Head Start Program

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1305

RIN 0970-AB53

Head Start Program

AGENCY: Administration on Children, Youth and Families (ACYF),

Administration for Children and Families (ACF), HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Administration on Children, Youth and Families is issuing

this Notice of Proposed Rulemaking to amend the requirements on

eligibility, recruitment, selection, enrollment and attendance in Head

Start, in six areas affecting Head Start programs which are serving

specific populations. The first and second proposed changes add a new

definition for Indian Tribe and amend the definition of a migrant

family to conform to a new statutory definition. The third change

requires migrant programs to give priority to children from families

that relocate most frequently. The fourth and fifth proposed changes

affect Head Start programs operated by Indian Tribes by expanding the

definition of a Head Start service area to include near-reservation

designations and by expanding the family income eligibility criteria

for Indian grantees meeting specific conditions. The sixth change

establishes the number of years children remain eligible for Head Start

when they are enrolled in an Early Head Start program.

DATES: In order to be considered, comments on this proposed rule must

be received on or before December 26, 1995.

ADDRESSES: Please address comments to the Associate Commissioner, Head

Start Bureau, Administration for Children, Youth and Families, P.O. Box

1182, Washington, D.C. 20013. Beginning 14 days after close of the

comment period, comments will be available for public inspection in

Room 2215, 330 C Street, S.W., Washington, D.C. 20201, Monday through

Friday between the hours of 9:00 a.m. and 4:00 p.m.

FOR FURTHER INFORMATION CONTACT: Rita Schwarz, (202) 205-8539.

SUPPLEMENTARY INFORMATION:

I. Program Purpose

Head Start is authorized under the Head Start Act (42 U.S.C. 9801

et seq.). It is a national program providing comprehensive

developmental services primarily to low-income preschool children, who

are primarily age three to the age of compulsory school attendance, and

their families. In addition, Section 645A of the Head Start Act

provides authority to fund programs for families with infants and

toddlers. Programs receiving funds under the authority of this Section

are referred to as Early Head Start programs. To help enrolled children

achieve their full potential, Head Start programs provide comprehensive

health, nutritional, educational, social and other services.

Additionally, Head Start programs are required to provide for the

direct participation of the parents of enrolled children in the

development, conduct, and direction of local programs. Parents also

receive training and education to foster their understanding of and

involvement in the development of their children. In fiscal year 1994,

Head Start served 740,500 children through a network of over 2,000

grantees and delegate agencies.

While Head Start is intended to serve primarily children whose

families have incomes at or below the poverty line, or who receive

public assistance, Head Start policy permits up to 10 percent of the

children in local programs to be from families who do not meet these

low-income criteria. The Act also requires that a minimum of 10 percent

of the enrollment opportunities in each program be made available to

children with disabilities. Such children are expected to participate

in the full range of Head Start services and activities with their non-

disabled peers and to receive needed special education and related

services.

II. Summary of the Proposed Regulation

The authority for this Notice of Proposed Rulemaking (NPRM) is

sections 637, 640, 641, 645 and 645A of the Head Start Act (42 U.S.C.

9801 et seq.), as amended by Public Law 103-252, Title I of the Human

Service Amendments of 1994.

Section 637 contains a new definition for Indian Tribe which will

be incorporated into this regulation. It also contains a new definition

for ``migrant Head Start program'' which impacts the current definition

of ``migrant family'', found in 45 CFR 1305.2(l), by amending the

definition to include families that have changed their residence from

one geographical location to another in the preceding two-year period.

Section 640(l) states that the Secretary must give priority to

migrant Head Start programs which serve eligible children of migrant

families whose work requires them to relocate most frequently.

Section 641(b) expands the definition of community to include

Indians in any area designated as near-reservation. This requires a

change in 45 CFR 1305.3(a) regarding the designation of a grantee's

service area and the addition of a new paragraph (b) to that section.

Section 645(d) expands the eligibility for participation in Head

Start programs operated by Indian Tribes to include children from

families whose income exceeds the income-eligibility guidelines when

specific conditions exist in the community served by the Tribe,

provided the program predominantly serves children from families who

meet the low-income guidelines. This requires a change in 45 CFR

1305.4(b) regarding family income eligibility.

Section 645(d) also requires the Secretary to specify by regulation

the requirements contained in that section after consultation with

Indian Tribes. In preparation for developing these amendments to 45 CFR

1305, ACYF solicited input from Indian Tribes through three meetings

with members of the Indian community. Their comments and

recommendations were considered in developing the amendments to this

regulation that are applicable to Head Start programs operated by

Tribes.

Section 645A authorizes the funding of programs for families with

infants and toddlers. Specifically, it states in section 645A(b) that

programs receiving

[[Page 54649]]

assistance for this purpose shall provide ``* * * early, continuous,

intensive and comprehensive child development and family support

services * * *.'' In order to provide continuous services for children

funded under this authority in Early Head Start programs, 45 CFR

1305.7(c) is being amended to extend the length of time the child's

family remains income-eligible.

The proposed rule:

Adds a new definition for Indian Tribe.

Amends the definition of a migrant family to include

families who are engaged in agricultural work who have changed their

residence from one geographical location to another within the

preceding two-year period.

Adds a requirement that migrant programs give priority to

children from families whose work requires them to relocate most

frequently.

Expands the meaning of a grantee's service area when the

grantee is an Indian Tribe to include a near-reservation designation.

Permits an Indian Tribe, under certain conditions, to have

more than ten percent of its Head Start program's enrollment be

children from families with incomes that exceed the low-income

guidelines. These conditions are: (1) That all income-eligible children

who wish to be enrolled are served by the program, including Indian

children from a near-reservation area, if the near reservation area is

part of the Tribe's approved service area; (2) that the program

predominantly serves children from families whose income meets the low-

income guidelines; and (3) that a Tribe may not use funds from HHS

intended for expansion to serve children from over-income families

beyond the ten percent permitted in current regulation.

Extends income eligibility of families with children

enrolled in an Early Head Start program funded under the authority of

Section 645A of the Head Start Act to cover the time their child is

enrolled in the Early Head Start program.

III. Section by Section Discussion of the NPRM

Section 1305.2 Definitions

Under definitions, we are adding ``Indian Tribe'' as a new

paragraph (k) to conform to the definition that is in section 637(10)

of the Head Start Act and redesignating the remaining paragraphs,

accordingly.

Section 1305.2(l), which will be new paragraph (m) under the

redesignation, currently defines a migrant family, for purposes of Head

Start eligibility, to include a family with children under the age of

compulsory school attendance who have changed their residence by moving

from one geographic location to another, either intrastate or

interstate, within the past twelve months, for the purpose of engaging

in agricultural work that involves the production and harvesting of

tree and field crops and whose family income comes primarily from this

activity. This NPRM proposes to amend the definition to change the

length of time between moves by the family from one geographic location

to another from the past twelve months to the preceding two years. This

will conform with new language in Section 637(12) of the Head Start Act

that defines a ``migrant Head Start program''.

Section 1305.3 Determining Community Needs

The current regulation requires each grantee to identify its

proposed service area in its Head Start grant application and define it

by county or sub-county area, such as a municipality, town or census

tract or a federally recognized Indian reservation. A service area is

currently defined in section 1305.2(q) as the geographic area

identified in an approved grant application within which a grantee may

provide Head Start services. This NPRM proposes to expand the meaning

of service area contained in this section for Head Start grantees that

are Indian Tribes to permit the Tribe to include all or part of any

areas designated as near-reservation by the Bureau of Indian Affairs

(BIA) as stated in Section 641(b) of the Head Start Act. In order to

provide increased flexibility to Tribes which do not have a BIA

designation but face the same needs for serving Indians who live near

the reservation, we are proposing to allow such Tribes an opportunity

to redefine their service area. If a Tribe does not have a BIA near-

reservation designation, it may, subject to the approval of the Tribe's

governing council and the Associate Commissioner of the Head Start

Bureau, propose to designate near-reservation areas in which Indian

people native to the reservation reside, as part of its service area.

Expanding the Tribe's service area to include a near-reservation area

would permit them to serve Indian children who live near, but not on,

the Tribe's reservation.

Section 1305.4 Age of Children and Family Income Eligibility

The current regulation requires at least 90 percent of the children

enrolled in Head Start to be from low-income families. Up to ten

percent of the children enrolled may be from families that exceed the

low-income guidelines. To conform with language in section 645(d) of

the Head Start Act, the NPRM proposes to amend the family income

eligibility requirements for Head Start programs operated by Indian

Tribes to permit them to enroll additional children, beyond the ten

percent, from families that exceed the low-income guidelines when the

following conditions are met: (1) All children in the Tribe's approved

service area from families that meet the low-income guidelines who wish

to be enrolled in Head Start are served by the program, including those

Indian children native to the reservation living in near reservation

communities when such communities have been included in the Tribe's

approved service area; (2) the Tribe has the resources to enroll these

children, without using additional funds from HHS intended to expand

Head Start services, and; (3) at least 51 percent of the children to be

served by the program are from families whose incomes are below the

low-income guidelines.

The first condition requires the Tribe to serve all children who

are from families whose incomes are below the low-income guidelines,

who are between the ages of three and the age when kindergarten or

first grade is available in the child's community, and whose families

wish them to be served by Head Start before it may enroll children from

families that exceed the low-income guidelines. This would include all

children living on the Tribe's reservation, including those children

from low-income families who are not members of the Tribe. It may also

include Indian children who meet the low-income guidelines who live in

a near-reservation area, if the Tribe's approved service area includes

such near-reservation communities. The purpose of this condition is to

ensure that all children eligible for Head Start are permitted the

opportunity to attend Head Start, if they live on the Tribe's

reservation. It also ensures that low-income Indian families living in

near-reservation areas have an opportunity to enroll their children in

the Tribe's Head Start program, if the Tribe has included that area in

its approved service area.

The second condition requires that at the time the Tribe proposes

to serve more than ten percent of its Head Start enrollment from

families exceeding the low-income guidelines, the Tribe must have the

resources to enroll these children and that no funds provided by HHS

that are intended to expand Head Start services may be used for this

purpose. This means that such children must be served within the

Tribe's

[[Page 54650]]

existing Head Start funding or through the use of non-Federal

resources. Funds to expand Head Start services that are provided by HHS

to the Tribe would be intended to serve additional children from

families that meet the low-income guidelines.

The third condition is that at least 51 percent of the children to

be enrolled in a Head Start program operated by a Tribe are to be

children from families that meet the low-income guidelines. Section 645

of the Head Start Act states that, when serving children from families

whose income exceeds the low-income guidelines, the program must

predominantly serve children from families that meet the low-income

guidelines. We are defining the term ``predominantly'' to mean at least

51 percent of the children enrolled in the program. This allows the

Tribes as much flexibility as possible. This position was strongly

supported during consultation sessions that were held with Tribes on

this issue, as is required in the Head Start Act. Many individuals

supported this interpretation of ``predominantly'' and expressed strong

concern that Tribes be given this flexibility to serve children from

families whose income exceeds the low-income guidelines when special

circumstances on a Tribe's reservation exist. Several Tribal members

gave examples of changing economic conditions on their reservation

that, while varying from year to year, may limit the number of families

who are eligible to enroll their child in Head Start at certain times

using the low-income guidelines to determine eligibility.

If programs meet these conditions, we are proposing that the

program annually set criteria that are approved by the Policy Council

and the Tribal Council for selecting over-income children who would

benefit from enrollment in a Head Start program.

Section 1305.6 Selection Process

Paragraph (b) of this section will be amended to add a new

requirement that migrant programs must give priority to children from

families whose work required them to relocate most frequently within

the preceding two-year period. This change conforms with similar

language in section 640(l) of the Head Start Act. This should not be

interpreted to mean that frequency of relocation is the only factor to

be considered when selecting children to be served by the program.

Other factors should also be considered depending on the needs of the

community being served and the recruitment priorities established by

each program.

Section 1305.7 Enrollment and Re-enrollment

Paragraph (c) of this section will be amended to include an

exception to the current requirement which states that once a child has

been found to be income-eligible, they remain eligible for the current

and immediately succeeding enrollment year. The exception will apply to

children who are enrolled in an Early Head Start program funded under

the authority of section 645A of the Head Start Act for services to

families with infants and toddlers. In order to assure continuity of

services, once income-eligibility has been determined, such children

remain income eligible while they are enrolled in Early Head Start.

Income would have to be redetermined for the family if they wish to

enroll their child in a Head Start program serving children between the

ages of three and compulsory school attendance. This exception is

proposed to meet the intent of section 645A of the Head Start Act.

ACF appreciates the need to balance the assurance of continuity of

services for children and families enrolled in the Early Head Start

program with the assurance that Head Start programs are serving those

children and families most in need of the program. We encourage

comments on whether the correct balance has been achieved in this

proposed regulation by our approach of allowing children to stay in the

Early Start program for up to two additional years beyond when their

families' income eligibility was determined while requiring that

families whose children are scheduled to move from Early Head Start to

Head Start should first have their income reverified to assure they are

still income-eligible for the program.

IV. Impact Analysis

Executive Order 12866

Executive Order 12866 requires that regulations be drafted to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that this

rule is consistent with these priorities and principles. This Notice of

Proposed Rulemaking implements the statutory authority for Head Start

grantees that are Indian Tribes to include a near-reservation area when

recruiting children for Head Start services and, under certain

circumstances, to enroll children from families with incomes that

exceed the low-income guidelines. It also changes the definition of a

migrant family, requires migrant Head Start grantees to give priority

to families that relocate most frequently, and establishes the number

of years children remain eligible for Head Start when they are enrolled

in a program receiving funds under the authority of section 645A of the

Head Start Act for services to families with infants and toddlers.

Regulatory Flexibility Act of 1980

The Regulatory Flexibility Act (5 U.S.C. CH. 6) requires the

Federal government to anticipate and reduce the impact of rules and

paperwork requirements on small businesses. For each rule with a

``significant economic impact on a substantial number of small

entities'' an analysis must be prepared describing the rule's impact on

small entities. Small entities are defined by the Act to include small

businesses, small non-profit organizations and small governmental

entities. While these regulations would affect small entities, they

would not affect a substantial number. For this reason, the Secretary

certifies that this rule will not have a significant impact on

substantial numbers of small entities.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all

Departments are required to submit to the Office of Management and

Budget (OMB) for review and approval any reporting or record-keeping

requirement inherent in a proposed or final rule. This NPRM does not

contain information collection and record-keeping requirements.

List of Subjects in 45 CFR Part 1305

Disabilities, Education of Disadvantaged, Grant Programs/Social

Programs, Head Start Enrollment, Preschool Education.

(Catalog of Federal Domestic Assistance Program Number 93.600,

Project Head Start)

Dated: October 4, 1995.

Mary Jo Bane,

Assistant Secretary for Children and Families.

For the reasons set forth in the Preamble, 45 CFR Part 1305 is

proposed to be amended as follows:

PART 1305--ELIGIBILITY, RECRUITMENT, SELECTION, ENROLLMENT AND

ATTENDANCE IN HEAD START

1. The authority citation continues to read as follows:

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

2. Section 1305.2 is amended by redesignating current paragraphs

(k) through (r) as paragraphs (l) through (s); adding a new paragraph

(k); and revising newly redesignated paragraph (m) to read as follows:

[[Page 54651]]

Sec. 1305.2 Definitions.

* * * * *

(k) Indian Tribe means any tribe, band, nation, pueblo, or other

organized group or community of Indians, including any Native village

described in section 3 (c) of the Alaska Native Claims Settlement Act

(43 U.S.C. 1602 (c)) or established pursuant to such Act (43 U.S.C.

1601 et seq.), that is recognized as eligible for special programs and

services provided by the United States to Indians because of their

status as Indians.

* * * * *

(m) Migrant family means, for purposes of Head Start eligibility, a

family with children under the age of compulsory school attendance who

changed their residence by moving from one geographic location to

another, either intrastate or interstate, within the preceding two

years, for the purpose of engaging in agricultural work that involves

the production and harvesting of tree and field crops and whose family

income comes primarily from this activity.

* * * * *

3. Section 1305.3 is amended by revising paragraph (a),

redesignating current paragraphs (b) through (f) as paragraphs (c)

through (g), and adding a new paragraph (b) to read as follows:

Sec. 1305.3 Determining community needs.

(a) Each grantee must identify its proposed service area in its

Head Start grant application and define it by county or sub-county

area, such as a municipality, town or census tract or a federally

recognized Indian reservation. With regard to Indian Tribes, the

service area may include Indian families living in areas designated as

near-reservation by the Bureau of Indian Affairs (BIA), or in the

absence of such a designation, areas within the Tribe's approved

service area. A Tribe lacking a BIA near-reservation designation may

propose to define its service area to include Indian children and

families native to the reservation living in near-reservation areas,

provided the service area is approved by the Tribe's governing council.

(b) The grantee's service area must be approved, in writing, by the

responsible HHS official in order to assure that the service area is of

reasonable size and, except in situations where a near-reservation

designation has been approved for a Tribe, does not overlap with that

of other Head Start grantees.

* * * * *

4. Section 1305.4 is amended by revising paragraph (b) to read as

follows:

Sec. 1305.4 Age of children and family income eligibility.

* * * * *

(b)(1) At least 90 percent of the children who are enrolled in each

Head Start program must be from low-income families.

(2) Except as provided in paragraph (b)(3) of this section, up to

ten percent of the children who are enrolled may be children from

families that exceed the low-income guidelines but who meet criteria

the program has established for selecting such children and who would

benefit from Head Start services.

(3) A Head Start program operated by an Indian Tribe may enroll

more than ten percent of its children from families whose income

exceeds the low-income guidelines when the following conditions are

met:

(i) All children from Indian and non-Indian families living on the

reservation that meet the low-income guidelines who wish to be enrolled

in Head Start are served by the program.

(ii) All children from income-eligible Indian families native to

the reservation living in near-reservation communities, if those

communities are approved as part of the Tribe's service area, who

wished to be enrolled in Head Start are served by the program;

(iii) The Tribe has the resources within its Head Start grant or

from non-Federal sources to enroll these children, without using

additional funds from HHS intended to expand Head Start services; and

(iv) At least 51 percent of the children to be served by the

program are from families that meet the income-eligibility guidelines.

(4) Programs who meet the conditions of paragraph (b)(3) of this

section must annually set criteria that are approved by the Policy

Council and the Tribal Council for selecting over-income children who

would benefit from such a program.

* * * * *

5. Section 1305.6 is amended by revising paragraph (b) to read as

follows:

Sec. 1305.6 Selection process.

* * * * *

(b) In selecting the children and families to be served, the Head

Start program must consider the income of eligible families, the age of

the child, the availability of kindergarten or first grade to the

child, and the extent to which a child or family meets the criteria

that each program is required to establish in Sec. 1305.3(c)(6).

Migrant programs must give priority to children from families whose

work required them to relocate most frequently within the previous two-

year period.

* * * * *

6. Section 1305.7 is amended by revising paragraph (c) to read as

follows:

Sec. 1305.7 Enrollment and re-enrollment.

* * * * *

(c) If a child has been found income eligible and is participating

in a Head Start program, he or she remains income eligible through that

enrollment year and the immediately succeeding enrollment year. An

exception to this are children who are enrolled in a program receiving

funds under the authority of section 645A of the Head Start Act,

programs for families with infants and toddlers. Such children remain

eligible for Head Start services until such time as their family

applies for enrollment in a Head Start program serving children between

the ages of three to compulsory school attendance. When a child moves

from a program serving infants and toddlers to a Head Start program

serving children age three and older, the family's income eligibility

must be reverified if it is two or more years since this has been done.

[FR Doc. 95-26365 Filed 10-24-95; 8:45 am]

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