Title I-Improving the Academic Achievement of the Disadvantaged

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Federal Register › Vol. 67 › 67 FR 50986

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DEPARTMENT OF EDUCATION 34 CFR Part 200 RIN 1810-AA91 Title I—Improving the Academic Achievement of the Disadvantaged AGENCY:

Office of Elementary and Secondary Education, Department of Education.

ACTION:

Notice of proposed rulemaking.

SUMMARY:

The Secretary proposes to amend the regulations governing the programs administered under Title I of the Elementary and Secondary Education Act of 1965, as amended (ESEA)—referred to in these proposed regulations as the Title I programs. These proposed regulations are needed to implement recent changes to Title I of the ESEA made by the No Child Left Behind Act of 2001 (NCLB Act).

DATES:

We must receive your comments on or before September 5, 2002.

ADDRESSES:

Address all comments for subparts A, B, and D of part 200 in these proposed regulations and all comments on information collection requirements to Jacquelyn C. Jackson, Ed.D., Acting Director, Student Achievement and School Accountability Programs, Office of Elementary and Secondary Education, U.S. Department of Education, 400 Maryland Avenue, SW., room 3W230, FB-6, Washington, DC 20202-6132. The Fax number for submitting comments on subparts A, B, and D is (202) 260-7764.

Address all comments for subpart C of part 200 in these proposed regulations to Francisco Garcia, Director, Migrant Education Program, Office of Elementary and Secondary Education, U.S. Department of Education, 400 Maryland Avenue, SW., room 3E317, FB-6, Washington, DC 20202-6135. The Fax number for submitting comments on subpart C is (202) 205-0089.

If you prefer to send your comments through the Internet, use the following address: TitleIRulemaking@ed.gov.

FOR FURTHER INFORMATION CONTACT:

For subparts A, B, D, and E, of part 200, Jackie Jackson, Student Achievement and School Accountability Programs, Office of Elementary and Secondary Education, U.S. Department of Education, 400 Maryland Avenue, SW., room 3W202, FB-6, Washington, DC 20202-6132. Telephone: (202) 260-0826

ts through the Internet, use the following address: TitleIRulemaking@ed.gov.

FOR FURTHER INFORMATION CONTACT:

For subparts C and E of part 200, James English, Migrant Education Program, Office of Elementary and Secondary Education, U.S. Department of Education, 400 Maryland Avenue, SW., room 3E315, FB-6, Washington, DC 20202-6135. Telephone (202) 260-1394.

If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

We invite you to submit comments regarding these proposed regulations. To ensure that your comments have maximum value in helping us develop the final regulations, we urge you to identify clearly the specific section or sections of the proposed regulations that each comment addresses and to arrange your comments in the same order as the proposed regulations.

During and after the comment period, you may inspect all public comments about subparts A, B, D, and E of part 200, as appropriate, of these proposed regulations in room 3C147, FB-6, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays. You may inspect all public comments about subparts C and E of part 200, as appropriate, of these proposed regulations in room 3E315, FB-6, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m

gulations in room 3C147, FB-6, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays. You may inspect all public comments about subparts C and E of part 200, as appropriate, of these proposed regulations in room 3E315, FB-6, 400 Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record

On request, we will supply an appropriate aid, such as a reader or print magnifier, to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for these proposed regulations. If you want to schedule an appointment for this type of aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Background

The NCLB Act reauthorized the ESEA and incorporated the major educational reforms proposed by President George W. Bush in his No Child Left Behind initiative. These reforms included important changes to Title I of the ESEA, which is designed to help disadvantaged children meet high academic standards.

These proposed regulations would implement those changes in a manner that respects State and local control over education while ensuring strong accountability for results. On July 5, 2002, the Secretary separately published in the Federal Register final regulations for the standards and assessment provisions of Title I, part A of the ESEA.

The Secretary intends to regulate only if absolutely necessary: for example, if the statute requires regulations or if regulations are necessary to provide flexibility or clarification for State educational agencies (SEAs) and local educational agencies (LEAs). Rather than regulating extensively, the Secretary intends to issue nonregulatory guidance addressing particular legal and policy issues under the Title I programs

regulate only if absolutely necessary: for example, if the statute requires regulations or if regulations are necessary to provide flexibility or clarification for State educational agencies (SEAs) and local educational agencies (LEAs). Rather than regulating extensively, the Secretary intends to issue nonregulatory guidance addressing particular legal and policy issues under the Title I programs. This guidance will inform schools, parents, school districts, States, and other affected parties about the flexibility that exists under the statute, including different approaches they may take to carry out the statute's requirements.

Significant Proposed Regulations

We group major issues according to subject. We discuss other substantive issues under the sections of the proposed regulations to which they pertain. Generally, we do not address proposed regulatory provisions that are technical or otherwise minor in effect.

Subpart A—Improving Basic Programs Operated by Local Educational Agencies

Section 200.11 Participation in NAEP

Statute: Section 1111(c)(2) of the NCLB Act requires each State to participate in biennial State assessments of 4th and 8th grade reading and mathematics under the National Assessment of Educational Progress (NAEP). Similarly, section 1112(b)(1)(F) of the NCLB Act requires each LEA participating under subpart A of this part to participate, if selected, in the State NAEP.

Proposed Regulations: The proposed regulation would clarify that LEAs receiving Title I funds must participate in NAEP if they are selected.

Reasons: The proposed regulations make clear that a condition of receiving Title I funds is that, if selected, the LEA must participate in NAEP despite section 411(d)(1) of the National Education Statistics Act of 1994, which provides for voluntary participation of LEAs

lations: The proposed regulation would clarify that LEAs receiving Title I funds must participate in NAEP if they are selected.

State Accountability System

Section 200.12 Single State Accountability System

Statute: Under section 1111(b)(2)(A) of the ESEA, each State must develop and implement a single, statewide accountability system to ensure that all LEAs and public schools in the State make adequate yearly progress. The State's accountability system must be based on the State's academic standards and assessment system and take into account all public elementary and secondary school students; be the same accountability system the State uses for all public schools and LEAs in the State; and include rewards and sanctions the State will use to hold LEAs and public schools accountable for student achievement. The State's accountability system may, but is not required to, apply the requirements in section 1116 of Title I relating to identifying schools for improvement, corrective action, and restructuring to non-Title I schools and non-Title I LEAs.

Proposed Regulations: Proposed § 200.12 would implement the statutory provisions requiring a single, statewide accountability system. It would make clear that these provisions take effect beginning with the 2002-2003 school year. Proposed § 200.12 also would require States to include, in their accountability system, guidelines for identifying the students with disabilities who should take alternate assessments and would require reporting on the number of students with disabilities who take an alternate assessment.

Reasons: Proposed § 200.12 reflects the Secretary's goal of regulating only where necessary to provide clarity or flexibility

also would require States to include, in their accountability system, guidelines for identifying the students with disabilities who should take alternate assessments and would require reporting on the number of students with disabilities who take an alternate assessment.

Reasons: Proposed § 200.12 reflects the Secretary's goal of regulating only where necessary to provide clarity or flexibility. It emphasizes the importance of a single, statewide accountability system and sets the context for the subsequent regulations on adequate yearly progress. By requiring States to establish guidelines governing alternate assessments, it also ensures that only students with the most significant disabilities take those assessments.

Adequate Yearly Progress

Sections 200.13 Through 200.20 Adequate Yearly Progress

Statute: Under section 1111(b)(2)(B), each State must demonstrate what constitutes adequate yearly progress of the State, and of all public elementary and secondary schools and LEAs in the State, toward enabling all students to meet the State's student achievement standards. “Adequate yearly progress” definitions must apply the same high standards of academic achievement to all public elementary and secondary school students in the State, be statistically valid and reliable, and measure progress based primarily on the State's academic assessments. The definition must include separate annual measurable objectives for continuous and substantial improvement in both mathematics and reading/language arts for all students and for each of the following specific groups of students: students who are economically disadvantaged, students from major racial and ethnic groups, students with disabilities, and students with limited English proficiency.

pecific groups of students: students who are economically disadvantaged, students from major racial and ethnic groups, students with disabilities, and students with limited English proficiency.

Adequate yearly progress must include a timeline that ensures that all students in each subgroup meet or exceed the State's proficient level of academic achievement no later than the 2013-2014 school year. Using data from the 2001-2002 school year, each State must determine a starting point for reading/language arts and mathematics for measuring the percentage of students meeting or exceeding the State's proficient level of academic achievement. The starting point must, at a minimum, be based on the higher of two proficiency levels specified in the statute. Adequate yearly progress must include intermediate goals that increase in equal increments over the timeline; the first increment must occur in not more than two years from the baseline year (2001-2002) and the following increases must occur in not more than three years. Adequate yearly progress must also include the graduation rate for high schools and a similar academic indicator for elementary and middle schools.

To make adequate yearly progress, a school must meet two criteria. First, the school must meet or exceed the State's annual measurable objectives with respect to all students and students in each subgroup. If students in any subgroup fail to make the requisite progress, however, the school can still make adequate yearly progress if the percentage of students below proficient in that subgroup decreased by at least 10 percent compared to the preceding year and that subgroup made progress on one or more of the additional academic indicators. Second, at least 95 percent of the students in each subgroup enrolled in the school must take the assessment.

Current Regulations: The current regulations governing adequate yearly progress (34 CFR 200.3) reflect provisions of section 1111 of the ESEA that were superseded by the NCLB Act

d to the preceding year and that subgroup made progress on one or more of the additional academic indicators. Second, at least 95 percent of the students in each subgroup enrolled in the school must take the assessment.

Current Regulations: The current regulations governing adequate yearly progress (34 CFR 200.3) reflect provisions of section 1111 of the ESEA that were superseded by the NCLB Act.

Proposed Regulations: The proposed regulations in §§ 200.13 through 200.20 would implement the statutory provisions in section 1111(b)(2) that require each State to demonstrate what constitutes adequate yearly progress. For the most part, the proposed regulations would merely reorganize the statutory provisions to make them more understandable, particularly the interrelationship among the timeline, starting points, intermediate goals, and annual measurable objectives.

In several instances, the proposed regulations would clarify the statutory provisions or provide flexibility. For example, proposed § 200.13(c)(1) permits a State to define achievement standards for students with the most significant cognitive disabilities who take an alternate assessment. Section 1111(b)(2)(I)(ii) of the ESEA provides that children with disabilities who take an alternate assessment must be included in the 95 percent of students who must participate in the assessments in order for a school to make adequate yearly progress. Under the Title 1 accountability system, alternate assessments are an appropriate way to measure the progress of only that very limited portion of students with the most significant cognitive disabilities who will never be able to demonstrate progress on grade level academic achievement standards even if provided the very best possible education

order for a school to make adequate yearly progress. Under the Title 1 accountability system, alternate assessments are an appropriate way to measure the progress of only that very limited portion of students with the most significant cognitive disabilities who will never be able to demonstrate progress on grade level academic achievement standards even if provided the very best possible education. Based on current prevalence rates of students with the most significant cognitive disabilities, proposed § 200.13(c)(2), would set the number of students with disabilities who should be included in accountability measures using alternate standards at not more than 0.5 percent of all students assessed in a State or LEA. For accountability purposes, the performance of all other students with disabilities (including any other students with disabilities who take an alternate assessment) must be assessed against the academic content and achievement standards established under § 200.1.

Proposed § 200.13(d) would make clear that a State must have a way to hold accountable schools in which no grade level is assessed under the State's academic assessment system or whose purpose is to serve students for less than a full academic year. The proposed regulations emphasize, however, that the State does not need to administer a formal assessment to students in these schools. Similarly, proposed § 200.15(b) would clarify that, if a State changes its academic assessment system or its definition of adequate yearly progress, the State may not extend, beyond the 2013-2014 school year, its timeline for enabling all students to reach proficiency

oposed regulations emphasize, however, that the State does not need to administer a formal assessment to students in these schools. Similarly, proposed § 200.15(b) would clarify that, if a State changes its academic assessment system or its definition of adequate yearly progress, the State may not extend, beyond the 2013-2014 school year, its timeline for enabling all students to reach proficiency. Proposed § 200.16 would make clear that a State must set separate starting points for reading/language arts and mathematics, because the State

Section 1111(b)(2)(C)(vi) of the ESEA requires a State to include the graduation rate in its determination of adequate yearly progress for public secondary schools and defines graduation rate as “the percentage of students who graduate from secondary school with a regular diploma in the standard number of years.” Proposed § 200.19, which deals with other academic indicators, would rely on language in the conference report to the NCLB Act to permit a State to submit for the Secretary's approval another definition that accurately measures the high school graduation rate. Proposed § 200.19(c) would make clear that a State may, but is not required to, increase the goals of its other academic indicators over the course of its timeline.

Proposed § 200.20, which would implement the statutory provisions for how a school or LEA makes adequate yearly progress, would clarify the statutory requirement that 95 percent of the students enrolled in each subgroup in a school must take the State's academic assessment in order for the school to make adequate yearly progress. Proposed § 200.20(c)(1)(ii) would make clear that the number of students in a subgroup must be of sufficient size to produce statistically reliable results for the 95 percent requirement to affect adequate yearly progress

efully based them on the statutory provisions governing adequate yearly progress. These requirements are designed to enhance the quality systems of accountability that many States have already developed. At the core of the NCLB Act's accountability pillar, the statutory provisions require each State to implement a single statewide system for annually holding all public schools and LEAs accountable. This single system will ensure that all students, including students with disabilities, limited English proficient students, economically disadvantaged students, and students from major racial and ethnic groups, will be proficient in reading/language arts and mathematics by the 2013-2014 school year. We are aware that there are rigorous models that States have already developed that may achieve the same fundamental principles of the statute, although through different approaches. For example, some models establish a growth trajectory for each school based on the school's baseline performance. Other models, in determining a school's performance, take into consideration the school's progress in moving students from “below basic” to “basic” as well as from “basic” to “proficient” and from “proficient” to “advanced.” We specifically invite States that have been using different models to comment on the statutory provisions that might affect their use, and how these requirements could be incorporated into their current systems.

Section 200.21 Adequate Yearly Progress of a State

ments could be incorporated into their current systems.

Section 200.21 Adequate Yearly Progress of a State

Statute: Section 6161 of the ESEA requires the Secretary, beginning with the 2004-2005 school year, to review whether each State that receives funds under Title I, part A has made adequate yearly progress with respect to each subgroup of students under section 1111(b)(2)(C)(v) of the ESEA. If a State also receives funds under Title III, part A, subpart 1 of the ESEA, the Secretary must also review whether the State has met its annual measurable achievement objectives relating to the development and attainment of English proficiency by limited English proficient students.

Proposed Regulations: Proposed § 200.21 would implement this new requirement. This section would emphasize that the Secretary will review whether a State has made adequate yearly progress as defined in proposed §§ 200.13 through 200.20 for each subgroup of students as well as has met its annual measurable achievement objectives relating to the development and attainment of English proficiency by limited English proficient students.

Reasons: Proposed § 200.21 reflects the Secretary's goal of regulating only where necessary to provide clarity or flexibility. It is included to emphasize, for the first time, a State's responsibility to make adequate yearly progress for each subgroup of students and meet its goals for improving the English proficiency of its limited English proficient students.

Schoolwide Programs

Statute: Section 1114 of the ESEA made three substantive changes to the existing requirements governing schoolwide programs. Section 1114(a)(1) allows a school to operate a schoolwide program if the school serves an eligible school attendance area in which at least 40 percent of the children are from low-income families, or if at least 40 percent of the children enrolled in the school are from such families. Under the previous statute, the eligibility threshold was 50 percent

requirements governing schoolwide programs. Section 1114(a)(1) allows a school to operate a schoolwide program if the school serves an eligible school attendance area in which at least 40 percent of the children are from low-income families, or if at least 40 percent of the children enrolled in the school are from such families. Under the previous statute, the eligibility threshold was 50 percent.

Section 1114(b)(1)(A) requires the comprehensive needs assessment for a schoolwide program to take into account the needs of migratory children.

Section 1306(b)(4) of the ESEA made one additional substantive change in the schoolwide program requirements. Under that provision, a school must document that the special educational needs of migrant students have been met before Title I, part C funds may be included in a schoolwide program. Previously, a school was required only to address those needs, not document that they had been met, before including Title I, part C funds.

Current Regulations: Current § 200.8 reflects the basic statutory requirements for schoolwide programs. The regulations specify (1) the eligibility requirements for a schoolwide program—including a provision that permits an LEA to determine schoolwide eligibility using a poverty measure that is different from the poverty measure used to identify and rank school attendance areas; (2) requirements for and restrictions on combining funds in a schoolwide program; (3) components of a schoolwide program; (4) schoolwide program planning and needs assessment; and (5) the effects of operating a schoolwide program in relation to other Federal program requirements.

Proposed Regulations: The proposed regulations would not substantively

Proposed § 200.25 would clarify that the purpose of a schoolwide program is to improve the academic achievement of all students, especially those furthest from meeting the State's proficient academic achievement standard. Proposed § 200.25 would also contain the eligibility requirements

o other Federal program requirements.

Proposed Regulations: The proposed regulations would not substantively

Proposed § 200.26 would clarify that a schoolwide plan must describe how the school will improve academic achievement so that all students will meet the State's proficient academic achievement standard, especially those furthest from meeting proficiency. The proposed section would also clarify that the plan must be reviewed and revised as necessary to reflect changes in the schoolwide program or in the State's academic content standards and academic achievement standards. The proposed section would also include the provisions requiring the comprehensive needs assessment to take into account the needs of migratory children.

Proposed § 200.27 would reorganize the schoolwide components into four primary categories: (1) Schoolwide reform strategies, (2) instruction by highly qualified teachers, (3) parent involvement, and (4) additional support. The proposed section also would emphasize that reform strategies must address the needs of students in the school, but particularly those furthest from meeting the State's proficient academic achievement standard.

Proposed § 200.28 would group together all the statutory provisions addressing the uses of funds in a schoolwide program. These provisions include the new provisions governing meeting the needs of migrant students.

s include the new provisions governing meeting the needs of migrant students.

Reasons: The Department has found that school-level officials are sometimes confused about the purpose of the schoolwide approach. Often, schools do not use the flexibility offered by the schoolwide approach as a means to improve achievement, particularly for those students furthest from meeting the proficient standard. These regulations are intended to help schools better understand that schoolwide flexibility is a strategic approach, using scientifically based strategies, for improving student achievement to ensure that no child is left behind.

LEA and School Improvement

Section 200.30 Local Review; and § 200.31 Opportunity To Review School Level Data

Statute: Under section 1116(a) and (b) of Title I, each participating LEA must use the State academic assessments and other indicators in the State plan, and, at the LEA's discretion, other academic indicators described in the LEA's plan, to review the progress of each school served under subpart A of this part to determine whether the school is making adequate yearly progress. The LEA must publicize the results of its review to parents, teachers, principals, schools, and the community.

In general, the LEA's use of other academic indicators may not reduce the number or change the identity of schools that would otherwise be identified for improvement, corrective action, or restructuring, but may result in the identification of additional schools for improvement, corrective action, or restructuring. However, the use of these indicators may permit a school to make adequate yearly progress if the school reduces by at least 10 percent the percentage of a student subgroup failing to meet the proficient level of academic achievement.

Before identifying a school for improvement, corrective action, or restructuring, an LEA must provide the school an opportunity to review the school-level data, including academic assessment data, on which the LEA has based the proposed identification

ss if the school reduces by at least 10 percent the percentage of a student subgroup failing to meet the proficient level of academic achievement.

Current Regulations: The current regulations governing LEA review of school performance reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act.

Proposed Regulations: Proposed § 200.30 would repeat the statutory requirement for LEAs to conduct an annual review of the performance of all schools receiving funds under subpart A of this part. The review would determine whether the schools are making adequate yearly progress toward the goal of helping all students reach proficiency in reading and mathematics within 12 years of enactment of the NCLB Act.

Proposed § 200.30 would further clarify the circumstances under which an LEA could limit its review to the progress of only those students served, or eligible for services, in a school operating a targeted assistance program. The LEA could limit its review only if the students selected for services under the targeted assistance program are those with the greatest need for academic assistance.

Proposed § 200.31 would repeat and reorganize the statutory requirement that an LEA provide a school with the opportunity to review the data on which an LEA has based a proposed identification of the school for improvement, corrective action, or restructuring. The proposed provision would make clear that this review must occur before the LEA's final decision on identification.

Reasons: Proposed §§ 200.30 and 200.31 would reflect the Secretary's goal of clarifying and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements

of the school for improvement, corrective action, or restructuring. The proposed provision would make clear that this review must occur before the LEA's final decision on identification.

Section 200.32 Identification for School Improvement; § 200.33 Identification for Corrective Action; § 200.34 Identification for Restructuring; and § 200.35 Delay and Removal

Statute: Under section 1116(b) of Title I, an LEA must (1) identify for school improvement any school that fails to make adequate yearly progress for two consecutive years and (2) must make available public school choice to all students enrolled in the school. If the school fails to make adequate yearly progress for a third consecutive year, the LEA must continue to offer public school choice and must also make available supplemental educational services to students who remain in the school.

In the case of a school that fails to make adequate yearly progress after two years of improvement, the LEA must identify the school for corrective action and continue to offer public school choice and supplemental educational services to students enrolled in the school. If a school fails to make adequate yearly progress after one year of corrective action, the LEA must identify the school for restructuring and must continue to offer public school choice and supplemental educational services while it prepares a restructuring plan for the school.

The statute also includes transition provisions governing schools identified for improvement or corrective action before the enactment of the NCLB Act:

• An LEA must treat any school that was in improvement on January 7, 2002 as a school that is in the first year of improvement for the 2002-2003 school year

upplemental educational services while it prepares a restructuring plan for the school.

The statute also includes transition provisions governing schools identified for improvement or corrective action before the enactment of the NCLB Act:

• An LEA must treat any school that was in improvement on January 7, 2002 as a school that is in the first year of improvement for the 2002-2003 school year.

• An LEA must treat any school that was in improvement for two or more consecutive years on January 7, 2002 as a school in its second year of school improvement for the 2002-2003 school year.

• An LEA must treat any school that was in corrective action on January 7,

An LEA may delay for one year the requirements for any school under the second year of improvement, under corrective action, or under restructuring, if (1) the school makes adequate yearly progress for one year or (2) if the school's failure to make adequate yearly progress is due to exceptional or uncontrollable circumstances, such as a natural disaster or a precipitous and unforeseen decline in the financial resources of the LEA or school. However, the LEA may not take into account this period of delay in determining the number of consecutive years of failure to make adequate yearly progress for the purpose of subjecting the school to further improvement actions.

If a school identified for improvement, corrective action, or restructuring makes adequate yearly progress for two consecutive years, the LEA may no longer subject the school to the requirements of improvement, corrective action, or restructuring or identify the school for improvement for the next school year.

Current Regulations: The current regulations governing LEA identification of schools for improvement and corrective action reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act

cutive years, the LEA may no longer subject the school to the requirements of improvement, corrective action, or restructuring or identify the school for improvement for the next school year.

Proposed Regulations: In general, proposed §§ 200.32, 200.33, 200.34, and 200.35 would restate and reorganize the statutory provisions related to the LEA's identification of schools for improvement, corrective action, and restructuring, as well as provisions governing the delay or termination of requirements related to identification.

Proposed § 200.32 clarifies the statutory timeline for identifying schools for improvement. The statute requires the identification to take place “before the beginning of the school year following such failure to make adequate yearly progress.” To clarify the meaning of this deadline, proposed § 200.32(a)(2) restates the deadline so that it is clear that the identification must take place “before the beginning of the school year following the year in which the LEA administered the assessments that resulted in the school's failure to make adequate yearly progress for a second consecutive year.”

In addition, proposed § 200.32(f) states that if the LEA misses this deadline, the school is nevertheless subject to the requirements of school improvement—including the provision of public school choice options to all students enrolled in the school—upon identification and that the LEA must count that school year as a full year of school improvement for the purpose of subjecting the school to additional improvement measures if it continues to fail to make adequate yearly progress. This proposed regulation is intended to prevent the potential delay of needed improvement measures for an additional year if States and LEAs fail to make identification in accordance with the statutory deadline

t that school year as a full year of school improvement for the purpose of subjecting the school to additional improvement measures if it continues to fail to make adequate yearly progress. This proposed regulation is intended to prevent the potential delay of needed improvement measures for an additional year if States and LEAs fail to make identification in accordance with the statutory deadline.

Proposed §§ 200.32 and 200.33 also address identification issues related to schools that are not covered under the statutory transition provisions. More specifically, the statute does not account for the potential impact of the results of assessments administered during the 2001-2002 school year. Proposed § 200.32(d) gives an LEA discretion to remove from improvement status a school that, on the basis of the 2001-2002 assessments, makes adequate yearly progress for a second consecutive year. Similarly, proposed § 200.33(c) permits an LEA to remove from corrective action a school that, on the basis of the 2001-2002 assessments, makes adequate yearly progress for a second consecutive year. Proposed § 200.32(e) permits, but does not require, an LEA to identify for improvement a school that, on the basis of the 2001-2002 assessments, fails to make adequate yearly progress for a second consecutive year.

Reasons: Proposed §§ 200.32, 200.33, 200.34, and 200.35 reflect the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements. In particular, proposed § 200.32(a)(2) clarifies the statutorily ambiguous deadline for identifying schools for improvement and proposed § 200.32(f) ensures that the school improvement timeline is not thwarted by the failure to meet this deadline

here the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements. In particular, proposed § 200.32(a)(2) clarifies the statutorily ambiguous deadline for identifying schools for improvement and proposed § 200.32(f) ensures that the school improvement timeline is not thwarted by the failure to meet this deadline.

In addition, proposed § 200.32(d) and (e) and § 200.33(c) apply the statutory provisions for entering and exiting improvement status—two consecutive years of failure to make adequate yearly progress and two consecutive years of making adequate yearly progress, respectively—to schools not covered under the transition provisions in section 1116(f) of the NCLB Act.

Section 200.36 Communication With Parents; § 200.37 Notice of Identification for Improvement, Corrective Action, or Restructuring; and § 200.38 Information About Action Taken

Statute: Under section 1116 of Title I, SEAs and LEAs must keep parents informed throughout the improvement process. In particular, section 1116(b)(6) requires LEAs to provide the parents of each student enrolled in a school identified for improvement, corrective action, or restructuring an explanation of what the identification means, the reasons for the identification, what the school, LEA, and SEA are doing to address the achievement problems that led to the identification, how parents can help the school improve, and the parents' option to transfer their child to another public school or to obtain supplemental educational services for their child.

Current Regulations: The current regulations governing LEA notification of parents during the school improvement process reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act.

ons: The current regulations governing LEA notification of parents during the school improvement process reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act.

Proposed Regulations: Proposed § 200.36 clarifies the manner in which SEAs, LEAs, and schools must meet notification requirements under section 1116 by providing guidelines for all communications with parents. These guidelines include the use of an understandable and uniform format for all required notices; the provision, to the extent practicable, of all notices in a language that parents can understand; the use of direct means of communication, such as mailing materials home, as well as broader electronic means such as the Internet; and assurances that all notices respect the privacy of students and their families.

Proposed § 200.37 repeats the statutory requirement to notify parents when the school their child attends is identified for improvement, corrective action, or restructuring. Proposed § 200.37(b)(4) would add to the statutory requirement for an explanation of the public school choice option the inclusion of information on the performance of the schools to which a student may transfer. Proposed § 200.37 also would require LEAs to include in their annual notice of the availability of supplemental educational services the identification of any providers of technology-based or distance-learning services.

Proposed § 200.38 restates the statutory requirement for LEA notification to parents of action taken to

Reasons: Proposed §§ 200.36, 200.37, and 200.38 reflect the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements. The proposed regulations would help ensure that SEAs, LEAs, and schools develop a uniform approach for communicating with parents throughout the school improvement process

.36, 200.37, and 200.38 reflect the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements. The proposed regulations would help ensure that SEAs, LEAs, and schools develop a uniform approach for communicating with parents throughout the school improvement process.

Section 200.39 Responsibilities Resulting From Identification for School Improvement; § 200.40 Technical Assistance; and § 200.41 School Improvement Plan

Statute: Under section 1116(b) of Title I, if an LEA identifies a school for improvement, the LEA must provide all students enrolled in the school with the option to transfer to schools served by the LEA that have not been identified for improvement. The LEA also must ensure that the school receives technical assistance in identifying and addressing the problems that led to the identification for improvement. The school must develop and implement a school improvement plan covering a two-year period that specifies the responsibilities of the school, the LEA, and the SEA under the plan; incorporates scientifically based strategies for strengthening instruction in the core academic subjects; includes annual measurable objectives for helping all student groups make adequate yearly progress; and sets aside 10 percent of the school's Title I allocation for professional development that directly addresses the achievement problems that led the LEA to identify the school for improvement.

The LEA must promptly review the school improvement plan, work with the school to make any necessary revisions, and approve the plan within 45 days of receiving it from the school. The LEA may condition approval of the plan on the inclusion of one of the corrective actions specified in section 1116(b)(7)(C)(iv) of Title I or on feedback from parents and community leaders

school for improvement.

If a school continues to fail to make adequate yearly progress after one year of school improvement, the LEA must continue to offer a public school choice option to students enrolled in the school, continue to provide technical assistance, and make available supplemental educational services to eligible students who remain in the school.

Current Regulations: The current regulations governing LEA and school-level responsibilities when the LEA identifies a school for improvement reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act.

Proposed Regulations: In general, proposed §§ 200.39, 200.40, and 200.41 restate the statutory requirements related to LEA and school-level responsibilities under the school improvement process, including the LEA's obligation to offer public school choice options and to provide technical assistance and the school's responsibility to develop and implement a comprehensive school improvement plan. Proposed § 200.41(c)(4) also clarifies that school improvement plans must include measurable goals that address the specific reasons for the school's failure to make adequate yearly progress. This proposal is intended to eliminate possible confusion between the goals in the improvement plan and the State-level annual measurable objectives established under section 1111 for the purpose of determining adequate yearly progress

o clarifies that school improvement plans must include measurable goals that address the specific reasons for the school's failure to make adequate yearly progress. This proposal is intended to eliminate possible confusion between the goals in the improvement plan and the State-level annual measurable objectives established under section 1111 for the purpose of determining adequate yearly progress.

Proposed § 200.41(c)(5) would increase flexibility in the use of the 10 percent set-aside for professional development under the school improvement plan by making instructional staff other than teachers and principals eligible for these professional development activities.

Reasons: Proposed §§ 200.39, 200.40, and 200.41 reflect the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements.

Section 200.42 Corrective Action; and § 200.43 Restructuring

Statute: Under section 1116(b)(7) of Title I, if an LEA identifies a school for corrective action, it must continue to provide all students enrolled in the school with the option to transfer to another public school, continue to ensure that the school receives technical assistance, continue to make available supplemental educational services to students who remain in the school, and take at least one of the corrective actions specified in the statute. These corrective actions include replacing the school staff, implementing a new curriculum, decreasing management authority at the school, appointing an outside expert to advise the school, extending the school day or year, and reorganizing the school internally.

at the school, appointing an outside expert to advise the school, extending the school day or year, and reorganizing the school internally.

If an LEA identifies a school for restructuring, it must continue to provide a public school choice option and make available supplemental educational services while preparing a plan to carry out an alternative governance arrangement specified in the statute. These alternative governance arrangements include reopening the school as a public charter school, replacing all or most of the school staff, entering into a contract with a private management company to operate the school as a public school, turning over operation of the school to the SEA, or any other major restructuring of a school's governance arrangements.

If the school continues to fail to make adequate yearly progress, the LEA must implement its restructuring plan no later than the beginning of the school year following the year in which it identified the school for restructuring.

Current Regulations: The current regulations governing corrective action reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act, and restructuring is a new requirement under the NCLB Act.

Proposed Regulations: In general, §§ 200.42 and 200.43 restate the statutory requirements related to corrective action and restructuring. Proposed § 200.42(b)(4)(iv)(A) and (B) clarify that the purpose of appointing an outside expert as a corrective action is to help revise the school improvement plan developed under § 200.41 and implement the revised plan.

Reasons: Proposed §§ 200.42 and 200.43 reflect the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements

appointing an outside expert as a corrective action is to help revise the school improvement plan developed under § 200.41 and implement the revised plan.

Section 200.44 Public School Choice

Statute: Under section 1116(b) of Title I, if an LEA identifies a school for improvement, corrective action, or restructuring it must provide each student enrolled in the school with the option to transfer to another public school served by the LEA that is not identified for improvement, corrective action, or restructuring, unless such an option is prohibited by State law. The LEA must provide the option to transfer no later than the first day of the school year following the identification for improvement, corrective action, or restructuring, and must provide or pay for the transportation of the student to the school the student chooses to attend.

In providing students the option to transfer, the LEA must give priority to the lowest-achieving students from low-income families. If a student exercises

Current Regulations: The public school choice requirement is new under the NCLB Act and not covered under current regulations.

Proposed Regulations: Proposed § 200.44 restates and reorganizes the statutory provisions in section 1116(b) related to public school choice. The proposed regulations also clarify the statutory deadline by requiring LEAs to provide a choice option not later than the first day of the school year following the year in which the LEA administered the assessments that resulted in the identification of the school for improvement, corrective action, or restructuring

s the statutory provisions in section 1116(b) related to public school choice. The proposed regulations also clarify the statutory deadline by requiring LEAs to provide a choice option not later than the first day of the school year following the year in which the LEA administered the assessments that resulted in the identification of the school for improvement, corrective action, or restructuring.

In addition, proposed § 200.44(a)(4) would require LEAs to offer the parents of each eligible student a choice of more than one school, if there is more than one school within the LEA that has not been identified for improvement, corrective action, or restructuring, and to take into account the parents' preferences in assigning students to a new school.

Proposed § 200.44(b) would clarify that the statutory exception from the public school choice requirements where choice is prohibited by State law applies only if the State law prohibits choice through restrictions on public school assignments or the transfer of students from one public school to another public school. Proposed § 200.44(c) clarifies that LEA implementation of a desegregation plan does not exempt the LEA from the public school choice requirement in section 1116(b) of Title I.

Proposed § 200.44(f) and (h) would limit an LEA's obligation to provide or pay for choice-related transportation due to insufficient funding resulting from the application of § 200.48.

Reasons: Proposed § 200.44 reflects the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements. Proposed § 200.44(a)(2) clarifies the deadline for providing choice to be consistent with the statutory requirement that identification for improvement, corrective action, or restructuring occur prior to the beginning of the school year

clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements. Proposed § 200.44(a)(2) clarifies the deadline for providing choice to be consistent with the statutory requirement that identification for improvement, corrective action, or restructuring occur prior to the beginning of the school year.

Proposed § 200.44(a)(4) would empower parents by ensuring, wherever possible, that they have the option of choosing, from among several options, the school that best meets the educational needs of their child.

Proposed § 200.44(b) and (c) are intended to prevent LEAs from arbitrarily invoking either State law or desegregation plans in seeking an exemption from the public school choice requirement. Proposed § 200.44(f) and (h) reflect the interpretation under § 200.48 that the statute caps the set-aside for choice-related transportation and supplemental educational services at an amount equal to 20 percent of an LEA's allocation under subpart A of this part, thereby limiting the LEA's obligation to satisfy all requests for choice-related transportation.

Proposed §200.44(i) clarifies that for children with disabilities, the public school choice option must provide a free and appropriate public education.

Section 200.45 Supplemental Educational Services; § 200.46 LEA Responsibilities for Supplemental Educational Services; and § 200.47 SEA Responsibilities for Supplemental Educational Services

sibilities for Supplemental Educational Services; and § 200.47 SEA Responsibilities for Supplemental Educational Services

Statute: Section 1116(e) of Title I defines supplemental educational services as tutoring and other academic enrichment services designed to increase the academic achievement of eligible students and help them attain proficiency in meeting State academic achievement standards. If an LEA has identified a school for a second year of school improvement, for corrective action, or for restructuring, it must arrange for supplemental educational services for each eligible student from a State-approved provider selected by the student's parents. Eligible students are defined in the statute as students from low-income families, and if funding is insufficient to provide services to all such students, LEAs must give priority to the lowest-achieving eligible students.

SEAs must promote participation by as many providers as possible, develop criteria for approval as a provider that are based on a demonstrated record of effectiveness in increasing student achievement in subjects relevant to meeting State academic content and achievement standards, maintain an updated list of providers from which parents may select, and monitor the quality and effectiveness of approved providers.

An LEA making available supplemental educational services must, funding permitting, continue to make available such services until the end of the school year. An SEA may waive the requirement for an LEA to provide supplemental educational services if none of the providers on the State's list make services available within a reasonable distance of the LEA and if the LEA itself is not able to provide the services.

Current Regulations: The requirement to provide supplemental educational services is new under the NCLB Act and not covered under current regulations.

Proposed Regulations: In general, proposed §§ 200.45, 200.46, and 200.47 repeat the statutory requirements for the provision of supplemental educational services

able distance of the LEA and if the LEA itself is not able to provide the services.

Current Regulations: The requirement to provide supplemental educational services is new under the NCLB Act and not covered under current regulations.

Proposed Regulations: In general, proposed §§ 200.45, 200.46, and 200.47 repeat the statutory requirements for the provision of supplemental educational services. Proposed § 200.47 would modify the standards for SEA approval of providers to clarify that supplemental service providers may include a non-profit entity, a for-profit entity, a public school, including a public charter school, a private school, or an LEA. The proposed § 200.47 also would prohibit schools that are identified for improvement, corrective action, or restructuring from being a provider.

Reasons: Proposed §§ 200.45, 200.46, and 200.47 reflect the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements.

Examples of evidence from a provider that may demonstrate effectiveness include the following:

• Significant improvement in student academic achievement as measured by statewide assessments;

• Successful use of instructional practices based on research;

• Successful and sustained remediation of reading/language arts or math difficulties, such as bringing students up to grade-level standards.

Section 200.48 Funding for Choice-Related Transportation and Supplemental Educational Services

Statute: Section 1116(b)(10) of Title I requires LEAs to make available funding to pay for transportation costs related to the provision of public school choice options and for supplemental educational services. In general, affected LEAs must spend an amount equal to 20 percent of their allocation under subpart A of this part to pay for choice-related transportation, supplemental educational services, or a combination of the two

Title I requires LEAs to make available funding to pay for transportation costs related to the provision of public school choice options and for supplemental educational services. In general, affected LEAs must spend an amount equal to 20 percent of their allocation under subpart A of this part to pay for choice-related transportation, supplemental educational services, or a combination of the two. In reserving such funds, an LEA may not reduce by more than 15 percent the allocation it provides to a

LEAs must use, at a minimum, an amount equal to five percent of their allocations under subpart A of this part to pay for supplemental educational services, if parents request such services. SEAs may use funds reserved for State-level activities under subpart A of this part and under part A of Title V to assist LEAs that do not have sufficient funds to satisfy all requests for supplemental educational services. For each student receiving such services, the LEA must make available the lesser of the LEA's per-child allocation under subpart A of this part or the actual cost of services.

Current Regulations: The requirement to reserve funding for choice-related transportation and supplemental educational services is new under the NCLB Act and not covered under current regulations.

Proposed Regulations: Proposed § 200.48 would clarify statutory ambiguity regarding the reservation of funding to pay for choice-related transportation and supplemental educational services. Specifically, the proposed regulation would require LEAs to spend an amount equal to 20 percent of their allocation under subpart A of this part to provide or pay for the transportation of students exercising a choice option, to satisfy all requests for supplemental educational services, or a combination of the two. Proposed § 200.48 clarifies that LEAs may use funds allocated under subpart A of this part, from other Federal education programs, or from State, local, or private resources to satisfy this requirement

er subpart A of this part to provide or pay for the transportation of students exercising a choice option, to satisfy all requests for supplemental educational services, or a combination of the two. Proposed § 200.48 clarifies that LEAs may use funds allocated under subpart A of this part, from other Federal education programs, or from State, local, or private resources to satisfy this requirement.

Proposed § 200.48 also clarifies that if the costs of satisfying all requests for supplemental educational services exceed an amount equal to 5 percent of an LEA's allocation under subpart A of this part, the LEA may not spend less than this amount for supplemental educational services. In addition, the proposed regulations would permit—but not require—LEAs to exceed the 20 percent cap to pay all choice-related transportation costs and to meet the demand for supplemental educational services.

Reasons: Proposed § 200.48 reflects the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements.

Section 200.49 SEA Responsibilities for School Improvement, Corrective Action, and Restructuring

Statute: Sections 1003 and 1116 of Title I include various provisions relating to SEA responsibilities in the school improvement process. Section 1116(f) requires an SEA to ensure that LEAs serving schools identified for improvement or corrective action prior to enactment of the NCLB Act provide public school choice options and make available supplemental educational services, as appropriate, not later than the first day of the 2002-2003 school year

rious provisions relating to SEA responsibilities in the school improvement process. Section 1116(f) requires an SEA to ensure that LEAs serving schools identified for improvement or corrective action prior to enactment of the NCLB Act provide public school choice options and make available supplemental educational services, as appropriate, not later than the first day of the 2002-2003 school year.

Section 1003 requires SEAs to reserve two percent of the amounts received under subpart A of this part, rising to four percent in fiscal year 2004, to support local school improvement activities and to provide technical assistance to schools that LEAs have identified for improvement, corrective action, or restructuring and to LEAs that the SEA has identified for improvement or corrective action. SEAs must allocate not less than 95 percent of these funds directly to LEAs serving schools identified for improvement, corrective action, and restructuring, with a priority on LEAs serving the lowest-achieving schools and demonstrating the greatest need for assistance.

SEAs also must ensure that the results of academic assessments in a given school year are available to LEAs before the beginning of the next school year, and that such results are provided to a school before an LEA may identify the school for school improvement, corrective action, or restructuring.

Current Regulations: The current regulations governing SEA responsibilities related to school improvement reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act.

Proposed Regulations: Proposed § 200.49 repeats and reorganizes the statutory requirements related to SEA responsibilities in the school improvement process.

Reasons: Proposed § 200.49 reflects the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements

B Act.

Proposed Regulations: Proposed § 200.49 repeats and reorganizes the statutory requirements related to SEA responsibilities in the school improvement process.

Section 200.50 SEA Review of LEA Progress

Statute: Under section 1116(c) of Title I, SEAs must annually review the progress of each LEA receiving funds under subpart A of this part to determine whether the LEA is making adequate yearly progress toward meeting the State's student academic achievement standards and whether the LEA is carrying out its responsibilities under subpart A of this part with respect to technical assistance, parental involvement, and professional development. After providing an LEA with the opportunity to review academic assessment data, the SEA must identify for improvement an LEA that has failed to make adequate yearly progress for two consecutive years.

The SEA must identify for corrective action an LEA that fails to make adequate yearly progress for two consecutive years following the identification for improvement. The SEA may delay corrective action if the LEA makes adequate yearly progress for one year or if the LEA's failure to make adequate yearly progress is due to exceptional or uncontrollable circumstances, such as a natural disaster or a precipitous and unforeseen decline in the LEA's financial resources.

The SEA may remove from improvement or corrective action status an LEA that makes adequate yearly progress for two consecutive years, and may provide rewards to LEAs that exceed adequate yearly progress for two consecutive years.

Current Regulations: The current regulations governing SEA review of LEA progress reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act

Current Regulations: The current regulations governing SEA review of LEA progress reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act.

Proposed Regulations: In general, proposed § 200.50 repeats the statutory requirements related to SEA review of LEA progress in helping all students meet State academic achievement standards.

In addition, proposed § 200.50 clarifies the circumstances under which an SEA may include, in its review of an LEA serving schools operating targeted assistance programs, only the progress of students served or eligible for services under subpart A of this part. Proposed § 200.50(d)(2) clarifies the timeline for identifying LEAs for corrective action to be consistent with the statutory requirement that such identification occur prior to the beginning of the school year.

Proposed § 200.50(d) and (e) also clarify SEA discretion in identifying LEAs for improvement or removing LEAs from improvement or corrective action status on the basis of assessments administered during the 2001-2002 school year.

Reasons: Proposed § 200.50 reflects the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of

Section 200.51 Notice of SEA Action

Statute: Under section 1116(c) of Title I, an SEA must publicize and disseminate the results of its review of an LEA to the LEA, teachers and other staff, parents, students, and the community. If an SEA identifies an LEA for improvement or corrective action, it must provide to the parents of each student enrolled in a school served by the LEA the reasons for the identification and an explanation of how the parents can participate in upgrading the LEA

publicize and disseminate the results of its review of an LEA to the LEA, teachers and other staff, parents, students, and the community. If an SEA identifies an LEA for improvement or corrective action, it must provide to the parents of each student enrolled in a school served by the LEA the reasons for the identification and an explanation of how the parents can participate in upgrading the LEA. The SEA also must publish and disseminate to parents and the public information on any corrective action it takes against an LEA.

Current Regulations: The current regulations governing SEA notice requirements related to its review of LEA progress reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act.

Proposed Regulations: In general, proposed § 200.51 restates the statutory notice requirements triggered when an SEA reviews the progress of an LEA under § 200.50. Proposed § 200.51 also clarifies the manner in which SEAs must meet these notification requirements by providing guidelines for all communications with parents. These guidelines include the use of an understandable and uniform format for all required notices; the provision, to the extent practicable, of all notices in a language that parents can understand; the use of direct means of communication, such as sending materials home with students, as well as broader electronic means such as the Internet; and assurances that all notices respect the privacy of students and their families.

Reasons: Proposed § 200.51 reflects the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of and compliance with those requirements. The proposed regulations would help ensure that SEAs develop a uniform approach for communicating with parents throughout the LEA review and improvement process

ies.

Section 200.52 LEA Improvement; and § 200.53 LEA Corrective Action

Statute: Under section 1116(c) of Title I, if an SEA identifies an LEA for improvement, the LEA must develop or revise an LEA improvement plan that incorporates scientifically based strategies to strengthen instruction in core academic subjects in schools served by the LEA, addresses the professional development needs of the LEA's instructional staff by reserving for that purpose not less than 10 percent of the funds received by the LEA under subpart A of this part, and includes specific measurable goals and targets consistent with adequate yearly progress requirements. The improvement plan also must incorporate extended learning time strategies, specify LEA and SEA responsibilities under the plan, and promote effective parental involvement. At the request of the LEA, the SEA must provide or arrange for technical or other assistance in developing and implementing the improvement plan. The LEA must implement its improvement plan not later than the beginning of the school year after the school year in which the SEA identified the LEA for improvement.

If an SEA identifies an LEA for corrective action, it must continue to make available technical assistance to the LEA and take at least one of the corrective actions specified in the statute

g and implementing the improvement plan. The LEA must implement its improvement plan not later than the beginning of the school year after the school year in which the SEA identified the LEA for improvement.

If an SEA identifies an LEA for corrective action, it must continue to make available technical assistance to the LEA and take at least one of the corrective actions specified in the statute. These corrective actions include deferring programmatic funds or reducing administrative funds, instituting a new curriculum, replacing LEA personnel, removing particular schools from the jurisdiction of the LEA and establishing alternative governance for these schools, appointing a receiver or trustee to administer the LEA in place of the superintendent and school board, and abolishing or restructuring the LEA. In addition, in conjunction with at least one of these actions, the SEA may authorize students to transfer, with transportation provided, from a school operated by the LEA to a higher-performing public school operated by another LEA.

Current Regulations: The current regulations governing LEA improvement and corrective action reflect provisions of section 1116 of the ESEA that were superseded by the NCLB Act.

Proposed Regulations: In general, §§ 200.52 and 200.53 restate the statutory requirements for LEA improvement and corrective action. Proposed § 200.52(a)(4) also clarifies that an LEA must implement its improvement plan not later than the beginning of the school year following the year in which the LEA administered the assessments that resulted in the SEA's identification of the LEA for improvement.

of the school year following the year in which the LEA administered the assessments that resulted in the SEA's identification of the LEA for improvement.

Reasons: Proposed §§ 200.52 and 200.53 reflect the Secretary's goal of providing clarity where the statute is ambiguous and reorganizing the statutory requirements to facilitate a better understanding of, and compliance with, those requirements. Proposed § 200.52(a)(4) clarifies the deadline for implementation of an LEA's improvement plan to be consistent with the statutory requirement that such implementation occur prior to the beginning of the school year following the identification for improvement.

Section 200.54 Rights of School and School District Employees

Statute: Section 1116(d) of Title I provides that none of the requirements concerning school and LEA improvement, corrective action, and restructuring shall be construed to alter or otherwise affect the rights, remedies, and procedures afforded school or LEA employees under Federal, State, or local law (including applicable regulations or court orders) or under the terms of collective bargaining agreements, memoranda of understanding, or other agreements between the employers and their employees.

Current Regulations: The current regulations do not address this requirement.

Proposed Regulations: Section 200.54(a) implements the statutory provision with respect to State or local laws or collective bargaining agreements in effect on January 8, 2002—the day the NCLB Act was signed into law. Section 200.54(b) makes clear, however, that any State or local laws, regulations, or policies adopted after January 8, 2002 may not exempt an LEA from taking actions it may be required to take by §§ 200.30-200.53 with respect to school and LEA employees

on with respect to State or local laws or collective bargaining agreements in effect on January 8, 2002—the day the NCLB Act was signed into law. Section 200.54(b) makes clear, however, that any State or local laws, regulations, or policies adopted after January 8, 2002 may not exempt an LEA from taking actions it may be required to take by §§ 200.30-200.53 with respect to school and LEA employees. Similarly, § 200.54(c) requires an LEA to ensure that any collective bargaining agreements, memoranda of understanding or other similar agreements negotiated after January 8, 2002 do not prohibit actions that the LEA may be required to take with respect to school or school district employees to implement §§ 200.30-200.53.

Reasons: These proposed regulations are necessary to clarify that the statutory provision applies to laws, regulations, and agreements in effect on January 8, 2002. States and LEAs, however, have affirmative responsibilities to ensure that laws, regulations, policies, and agreements that take effect after January 8 do not prohibit actions that an LEA or

Qualifications of Teachers and Paraprofessionals

Sections 200.55 through 200.57 Highly Qualified Teachers

Statute: Under section 9101(23) of the ESEA, a highly qualified teacher in any public elementary or secondary school must hold at least a bachelor's degree and either (1) have obtained full State teacher certification or (2) have passed the State teacher licensing examination and hold a license to teach in that State. A teacher in a public charter school may instead meet the certification or licensure requirements of the State's public charter school law. No highly qualified teacher may have his or her certification or licensure requirements waived on an emergency, temporary, or provisional basis.

Section 9101(23) of the ESEA contains additional requirements for a highly qualified teacher depending on which grade level the teacher teaches and whether the teacher is new to the profession

nsure requirements of the State's public charter school law. No highly qualified teacher may have his or her certification or licensure requirements waived on an emergency, temporary, or provisional basis.

Section 9101(23) of the ESEA contains additional requirements for a highly qualified teacher depending on which grade level the teacher teaches and whether the teacher is new to the profession. An elementary school teacher who is new to the profession must have demonstrated subject knowledge and teaching skills in reading, writing, mathematics, and other areas of the basic elementary school curriculum by passing a rigorous State test. Passing a rigorous State test can mean passing a State-required certification or licensing test or tests in reading, writing, mathematics, and other areas of the basic elementary school curriculum.

A middle or secondary school teacher who is new to the profession must have demonstrated a high level of competency in each academic subject that he or she teaches by (1) passing a rigorous State academic subject test in each of those subjects or (2) successfully completing, in each of those subjects, an academic major, coursework equivalent to an undergraduate academic major, a graduate degree, or advanced certification or credentialing. Passing the rigorous State test can mean receiving a passing level of performance on a State-required certification or licensing test or tests in each of the academic subjects that the teacher teaches.

cation or licensing test or tests in each of the academic subjects that the teacher teaches.

To be highly qualified, an elementary, middle, or secondary school teacher who is not new to the profession must meet the applicable requirements for a new teacher or must demonstrate competence in all academic subjects that he or she teaches based on a high objective uniform State standard of evaluation. To be considered a high objective uniform standard of evaluation, the State standard may involve multiple, objective measures of teacher competency and must satisfy these six criteria:

• Be set both for grade-appropriate academic subject matter knowledge and for teaching skills.

• Be aligned with challenging State academic content and student academic achievement standards and developed through consultation with core content specialists, teachers, principals, and school administrators.

• Provide objective and coherent information about the teacher's attainment of the core content knowledge in the applicable academic subject.

• Be applied uniformly to all teachers in the same academic subject and grade level throughout the State.

• Take into consideration, although not primarily, the time the teacher has been teaching the subject.

• Be available to the public on request.

Under section 1119(a)(1) of the ESEA, beginning with the first day of the 2002-2003 school year, each LEA receiving assistance under Title I, part A is responsible for applying these requirements to any public school teacher in a core academic subject supported by part A funds who is hired after that day. The LEA also must have a plan to ensure that all public school teachers teaching in core academic subjects in the LEA meet these requirements by the end of the 2005-2006 school year.

o must have a plan to ensure that all public school teachers teaching in core academic subjects in the LEA meet these requirements by the end of the 2005-2006 school year.

At the State level, section 1119(a)(2) of the ESEA requires each State to develop a plan to ensure that all teachers teaching in core academic subjects in the State meet these requirements by the end of the 2005-06 school year. The State plan must set annual measurable objectives for each LEA and school. At a minimum, these objectives must provide for an increase in the percentage of highly qualified teachers in each LEA and school and an annual increase in the percentage of teachers receiving high-quality professional development toward becoming highly qualified and successful. The objectives may include other appropriate measures to improve teacher qualifications.

Proposed Regulations: In addition to incorporating the statutory provisions described above, proposed §§ 200.55 through 200.57 would clarify that the requirements for teacher qualifications apply to teachers in core academic subjects. Proposed § 200.55(a)(2) would clarify that a teacher in a program supported by funds under subpart A of this part is a teacher in a targeted assistance program paid with Title I, part A funds and any teacher in a schoolwide program. Proposed § 200.56(a)(1)(iii) would clarify that a teacher meets the full certification and licensure requirements applicable to the years of experience the teacher possesses. For example, a first-year teacher would meet this requirement if State law requires that teacher to work on a probationary basis for a limited time. Proposed § 200.56(a)(1)(iii) would also clarify that a teacher meets the alternate route certification program requirements if the State permits the teacher to assume functions as a teacher and if the teacher is making satisfactory progress toward full certification as prescribed by the State and the program

ent if State law requires that teacher to work on a probationary basis for a limited time. Proposed § 200.56(a)(1)(iii) would also clarify that a teacher meets the alternate route certification program requirements if the State permits the teacher to assume functions as a teacher and if the teacher is making satisfactory progress toward full certification as prescribed by the State and the program.

A teacher who does not teach a core academic subject, or an employee of a third-party contractor or supplemental services provider, would not be required to meet the teacher qualification requirements.

Reasons: Most of the provisions in proposed §§ 200.55 through 200.57 would clarify unclear areas of the statute. Exempting teachers who do not teach in core academic subjects from the teacher qualification requirements, for example, would recognize and encourage the traditional flexibility that States have exercised in setting qualification standards in such areas as vocational education. Yet extending this flexibility would not jeopardize the statute's overall objective of ensuring that, through high-quality instruction, all students reach proficient levels of State academic student achievement standards.

Sections 200.58 through 200.59 Paraprofessionals

Statute: Section 1119(c) through (g) of the ESEA contains requirements that apply to all paraprofessionals working in a program supported with Title I, part A funds and specify how each LEA receiving assistance under part A must ensure that those paraprofessionals meet those requirements.

Under section 1119(a), each paraprofessional hired after January 8, 2002, must have—

(1) Completed at least two years of study at an institution of higher education;

(2) Obtained an associate's or higher degree; or

ing in a program supported with Title I, part A funds and specify how each LEA receiving assistance under part A must ensure that those paraprofessionals meet those requirements.

Under section 1119(a), each paraprofessional hired after January 8, 2002, must have—

(1) Completed at least two years of study at an institution of higher education;

(2) Obtained an associate's or higher degree; or

(3) Met a rigorous standard of quality and be able to demonstrate, through a formal State or local academic assessment, knowledge of, and the ability to assist in instructing reading, writing, and mathematics or, as appropriate, in reading readiness,

Section 1119(d) requires a paraprofessional hired before January 8, 2002, to meet these requirements within four years of that date. Section 1119(e) excepts from these requirements a paraprofessional who serves primarily as a translator, if the paraprofessional is proficient in English and a language other than English. Section 1119(e) also excepts a paraprofessional working solely on parental involvement activities.

Section 1119(f) of the ESEA requires all paraprofessionals, regardless of hiring date, to have earned a secondary school diploma or the recognized equivalent.

Section 1119(g) of the ESEA specifies that a paraprofessional may provide one-on-one tutoring for eligible students, provided the tutoring is scheduled at a time when a student would not otherwise receive instruction from a teacher; assist with classroom management, such as organizing instructional and other materials; provide assistance in a computer laboratory; conduct parental involvement activities; provide support in a library or media center; act as a translator; or provide, under the direct supervision of a teacher, instructional services.

Section 1119(g)(3) allows a paraprofessional to assume limited duties assigned to similar personnel who do not work in a program supported with part A funds

aterials; provide assistance in a computer laboratory; conduct parental involvement activities; provide support in a library or media center; act as a translator; or provide, under the direct supervision of a teacher, instructional services.

Section 1119(g)(3) allows a paraprofessional to assume limited duties assigned to similar personnel who do not work in a program supported with part A funds. Those duties may include duties beyond classroom instruction or duties that do not benefit participating children, if the paraprofessional spends the same proportion of time on those duties that similar personnel in the school spend on the same duties.

Proposed regulations: Proposed §§ 200.58 and 200.59 would incorporate the statutory provisions governing paraprofessionals. In addition, proposed § 200.58(a)(2) would clarify that the term “paraprofessional” applies to an individual performing instructional support duties and not to an individual performing only non-instructional duties. Proposed § 200.58(a)(3) would clarify that a paraprofessional in a program supported by funds under subpart A of this part means a paraprofessional in a targeted assisted program paid with those funds and any paraprofessional in a schoolwide program.

Proposed § 200.59(b) would clarify the duties that paraprofessionals may perform. Proposed § 200.59(c)(2) would clarify that a paraprofessional works under the direct supervision of a teacher if the teacher plans the paraprofessional's instructional activities and evaluates the achievement of the students with whom the paraprofessional works. The paraprofessional also would be required to work in close physical proximity of the teacher.

ment of the students with whom the paraprofessional works. The paraprofessional also would be required to work in close physical proximity of the teacher.

Reasons: The clarifications in proposed §§ 200.58(a)(2) and 200.59(b) would reinforce the consistent application of the statutory concept that paraprofessional qualification requirements apply to the performance of instructional support duties. The clarification in proposed § 200.59(c)(2) on what would constitute working under the direct supervision of a teacher is intended to reinforce the statutory safeguards against the improper use of paraprofessionals to provide actual instruction.

Section 200.60 Expenditures for Professional Development

Statute: Section 1119(h) allows an LEA to use funds under Title I, part A for ongoing training and professional development to help teachers and paraprofessionals meet the new statutory requirements governing their qualifications.

Section 1119(l) requires the LEA, for each of fiscal years 2002 and 2003, to use a minimum of 5 percent and a maximum of 10 percent of its part A funds for professional development aimed at ensuring that teachers who are not qualified become highly qualified by the end of the 2005-2006 school year. For each subsequent fiscal year, the LEA must use a minimum of 5 percent of its part A funds for that purpose. Section 1119(j) of the ESEA permits an LEA to combine part A funds used for professional development with other Federal funds, including those from Title II of the ESEA, and funds from other sources.

Section 1119(k) prohibits a State from mandating, beyond the amounts specified in section 1119(l), the specific amount that an LEA, other than an LEA identified for improvement, may spend for professional development.

Proposed Regulations: Proposed § 200.60(a) would clarify that professional development funds may be used for paraprofessionals, as well as teachers

and funds from other sources.

Proposed Regulations: Proposed § 200.60(a) would clarify that professional development funds may be used for paraprofessionals, as well as teachers. It also would clarify that the statutory minimum would not apply to an LEA, if most teachers and paraprofessionals in the LEA's school district already meet the statutory qualification requirements. Proposed § 200.60(b) would clarify that an LEA may use additional funds under subpart A of this part for ongoing training and professional development to help teachers and paraprofessionals carry out their subpart A activities.

Reasons: Proposed § 200.60(a) is needed to ensure consistent application of the requirements in section 1119 and elsewhere in the ESEA that permit flexibility in the use of funds for professional development. The requirements in section 1119 contemplate that an LEA will give priority for the use of professional development expenditures to helping teachers and paraprofessionals meet the requirements for highly qualified teachers and the qualifications for paraprofessionals, respectively. Nevertheless, in cases where that priority has been met, and to help teachers and paraprofessionals carry out their activities under subpart A, funds under subpart A remain available, notwithstanding the mandated percentages in section 1119, to an LEA for ongoing training and professional development.

Participation of Eligible Children in Private Schools

aining and professional development.

Participation of Eligible Children in Private Schools

Statute: Section 1120 of Title I requires LEAs to provide on an equitable basis educational services or other benefits (1) to eligible children attending private schools; and (2) to the teachers and families of these children in Title I—supported parent involvement and professional development activities. It requires LEAs to develop these services in consultation with officials of the private schools and prescribes how an LEA determines that it is providing services on an equitable basis.

Current Regulations: The current regulations governing equitable participation of eligible children in private schools (34 CFR 200.10 through 200.13) implement provisions of section 1120 of the ESEA that were superseded by the NCLB Act.

Proposed Regulations: Proposed §§ 200.61 through 200.66 contain several provisions to address changes in the statute from the previous law and to clarify issues about which questions have arisen in the past. The proposed regulations would—

• Reiterate which children an LEA must serve;

• Clarify the equal expenditure requirement for instructional services;

• Define equitable expenditures for teachers and families of participating private school children;

• Require consultation on specified topics and expand those topics to include equitable services to teachers and families of participating private school students; and

• Clarify the flexibility that exists for private school officials to appoint representatives for consultation and sign-off purposes.

Additionally, the proposed regulations would remove regulations governing capital expenses (currently contained in §§ 200.15 through 200.17), because the authority for capital expenses expires October 1, 2003 and no funds were appropriated for fiscal year 2002.

Reasons: The existing regulations need to be updated to reflect the changes made by the NCLB Act

r consultation and sign-off purposes.

Reasons: The existing regulations need to be updated to reflect the changes made by the NCLB Act. The proposed regulations also facilitate implementation of the requirements for providing services to eligible private school students, their teachers, and their families by ensuring that both public and private school officials have consistent and accurate information to implement fully the requirements of this section. Finally, the proposed regulations remove current provisions that are no longer needed.

Allocations to LEAS

Statute: Title I, part A, subpart 2 establishes the formulas the Secretary must use to determine LEA allocations for Basic Grants, Concentration Grants, Targeted Grants, and Education Finance Incentive Grants (EFIG). The Secretary makes allocations to LEAs for all four programs using data that include children ages 5 through 17 in families with incomes below the poverty line based on the most recent satisfactory data available from the Census Bureau, in families not in poverty but receiving assistance under the Temporary Assistance for Needy Families program, in foster homes, and in locally operated institutions for neglected children. These data are then adjusted to account for each State's per-pupil expenditure for education. The Targeted Grants program further requires that the Secretary adjust the number of children counted in the formula to give greater weight to those LEAs that have higher numbers or percentages of formula children

ilies program, in foster homes, and in locally operated institutions for neglected children. These data are then adjusted to account for each State's per-pupil expenditure for education. The Targeted Grants program further requires that the Secretary adjust the number of children counted in the formula to give greater weight to those LEAs that have higher numbers or percentages of formula children. The formula for EFIG, in addition to including the number of children counted in the Title I formula and each State's per-pupil expenditure, uses two other factors that measure (1) a State's effort to provide financial support for education compared to its relative wealth based on its per capita income (fiscal effort factor) and (2) the degree to which education expenditures among school districts within a State are equalized (equity factor). Once a State's EFIG allocation is determined using all four of these factors, the Secretary distributes funds among LEAs within a State using a process similar to Targeted Grants by giving a greater weight to those LEAs that have higher numbers or percentages of formula children. The weights used to determine EFIG allocations for each LEA will vary for each State depending on its equity factor. After initial LEA allocations are determined for all four programs using the factors described, the Secretary must guarantee that no LEA (depending on its formula child rate) receives less than 85, 90, or 95 percent of the amount allocated to it in the preceding year and ensure that no State in total receives less than the minimum amount prescribed in the statute.

Title I further authorizes States to use alternative data to determine eligibility and redistribute allocations that the Secretary determined for its “small” LEAs with fewer than 20,000 residents. This provision in the law responds to concerns about the quality of census poverty estimates for small LEAs, which account for roughly 79 percent of all districts nationally, but serve only 24 percent of all school-age children

es States to use alternative data to determine eligibility and redistribute allocations that the Secretary determined for its “small” LEAs with fewer than 20,000 residents. This provision in the law responds to concerns about the quality of census poverty estimates for small LEAs, which account for roughly 79 percent of all districts nationally, but serve only 24 percent of all school-age children. Under this provision, SEAs have the flexibility to use alternative data, which the Secretary must approve, that better reflect the location of poor children among small LEAs in a State.

Current Regulations: The current regulations (contained in 34 CFR 200.20 through 200.26) outline procedures that an SEA uses to sub-allocate county Title I, part A allocations determined by the Secretary to LEAs. Because the Secretary now makes Title I, part A allocations directly to LEAs rather than to counties, these regulations are no longer applicable and would be replaced by the proposed regulations.

Proposed Regulations: Proposed §§ 200.70 through 200.75 would outline procedures SEAs must follow to adjust allocations determined by the Secretary to account for unique situations within their States.

Proposed § 200.70 would outline the general process that the Secretary follows to determine Title I, part A LEA allocations and establish the principle that an SEA may change those allocations in limited instances.

Proposed § 200.71 would clarify the eligibility thresholds for Basic Grants, Concentration Grants, Targeted Grants, and EFIG. For Basic Grants, an LEA is eligible if the number of children counted for allocation purposes is at least 10 and exceeds two percent of its school-age population ages 5 through 17. An LEA is eligible for a Concentration Grant if it is eligible for a Basic Grant and the number of formula children exceeds 6,500 or 15 percent of its school-age population. To be eligible for a Targeted Grant and EFIG, an LEA must have at least 10 formula children and a formula child rate of at least 5 percent

is at least 10 and exceeds two percent of its school-age population ages 5 through 17. An LEA is eligible for a Concentration Grant if it is eligible for a Basic Grant and the number of formula children exceeds 6,500 or 15 percent of its school-age population. To be eligible for a Targeted Grant and EFIG, an LEA must have at least 10 formula children and a formula child rate of at least 5 percent. Targeted Grant and EFIG eligibility is based on the raw number of formula children without application of the weights provided in the statute.

Proposed § 200.72 would establish the general procedures an SEA must follow to adjust allocations determined by the Secretary to account for eligible “new” LEAs not on the Census list that the Secretary used to calculate LEA allocations and to reflect changes in district boundaries. Under this section, an SEA must first determine the number of Title I formula children for new LEAs that are not on the Secretary's list of LEAs, second determine the eligibility of these new LEAs for a Basic, Concentration, Targeted, and EFIG based on that number, and third provide the new LEAs with Title I funds based on the number of formula children that they draw from the LEAs that are on the Secretary's list for which the Department made allocations.

Proposed § 200.73 would outline the statutory “hold-harmless” provisions more clearly. The hold-harmless protection limits the maximum reduction in an LEA's allocation when compared to its prior year's allocation. Under each program, an LEA is guaranteed at least 85, 90, or 95 percent of the amount received in the preceding year. The hold-harmless percentage varies according to each LEA's formula child rate. For Targeted Grants and EFIG, the hold-harmless percentage is based on formula counts without application of the weights

um reduction in an LEA's allocation when compared to its prior year's allocation. Under each program, an LEA is guaranteed at least 85, 90, or 95 percent of the amount received in the preceding year. The hold-harmless percentage varies according to each LEA's formula child rate. For Targeted Grants and EFIG, the hold-harmless percentage is based on formula counts without application of the weights. Except when an SEA is calculating LEA reductions to account for reserves for school improvement, State administration, and the State academic achievement awards program, the hold-harmless percentage is applied separately for Basic Grants, Concentration Grants, Targeted Grants, and EFIG. With the exception of Concentration Grants, an LEA must be eligible for Basic Grants, Targeted Grants, and EFIG in order for the hold-harmless protection to apply. For Concentration Grants an LEA is entitled to its hold-harmless percentage based on its prior year amount for four consecutive years even if it no longer meets the eligibility thresholds.

Proposed § 200.74 would clarify the statutory procedures an SEA would follow if it chooses to use an alternative method to redistribute Title I, part A grants to LEAs with fewer than 20,000 total residents. Language in proposed § 200.74(a) would extend this flexibility to EFIG.

Proposed § 200.75 would outline the flexibility available to States in which their Title I formula count on January 8,

Reasons: The proposed regulations are needed to give guidance to States on how to adjust the LEA allocations determined by the Secretary to account for circumstances unique to each State. The Secretary determines LEA allocations directly using a list of LEAs provided to us by the Census Bureau, which is based on LEAs that existed in school year 1999-2000. Because that list does not match the current universe of LEAs in many States, SEAs must adjust the Secretary's LEA allocations to account for newly created LEAs ( e.g. charter schools and LEA consolidations) and district boundary changes

retary determines LEA allocations directly using a list of LEAs provided to us by the Census Bureau, which is based on LEAs that existed in school year 1999-2000. Because that list does not match the current universe of LEAs in many States, SEAs must adjust the Secretary's LEA allocations to account for newly created LEAs ( e.g. charter schools and LEA consolidations) and district boundary changes. An SEA must also adjust our allocations to (1) reserve funds for school improvement, State administration, and the State academic achievement awards programs, (2) allow for the use of alternative data to redistribute Title I allocations determined by the Secretary among districts with fewer than 20,000 total residents, and (3) in the case of “small” States, redistribute Concentration Grant allocations determined by the Secretary to LEAs in which the number or percentage of formula children equal or exceed the Statewide average number or percentage of formula children.

In outlining SEA procedures for adjusting our allocations in the proposed regulations, we have tried to give SEAs as much flexibility as possible. For example, in proposed § 200.72 concerning a State's use of alternative data to redistribute allocations determined by the Secretary, we believe it appropriate to extend that flexibility to EFIG even though the statute specifically authorizes this flexibility only for Basic, Concentration, and Targeted Grants.

Section 200.78 Allocation of Funds to School Attendance Areas and Schools

00.78 Allocation of Funds to School Attendance Areas and Schools

Statute: Section 1113 of the Title I statute lays out the procedures an LEA must use to determine school-level Title I allocations once it receives its final allocation from the State. In calculating school-level allocations, an LEA must first determine which school attendance areas or schools are eligible to participate in Title I. As a general rule, a school attendance area is eligible if its percentage of children from low-income families is above 35 percent poverty or is at least as high as the percentage of children from low-income families in the LEA as a whole. An LEA may also serve a school in an ineligible area if the percentage of children from low-income families enrolled in that school is equal to, or greater than, the percentage of such children in a participating school attendance area. The statute also allows an LEA to continue serving an attendance area or school for one more year if it has become ineligible.

An LEA must serve eligible schools or attendance areas in rank order according to their poverty percentage. An LEA must serve those areas or schools above 75 percent poverty, including any middle or high schools, before it serves any with a poverty percentage below 75 percent. Once all of the attendance areas or schools with a poverty rate above 75 percent have been served, an LEA may serve lower-poverty areas and schools either by continuing with the district-wide ranking or by ranking its areas or schools below 75 percent poverty according to grade-span groupings.

elow 75 percent poverty according to grade-span groupings.

When calculating the total number of children from low-income families, the LEA must include children from low-income families who reside in a participating area and attend private schools. If the same poverty data for public and private school children are not available, an LEA may use comparable poverty data for private school children. If complete actual poverty data are not available on private school children, an LEA may extrapolate, from actual data on a representative sample of private school children, the number of children from low-income families who attend private schools. An LEA may also correlate sources of data or apply the low-income percentage of each participating public school attendance area to the number of private school children who reside in that area. If an LEA selects a public school to participate on the basis of enrollment, rather than because it serves an eligible school attendance area, the LEA must determine an equitable way to count poor private school children in order to calculate the amount of Title I funds available to serve private school children. In making this determination an LEA must consult with private school officials.

If an LEA serves any attendance area with a poverty rate less than 35 percent, the LEA must allocate to all its participating school attendance areas or schools an amount per poor child that equals at least 125 percent of the LEA's part A allocation per poor child. If an LEA serves only areas with a poverty rate greater than 35 percent, it must allocate funds in rank order on the basis of the total number of poor children in each area or school but is not required to allocate a per-pupil amount of at least 125 percent.

Proposed Regulations: Proposed §§ 200.77 and 200.78 would clarify the within-district allocation procedures in section 1113 of the statute

If an LEA serves only areas with a poverty rate greater than 35 percent, it must allocate funds in rank order on the basis of the total number of poor children in each area or school but is not required to allocate a per-pupil amount of at least 125 percent.

Proposed Regulations: Proposed §§ 200.77 and 200.78 would clarify the within-district allocation procedures in section 1113 of the statute. Because the section 1113 requirements in the new law are largely the same as the old law, the proposed regulations change little from the old regulations.

Proposed § 200.77 would clarify what funds an LEA must reserve before allocating funds to school attendance areas and schools. An LEA must, for example, reserve funds needed to provide comparable services to children in local institutions for neglected children and for homeless children. An LEA is also required to reserve funds, as appropriate, to meet the (1) transportation and supplemental services requirements in § 200.48, unless the LEA meets those requirements with non-Title I funds, (2) the professional development requirements for LEAs identified for improvement under section 1116(c)(7)(A)(iii), (3) the professional development needs of teachers who are not highly qualified under section 1119(l), and (4) the parental support and involvement requirements in section 1118(a)(3)(A). An LEA may further reserve funds to meet the needs of children in local institutions for delinquent children and of neglected or delinquent children in community day school programs, to provide financial incentives and rewards (not to exceed 5 percent of the amount received by the LEA under Title I, part A) for teachers who serve schools identified for improvement, and to conduct other authorized activities such as school improvement and coordinated services.

Reasons: The proposed regulations are needed to clarify statutory provisions concerning how LEAs allocate Title I funds within school districts

tives and rewards (not to exceed 5 percent of the amount received by the LEA under Title I, part A) for teachers who serve schools identified for improvement, and to conduct other authorized activities such as school improvement and coordinated services.

Reasons: The proposed regulations are needed to clarify statutory provisions concerning how LEAs allocate Title I funds within school districts.

Fiscal Requirements

Section 200.79 Exclusion of Supplemental State and Local Funds From Supplement, Not Supplant and Comparability Determinations

Statute: Under section 1120A(d) of Title I, an LEA may exclude supplemental State and local funds from supplement, not supplant and comparability determinations if those supplemental funds meet the intent and purposes of Title I.

Current Regulations: Section 200.63 of the current regulations clarifies a similar provision in the old law by describing what criteria a State or local program

Proposed Regulations: Proposed § 200.79 would continue the provisions contained in § 200.63 of the current regulations by clarifying the criteria a State or local program must meet in order to be excluded from supplement, not supplant and comparability determinations. Section 200.79(b)(1)(i) reflects the change in the poverty threshold for schoolwide programs under section 1114.

Reasons: Proposed § 200.79 is needed to provide continued guidance to LEAs on what criteria a State or local program must fulfill in order to meet the intent and purposes of Title I.

Subpart C—Migrant Education Program

Subpart C of this part contains the program-specific regulations for the Migrant Education Program (MEP) authorized under Title I, part C of the statute. The proposed MEP regulations contained in §§ 200.81 through 200.88 are intended to clarify ambiguous or unclear provisions of the statute and replace §§ 200.40 through 200.45 of the current regulations

e I.

Subpart C—Migrant Education Program

Section 200.81 Program Definitions

Statute: Section 1309 of Title I provides a basic definition of a “migratory child.”

Current Regulations: The current regulations (contained in 34 CFR 200.40) provide definitions of several additional terms that are necessary to interpret the statutory definition of a “migratory child.”

Proposed Regulations: Proposed § 200.81 would make no changes to these additional program definitions included in the current regulations.

Reasons: The program definitions are included in these proposed regulations solely to provide, in one place, a complete set of the regulations published for subpart C.

Section 200.82 Use of Program Funds for Unique Program Function Costs

Statute: Section 1302 of Title I provides the authority for SEAs to operate the MEP either directly or though local operating agencies. This authority means that the MEP, unlike the Title I, part A program, is a State-operated, not simply a State-administered, program and, as such, may carry out particular operational functions that are unique to the program and beyond those usually carried out by SEAs under Title I, part A.

Current Regulations: The current regulations (contained in 34 CFR 200.41) clarify that SEAs may use MEP funds to carry out “other administrative activities,” beyond those normally paid for by the SEA using its general Title I administrative set-aside funds. These “other administrative activities” are those that are unique to the MEP, including activities that are the same as, or similar to, those carried out by an LEA under Title I, part A

s (contained in 34 CFR 200.41) clarify that SEAs may use MEP funds to carry out “other administrative activities,” beyond those normally paid for by the SEA using its general Title I administrative set-aside funds. These “other administrative activities” are those that are unique to the MEP, including activities that are the same as, or similar to, those carried out by an LEA under Title I, part A. The current regulations provide several examples of such unique program costs.

Proposed Regulations: Proposed § 200.82 would repeat the current regulations, except that proposed § 200.82(e) has been revised to clarify that MEP funds may be used for the administrative aspects of developing the statewide needs assessment and comprehensive State plan that are required in section 1306(a) of the statute and proposed § 200.83.

Reasons: The revision to § 200.82(e) is intended to emphasize that SEAs may use MEP funds to conduct the statewide needs assessment and develop the statewide service delivery plan required under section 1306(a) of the statute and proposed § 200.83.

Section 200.83 Responsibilities of SEAs To Implement Projects Through a Comprehensive Needs Assessment and a Comprehensive State Plan for Service Delivery

Statute: Under section 1306(a) of Title I, each SEA receiving MEP funds must identify and address the special educational needs of migrant children in accordance with a comprehensive needs assessment and service delivery plan.

Proposed Regulations: Proposed § 200.83 would clarify the responsibilities of an SEA receiving MEP funds regarding development of a comprehensive needs assessment and service delivery plan. The proposed regulations would clarify that SEAs must deliver and evaluate MEP-funded services to migratory children based on a written plan that reflects the results of a current statewide needs assessment and identified performance targets

§ 200.83 would clarify the responsibilities of an SEA receiving MEP funds regarding development of a comprehensive needs assessment and service delivery plan. The proposed regulations would clarify that SEAs must deliver and evaluate MEP-funded services to migratory children based on a written plan that reflects the results of a current statewide needs assessment and identified performance targets. The proposed regulations would further clarify that this plan must be developed in consultation with the parents of migratory children, and that this requirement is applicable to both SEAs and their local operating agency projects.

Reasons: The provisions in proposed § 200.83 would outline to grantees the minimum requirements the Secretary believes necessary for the development of a comprehensive needs assessment and plan for service delivery required by section 1306(a) of Title I.

Section 200.84 Responsibilities of SEAs for Evaluating the Effectiveness of the MEP

Statute: Section 1304(c)(5) of Title I requires SEAs to provide an assurance that the effectiveness of the State MEP be determined, where feasible, using the same approaches and standards that will be used to assess Title I, part A.

Current Regulations: The current regulations (contained in 34 CFR 200.42) define the responsibilities of SEAs and their local projects in regard to assessing the effectiveness of their operations using the content and performance standards and, where possible, the assessments that the State has established for all children. The current regulations also note that, where it is not feasible to use the assessments the State has established for all children, e.g., in short-term summer projects, the SEA and the local project still have a responsibility to use a reasonable process for assessing the effectiveness of the project

ce standards and, where possible, the assessments that the State has established for all children. The current regulations also note that, where it is not feasible to use the assessments the State has established for all children, e.g., in short-term summer projects, the SEA and the local project still have a responsibility to use a reasonable process for assessing the effectiveness of the project.

Proposed Regulations: Proposed § 200.84 renames and simplifies the language of the regulatory requirements to clarify that SEAs have a responsibility to evaluate the MEP in terms of the performance targets established for migratory children in proposed § 200.83.

Reasons: The provisions of proposed § 200.84 simplify the regulatory language and align it with the requirements of proposed § 200.83.

Section 200.85 Responsibilities of SEAs and Operating Agencies for Improving Services to Migratory Children

Statute: Section 1304(b)(1)(D) of the new statute requires that measurable goals and outcomes be used when planning and implementing State and local MEP projects to address the needs of migratory children.

Current Regulations: The current regulations (contained in 34 CFR 200.43) explain that, while the specific school improvement requirements of section 1116 of the statute do not apply to the MEP, SEAs and their local projects are required to use assessment results to improve the design of services provided to migratory children.

Proposed Regulations: In proposed § 200.85, a minor conforming change has been made to the language of the current regulations that would clarify that it is the results of the evaluations conducted under proposed § 200.84 that are to be used to improve the design of services to migratory children.

Reasons: The minor conforming change is necessary to establish the

Section 200.86 Use of MEP funds in Schoolwide Projects

Statute: The new statute sets a new and higher threshold for combining MEP funds with other funds in a schoolwide program

at it is the results of the evaluations conducted under proposed § 200.84 that are to be used to improve the design of services to migratory children.

Reasons: The minor conforming change is necessary to establish the

Section 200.86 Use of MEP funds in Schoolwide Projects

Statute: The new statute sets a new and higher threshold for combining MEP funds with other funds in a schoolwide program. Section 1306(b)(4) of Title I now requires that a schoolwide program that receives MEP funds must not only continue to “address” the identified needs of migratory children (as was required under the prior statute) but now must also “meet” these identified needs before it can combine the MEP funds with other funds in the schoolwide program. This new statutory requirement would be addressed in § 200.28 of the proposed subpart A regulations.

Current Regulations: The current regulations (contained in 34 CFR 200.44) note that a schoolwide program may combine MEP funds with other funds subject to meeting the requirements found in current § 200.8(c)(3)(ii)(B)( 1 ).

Proposed Regulations: In proposed § 200.86, a minor conforming change would be made to clarify that the requirements for combining MEP funds are now to be found in proposed § 200.28(c)(3)(i) of the proposed subpart A regulations.

Reasons: The minor conforming change is necessary to establish the correct reference to the requirements of proposed § 200.28(c)(3)(i).

Section 200.87 Responsibilities for Participation of Children in Private Schools

Statute: Section 1304(c)(2) of Title I eliminates the reference, in the prior statute, to the applicability of section 1120 (Participation of Children in Private Schools) of Title I to the MEP. Instead, section 9501(b) of the new statute makes the private school provisions of section 9501 of the statute applicable to the MEP

00.87 Responsibilities for Participation of Children in Private Schools

Current Regulations: The current regulations (contained in 34 CFR 200.45) note that the provisions of section 1120 regarding the participation of private school children are applicable to the MEP.

Proposed Regulations: In proposed § 200.87, a minor conforming change has been made that would clarify that the provisions regarding the participation of children in private schools contained in section 9501 of the new statute apply to the MEP.

Reasons: The minor conforming change is necessary to establish the correct reference to the requirements of section 9501 of the new statute.

Section 200.88 Exclusion of Supplemental State and Local Funds From Supplement, not Supplant and Comparability Determinations

Statute: Section 1120A(b) and (c) of the statute define the “comparability” and “supplement, not supplant” requirements that apply to Title I, part A. Subsection (d) of section 1120A provides an exception to the “comparability” and “supplement, not supplant” requirements for State and local funds that are expended for programs that meet the intent and purposes of Title I. The assurances in section 1304(c)(2) of Title I, in turn, adopt, by reference, the “comparability” and “supplement, not supplant” requirements in section 1120A.

and “supplement, not supplant” requirements in section 1120A.

Current Regulations: The current regulations (contained in 34 CFR 200.63) implement the exclusion from both the “comparability” and “supplement, not supplant” requirements in section 1120A(d), and, because of section 1304(c)(2), make that exclusion applicable, as a general regulatory provision, to the MEP as well as to Title I, part A. The exclusion is only for State and local funds spent for programs that meet the intent and purposes of Title I. That is, under current § 200.63(b), a State or local program is considered to meet the intent and purposes of Title I if it has basic aspects of the Title I, part A program— e.g., if implemented in any schoolwide program or school that: (1) serves only children failing or at risk of failing to achieve to high standards, (2) provides supplementary educational services to meet the special educational needs of participating children, and (3) uses the State's system of assessments.

Proposed Regulations: Proposed § 200.88 would clarify that, for purposes of the MEP, only “supplemental” State or local funds that are used for programs specifically designed to meet the unique needs of migratory children may be excluded in terms of determining compliance with the “comparability” and “supplement, not supplant” provisions of the statute.

Reasons: In the past few years, the Department has learned of situations in which, with State approval, one or more LEAs paid the costs of their summer programs with a mixture of State compensatory education program funds and MEP funds. While these programs served both migratory and non-migratory children, they paid for a portion of services available to migrant students out of their MEP funds, excluding them from the level of services provided with the State compensatory education program funds to non-migratory children

the costs of their summer programs with a mixture of State compensatory education program funds and MEP funds. While these programs served both migratory and non-migratory children, they paid for a portion of services available to migrant students out of their MEP funds, excluding them from the level of services provided with the State compensatory education program funds to non-migratory children. While this arrangement is consistent with the letter of current § 200.63 as written, the Department believes that it violates the intent of section 1304(c)(2) of the statute.

The broad purpose of the section 1120A statutory exclusion is to encourage States and LEAs to use their own funds to support supplemental programs without concern for “comparability” and “supplement, not supplant” considerations. The Department believes that the requirement in section 1304(c)(2), that the MEP be implemented “in a manner consistent with the objectives of” the section 1120A “comparability” and “supplement, not supplant” requirements, is best interpreted, for purposes of the MEP, to exclude only State and local funds used in programs that are specifically designed, like the MEP itself, to serve migratory children. Proposed § 200.88 would serve to establish this reasonable interpretation through regulations.

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

Statute: Title I, part D of the ESEA authorizes two programs that address the needs of neglected, delinquent, and at-risk children and youth. The basic provisions of this part of the new law are the same as the old law. Subpart l of part D establishes the State agency Neglected or Delinquent (N or D) program, which provides Federal financial assistance to State agencies that operate educational programs for children and youth in institutions or community day programs for N or D children and for youth in adult correctional facilities

th. The basic provisions of this part of the new law are the same as the old law. Subpart l of part D establishes the State agency Neglected or Delinquent (N or D) program, which provides Federal financial assistance to State agencies that operate educational programs for children and youth in institutions or community day programs for N or D children and for youth in adult correctional facilities. Subpart 2 of part D authorizes a program that provides assistance to LEAs to serve children and youths who are in locally operated correctional facilities (including institutions for delinquent children) or are at risk of dropping out of school. Funds for this program are generated by counts of children, which the Department collects annually for Title I, part A purposes, that live in locally operated institutions for delinquent children or are in locally operated correctional facilities. States award Subpart 2 funds to LEAs with high numbers or percentages of youth residing in correctional facilities or institutions for delinquent children to conduct programs that provide an array of services to meet the special needs of at-risk children and youth.

Current Regulations: The current regulations in 34 CFR 200.50 and 200.51 contain several specific program

Proposed Regulation: The proposed regulations would continue the regulations with no change in policy.

Reasons: The Department needs the proposed regulations in order to collect the annual data used for determining part D, Subpart 1 allocations, and to provide guidance and clarification about the children, who are eligible for services under part D, subpart 2.

ligible for services under part D, subpart 2.

The definitions in proposed § 200.90 would ensure that the data used by the Secretary to allocate funds are based on common definitions. For example, the definition of a regular program of instruction is included to ensure that the children counted are enrolled in actual educational programs that involve classroom instruction supported by State funds. The definitions of institutions for neglected or delinquent children and youth further require that the average length of stay in the institution be at least 30 days. This continues current policy and ensures 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.

Proposed § 200.92, which outlines the requirements for an SEA in providing the Department with enrollment data for use in determining State Agency N or D allocations, clarifies, for example, how States adjust their enrollment counts to account for the length of the school year as required by the statute.

Subpart E—General Provisions Section 200.100 Reservation of Funds for School Improvement, State Administration, and the State Academic Achievement Award Program; and § 200.103 Definitions

Statute: Section 1003 of Title I requires that an SEA reserve two percent of its funds received under Title I, part A for school improvement activities authorized in section 1116 and 1117 of the statute. The amount reserved rises to four percent beginning in 2004. Section 1004 authorizes an SEA to reserve up to the greater of one percent or $400,000 from funds it receives under Title I, part A, part C (Migrant Education program) and part D (State Agency Neglected or Delinquent program) for State administration. Section 1117(c)(2)(A) further authorizes the SEA to reserve up to five percent of the Title I, part A amount received in excess of the prior-year amount for the State academic awards program

up to the greater of one percent or $400,000 from funds it receives under Title I, part A, part C (Migrant Education program) and part D (State Agency Neglected or Delinquent program) for State administration. Section 1117(c)(2)(A) further authorizes the SEA to reserve up to five percent of the Title I, part A amount received in excess of the prior-year amount for the State academic awards program.

Current Regulations: The current regulations (contained in 34 CFR 200.60 through 200.65) outline procedures for how a State reserves funds for State administration and school improvement activities, provides guidance to an SEA on the use of funds reserved for State administration, and defines certain terms that apply to all programs covered by the regulations.

Proposed Regulations: Proposed § 200.100 would clarify new procedures an SEA must follow when reserving funds for school improvement, State administration, and the State academic achievement awards program. When reserving funds for these activities, the SEA must first reserve funds for school improvement activities authorized under sections 1116 and 1117 of the Title I statute. In reserving funds for school improvement, an SEA may not reduce the sum of the Title I, part A allocations each LEA would receive below the total amount the LEA received in the preceding year. After reserving funds for school improvement, an SEA may then reserve funds for State administration and the State academic achievement awards program. In reducing LEA allocations, the SEA has the flexibility of (1) ensuring that no LEA receives, in total, less than 85, 90, or 95 percent, as applicable, of the amount it received in the preceding year (depending on its percentage of formula children) or (2) reducing each LEA at the same rate even if that results in an LEA receiving less than its hold-harmless amount

mic achievement awards program. In reducing LEA allocations, the SEA has the flexibility of (1) ensuring that no LEA receives, in total, less than 85, 90, or 95 percent, as applicable, of the amount it received in the preceding year (depending on its percentage of formula children) or (2) reducing each LEA at the same rate even if that results in an LEA receiving less than its hold-harmless amount.

In addition, proposed §§ 200.100 and 200.103 would (1) address the use of funds reserved for State administration and (2) provide certain definitions that apply to all of the programs governed by the proposed regulations.

Reasons: The provisions in proposed § 200.100 work in combination with the requirements outlined in proposed §§ 200.70 through 200.75 for allocating Title I, part A funds to an LEA by establishing the procedures that an SEA follows when reserving funds for school improvement, State administration, and the State academic achievement awards program. The key issue in proposed § 200.100 is whether the Department should give an SEA the flexibility to reduce an LEA below its hold-harmless amount when reserving funds for State administration and the State academic awards program so that all LEAs would contribute proportionately to these activities.

In the past, an SEA has always followed Title I's hold-harmless provisions when reserving funds for State administration, provided there was enough money available to honor the hold-harmless requirement. However, in ensuring that no LEA receives less than its hold-harmless amount, any LEA that gained additional funds under the Title I formula had to give up all or part of its gain in order to bring any LEA falling below its hold-harmless amount up to that level. As a result, any LEA that gained funds under the formula contributed a disproportionately larger share of its Title I allocations to support these Statewide activities, while an LEA funded at its hold-harmless level contributed nothing

additional funds under the Title I formula had to give up all or part of its gain in order to bring any LEA falling below its hold-harmless amount up to that level. As a result, any LEA that gained funds under the formula contributed a disproportionately larger share of its Title I allocations to support these Statewide activities, while an LEA funded at its hold-harmless level contributed nothing.

In order to provide more equity in how each LEA contributes to the reserve for State administration and the State academic achievement award program, the language in proposed § 200.100(d) would give a State the option of proportionately reducing each LEA's total Title I allocation even if the outcome results in some LEAs receiving less than their hold-harmless amounts. If the SEA adopts this option, every LEA would contribute an equal proportion of its Title I allocation to these Statewide activities.

The language in proposed § 200.103 is the same as in the current regulations and would define certain terms that are used throughout the proposed regulations.

Executive Order 12866

1. Potential Costs and Benefits

The proposed costs have been reviewed in accordance with Executive Order 12866. Under the terms of the Order, the Department has assessed the costs and benefits of this regulatory action.

In assessing the potential costs and benefits—both quantitative and qualitative—of these proposed regulations, the Department has determined that the benefits of the proposed regulations justify the costs. The Department has also determined that this regulatory action does not unduly interfere with State, local, and tribal governments in the exercise of their governmental functions

atory action.

To assist the Department in complying with the requirements of Executive Order 12866, the Secretary invites comment 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 programs.

Summary of Benefits and Costs

As noted elsewhere, most of the regulations the Secretary proposes to

The programs authorized by Title I of the Elementary and Secondary Education Act, as reauthorized by the No Child Left Behind Act of 2001, have as their goal the education of all students, including students who are economically disadvantaged, limited English proficient, disabled, migrant, residing in institutions for neglected or delinquent youth and adults, or members of other groups typically considered “at risk,” so that they can achieve to challenging content and academic achievement standards. Thus, the benefits that will be obtained through the reauthorized Title I and its implementing regulations are those primarily of a more educated society. National data sets and studies by prominent researchers have demonstrated repeatedly that better education has major benefits, both economic and non-economic, not only for the individuals who receive it but for society as a whole. Nations that invest in quality education enjoy higher levels of growth and productivity, and a high-quality education system is an indispensable element of a strong economy and successful civil society

y prominent researchers have demonstrated repeatedly that better education has major benefits, both economic and non-economic, not only for the individuals who receive it but for society as a whole. Nations that invest in quality education enjoy higher levels of growth and productivity, and a high-quality education system is an indispensable element of a strong economy and successful civil society.

Data from the 1999 Current Population Survey, conducted by the Census Bureau, indicate that adults with a high school diploma (but no further education) had a median income of $23,061, compared to $17,015 for those with no diploma and $15,098 for those with less than 9 years of education. High school graduates are more likely to continue their education and receive the additional skills and knowledge necessary to compete for jobs in a high-technology, knowledge-driven economy. Scholars have also found strong, positive correlations between higher levels of schooling and higher lifetime earnings, higher savings rates, and reduced costs of job search.

Researchers have, in addition, found that more and better education correlates with other outcomes that, while not directly related to employment and earnings, have a major, positive benefit on society. More educated individuals lead healthier lives and have lower mortality rates. They are more likely to donate time and money to charity, and to vote in elections. Researchers have demonstrated the intergenerational impact of education, as the educational level of parents is a positive predictor of children's health, cognitive development, education, occupational status, and future earnings. In addition, education is negatively correlated with criminal activity and incarceration, and more educated mothers are less likely to have daughters who give birth out of wedlock as teens

monstrated the intergenerational impact of education, as the educational level of parents is a positive predictor of children's health, cognitive development, education, occupational status, and future earnings. In addition, education is negatively correlated with criminal activity and incarceration, and more educated mothers are less likely to have daughters who give birth out of wedlock as teens.

The reauthorized Title I programs, and the regulations that the Department is proposing for those programs, will also lead to improvements in the qualifications of teachers, both in programs supported by Title I and in schools generally. The Department believes that the new teacher qualifications provisions will also convey major benefits on students and on society generally. Research has found that the academic success of children is more dependent on teacher quality than on any other variable, with the exception of family background; it is, in other words, the most important school-related determinant of achievement.

The major costs to States and to LEAs imposed by the statute and the proposed regulations are the costs of administering the Title I programs: at the State level, distributing funds to LEAs, monitoring LEA activities, providing technical assistance, and carrying out other activities specified in the statute, and, at the local level, administering programs in schools and classrooms, providing professional development to teachers and other staff, and ensuring program accountability, among other things. The Department believes that these activities will be financed through the appropriations for Title I and other Federal programs and that the responsibilities encompassed in the law and regulations will not impose a financial burden that States and LEAs will have to meet from non-Federal resources

nal development to teachers and other staff, and ensuring program accountability, among other things. The Department believes that these activities will be financed through the appropriations for Title I and other Federal programs and that the responsibilities encompassed in the law and regulations will not impose a financial burden that States and LEAs will have to meet from non-Federal resources. For purposes of the Unfunded Mandates Reform Act of 1995, this rule does not include a Federal mandate that might result in increased expenditures by State, local, and tribal governments, or increased expenditures by the private sector of more than $100 million in any one year.

2. Clarity of the Regulations

Executive Order 12866 and the Presidential Memorandum on “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.

The Secretary invites comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:

• Are the requirements in the proposed regulations clearly stated?

• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?

• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections? (A “section” is preceded by the symbol “§ ” and a numbered heading; for example, § 200.12 Single State accountability system

h their clarity?

• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?

• Could the description of the proposed regulations in the “Supplementary Information” section of this preamble be more helpful in making the proposed regulations easy to understand? If so, how?

• What else could we do to make the proposed regulations easier to understand?

Send any comments that concern how the Department could make these proposed regulations easier to understand to the person listed in the ADDRESSES section of the preamble.

Initial Regulatory Flexibility Analysis

This Initial Regulatory Flexibility Analysis (IRFA) has been prepared in accordance with the Regulatory Flexibility Act. It involves proposed rules under Title I of the Elementary and Secondary Education Act, as amended by the NCLB Act. Its provisions require LEAs, without regard to size, to take certain actions to improve student academic achievement.

1. Reasons for, and Objectives of, Proposed Rules

The purpose of the proposed rules is to implement recent changes to Title I of the ESEA made by the NCLB Act.

2. Legal Basis

We are proposing the rules under the authority in section 1901(a) of Title I.

3. Small Entities Subject to the Proposed Rules

The small entities that would be affected by these proposed regulations are small LEAs receiving Federal funds under Title I programs.

4. Reporting, Recordkeeping and Other Compliance Requirements

Among other requirements, LEAs must: (1) Publicize and disseminate the results of its annual progress review, (2)

5. Duplicative, Overlapping or Conflicting Federal Rules

We believe that there are no rules that duplicate, overlap or conflict with the proposed rules.

small LEAs receiving Federal funds under Title I programs.

4. Reporting, Recordkeeping and Other Compliance Requirements

Among other requirements, LEAs must: (1) Publicize and disseminate the results of its annual progress review, (2)

5. Duplicative, Overlapping or Conflicting Federal Rules

We believe that there are no rules that duplicate, overlap or conflict with the proposed rules.

6. Agency Action to Minimize Effect on Small Entities

The Regulatory Flexibility Act directs us to consider significant alternatives that would accomplish the stated objectives, while minimizing any significant adverse impact on small entities. We believe there are no regulatory alternatives as the portions of these regulations that would affect small entities restate statutory requirements. Moreover, activities required under these proposed regulations would be financed through the appropriations for Title I programs, and the responsibilities encompassed in the law and regulations would not impose a financial burden that small entities would have to meet from non-Federal resources.

7. Request for Comments

Little data are available that would permit a separate analysis of how the proposed changes affect small entities in particular. Therefore, the Secretary specifically invites comments on the differential effects of the proposed regulations on small entities, and whether there may be further opportunities to reduce any potential adverse impact or increase potential benefits resulting from these proposed regulations without impeding the effective and efficient administration of Title I programs. Commenters are requested to describe the nature of any effect and provide empirical data and other factual support for their views to the extent possible. These comments will be considered in the preparation of the final regulations and the accompanying Final Regulatory Flexibility Analysis, and will be placed in the public comment file

e effective and efficient administration of Title I programs. Commenters are requested to describe the nature of any effect and provide empirical data and other factual support for their views to the extent possible. These comments will be considered in the preparation of the final regulations and the accompanying Final Regulatory Flexibility Analysis, and will be placed in the public comment file.

Federalism

Executive Order 13132 requires us to ensure meaningful and timely input by State and local elected officials in the development of regulatory policies that have federalism implications.

“Federalism implications” means substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Although we do not believe these proposed requirements would have federalism implications as defined in Executive Order 13132, we encourage State and local elected officials to review them and to provide comments.

Paperwork Reduction Act of 1995

Title I, part A of the Elementary and Secondary Education, as amended by the No Child Left Behind Act, contains several provisions that require State educational agencies (SEAs), Local educational agencies (LEAs), or schools to collect or disseminate information. They are: Sections 200.26, 200.27, 200.28, 200.30, 200.31, 200.34, 200.36, 200.36, 200.37, 200.38, 200.39, 200.41, 200.42, 200.43, 200.45, 200.46, 200.47, 200.49, 200.50, 200.51, 200.52, 200.57, and 200.62. Sections 200.12, 200.13, and 200.33 are covered under OMB control number 1810-0576. Section 200.53 is covered under OMB control number 1810-0516. Sections 200.70 through 200.75 are covered under OMB control numbers 1810-0620 and 1810-0622. Section 200.91 is covered under OMB control number 1810-0060

200.41, 200.42, 200.43, 200.45, 200.46, 200.47, 200.49, 200.50, 200.51, 200.52, 200.57, and 200.62. Sections 200.12, 200.13, and 200.33 are covered under OMB control number 1810-0576. Section 200.53 is covered under OMB control number 1810-0516. Sections 200.70 through 200.75 are covered under OMB control numbers 1810-0620 and 1810-0622. Section 200.91 is covered under OMB control number 1810-0060.

SEAs must: (1) Provide annual notice to potential supplemental service providers of the opportunity to provide such services, and (2) maintain an updated list of approved providers from which parents may select, and (3) publicly report on standards and techniques for monitoring the quality and effectiveness of the services offered by each approved provider and for withdrawing approval from a provider that fails, for two consecutive years, to contribute to increasing the academic proficiency of students receiving supplemental services. As part of their responsibility to annually review the progress of each LEA to determine whether schools are making adequate yearly progress, SEAs must: (1) Provide, before the beginning of the next school year, the results of academic assessments administered as part of the State assessment system in a given school year to LEAs, (2) publicize and disseminate the results of the State review, (3) notify parents when LEAs are identified for improvement or corrective action, including providing information on the corrective action, and (4) notify the Secretary of Education of major factors that have significantly affected student academic achievement in schools identified for improvement. Additionally, under Title I, part D, States must submit 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 children and youth and adult correctional institutions

at have significantly affected student academic achievement in schools identified for improvement. Additionally, under Title I, part D, States must submit 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 children and youth and adult correctional institutions.

As part of their responsibility to annually review the progress of schools to determine whether they are making adequate yearly progress, each LEA must (1) publicize and disseminate the results of its annual progress review, (2) notify parents and teachers of any school identified for improvement or subject to corrective action or restructuring, (3) publicize and disseminate information regarding any action taken by the school and LEA to address the problems that lead to the identification, and (4) for schools subject to restructuring, prepare a plan to carry out alternative governance arrangements. LEAs also must maintain in their records, and provide to the SEA, written affirmation signed by officials of each private school with participating children, or appropriate private school representatives, that the required consultation has occurred.

At the school level, an eligible school choosing to operate a schoolwide program must develop a comprehensive schoolwide plan and maintain records demonstrating that it addresses the intents and purpose of each Federal program included.

that it addresses the intents and purpose of each Federal program included.

The total estimated burden hours for SEA activities covered by the paperwork requirements is 55,952 across 52 SEAs. The total estimated burden hours for LEA activities covered by the paperwork requirements is 959,480 hours across 13,335 LEAs. The total estimated burden hours for school-level activities is 1,410,976 hours. Almost all the burden hours at the LEA and school level result from statutory requirements that require: (1) LEAs to prepare restructuring plans for schools that do not make adequate yearly progress after one full year in corrective action, and (2) schools seeking to operate schoolwide programs to develop schoolwide program plans. The actual impact on an individual LEA or school will vary depending on whether the LEA or school is subject to these specific requirements.

§ 200.83 outlines an SEA's responsibility to implement its State Title I, part C (Migrant Education) program through a comprehensive needs assessment and a comprehensive State plan for service delivery. § 200.84 outlines an SEA's responsibility for evaluating the effectiveness of its Title I, part C (Migrant Education) program. The yearly estimated public reporting burden for the collection of information to implement these two proposed regulatory requirements is 19,405 hours.

The Office of Management and Budget is currently reviewing the information collections pertaining to this regulation. We invite comments on the paperwork sections of this proposed regulation by September 5, 2002. If you want to comment on the information collection requirements, please send your comments to Jacquelyn C. Jackson at the address listed under ADDRESSES.

Electronic Access to This Document

You may view this document, as well as all other Department of Education documents published in the Federal Register , in text or Adobe Portable Document Format (PDF) on the Internet at the following site: www.ed.gov/legislation/FedRegister

mation collection requirements, please send your comments to Jacquelyn C. Jackson at the address listed under ADDRESSES.

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