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

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:

TitleIllLEA@ed.gov; Part B:

EvenllStart@ed.gov; and Part D: Title

IllN–D@ed.gov. 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—

Migrant@ed.gov. 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
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 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 §§ 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 §§ 200.1–

200.6 concerning standards, assessment,

and accountability and in § 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 highquality 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 § 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 § 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 § 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, § 200.3(b)(3)

clarifies that ‘‘other measures’’ may be
21402 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules

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,

§ 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 §§ 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 § 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 Stateadministered, 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
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 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 lowincome 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, § 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
21404 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules

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

§ 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 lowincome 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, § 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, § 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 § 200.24(b) (1) and (2). In weighting

each LEA’s formula count, the SEA

must take the larger of the percentweighted 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 ‘‘holdharmless’’ 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 holdharmless 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
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 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 lowincome families in each area or school.

In calculating the total number of lowincome 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 § 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 lowincome 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 perpupil 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 § 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 §§ 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, § 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, § 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 § 200.50 are necessary to ensure that

the data used by the Secretary to

allocate funds are based on common
21406 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules

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 § 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 ‘‘§ ’’ and a

numbered heading; for example ‘‘§ 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
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 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

§ 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 § 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

§ 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 AtRisk 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.
21408 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules

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

§ 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 § 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 § 200.2(b); or

(B) Content and student performance

standards for elementary and secondary

school children served under this

subpart in accordance with § 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 highquality yearly student assessments,

including assessments in at least

mathematics and reading/language arts,

in accordance with § 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 § 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—
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 21409

(i) Demonstrate, based on the

assessments described under § 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

§ 200.4(e), describe how the State will

identify schools under § 200.5 and LEAs

under § 200.6 in accordance with

§ 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)

§ 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 lowerperforming 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 § 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 § 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))

§ 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 § 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 § 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

§ 200.4(e), the State shall devise a

procedure for identifying schools under

§ 200.5 and LEAs under § 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))

§ 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
21410 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules

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 upto-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 § 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))

§ 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 § 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))

§ 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
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 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 § 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))

§ 200.7 [Reserved]

Schoolwide Programs

§ 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 lowincome 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 lowincome 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
21412 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules

(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 § 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-toWork 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 nonFederal sources for that school,

including funds needed to provide

services that are required by law for
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 21413

children with disabilities and children

with limited-English proficiency.

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

§ 200.9 [Reserved]

Participation of Eligible Children in

Private Schools

§ 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 §§ 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

§ 200.11.

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

§ 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 § 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 § 200.27.

(ii) The LEA shall reserve the amounts

of funds generated by private school

children under § 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

§ 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))

§ 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))

§ 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))

§ 200.14 [Reserved]

Capital Expenses

§ 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 § 200.16

among other States on the basis of their

respective needs.

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

§ 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
21414 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules

(ii) Do not include the purchase of

instructional equipment such as

computers.

(b) An SEA shall distribute funds it

receives under § 200.15 to LEAs that

apply on the basis of need.

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

§ 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

§ 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 § 200.16 into

account in meeting the requirements in

§ 200.11(a).

(c) The LEA shall account separately

for payments received under § 200.16.

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

§ 200.18–200.19 [Reserved]

Procedures for the Within-State

Allocation of LEA Program Funds

§ 200.20 Allocation of funds to LEAs.

(a) Subcounty allocations. (1) Except

as provided in paragraph (b) of this

section, § 200.23(c) (1) and (3)(ii), and

§ 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 § 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 § 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)

§ 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 lowincome 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))

§ 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

§ 200.21 in the LEA; and

(2) Beginning in school year 1996–

97—

(i) There are at least 10 children

counted under § 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 § 200.20,

except that the SEA shall apply the

hold-harmless provisions described in

§ 200.25.

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

§ 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 § 200.22(a); and

(2) The number of children counted

under § 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 § 200.20(a), except

that the SEA shall apply the holdharmless provision described in

§ 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 holdharmless amount determined under

§ 200.25(a);
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 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 § 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

§ 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 § 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 § 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 § 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

§ 200.21 in each LEA.

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

§ 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 § 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

§ 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 § 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

§ 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 § 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 § 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 § 200.25.

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

§ 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 § 200.21 as a percentage of the

total number of children ages 5–17,

inclusive, in the LEA, as shown in the

following table:

School year LEA’s § 200.21 children as a percentage

of children ages 5–17, inclusive

Holdharmless

percentage

Applicable grant formulas

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 holdharmless 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 holdharmless requirements of paragraph (a)
21416 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules

of this section, the SEA shall reallocate

funds proportionately from all other

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))

§ 200.26 [Reserved]

Procedures for the Within-District

Allocation of LEA Program Funds

§ 200.27 Reservation of funds by an LEA.

Before allocating funds in accordance

with § 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 § 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)

§ 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 lowincome 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 § 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))

§ 200.29 [Reserved]

Subpart B—Even Start Family Literacy

Program

§ 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 § 200.40.

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

§§ 200.31–200.39 [Reserved]

Subpart C—Migrant Education

Program

§ 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
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 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)

§ 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 § 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)

§ 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

§ 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 § 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 § 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)

§ 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 § 200.42 to improve the services

provided to migratory children.

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

§ 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

§ 200.8(c)(3)(ii)(B)(1).

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

§ 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)

§§ 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.

(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

§ 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 § 200.40(d).

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

§ 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
21418 Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules

(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)

§§ 200.52–200.59 [Reserved]

Subpart E—General Provisions

§ 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 § 200.25, except

when the amounts remaining are

insufficient to pay all LEAs the holdharmless amounts provided in § 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))

§ 200.61 Use of funds reserved for State

administration.

An SEA may use any of the funds that

it has reserved under § 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))

§ 200.62 [Reserved]

§ 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 § 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))

§ 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
Federal Register / Vol. 60, No. 83 / Monday, May 1, 1995 / Proposed Rules 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))

§ 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)

§§ 200.66–200.69 [Reserved]

[FR Doc. 95–10663 Filed 4–28–95; 8:45 am]

BILLING CODE 4000–01–P