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###### Department of Education

          - 34 CFR Chapter III
          - [Docket ID ED-2021-OSERS-0018]

# AGENCY:

Office of Special Education and Rehabilitative Services (OSERS), Department of Education.

# ACTION:

Final priority.

# SUMMARY:

The Department of Education (Department) announces a priority under the State Personnel Development Grants (SPDG), Assistance Listing Number 84.323A. The Department may use the priority for competitions in fiscal year (FY) 2022 and later years. We take this action to focus attention on the need to improve results for children with disabilities and their families by supporting a comprehensive system of personnel development (CSPD) for the Individuals with Disabilities Education Act (IDEA) Part C Grants for Infants and Families program.

# DATES:

Effective July 11, 2022.

# FOR FURTHER INFORMATION CONTACT:

                        Jennifer Coffey, U.S. Department of Education, 400 Maryland Avenue SW, Room 5134, Potomac Center Plaza, Washington, DC 20202-5134. Telephone: (202) 245-6673. Email:                         *jennifer.coffey@ed.gov.*

If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.

# SUPPLEMENTARY INFORMATION:

 

*Purpose of Program:*                     The purpose of the SPDG program is to assist State educational agencies (SEAs) in reforming and improving their systems for personnel preparation and professional development in early intervention, educational, and transition services to improve results for children with disabilities.                

*Program Authority:*20 U.S.C. 1451-1455.                

                    We published a notice of proposed priority (NPP) for this program in the                     **Federal Register**                     on February 1, 2022 (87 FR 5432). That document contained background information and our reasons for proposing the priority.                          ( print page 35416)    

                    There are some differences between the NPP and this notice of final priority (NFP) as discussed in the                     *Analysis of Comments and Changes*                     section of this document.                

*Public Comment:*                     In response to our invitation in the NPP, 17 parties submitted comments on the proposed priority. Generally, we do not address technical and other minor changes, or suggested changes the law does not authorize us to make under the applicable statutory authority. In addition, we do not address general comments that raised concerns not directly related to the proposed priority.                

*Analysis of Comments and Changes:*                     An analysis of the comments and of any changes in the priority since publication of the NPP follows.                

*Comment:*                     One commenter asked whether the Department determined where funds should be used in a State. Other commenters recommended making these funds available for recruitment of highly qualified early intervention staff.                

*Discussion:*                     While the Department agrees that the recruitment of highly qualified early intervention staff is an appropriate use of funds, we want to provide flexibility to SEAs (working in partnership with State lead agencies (LAs)) (“applicants” or “SEA applicant”) to determine how funds are used within the constraints of a notice inviting applications (NIA). This flexibility allows these applicants to choose the programming and sites they would like to support via professional development and the CSPD.                

*Changes:*                     None.                

*Comment:*                     One commenter requested that the Department stipulate the amount and percentage of SPDG funding to be used for activities or personnel development for those working with infants, toddlers, and their families.                

*Discussion:*                     The Department does not want to stipulate the amount of funding, because the Department wants to provide flexibility to SEA applicants (working in partnership with State LAs) to determine the amount of funding based on the proposed activities. Typically, an NIA under the SPDG program provides a number of areas a State can choose from to focus their efforts so that they best meet the needs of their State.                

However, as noted by the commenter, to achieve this priority, it will be essential for the State to at least specify the percentage of funding. As a result, we are clarifying in the priority language that a State must indicate the amount and percentage of SPDG funding that will support implementation of the CSPD over the project period and how funding will complement current efforts and investments (Federal IDEA Part C appropriations and State and local funds) to implement the CSPD. Additionally, we are clarifying a State must describe the extent to which funds will be used on activities to increase and train personnel working with infants and toddlers and their families that have historically been underserved by Part C.

*Changes:*                     We have replaced “should” with “must,” in the first paragraph of the priority, “Supporting an IDEA Part C Comprehensive System of Personnel Development” in the NIA to make clear that an applicant must provide the amount and percentage of SPDG funding that will support implementation of the CSPD over the project period and how funding will complement current efforts and investments (Federal IDEA Part C appropriations and State and local funds) to implement the CSPD. We also replaced “should” with “must,” in the description of the priority, “Supporting an IDEA Part C Comprehensive System of Personnel Development” prior to the grant's “Program Requirements” section to make clear that an applicant must also describe the extent to which funds will be used on activities to increase and train personnel working with infants and toddlers and their families that have historically been underserved by Part C.                

*Comment:*                     One commenter described how their State's CSPD has brought together a diverse group of stakeholders and has provided a focus for important workforce issues critical to the education of their youngest learners.                

*Discussion:*                     We agree that the CSPD can support collaborative, ongoing efforts to develop a knowledgeable and skilled early childhood workforce.                

*Changes:*                     None.                

*Comment:*                     Three commenters described how necessary this priority is because there are insufficient resources and funding to support the use of evidence-based early intervention services that improve outcomes for children with disabilities. And three commenters supported the use of the SPDG in supporting effective practices in early childhood services.                

*Discussion:*                     The Department agrees that supporting evidence-based practices for the youngest children can result in substantial impact.                

*Changes:*                     None.                

*Comment:*                     One commenter suggested that it could be more time efficient to have a national technical assistance (TA) provider work with staff within States.                

*Discussion:*                     While the Department agrees and notes that it does fund a national TA center that supports the development of CSPDs in States—the Early Childhood Personnel Center (                    *https://ecpcta.org/​*)—additional resources are needed under the SPDG program to build sustainable systems within a State. Furthermore, the purpose of this priority is to ensure that SEAs work collaboratively with LAs by developing a partnership, and this funding would support such a partnership.                

*Changes:*                     None.                

*Comment:*                     Eleven commenters stated that this priority will assist with the extreme shortage of early childhood personnel.                

*Discussion:*                     We agree that there are early childhood personnel shortages and this grant program can be used to support statewide strategies to recruit and retain personnel.                

*Changes:*                     None.                

*Comment:*                     One commenter shared that early intervention personnel need more support in implementing recommended early childhood practices.                

*Discussion:*                     We agree that early intervention personnel need support in implementing recommended early childhood practices. This support can be a focus of the SPDG activities.                

*Changes:*                     None.                

*Comment:*                     Four commenters shared that the CSPD is integral to an effective system for Part C of the IDEA and that a comprehensive system facilitates communication, collaboration, and implementation of coordinated components of personnel standards; recruitment and retention; pre-service and in-service training; and sustainability of a qualified workforce, which includes a statewide workforce tracking system.                

*Discussion:*                     We agree with the commenters that a CSPD is integral to an effective Part C system and that a comprehensive system includes these elements.                

*Changes:*                     None.                

*Comment:*                     Three commenters asked that the Department require each of the elements of the CSPD.                

*Discussion:*                     This priority lists the components from the CSPD that are required by section 635(a)(8) of the IDEA (34 CFR 303.118(a)). The Department is cognizant that not all Part C programs under IDEA have the infrastructure in place to carry out all aspects of the CSPD and that SPDG funds are administered by SEAs under section 652 of the IDEA, which is why                           ( print page 35417)                        the priority requires SEAs (that are not LAs) to apply for SPDG funds in partnership with LAs to support further development of these components.                

*Changes:*                     None.                

*Comment:*                     Three commenters shared the opinion that this funding would be the most helpful if used to provide updated mental health training in local educational agencies (LEAs) and schools.                

*Discussion:*                     Since this priority focuses on the Part C CSPD, it cannot support training for LEAs and schools.                

*Changes:*                     None.                

*Comment:*                     One commenter was concerned that practices supported in a CSPD be evidence-based, a good fit for the context, and evaluated properly with data.                

*Discussion:*                     We agree that practices supported in a CSPD must be evidence-based, a good fit for the context, and evaluated properly with data. The SPDG supports the use of evidence-based practices.                

We also agree that the context in which the evidence-based practices are implemented is a critical consideration and that data must be used to evaluate the fidelity and effects of the practice.

*Changes:*                     None.                

*Comment:*                     Two commenters shared that the needs of children vary dramatically across rural and inner-city communities, and one commenter recommended that the Department require States to provide what they understand their specific, community-based needs are and how the grant funding will directly support students who are most vulnerable.                

*Discussion:*                     We agree that the context where children with disabilities are being served should be considered when planning services. Sections 651 through 655 of the IDEA, as amended by the Every Student Succeeds Act (ESSA), requires projects to review the needs in the State, including areas in need of improvement related to the preparation, ongoing training, and professional development of personnel who serve infants, toddlers, preschoolers, and children with disabilities within the State, including different geographical needs within the State. Each applicant is required to include a plan that aligns with sections of the IDEA as specified earlier in this paragraph.                

*Changes:*                     None.                

*Comment:*                     One commenter recommended setting clear standards for the qualifications of service providers.                

*Discussion:*                     The Department agrees as this is consistent with the law. Under section 632(4)(F) of the IDEA, the CSPD requires the State to establish and maintain a system that results in qualified personnel. Under 34 CFR 303.31, qualified personnel is defined as qualifications that are consistent with State-approved or recognized certification, licensing, registration, or other comparable requirements that apply to the areas in which personnel are conducting evaluations or assessments or providing early intervention services.                

*Changes:*                     None.                

*Comment:*                     One commenter recommended that the Department support apprenticeship programs for improved retention of disability service providers and educators. According to this commenter, these apprenticeships offer the opportunity for dedicated, passionate individuals to pursue careers in paraprofessional services without the financial burden of attending a traditional, full-time university. Additionally, this commenter noted that these programs address the paraprofessional staff shortages experienced by schools across the Nation.                

*Discussion:*                     The Department considers an apprenticeship program that addresses the needs that the State has identified under its CSPD an allowable use of funds.                

*Changes:*                     None.                

*Comment:*                     One commenter recommended the Department clearly define transition services and provide clearer standards as to what constitutes effective services for infants and toddlers with disabilities who are moving from an early intervention program to the general education curriculum.                

*Discussion:*                     Defining transition services is unnecessary because Part C of the IDEA identifies the transition service requirements in IDEA section 637(a)(9) and 34 CFR 303.209 [1]                                          and including personnel training activities focused on transition services is an option for a SPDG developing their CSPD.                

*Changes:*                     None.                

*Comment:*                     One commenter noted that more funding needs to be provided to support early childhood programming. The commenter shared that many States must use an in-service model to train providers, but that this model can put substantial strain on the State's system if the costs of training are not offset by other funding sources.                

*Discussion:*                     This priority is intended to provide funding to SEAs working with LAs to support the LA's Part C CSPD which the Department believes will have a positive effect on early intervention services for infants and toddlers.                

*Change:*                     None.                

*Comment:*                     One commenter voiced opposition to the proposed priority stating that it would have the unintended consequence of giving a competitive advantage to SEAs that are State LAs responsible for administering Part C. The commenter was also concerned that the priority might reduce the competitiveness of States whose SPDG focus is not related to Part C.                

*Discussion:*                     The Department is confident that State LAs interested in this priority will successfully pursue a collaborative partnership with the SEA applicant and that SEAs will see the benefits of the collaborative partnership.                

*Change:*                     None.                

*Comment:*                     The same commenter shared concerns that this priority would be a burden for SEAs by requiring them to partner with LAs, oversee grant activities, and evaluate the LA's efforts. This commenter was also concerned that the priority might cause an SEA to change its focus to a Part C activity and disrupt an effort already underway that could be funded by the SPDG.                

*Discussion:*                     We thank the commenter for raising this concern. We agree that some additional administrative responsibilities could fall on an SEA that is not an LA to address this priority. The Department, however, is confident that establishing a working partnership across the SEA and LA for Part C will ultimately benefit infants and toddlers with disabilities.                

*Change:*                     None.                

*Comment:*                     Two commenters supported a competitive preference priority.                

*Discussion:*                     The Department thanks these commenters and will consider their suggestions. The specification of the type of priority, however, belongs in the NIA, not the NFP, to enable the Department to determine on a competition-by-competition basis, whether to make the priority an absolute or competitive preference priority.                

*Change:*                     None.                

*Comment:*                     Two commenters supported the priority as a means to encourage partnerships between the SEA and the State LA for Part C and to integrate early intervention personnel preparation and professional                           ( print page 35418)                        development needs into statewide planning.                

*Discussion:*                     The Department appreciates the support for this priority, which requires partnerships between the SEA and LA.                

*Changes:*                     None.                

*FINAL PRIORITY:*

*Supporting an IDEA Part C Comprehensive System of Personnel Development (CSPD).*

The purpose of this priority is to fund projects designed to enable the State to meet the CSPD requirements of section 635(a)(8) and (9) of the IDEA. In order to be considered for a grant under this priority, if the SEA is not the State LA for IDEA Part C, an SEA must establish a partnership, consistent with IDEA section 652(b)(1)(B), with the State LA responsible for administering IDEA Part C.

Consistent with IDEA section 635(a)(8) this priority will help improve the capacity of States' IDEA Part C personnel development, including the training of paraprofessionals and the training of primary referral sources with respect to the basic components of early intervention services available in the State. The CSPD must include, consistent with 34 CFR 303.118(a): (1) Training personnel to implement innovative strategies and activities for the recruitment and retention of early education service providers; (2) Promoting the preparation of early intervention providers who are fully and appropriately qualified to provide early intervention services under this part; and (3) Training personnel to coordinate transition services for infants and toddlers with disabilities who are transitioning from an early intervention service program under Part C of the Act to a preschool program under section 619 of the Act, Head Start, Early Head Start, an elementary school program under Part B of the Act, or another appropriate program. The IDEA Part C CSPD may also include, consistent with 34 CFR 303.118(b): (1) Training personnel to work in rural and urban areas; (2) Training personnel in the social and emotional development of young children; (3) Training personnel to support families in participating fully in the development and implementation of the child's Individualized Family Service Plan; and (4) Training personnel who provide services under this part using standards that are consistent with early learning personnel development standards funded under the State Advisory Council on Early Childhood Education and Care established under the Head Start Act, if applicable. The SEA must include in its State plan how it will partner with the State LA, if the SEA is not the State LA for IDEA Part C, to implement these aspects of the CSPD. The description of the partnership must indicate the amount and percentage of SPDG funding that will support implementation of the CSPD over the project period and how funding will complement current efforts and investments (Federal IDEA Part C appropriations and State and local funds) to implement the CSPD. The description must also describe the extent to which funds will be used on activities to increase and train personnel working with infants and toddlers and their families that have historically been underserved by Part C.

*Types of Priorities:*                     When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the                     **Federal Register**                    . The effect of each type of priority follows:                

*Absolute priority:*                     Under an absolute priority, we consider only applications that meet the priority (34 CFR 75.105(c)(3)).                

*Competitive preference priority:*                     Under a competitive preference priority, we give competitive preference to an application by (1) awarding additional points, depending on the extent to which the application meets the priority (34 CFR 75.105(c)(2)(i)); or (2) selecting an application that meets the priority over an application of comparable merit that does not meet the priority (34 CFR 75.105(c)(2)(ii)).                

*Invitational priority:*                     Under an invitational priority, we are particularly interested in applications that meet the priority. However, we do not give an application that meets the priority a preference over other applications (34 CFR 75.105(c)(1)).                

This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.

*Note:*                     This document does                     *not*                     solicit applications. In any year in which we choose to use this priority, we invite applications through a notice in the                     **Federal Register**                    .                

## Executive Orders 12866 and 13563

## Regulatory Impact Analysis

Under Executive Order 12866, the Office of Management and Budget (OMB) determines whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866. We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of                           ( print page 35419)                        OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”                

We are issuing this final priority only on a reasoned determination that its benefits justify the costs. In choosing among alternative regulatory approaches, we selected the approach that maximizes net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action does not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.

*Summary of potential costs and benefits:*                     The Department believes that the costs associated with the final priority will be minimal, while the potential benefits are significant. The Department believes that this regulatory action does not impose significant costs on eligible entities. Participation in this program is voluntary, and the costs imposed on applicants by this regulatory action will be limited to paperwork burden related to preparing an application. The benefits of implementing the program will outweigh the costs incurred by applicants, and the costs of carrying out activities associated with the application will be paid for with program funds. For these reasons, we have determined that the costs of implementation will not be burdensome for eligible applicants, including small entities.                

## Regulatory Alternatives Considered

The Department believes that the priority is needed to administer the program effectively.

## Paperwork Reduction Act of 1995

The final priority contains information collection requirements that are approved by OMB under OMB control number 1820-0028; the final priority does not affect the currently approved data collection.

*Regulatory Flexibility Act Certification:*                     The Secretary certifies that this final regulatory action would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration Size Standards define “small entities” as for-profit or nonprofit institutions with total annual revenue below $7,000,000 or, if they are institutions controlled by small governmental jurisdictions (that are comprised of cities, counties, towns, townships, villages, school districts, or special districts), with a population of less than 50,000.                

Participation in the SPDG program is voluntary. In addition, the only eligible entities for this program are SEAs, which do not meet the definition of a small entity. For these reasons, the final priority will not impose any additional burden on small entities.

*Intergovernmental Review:*                     This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.                

This document provides early notification of our specific plans and actions for this program.

*Accessible Format:*                     On request to the program contact person listed under                     **FOR FURTHER INFORMATION CONTACT**                    , individuals with disabilities can obtain this document in an accessible format. The Department will provide the requestor with an accessible format that may include Rich Text Format (RTF) or text format (txt), a thumb drive, an MP3 file, braille, large print, audiotape, or compact disc, or other accessible format.                

*Electronic Access to This Document:*                     The official version of this document is the document published in the                     **Federal Register**                    . You may access the official edition of the                     **Federal Register**                     and the Code of Federal Regulations at                     *www.govinfo.gov.*                     At this site you can view this document, as well as all other documents of this Department published in the                     **Federal Register***,*                     in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.                

                    You may also access documents of the Department published in the                     **Federal Register**                     by using the article search feature at                     *www.federalregister.gov.*                     Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.                

Katherine Neas,

Deputy Assistant Secretary. Delegated the authority to perform the functions and duties of the Assistant Secretary for the Office of Special Education and Rehabilitative Services.

# Footnotes

1.                             34 CFR 303.209 identifies the transition requirements for all toddlers with disabilities receiving services under Part C of the IDEA before those toddlers turn three-years old. Transition services are those services that assist toddlers with disabilities and their families to experience a smooth and effective transition from the early intervention program under Part C to the child's next program or other appropriate services, including services that may be identified for a child who is no longer eligible to receive Part C or Part B services.                    
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[FR Doc. 2022-12712 Filed 6-8-22; 4:15 pm]

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