.7  [Reserved]

Schoolwide Programs


Sec. 200.8  Schoolwide program requirements.

    (a) General. (1) An eligible school, in consultation with its LEA, 
may use funds or services under this subpart, in combination with other 
Federal, State, and local funds it receives, to upgrade the entire 
educational program in the school to support systemic reform in 
accordance with the provisions of this section.
    (2)(i) Except as provided in paragraph (a)(2)(ii) of this section, 
a school may not start a new schoolwide program until the SEA provides 
written information to each LEA that the SEA has established a 
statewide system of support and improvement.
    (ii) If a school desires to start a schoolwide program prior to the 
establishment of a statewide system of support and improvement, the 
school shall demonstrate to the LEA that the school has received high-
quality technical assistance and support from other providers of 
assistance.
    (b) Eligibility for a schoolwide program. A school may operate a 
schoolwide program if--
    (1) The LEA determines that the school serves a participating 
attendance area or is a participating school under section 1113 of the 
Act; and
    (2)(i) For the initial year of the schoolwide program, the school 
meets either of the following criteria:
    (A) For the 1995-1996 school year--
    (1) The school serves a school attendance area in which not less 
than 60 percent of the children are from low-income families; or
    (2) Not less than 60 percent of the children enrolled in the school 
are from low-income families.
    (B) For the 1996-1997 school year and subsequent years, the 
percentages of children from low-income families in paragraph 
(b)(2)(i)(A) may not be less than 50 percent.
    (ii) The LEA may choose to determine the percentage of children 
from low-income families under paragraph (b)(2)(i) based on a measure 
of poverty that is different from the poverty measure or measures used 
by the LEA to identify and rank school attendance areas for eligibility 
and participation under this subpart.
    (c) Availability of other Federal funds. (1) In addition to funds 
under this subpart, a school may use in its schoolwide program Federal 
funds under any program administered by the Secretary, except programs 
under the Individuals with Disabilities Education Act (IDEA), that is 
included on the most recent notice published by the Secretary in the 
Federal Register.
    (2) For the purposes of this section, the authority to combine 
funds from other Federal programs also applies to services provided to 
a school with those funds.
    (3)(i) Except as provided in paragraph (c)(3)(ii) of this section, 
a school that combines funds from any other Federal program 
administered by the Secretary in a schoolwide program--
    (A) Is not required to meet the statutory or regulatory 
requirements of that program applicable at the school level; but
    (B) Shall meet the intent and purposes of that program to ensure 
that the needs of the intended beneficiaries of that program are 
addressed.
    (ii)(A) An LEA or a school that chooses to use funds from other 
programs shall not be relieved of statutory and regulatory requirements 
applicable to those programs relating to--
    (1) Health and safety;
    (2) Civil rights;
    (3) Gender equity;
    (4) Participation and involvement of parents and students;
    (5) Private school children, teachers, and other educational 
personnel;
    (6) Maintenance of effort;
    (7) Comparability of services;
    (8) Use of Federal funds to supplement, not supplant non-Federal 
funds in accordance with paragraph (f) (1)(iii) and (2) of this 
section; and
    (9) Distribution of funds to SEAs and LEAs.
    (B) A school operating a schoolwide program shall comply with the 
following requirements if it combines funds from these programs in its 
schoolwide program:
    (1) Migrant education. A school that combines in its schoolwide 
program funds received under Part C of Title I of the Act shall--
    (A) In consultation with parents of migratory children or 
organizations representing those parents, first address the identified 
needs of migratory children that result from the effects of their 
migratory lifestyle or are needed to permit migratory children to 
participate effectively in school; and
    (B) Document that services to address those needs have been 
provided.
    (2) Indian education. A school may combine funds received under 
subpart 1 of Part A of Title IX of the Act in its schoolwide program if 
the parent committee established by the LEA under section 9114(c)(4) of 
the Act approves the inclusion of those funds.
    (iii) This paragraph does not relieve--
    (A) An LEA from complying with all requirements that do not affect 
the operation of a schoolwide program; or
    (B) A non-schoolwide program school from complying with all 
applicable requirements.
    (d) Components of a schoolwide program. A schoolwide program must 
include the following components:
    (1) A comprehensive needs assessment involving the parties listed 
in paragraph (e)(2)(ii) of this section of the entire school that is 
based on--
    (i) Information on the performance of children in relation to the 
State content standards and the State student performance standards 
under section 1111(b)(1) of the Act; or
    (ii) Until the State develops or adopts standards under section 
1111(b)(1) of the Act, an analysis of available data on the achievement 
of students in the school.
    (2) Schoolwide reform strategies that--
    (i) Provide opportunities, based on best knowledge and practice, 
for all children in the school to meet the State's proficient and 
advanced levels of student performance;
    (ii) Are based on effective means of improving the achievement of 
children, such as utilizing research-based teaching strategies;
    (iii) Use effective instructional strategies that--
    (A) Increase the amount and quality of learning time, such as 
providing an extended school year and before- and after-school and 
summer programs;
    (B) Provide an enriched and accelerated curriculum; and
    (C) Meet the educational needs of historically underserved 
populations;
    (iv)(A) Address the needs of all children in the school, 
particularly the needs of children who are members of the target 
population of any program that is included in the schoolwide program 
under paragraph (c) of this section; and [[Page 21412]] 
    (B) Address how the school will determine if those needs have been 
met; and
    (v) Are consistent with, and designed to implement, the State and 
local improvement plans, if any, approved under Title III of the Goals 
2000: Educate America Act.
    (3) Instruction by highly qualified professional staff.
    (4)(i) Professional development, in accordance with section 1119 of 
the Act, for teachers and aides and, where appropriate, principals, 
pupil services personnel, other school staff, and parents to enable all 
children in the school to meet the State's student performance 
standards.
    (ii) The school shall devote sufficient resources to effectively 
carry out its responsibilities for professional development, either 
alone or in consortia with other schools.
    (5) Strategies to increase parental involvement, such as family 
literacy services.
    (6) Strategies in an elementary school for assisting preschool 
children in the transition from early childhood programs, such as Head 
Start, Even Start, or a State-run preschool program, to the schoolwide 
program.
    (7) Strategies to involve teachers in the decisions regarding the 
use of additional local, high-quality student assessments, if any, 
under section 1112(b)(1) of the Act to provide information on, and to 
improve, the performance of individual students and the overall 
instructional program.
    (8)(i) Activities to ensure that students who experience difficulty 
mastering any of the standards required by section 1111(b) of the Act 
during the school year will be provided effective, timely additional 
assistance, which must include
    (A) Strategies to ensure that students' difficulties are identified 
on a timely basis and to provide sufficient information on which to 
base effective assistance;
    (B) To the extent the school determines feasible using funds under 
this subpart, periodic training for teachers in how to identify those 
difficulties and to provide assistance to individual students; and
    (C) For any student who has not met those standards, parent-teacher 
conferences to discuss--
    (1) What the school will do to help the student meet the standards;
    (2) What the parents can do to help the student improve the 
student's performance; and
    (3) Additional assistance that may be available to the student at 
the school or elsewhere in the community.
    (ii) This provision does not--
    (A) Require the school or LEA to develop an individualized 
education program (IEP) for each student identified under paragraph 
(d)(8) of this section; or
    (B) Relieve the school or LEA from the requirement under the IDEA 
to develop IEPs for students with disabilities.
    (e) Schoolwide program plan. (1) An eligible school that desires to 
operate a schoolwide program shall develop, in consultation with the 
LEA and its school support team or other technical assistance provider, 
a comprehensive plan for reforming the total instructional program in 
the school that--
    (i) Incorporates the components under paragraph (d) of this 
section;
    (ii) Describes how the school will use resources under this subpart 
and from other sources to implement those components;
    (iii) Includes a list of State and local programs and other Federal 
programs under paragraph (c) of this section that will be included in 
the schoolwide program; and
    (iv)(A) If the State has developed or adopted a State assessment 
system under section 1111(b)(3) of the Act--
    (1) Describes how the school will provide individual student 
assessment results, including an interpretation of those results, to 
the parents of each child who participates in that assessment; and
    (2) Provides for the disaggregation of data on the assessment 
results of students and the reporting of those data in accordance with 
Sec. 200.5(a); or
    (B) If the State has not developed or adopted a State assessment 
system under section 1111(b)(3) of the Act, describes the data on the 
achievement of students in the school and effective instructional and 
school improvement practices on which the plan is based.
    (2) The schoolwide program plan must be--
    (i) Developed during a one-year period unless--
    (A) The LEA, after considering the recommendation of its technical 
assistance providers, determines that less time is needed to develop 
and implement the schoolwide program; or
    (B) The school is operating a schoolwide program under section 1015 
of Chapter 1 of Title I of the Act during the 1994-1995 school year, in 
which case the school may continue its schoolwide program but shall 
amend its current plan or develop a new plan in accordance with this 
section during the first year it receives funds under this part;
    (ii) Developed with the involvement of the community to be served 
and individuals who will carry out the plan, including--
    (A) Teachers;
    (B) Principals;
    (C) Other school staff;
    (D) Pupil services personnel, if appropriate;
    (E) Parents of students in the school; and
    (F) If the plan relates to a secondary school, students from the 
school;
    (iii) Available to the LEA, parents, and the public;
    (iv) Translated, to the extent feasible, into any language that a 
significant percentage of the parents of participating children in the 
school speak as their primary language; and
    (v) If appropriate, developed in coordination with other programs, 
including those under the School-to-Work Opportunities Act of 1994, the 
Carl D. Perkins Vocational and Applied Technology Education Act, and 
the National and Community Service Act of 1990.
    (3) The schoolwide program plan remains in effect for the duration 
of the school's participation under this section.
    (4) A school operating a schoolwide program shall review and revise 
its plan, as necessary, to reflect changes in its schoolwide program or 
changes to reflect State standards established after the plan was 
developed.
    (f) Effect of operating a schoolwide program. (1) No school 
operating a schoolwide program shall be required to--
    (i) Identify particular children under this subpart and under any 
other Federal program included under paragraph (c) of this section as 
eligible to participate in the schoolwide program;
    (ii) Document that funds available under this subpart and any other 
Federal program included under paragraph (c) of this section are used 
to benefit only the intended beneficiaries of the respective programs; 
or
    (iii) Demonstrate that the particular services paid for with funds 
under this subpart and under any other Federal program included under 
paragraph (c) of this section supplement the services regularly 
provided in that school.
    (2) A school operating a schoolwide program shall use funds 
available under this subpart and under any other Federal program 
included under paragraph (c) of this section only to supplement the 
total amount of funds that would, in the absence of those funds, be 
made available from non-Federal sources for that school, including 
funds needed to provide services that are required by law for 
[[Page 21413]] children with disabilities and children with limited-
English proficiency.

(Authority: 20 U.S.C. 6314, 6396(b))


Sec. 200.9  [Reserved]

Participation of Eligible Children in Private Schools


Sec. 200.10  Responsibilities for providing services to children in 
private schools.

    (a) An LEA shall, after timely and meaningful consultation with 
appropriate private school officials, provide special educational 
services or other benefits under this subpart, on an equitable basis, 
to eligible children who are enrolled in private elementary and 
secondary schools in accordance with the requirements in Secs. 200.11 
through 200.17 and section 1120 of the Act.
    (b) Eligible private school children are children who--
    (1) Reside in a participating school attendance area of the LEA; 
and
    (2) Meet the criteria in section 1115(b) of the Act.
    (3) Among the eligible private school children, the LEA shall 
select children to participate in a manner that is consistent with the 
provisions in Sec. 200.11.

(Authority: 20 U.S.C. 6315(b); 6321(a))


Sec. 200.11  Factors for determining equitable participation of 
children in private schools.

    (a) Equal expenditures. (1) Expenditures of funds made available 
under this subpart for services for eligible private school children in 
the aggregate must be equal to the amount of funds generated by private 
school children from low-income families under Sec. 200.28.
    (2) An LEA shall meet this requirement as follows:
    (i) Before determining equal expenditures under paragraph (a)(1) of 
this section, the LEA shall reserve, from the LEA's whole allocation, 
funds needed to carry out Sec. 200.27.
    (ii) The LEA shall reserve the amounts of funds generated by 
private school children under Sec. 200.28 and, in consultation with 
appropriate private school officials, may--
    (A) Combine those amounts to create a pool of funds from which the 
LEA provides equitable services to eligible private school children, in 
the aggregate, in greatest need of those services; or
    (B) Provide equitable services to eligible children in each private 
school with the funds generated by children from low-income families 
under Sec. 200.28 who attend that private school.
    (b) Services on an equitable basis. (1) The services that an LEA 
provides to eligible private school children must be equitable in 
comparison to the services and other benefits provided to public school 
children participating under this subpart.
    (2) Services are equitable if the LEA--
    (i) Addresses and assesses the specific needs and educational 
progress of eligible private school children on a comparable basis as 
public school children;
    (ii) Meets the equal expenditure requirements under paragraph (a) 
of this section; and
    (iii) Provides private school children with an opportunity to 
participate that--
    (A) Is equitable to the opportunity provided to public school 
children; and
    (B) Provides reasonable promise of those children achieving the 
high levels called for by the State's student performance standards.
    (3) The LEA shall make the final decisions with respect to the 
services to be provided to eligible private school children.

(Authority: 20 U.S.C. 6321(a))


Sec. 200.12  Requirements to ensure that funds do not benefit a private 
school.

    (a) An LEA shall use funds under this subpart to provide services 
that supplement, and in no case supplant, the level of services that 
would, in the absence of Title I services, be available to 
participating children in private schools.
    (b) An LEA shall use funds under this subpart to meet the special 
educational needs of participating private school children, but not 
for--
    (1) The needs of the private school; or
    (2) The general needs of children in the private school.

(Authority: 20 U.S.C. 6321(a), 6322(b))


Sec. 200.13  Requirements concerning property, equipment, and supplies 
for the benefit of private school children.

    (a) A public agency must keep title to and exercise continuing 
administrative control of all property, equipment, and supplies that 
the public agency acquires with funds under this subpart for the 
benefit of eligible private school children.
    (b) The public agency may place equipment and supplies in a private 
school for the period of time needed for the program.
    (c) The public agency shall ensure that the equipment and supplies 
placed in a private school--
    (1) Are used only for Title I purposes; and
    (2) Can be removed from the private school without remodeling the 
private school facility.
    (d) The public agency shall remove equipment and supplies from a 
private school if--
    (1) The equipment and supplies are no longer needed for Title I 
purposes; or
    (2) Removal is necessary to avoid unauthorized use of the equipment 
or supplies for other than Title I purposes.
    (e) No funds under this subpart may be used for repairs, minor 
remodeling, or construction of private school facilities.
    (f) For the purpose of this section, the term public agency 
includes the LEA.

(Authority: 20 U.S.C. 6321(c))


Sec. 200.14  [Reserved]

Capital Expenses


Sec. 200.15  Payments to SEAs for capital expenses.

    (a) From the amount appropriated for capital expenses under section 
1002(e) of the Act, the Secretary pays a State an amount that bears the 
same ratio to the amount appropriated as the number of private school 
children in the State who received services under this subpart in the 
most recent year for which data satisfactory to the Secretary are 
available bears to the total number of private school children served 
in that same year in all the States.
    (b) The Secretary reallocates funds not used by a State for 
purposes of Sec. 200.16 among other States on the basis of their 
respective needs.

(Authority: 20 U.S.C. 6321(e)(1))


Sec. 200.16  Payments to LEAs for capital expenses.

    (a)(1)(i) An LEA may apply to the SEA for a payment to cover 
capital expenses that the LEA, in providing equitable services to 
eligible private school children--
    (A) Is currently incurring; or
    (B) Would incur because of an expected increase in the number of 
private school children to be served.
    (ii) An LEA may apply for a payment to cover capital expenses it 
incurred in prior years for which it has not been reimbursed if the LEA 
demonstrates that its current needs for capital expenses have been met.
    (2) Capital expenses means only expenditures for noninstructional 
goods and services that are incurred as a result of implementation of 
alternative delivery systems to comply with the requirements of Aguilar 
v. Felton. These expenditures--
    (i) Include--
    (A) The purchase, lease, and renovation of real and personal 
property (including mobile educational units, and leasing of neutral 
sites or space);
    (B) Insurance and maintenance costs;
    (C) Transportation; and
    (D) Other comparable goods and services; and [[Page 21414]] 
    (ii) Do not include the purchase of instructional equipment such as 
computers.
    (b) An SEA shall distribute funds it receives under Sec. 200.15 to 
LEAs that apply on the basis of need.

(Authority: 20 U.S.C. 6321(e))


Sec. 200.17  Use of LEA payments for capital expenses.

    (a) Unless an LEA is authorized by the SEA to reimburse itself for 
capital expenses incurred in prior years, the LEA shall use payments 
received under Sec. 200.16 to cover capital expenses the LEA is 
incurring or will incur to maintain or increase the number of private 
school children being served.
    (b) The LEA may not take the payments received under Sec. 200.16 
into account in meeting the requirements in Sec. 200.11(a).
    (c) The LEA shall account separately for payments received under 
Sec. 200.16.

(Authority: 20 U.S.C. 6321(e)(3))


Sec. 200.18-200.19  [Reserved]

Procedures for the Within-State Allocation of LEA Program Funds


Sec. 200.20  Allocation of funds to LEAs.

    (a) Subcounty allocations. (1) Except as provided in paragraph (b) 
of this section, Sec. 200.23(c) (1) and (3)(ii), and Sec. 200.25, an 
SEA shall allocate the county amounts determined by the Secretary for 
basic grants, concentration grants, and targeted grants to each 
eligible LEA within the county on the basis of the number of children 
counted in Sec. 200.21.
    (2) If an LEA overlaps a county boundary, the SEA shall make, on a 
proportionate basis, a separate allocation to the LEA from the county 
aggregate amount for each county in which the LEA is located, provided 
the LEA is eligible for a grant.
    (b) Statewide allocations. (1) In any State in which a large number 
of LEAs overlap county boundaries, an SEA may apply to the Secretary 
for authority to make allocations under basic grants or targeted grants 
directly to LEAs without regard to counties.
    (2) In its application, the SEA shall--
    (i) Identify the data in Sec. 200.21(b) the SEA will use for LEA 
allocations; and
    (ii) Provide assurances that--
    (A) Allocations will be based on the data approved by the Secretary 
under this paragraph; and
    (B) A procedure has been established through which an LEA 
dissatisfied with the determination by the SEA may appeal directly to 
the Secretary for a final determination.
    (c) LEAs containing two or more counties in their entirety. If an 
LEA contains two or more counties in their entirety, the SEA shall 
allocate funds under paragraphs (a) and (b) of this section to each 
county as if such county were a separate LEA.

(Authority: 20 U.S.C. 6333-6335)


Sec. 200.21  Determination of the number of children eligible to be 
counted.

    (a) General. An SEA shall count the number of children aged 5-17, 
inclusive, from low-income families and the number of children residing 
in local institutions for neglected children.
    (b) Children from low-income families. (1) An SEA shall count the 
number of children from low-income families in the school districts of 
the LEAs using the best available data. The SEA shall use the same 
measure of low-income throughout the State.
    (2) An SEA may use one of the following options to obtain its count 
of children from low-income families:
    (i) The factors under section 1124(c)(1) of the Act (excluding 
children in local institutions for neglected or delinquent children), 
which include--
    (A) Census data on children in families below the poverty level;
    (B) Data on children in families above poverty receiving payments 
under the program of Aid to Families with Dependent Children; and
    (C) Data on foster children.
    (ii) Alternative data that an SEA determines best reflect the 
distribution of children from low-income families and that are adjusted 
to be equivalent in proportion to the total number of children counted 
under section 1124(c) of the Act (excluding children in local 
institutions for neglected or delinquent children).
    (iii) Data that more accurately reflect the distribution of 
poverty.
    (c) Children in local institutions for neglected children.
    The SEA shall count the number of children ages 5 to 17, inclusive, 
in the LEA who resided in a local institution for neglected children--
and were not counted under subpart 1 of Part D of Title I (programs for 
neglected or delinquent children operated by State agencies)--for at 
least 30 consecutive days, at least one day of which was in the month 
of October of the preceding fiscal year.

(Authority: 20 U.S.C. 6333(c))


Sec. 200.22  Allocation of basic grants.

    (a) Eligibility. An LEA is eligible for a basic grant if--
    (1) In school year 1995-96, there are at least 10 children counted 
under Sec. 200.21 in the LEA; and
    (2) Beginning in school year 1996-97--
    (i) There are at least 10 children counted under Sec. 200.21 in the 
LEA; and
    (ii) The number of those children is greater than two percent of 
the LEA's total population aged 5 to 17 years, inclusive.
    (b) Amount of the LEA grant. An SEA shall allocate basic grant 
funds to eligible LEAs as provided in Sec. 200.20, except that the SEA 
shall apply the hold-harmless provisions described in Sec. 200.25.

(Authority: 20 U.S.C. 6333)


Sec. 200.23  Allocation of concentration grants.

    (a) Eligibility. An LEA is eligible for a concentration grant if--
    (1) The LEA is eligible for a basic grant under paragraph 
Sec. 200.22(a); and
    (2) The number of children counted under Sec. 200.21 in the LEA 
exceeds--
    (i) 6,500; or
    (ii) 15 percent of the LEA's total population ages 5 to 17, 
inclusive.
    (b) Amount of the grant. (1) Except as provided in paragraph (c) of 
this section, an SEA shall allocate a county's concentration grant 
funds only to LEAs that--
    (i) Lie, in whole or in part, within the county; and
    (ii) Meet the eligibility criteria in paragraph (a) of this 
section.
    (2) An SEA shall allocate concentration grant funds to eligible 
LEAs as provided in Sec. 200.20(a), except that the SEA shall apply the 
hold-harmless provision described in Sec. 200.25(a).
    (c) Exceptions. (1) Eligible LEAs in ineligible counties.
    (i) An SEA may reserve not more than two percent of the amount of 
concentration grant funds it receives to make direct allocations to 
eligible LEAs that are located in counties that do not receive a 
concentration grant allocation.
    (ii) If an SEA plans to reserve concentration grant funds under 
paragraph (c)(1)(i) of this section, the SEA, before allocating any 
concentration grant funds under paragraph (b) of this section, shall--
    (A) Determine which LEAs located in ineligible counties are 
eligible to receive concentration grant funds;
    (B) Determine the appropriate amount to be reserved;
    (C) Proportionately reduce the amount available for concentration 
grants for eligible counties or LEAs to provide the reserved amount, 
except that for school year 1996-97 an SEA may not reduce an LEA's 
allocation below the hold-harmless amount determined under 
Sec. 200.25(a); [[Page 21415]] 
    (D) Rank order the LEAs eligible for concentration grant funds that 
are located in ineligible counties according to the number or 
percentage of children counted under Sec. 200.21;
    (E) Select in rank order, those LEAs that the SEA plans to provide 
concentration grant funds; and
    (F) Distribute the reserved funds among the selected LEAs based on 
the number of children counted under Sec. 200.21.
    (2) Eligible counties with no eligible LEAs. In a county in which 
no LEA meets the eligibility criteria in paragraph (a) of this section, 
an SEA shall--
    (i) Identify those LEAs in which either the number or percentage of 
children counted under Sec. 200.21 exceeds the average number or 
percentage of those children in the county; and
    (ii) Allocate concentration grant funds for the county among the 
LEAs identified in paragraph (c)(2)(i) of this section based on the 
number of children counted under Sec. 200.21 in each LEA compared to 
the number of those children in all those LEAs.
    (3) States receiving minimum allocations. In a State that receives 
a minimum concentration grant under section 1124A(d) of the Act, the 
SEA shall--
    (i) Allocate concentration grant funds among LEAs in the State 
under paragraphs (a), (b), and (c) (1) and (2) of this section; or
    (ii) Without regard to the counties in which the LEAs are located--
    (A) Identify those LEAs in which either the number or percentage of 
children counted under Sec. 200.21 exceeds the average number or 
percentage of those children in the State; and
    (B) Allocate concentration grant funds among the LEAs identified in 
paragraph (c)(3)(ii)(A) of this section based on the number of children 
counted under Sec. 200.21 in each LEA.

(Authority: 20 U.S.C. 6334)


Sec. 200.24  Allocation of targeted grants.

    (a) Eligibility. An LEA is eligible for a targeted grant if--
    (1) There are at least 10 children counted under Sec. 200.21 in the 
LEA; and
    (2) The number of those children is at least five percent of the 
LEA's total population ages 5 to 17 years, inclusive.
    (b) Weighted child count. In determining an LEA's grant, the SEA 
shall compute a weighted child count in accordance with section 1125(c) 
of the Act by taking the larger of--
    (1) Percent-weighted child count. The number of children counted 
under Sec. 200.21 multiplied by the weights shown in the following 
table, with the weights applied in a step-wise manner so that only 
those children above each weighting threshold receive the higher 
weight:

------------------------------------------------------------------------
  LEA percentage of children counted under Sec. 200.21 as a             
         percent of total children ages 5 through 17            Weights 
------------------------------------------------------------------------
0 to 14.265%.................................................       1.00
More than 14.265% up to 21.553%..............................       1.75
More than 21.553% up to 29.223%..............................       2.50
More than 29.223% up to 36.538%..............................       3.25
More than 36.538%............................................       4.00
------------------------------------------------------------------------

or;

    (2) Number-weighted child count. The number of children counted 
under Sec. 200.21 multiplied by the weights shown in the following 
table, with the weights applied in a step-wise manner so that only 
those children above each weighting threshold receive the higher 
weight:

------------------------------------------------------------------------
       LEA number of children counted under Sec. 200.21         Weights 
------------------------------------------------------------------------
1 to 575.....................................................        1.0
576 to 1,870.................................................        1.5
1,871 to 6,910...............................................        2.0
6,911 to 42,000..............................................        2.5
42,001 or more...............................................        3.0
------------------------------------------------------------------------

    (c) Amount of LEA grant. An SEA shall allocate targeted grant funds 
to eligible LEAs as provided in Sec. 200.20 based on the weighted child 
count determined in paragraph (b) of this section, except that the SEA 
shall apply the hold-harmless provisions described in Sec. 200.25.

(Authority: 20 U.S.C. 6335)


Sec. 200.25  Applicable hold-harmless provisions.

    (a) General. (1) An SEA may not reduce the allocation of an 
eligible LEA below the hold-harmless amounts established under section 
1122(c) of the Act.
    (2) The hold-harmless protection limits the maximum reduction in an 
LEA's allocation when compared to the LEA's allocation for the 
preceding year.
    (3) The hold-harmless shall be applied separately for basic grants, 
concentration grants, and targeted grants, but shall be applied for 
each grant formula only in those years authorized under section 1122(c) 
of the Act, as shown in the table contained in paragraph (a)(4) of this 
section.
    (4) Under section 1122(c) of the Act, the hold-harmless percentage 
varies based on the year and, for school years 1997-98 and beyond, 
based on the LEA's number of children counted under Sec. 200.21 as a 
percentage of the total number of children ages 5-17, inclusive, in the 
LEA, as shown in the following table:

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Hold-                                                         
           School year                LEA's Sec. 200.21 children as a percentage of     harmless                 Applicable grant formulas              
                                              children ages 5-17, inclusive            percentage                                                       
--------------------------------------------------------------------------------------------------------------------------------------------------------
1995-96..........................  Not applicable....................................          85  Basic Grants.                                        
1996-97..........................  Not applicable....................................         100  Basic Grants and Concentration Grants.               
1997-98 and beyond...............  30 or more........................................          95  Basic Grants and Targeted Grants.                    
                                   15% or more and less than 30%.....................          90                                                       
                                   Less than 15%.....................................          85                                                       
--------------------------------------------------------------------------------------------------------------------------------------------------------

    (5) For school year 1995-96, the SEA shall compute each LEA's hold-
harmless amount without regard to the amount the LEA received for 
delinquent children counted under section 1005 of Chapter 1 of Title I 
of the Elementary and Secondary Education Act of 1965 as in effect on 
September 30, 1994.
    (b) Adjustment for insufficient funds. (1) School year 1995-96. If 
the Secretary's allocation for a county is not sufficient to give an 
LEA 85 percent of the amount it received for school year 1994-95, 
without regard to the amount the LEA received for delinquent children, 
the SEA may use funds received under Part D, subpart 2 (local agency 
programs) of the Act to bring such LEA up to its hold-harmless amount.
    (2) School years 1997-98 and beyond. If the Secretary's allocation 
for a county is not sufficient to meet the LEA hold-harmless 
requirements of paragraph (a) of this section, the SEA shall reallocate 
funds proportionately from all other [[Page 21416]] LEAs in the State 
that are receiving funds in excess of the hold-harmless amounts 
specified in paragraph (a) of this section.
    (c) Eligibility for hold-harmless protection. An LEA must be 
eligible for basic grant, concentration grant, and targeted grant funds 
in order for the respective provisions in paragraphs (a) and (b) of 
this section to apply.

(Authority: 20 U.S.C. 6332(c))


Sec. 200.26  [Reserved]

Procedures for the Within-District Allocation of LEA Program Funds


Sec. 200.27  Reservation of funds by an LEA.

    Before allocating funds in accordance with Sec. 200.28, an LEA 
shall reserve funds as are reasonable and necessary to--
    (a) Provide services comparable to those provided to children in 
participating school attendance areas and schools to serve--
    (1) Children in local institutions for neglected children; and
    (2) Where appropriate--
    (i) Eligible homeless children who do not attend participating 
schools, including providing educationally related support services to 
children in shelters;
    (ii) Children in local institutions for delinquent children; and
    (iii) Neglected and delinquent children in community-day school 
programs;
    (b) Meet the requirements for parental involvement in section 
1118(a)(3) of the Act;
    (c) Administer programs for public and private school children 
under this part, including special capital expenses defined in 
Sec. 200.16; and
    (d) Conduct other authorized activities such as professional 
development, school improvement, and coordinated services.

(Authority: 20 U.S.C. 6313(c)(3), 6317(c), 6319(a)(3), 6320)


Sec. 200.28  Allocation of funds to school attendance areas and 
schools.

    (a) (1) An LEA shall allocate funds under this subpart to school 
attendance areas or schools, identified as eligible and selected to 
participate under section 1113 (a) or (b) of the Act, in rank order on 
the basis of the total number of children from low-income families in 
each area or school.
    (2) In calculating the total number of children from low-income 
families, the LEA shall include children from low-income families who 
attend private schools, using--
    (i) The same poverty data, if available, as the LEA uses to count 
public school children; or
    (ii) If the same data are not available, comparable data collected 
through alternative means such as a survey.
    (b) (1) Except as provided in paragraphs (b)(2) and (d) of this 
section, an LEA shall allocate to each participating school attendance 
area or school an amount for each low-income child that is at least 125 
percent of the per-pupil amount of funds the LEA received for that year 
under subpart 2 of Part A of Title I. The LEA shall use the poverty 
measure selected by the LEA under section 1113(a)(5) of the Act to 
compute the per-pupil amount.
    (2) If an LEA is serving only school attendance areas or schools in 
which the percentage of children from low-income families is 35 percent 
or more, the LEA is not required to allocate a per-pupil amount of at 
least 125 percent.
    (c) An LEA is not required to allocate the same per-pupil amount to 
each participating school attendance area or school provided the LEA 
allocates higher per-pupil amounts to areas or schools with higher 
concentrations of poverty than to areas or schools with lower 
concentrations of poverty.
    (d) An LEA may reduce the amount of funds allocated under this 
section to a school attendance area or school if the area or school is 
spending supplemental State or local funds for programs that meet the 
requirements in Sec. 200.62(c).
    (e) If an LEA contains two or more counties in their entirety, the 
LEA shall distribute to schools within each county a share of the LEA's 
total grant that is no less than the county's share of the child count 
used to calculate the LEA's grant.

(Authority: 20 U.S.C. 6313(c), 6333(c)(2))


Sec. 200.29  [Reserved]

Subpart B--Even Start Family Literacy Program


Sec. 200.30  Migrant Education Even Start Program Definition.

    Eligible participants under the Migrant Education Even Start 
Program (MEES) are those who meet the definitions of a migratory child, 
a migratory agricultural worker or a migratory fisher in Sec. 200.40.

(Authority: 20 U.S.C. 6362, 6511)


Secs. 200.31-200.39  [Reserved]

Subpart C--Migrant Education Program


Sec. 200.40  Program definitions.

    The following definitions apply to programs and projects operated 
under this subpart:
    (a) Agricultural activity means--
    (1) Any activity directly related to the production or processing 
of crops, dairy products, poultry or livestock for initial commercial 
sale or personal subsistence;
    (2) Any activity directly related to the cultivation or harvesting 
of trees; or
    (3) Any activity directly related to fish farms.
    (b) Fishing activity means any activity directly related to the 
catching or processing of fish or shellfish for initial commercial sale 
or personal subsistence.
    (c) Migratory agricultural worker means a person who, in the 
preceding 36 months, has moved from one school district to another, or 
from one administrative area to another within a State that is 
comprised of a single school district, in order to obtain temporary or 
seasonal employment in agricultural activities (including dairy work) 
as a principal means of livelihood.
    (d) Migratory child means a child who is, or whose parent, spouse, 
or guardian is, a migratory agricultural worker, including a migratory 
dairy worker, or a migratory fisher, and who, in the preceding 36 
months, in order to obtain, or accompany such parent, spouse, guardian 
in order to obtain, temporary or seasonal employment in agricultural or 
fishing work--
    (1) Has moved from one school district to another;
    (2) In a State that is comprised of a single school district, has 
moved from one administrative area to another within such district; or
    (3) Resides in a school district of more than 15,000 square miles, 
and has moved a distance of 20 miles or more to a temporary residence 
to engage in a fishing activity.
    (e) Migratory fisher means a person who, in the preceding 36 
months, has moved from one school district to another, or from one 
administrative area to another within a State that is comprised of a 
single school district, in order to obtain temporary or seasonal 
employment in fishing activities as a principal means of livelihood. 
This definition also includes a person who resides in a school district 
of more than 15,000 square miles, and moves a distance of 20 miles or 
more to a [[Page 21417]] temporary residence to engage in a fishing 
activity.
    (f) Principal means of livelihood means that the agricultural or 
fishing activity constitutes an essential part of providing a living 
for the worker and his or her family.

(Authority: 20 U.S.C. 6391-6399, 6511)


Sec. 200.41  Use of program funds for unique program function costs.

    An SEA may use the funds available from its State Migrant Education 
Program to carry out other administrative activities, beyond those 
allowable under Sec. 200.61, that are unique to the MEP or that are the 
same or similar to those performed by LEAs in the State under subpart 
A. These activities include but are not limited to--
    (a) Statewide identification and recruitment of eligible migratory 
children;
    (b) Interstate and intrastate coordination of the State MEP and its 
local projects with other relevant programs and local projects in the 
State and in other States;
    (c) Procedures for providing for educational continuity for 
migratory children through the timely transfer of educational and 
health records, beyond that required generally by State and local 
agencies.
    (d) Collecting and using information for accurate distribution of 
subgrant funds; and
    (e) Development and implementation of a statewide plan for needs 
assessment and service delivery.

(Authority: 20 U.S.C. 6392, 6511)


Sec. 200.42  Responsibilities of SEAs and operating agencies for 
assessing the effectiveness of the MEP.

    (a) Each SEA and operating agency receiving funds under the MEP has 
the responsibility to determine the effectiveness of its program and 
projects in providing migratory students with the opportunity to meet 
the same challenging State content and performance standards, required 
under Sec. 200.2, that the State has established for all children.
    (b) To determine the effectiveness of its program and projects, 
each SEA and operating agency receiving MEP funds shall, wherever 
feasible, use the same high-quality yearly student assessments or 
transitional assessments that the State establishes for use in meeting 
the requirements of Sec. 200.4.
    (c) In a project where it is not feasible to use the same student 
assessments that are being used to meet the requirements of Sec. 200.4 
(e.g., in a summer-only project, or in a project where no migratory 
students are enrolled at the time the State-established assessment 
takes place), the SEA must ensure that the relevant operating agency 
carries out some other reasonable process or processes for examining 
the effectiveness of the project.

(Authority: 20 U.S.C. 6394)


Sec. 200.43  Responsibilities of SEAs and operating agencies for 
improving services to migratory children.

    While the specific school improvement requirements of section 1116 
of the statute do not apply to the MEP, SEAs and local operating 
agencies receiving MEP funds shall use the results of the assessments 
carried out under Sec. 200.42 to improve the services provided to 
migratory children.

(Authority: 20 U.S.C. 6394)


Sec. 200.44  Use of MEP funds in schoolwide projects.

    Funds available under Part C of Title I of the Act may be used in a 
schoolwide program subject to the requirements of 
Sec. 200.8(c)(3)(ii)(B)(1).

(Authority: 20 U.S.C. 6396)


Sec. 200.45  Responsibilities for participation of children in private 
schools.

    An SEA and its operating agencies shall conduct programs and 
projects under this subpart in a manner consistent with the basic 
requirements of section 1120 of the Act.

(Authority: 20 U.S.C. 6394)


Secs. 200.46-200.49  [Reserved]

Subpart D--Prevention and Intervention Programs for Children and 
Youth Who Are Neglected, Delinquent, or At-Risk of Dropping Out


Sec. 200.50  Program definitions.

    (a) The following definitions apply to the programs authorized in 
Part D, subparts 1 and 2 of Title I of the Act:
    Children and youth means the same as ``children'' as that term is 
defined in Sec. 200.65(a).
    (b) The following definitions apply to the programs authorized in 
Part D, subpart 1 of Title I of the Act:
    Institution for delinquent children and youth means, as determined 
by the SEA, a public or private residential facility that is operated 
primarily for the care of children and youth who--
    (1) Have been adjudicated to be delinquent or in need of 
supervision; and
    (2) Have had an average length of stay in the institution of at 
least 30 days.
    Institution for neglected children and youth means, as determined 
by the SEA, a public or private residential facility, other than a 
foster home, that is operated primarily for the care of children and 
youth who--
    (1) Have been committed to the institution or voluntarily placed in 
the institution under applicable State law due to abandonment, neglect, 
or death of their parents or guardians; and
    (2) Have had an average length of stay in the institution of at 
least 30 days.
    Regular program of instruction means an educational program (not 
beyond grade 12) in an institution or a community day program for 
neglected or delinquent children that consists of classroom instruction 
in basic school subjects such as reading, mathematics, and vocationally 
oriented subjects, and that is supported by non-Federal funds. Neither 
the manufacture of goods within the institution nor activities related 
to institutional maintenance are considered classroom instruction.
    (c) The following definitions apply to the local agency program 
authorized in Part D, subpart 2 of Title I of the Act:
    Immigrant children and youth and Limited English Proficiency have 
the same meanings as those terms are defined in section 7501 of the 
Act, except that the terms ``individual'' and ``children and youth'' 
used in those definition mean ``children and youth'' as defined in this 
section.
    Locally operated correctional facility means a facility in which 
persons are confined as a result of a conviction for a criminal 
offense, including persons under 21 years of age. The term also 
includes a local public or private institution and community day 
program or school not operated by the State that serves delinquent 
children and youth.
    Migrant youth means the same as ``migratory child'' as that term is 
defined in Sec. 200.40(d).

(Authority: 20 U.S.C. 6432, 6472)


Sec. 200.51  SEA counts of eligible children.

    To receive an allocation under Part D, subpart 1 of Title I of the 
Act, an SEA must provide the Secretary with a count of children and 
youth under the age of 21 enrolled in a regular program of instruction 
operated or supported by State agencies in institutions or community 
day programs for neglected or delinquent children and youth and adult 
correctional institutions as specified in paragraphs (a) and (b) of 
this section:
    (a) Enrollment. (1) To be counted, a child or youth must be 
enrolled in a regular program of instruction for at least--
    (i) 20 hours per week if in an institution or community day program 
for neglected or delinquent children; or [[Page 21418]] 
    (ii) 15 hours per week if in an adult correctional institution.
    (2) The State agency shall specify the date on which the enrollment 
of neglected or delinquent children is determined under paragraph 
(a)(1) of this section, except that the date specified shall be--
    (i) Consistent for all institutions or community day programs 
operated by the State agency; and
    (ii) Represent a school day in the calendar year preceding the year 
in which funds become available.
    (b) Adjustment of enrollment. The SEA shall adjust the enrollment 
for each institution or community day program served by a State agency 
by--
    (1) Multiplying the number determined in paragraph (a) of this 
section by the number of days per year the regular program of 
instruction operates; and
    (2) Dividing the result of paragraph (b)(1) of this section by 180.
    (c) Date of submission. The SEA must annually submit the data in 
paragraph (b) of this section no later than January 31.

(Authority: 20 U.S.C. 6432)


Secs. 200.52-200.59  [Reserved]

Subpart E--General Provisions


Sec. 200.60  Reservation of funds for State administration and school 
improvement.

    (a) State administration. An SEA may reserve for State 
administration activities authorized in section 1603 of the Act no more 
than--
    (1) One percent from each of the amounts allocated to the State or 
Outlying Area under section 1002(a), (c), and (d) of the Act; or
    (2) (i) $400,000 ($50,000 for the Outlying Areas), whichever is 
greater.
    (ii) An SEA reserving $400,000 under paragraph (a)(2)(i) of this 
section shall reserve proportionate amounts from each of the amounts 
allocated to the State or Outlying Area under section 1002 (a), (c), 
and (d) of the Act.
    (b) School improvement. (1) To carry out school improvement 
activities authorized under sections 1116 and 1117 of the Act, an SEA 
may reserve no more than .5 percent from each of the amounts allocated 
to the State or Outlying Area under section 1002(a), (c), and (d) of 
the Act.
    (2) (i) An SEA shall have available from funds received under 
section 1002(f) of the Act or reserved under paragraph (b)(1) of this 
section no less than $200,000 ($25,000 for the Outlying Areas) to carry 
out school improvement activities.
    (ii)(A) If funds made available for school improvement under 
section 1002(f) of the Act do not equal $200,000 ($25,000 for Outlying 
Areas), the SEA shall reserve funds in accordance with paragraph (b)(1) 
of this section.
    (B) If the amount reserved under paragraph (b)(1) when added to 
funds received under section 1002(f), does not equal $200,000 ($25,000 
for the Outlying Areas), the SEA shall reserve additional funds under 
section 1002 (a), (c), and (d) as are necessary to make $200,000 
($25,000 for the Outlying Areas) available to the SEA.
    (c) Reservation from section 1002(a) funds. In reserving funds for 
State administration and school improvement under section 1002(a) of 
the Act, an SEA shall--
    (1) Reserve proportionate amounts from each of the State's basic 
grant, concentration grant, and targeted grant allocations; and
    (2) Ensure that from the funds remaining for basic grants, 
concentration grants, and targeted grants after reserving funds for 
State administration and school improvement, no eligible LEA receives 
less than the hold-harmless amounts determined under Sec. 200.25, 
except when the amounts remaining are insufficient to pay all LEAs the 
hold-harmless amounts provided in Sec. 200.25, the SEA shall ratably 
reduce each LEA's hold harmless allocation to the amount available.

(Authority: 20 U.S.C. 6303, 6513(c))


Sec. 200.61  Use of funds reserved for State administration.

    An SEA may use any of the funds that it has reserved under 
Sec. 200.60(a) to perform general administrative activities necessary 
to carry out, at the State level, any of the programs authorized under 
Title I of the Act.

(Authority: 20 U.S.C. 6513(c))


Sec. 200.62  [Reserved]


Sec. 200.63  Supplement, not supplant.

    (a) Except as provided in paragraph (c) of this section, a grantee 
or subgrantee under subparts A, C, or D of this part may use funds 
available under these subparts only to supplement the amount of funds 
that would be made available, in the absence of funds made available 
under subparts A, C, and D from non-Federal sources for the education 
of pupils participating in programs assisted under subparts A, C, and D 
and in no case may funds available under these subparts be used to 
supplant those non-Federal funds.
    (b) To meet the requirement in paragraph (a) of this section, a 
grantee or subgrantee under subparts A, C, or D is not required to 
provide services under subparts A, C, or D through the use of a 
particular instructional method or in a particular instructional 
setting.
    (c) (1) For purposes of determining compliance with paragraph (a) 
of this section, a grantee or subgrantee under subparts A or C may 
exclude supplemental State and local funds spent in any eligible school 
attendance area or eligible school for programs that meet the 
requirements of section 1114 or section 1115 of the Act.
    (2) A supplemental State or local program will be considered to 
meet the requirements of section 1114 if the program--
    (i) Is implemented in a school that meets the schoolwide poverty 
threshold for eligibility in Sec. 200.8(b);
    (ii) Is designed to upgrade the entire educational program in the 
school to support students in their achievement toward meeting the 
State's challenging student performance standards;
    (iii) Is designed to meet the educational needs of all children in 
the school, particularly the needs of children who are failing, or most 
at risk of failing, to meet the State's challenging student performance 
standards; and
    (iv) Uses the State's system of assessment to review the 
effectiveness of the program.
    (3) A supplemental State or local program will be considered to 
meet the requirements of section 1115 if the program--
    (i) Serves only children who are failing, or most at risk of 
failing, to meet the State's challenging student performance standards;
    (ii) Provides supplementary services designed to meet the special 
educational needs of the children who are participating to support 
their achievement toward meeting the State's student performance 
standards that all children are expected to meet; and
    (iii) Uses the State's system of assessment to review the 
effectiveness of the program.
    (4) These conditions also apply to supplemental State and local 
funds expended under sections 1113(b)(1)(C) and 1113(c)(2)(B) of the 
Act.

(Authority: 20 U.S.C. 6322(b))


Sec. 200.64  Maintenance of effort.

    (a) General. An LEA receiving funds under subparts A or C may 
receive its full allocation of funds under subparts A and C if it finds 
that either the combined fiscal effort per student or the aggregate 
expenditures of State and local funds with respect to the provision of 
free public education in the LEA for the preceding fiscal year was not 
less than 90 percent of combined fiscal effort per student or the 
aggregate [[Page 21419]] expenditures for the second preceding fiscal 
year.
    (b) Meaning of ``preceding fiscal year''. For purposes of 
determining maintenance of effort, the ``preceding fiscal year'' is the 
Federal fiscal year or the 12-month fiscal period most commonly used in 
a State for official reporting purposes prior to the beginning of the 
Federal fiscal year in which funds are available.

    Example: For funds first made available on July 1, 1995, if a 
State is using the Federal fiscal year, the ``preceding fiscal 
year'' is Federal fiscal year 1994 (which began on October 1, 1993) 
and the ``second preceding fiscal year'' is Federal fiscal year 1993 
(which began on October 1, 1992). If a State is using a fiscal year 
that begins on July 1, 1995, the ``preceding fiscal year'' is the 
12-month period ending on June 30, 1994, and the ``second preceding 
fiscal year, is the period ending on June 30, 1993.

    (c) Expenditures. (1) To be considered. In determining an LEA's 
compliance with the maintenance of effort requirement, the SEA shall 
consider the LEA's expenditures from State and local funds for free 
public education. These include expenditures for administration, 
instruction, attendance and health services, pupil transportation 
services, operation and maintenance of plant, fixed charges, and net 
expenditures to cover deficits for food services and student body 
activities.
    (2) Not to be considered. The SEA shall not consider the following 
expenditures in determining an LEA's compliance with the maintenance of 
effort requirement:
    (i) Any expenditures for community services, capital outlay, and 
debt service; and
    (ii) Any expenditures made from funds provided by the Federal 
Government for which the LEA is required to account to the Federal 
Government directly or through the SEA.

(Authority: 20 U.S.C. 6322(a))


Sec. 200.65  Definitions.

    The following definitions apply to programs and projects operated 
under this part:
    (a) Children means--
    (1) Persons up through age 21 who are entitled to a free public 
education through grade 12; and
    (2) Preschool children.
    (b) Fiscal year means the Federal fiscal year--a period beginning 
on October 1 and ending on the following September 30--or another 12-
month period normally used by the SEA for record-keeping.
    (c) Preschool children means children who are--
    (1) Below the age and grade level at which the agency provides free 
public education; and
    (2) Of an age at which they can benefit from an organized 
instructional program provided in a school or educational setting.

(Authority: 20 U.S.C. 6315, 6511)


Secs. 200.66-200.69  [Reserved]

[FR Doc. 95-10663 Filed 4-28-95; 8:45 am]
BILLING CODE 4000-01-P

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