[Federal Register Volume 85, Number 235 (Monday, December 7, 2020)]
[Rules and Regulations]
[Pages 78787-78792]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26033]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 1304
RIN 0970-AC85
Flexibility for Head Start Designation Renewals in Certain
Emergencies
AGENCY: Office of Head Start (OHS), Administration for Children and
Families (ACF), Department of Health and Human Services (HHS).
ACTION: Interim final rule.
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SUMMARY: This interim final rule adds a new provision to the Head Start
Program Performance Standards (HSPPS) to establish parameters by which
ACF may make designation renewal determinations during a federally
declared major disaster, emergency, or public health emergency (PHE)
and in the absence of all normally required data.
DATES: This interim final rule is effective on December 7, 2020.
Comment date: To be assured consideration, comments on this final
rule must be received on or before February 5, 2021.
ADDRESSES: You may submit comments, identified by [docket number and/or
RIN number], by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Office of Head Start, Attention: Director of Policy
and Planning, 330 C Street SW, 4th Floor, Washington, DC 20201.
Instructions: All submissions received must include the agency name
and docket number or RIN for this rulemaking. All comments received
will be posted without change to http://www.regulations.gov, including
any personal information provided.
FOR FURTHER INFORMATION CONTACT: Colleen Rathgeb, Office of Head Start,
at HeadStart@eclkc.info or 1-866-763-6481. Deaf and hearing impaired
individuals may call the Federal Dual Party Relay Service at 1-800-877-
8339 between 8 a.m. and 7 p.m. Eastern Standard Time.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Statutory Authority
II. Executive Summary
A. Purpose of the Interim Final Rule
B. Interim Final Rule Justification
III. Background
IV. Provisions of the Interim Final Rule
V. Regulatory Process Matters
Regulatory Flexibility Act
Unfunded Mandates Reform Act
Treasury and General Government Appropriations Act of 1999
Federalism Assessment Executive Order 13132
Congressional Review
Paperwork Reduction Act of 1995
Regulatory Planning and Review Executive Order 12866, Executive
Order 13563, and Executive Order 13771
VI. Regulatory Impact Analysis
Tribal Consultation Statement
I. Statutory Authority
ACF publishes this interim final rule under the authority granted
to the Secretary of Health and Human Services (the Secretary) by
sections 641(a), 641(c), and 644(c), of the Head Start Act, as amended
by the Improving Head Start for School Readiness Act of 2007 (Pub. L.
110-134).
II. Executive Summary
Purpose of the Interim Final Rule
The Improving Head Start for School Readiness Act of 2007 (the 2007
Reauthorization) of the Head Start Act (the Act) required ACF to
establish a system for determining whether Head Start (including Early
Head Start) grantees are delivering high-quality and comprehensive
services to the children and families they serve. In 2011, ACF issued a
regulation (76 FR 70009) to establish the Designation Renewal System
(DRS) to meet this requirement. Under the DRS, all Head Start grants
were transitioned from indefinite to 5-year grant periods, and any
grant that meets one or more of seven specified conditions during the
5-year project period is subject to an open competition for continued
funding. Any Head Start grant that does not meet one of the seven DRS
conditions becomes eligible for a new noncompetitive 5-year grant. The
Act lays out the types of data that must be considered as part of these
DRS determinations. Three of the seven conditions of the DRS were
revised through a final rule published on August 28, 2020. Due to the
ongoing 2019 Novel Coronavirus (COVID-19) pandemic, the ability of ACF
to collect all data on grants required for making determinations under
the DRS has been severely impaired. This issue is described further in
the following paragraph. Furthermore, there may be major disasters,
emergencies, or PHEs in the future that similarly impact ACF's ability
to collect all information required for making DRS determinations.
Therefore, this interim final rule adds a new section to the HSPPS
regulation under Part 1304 Subpart B, Designation Renewal. This new
section, Sec. 1304.17, establishes parameters by which ACF may make a
designation renewal determination when certain federally declared
emergencies prevent collection of all normally required data. As with
COVID-19, a major disaster or emergency declared by the President under
section 401 or 501 of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C.
[[Page 78788]]
5170 and 5191) or another PHE declared by the Secretary of Health and
Human Services (HHS) under section 319 of the Public Health Service Act
(42 U.S.C. 247d) may necessitate extended, unanticipated program
closures or temporary shifts to different program models or service
delivery mechanisms, which can make certain monitoring or data
collection activities unsafe, impossible, and/or invalid. In these
situations, ACF may lack certain required data to make designation
renewal determinations. In cases where a grantee's 5-year grant is
ending and all required data are not available due to the impacts of a
federally declared disaster or emergency, Sec. 1304.17 allows ACF to
still determine if an open competition is required, or if the grant may
be renewed noncompetitively based on the conditions for which ACF has
data. Without Sec. 1304.17, ACF would not be able to make DRS
determinations, which could result in the loss of critical Head Start
services in impacted communities.
Interim Final Rule Justification
On January 31, 2020, Health and Human Services Secretary Alex M.
Azar II (the Secretary) determined that a PHE exists retroactive to
January 27, 2020,\1\ under section 319 of the Public Health Service Act
(42 U.S.C. 247d), in response to COVID-19, and on April 21, 2020, the
Secretary renewed, effective April 26, 2020, the determination that a
PHE exists.\2\ On July 23, 2020, the Secretary again renewed this
determination that a PHE exists, effective July 25, 2020.\3\ The
Secretary renewed this determination on October 2, 2020, effective
October 23, 2020. On March 13, 2020, the President declared that the
COVID-19 pandemic in the United States constitutes a national
emergency,\4\ beginning March 1, 2020.
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\1\ https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx.
\2\ https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-21apr2020.aspx.
\3\ https://www.phe.gov/emergency/news/healthactions/phe/Pages/covid19-23June2020.aspx.
\4\ https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novel-coronavirus-disease-covid-19-outbreak/.
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The current PHE requires urgent action on the part of ACF to
establish a process by which ACF will meet the requirements of the Act
to make designation renewal determinations while ensuring the safety of
Head Start program staff, children, and families. As a cohort of Head
Start grants approach the end of their 5-year grant periods during the
on-going COVID-19 pandemic, ACF must make a determination under the DRS
for these grantees to either receive a new 5-year grant non-
competitively or to require an open competition. Extended program
closures due to the PHE have made, and continue to make, it impossible
for ACF to collect certain data elements relevant to the seven DRS
conditions and required as part of designation renewal determinations.
In the absence of a DRS determination, these communities could be left
without any Head Start services during a particularly challenging time
for the children and families Head Start programs serve. To ensure
children and families do not lose access to Head Start services during
a federally declared disaster or emergency, now and in the future, this
interim final rule is needed to quickly establish the process by which
DRS determinations will be made under these circumstances.
Ensuring the health and safety of Head Start staff, children, and
families is of utmost importance. This IFR directly supports that goal,
while establishing a process for ACF to meet the requirements of the
Act to make designation renewal determinations during the COVID-19
pandemic and certain other federally declared disasters or emergencies.
It is critically important that ACF implements this IFR as quickly as
possible. Due to the ongoing PHE, ACF finds good cause to waive notice
and comment rulemaking as ACF believes it would be impracticable and
contrary to the public interest for it to undertake normal notice and
comment rulemaking procedures, as that would delay giving ACF the
flexibility to make DRS determinations with the data available and to
ensure the continuity of critical Head Start services in impacted
communities. For the same reasons, because ACF cannot afford any delay
in effectuating this IFR, ACF finds good cause to waive the 30-day
delay in the effective date and, moreover, to make this IFR applicable
as of publication.
III. Background
Since its inception in 1965, Head Start has been a leader in
helping children from low-income families reach kindergarten more
prepared to succeed in school. Through the 2007 Reauthorization,
Congress required HHS to ensure these children receive the highest
quality services possible. In support of that requirement, the 2007
Reauthorization directed the Secretary to establish the Designation
Renewal System (DRS) to (1) identify Head Start grantees delivering a
high-quality and comprehensive Head Start program that could receive
funding noncompetitively for a 5-year period and grantees not
delivering a high-quality and comprehensive Head Start program that
will be required to compete for continued funding, and (2) transition
all grants from indefinite grants to 5-year grant periods. Congress
required that decisions about which grantees would have to compete be
based on budget and fiscal management data (including annual audits),
program monitoring reviews, classroom quality--and in particular
teacher-child interactions--as measured by a valid and reliable
research-based observational instrument, and other program information.
In 2011, HHS published a final rule to establish the DRS that
included seven conditions. Grants that met one or more of the seven
conditions would have their funding subject to an open competition for
the next 5-year grant period. Grantees that did not meet a condition
became eligible to receive a new noncompetitive 5-year grant. Following
the transition of all grants from indefinite to 5-year project periods
and considering available data and research, a 2020 final rule \5\
revised the DRS and made changes to three of the seven DRS conditions.
Effective November 9, 2020, Head Start grants that meet one or more of
the following seven conditions under the DRS are subject to an open
competition: (1) Two or more deficiencies under section 641A(c)(1)(A),
(C), or (D) of the Act; (2) failure to establish, use, and analyze
children's progress on agency-established school readiness goals; (3)
scores below competitive thresholds in any of the three domains of the
Classroom Assessment Scoring System: Pre-K (CLASS); (4) revocation of a
license to operate a center or program; (5) suspension from the
program; (6) debarment from receiving federal or state funds or
disqualification from the Child and Adult Care Food Program (CACFP);
and/or (7) either an audit finding of being at risk for failing to
continue as a ``going concern,'' or two or more audit findings of
material weakness or questioned costs associated with its Head Start
funds in audit reports submitted to the Federal Audit Clearinghouse (in
accordance with section 647 of the Act) for a financial period within
the current project period.
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\5\ https://www.federalregister.gov/documents/2020/08/28/2020-17746/head-start-designation-renewal-system.
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The notice and comment process for the 2020 final rule predated the
COVID-19 pandemic. In the 2019 notice of proposed rulemaking on the
DRS, HHS did not propose any flexibilities within the DRS to make
designation renewal determinations in the absence of certain
[[Page 78789]]
data related to the seven conditions due to a federally declared major
disaster, emergency, or PHE. Therefore, these flexibilities could not
be included in the DRS final rule that was published on August 28,
2020.
IV. Provisions of the Interim Final Rule
All Head Start grants now operate on a 5-year project period. As a
cohort of Head Start grants conclude their 5-year grant period, ACF
must make a determination whether grants may be renewed
noncompetitively or if they will be subject to an open competition. The
Act requires ACF to consider a number of factors in making a
designation renewal determination. As described previously, a federally
declared major disaster or emergency or PHE can make it unsafe or
impossible to collect some of these required data on grants. In
particular with the COVID-19 pandemic, ACF has been, and continues to
be, unable to collect data from a valid, reliable, research-based,
observational measure of classroom quality as required by the Act. The
reasons for this are further elaborated in the following paragraph. It
is possible that future disasters or emergencies could also preclude
ACF from collecting other required data elements necessary for DRS
determinations.
ACF meets the requirement in the Act to use a valid, reliable,
research-based, observational measure of classroom quality as part of
DRS determinations through the administration of the Classroom
Assessment Scoring System: Pre-K (CLASS). The CLASS measures the
quality of teacher-child interactions on a seven-point scale in three
areas or domains: Emotional Support, Classroom Organization, and
Instructional Support. As part of the established ACF monitoring
process for Head Start grantees, trained reviewers administer the CLASS
on-site in a sample of Head Start classrooms for each grant. The scores
for each classroom within a grant are then averaged to create grant-
level scores. If a grant receives an average CLASS score below the
following competitive thresholds for any of the three CLASS domains,
the grant is designated for competition under the DRS: A 5 for
Emotional Support, 5 for Classroom Organization, and 2.3 for
Instructional Support.\6\ Each year, ACF schedules a subset of Head
Start grantees for CLASS reviews, depending on where in the 5-year
project period each grant is. The completion of these CLASS reviews
within a certain window of time is critical to ensure ACF can complete
the necessary subsequent steps for each grant, to determine and notify
the grantee of their status as either competitive or non-competitive
under the DRS with sufficient time prior to the end of their current 5-
year project period to run the necessary competitive processes.
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\6\ As promulgated in the DRS final rule published on August 28,
2020, the competitive threshold for the Instructional Support domain
is 2.3 for CLASS reviews conducted up through July 31, 2025, and
then this threshold increases to 2.5 for CLASS reviews conducted on
or after August 1, 2025.
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In March 2020, ACF made the decision to temporarily suspend the
administration of CLASS reviews in Head Start classrooms due to the
COVID-19 PHE. At that time, ACF was concerned about jeopardizing the
health and safety of Head Start children and staff by sending outside
observers into Head Start classrooms to conduct CLASS reviews. Many
Head Start classrooms across the country closed due to increased health
and safety concerns amid the spread of COVID-19. Due to the evolving
nature of the COVID-19 pandemic, ACF has been uncertain about the
ability to resume CLASS reviews during the 2020-2021 program year.
Therefore, in an information memorandum directed to Head Start and
Early Head Start grantees published on September 24, 2020, ACF
announced the decision to suspend all CLASS reviews for the 2020-2021
program year.\7\
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\7\ https://eclkc.ohs.acf.hhs.gov/policy/im/acf-im-hs-20-05.
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There are multiple factors that informed this decision. First, as
the impacts of the COVID-19 pandemic are very different in different
parts of the country, Head Start programs must make locally determined
decisions regarding whether they can safely operate in-person services
for children and families. Programs that do not operate in-person
services for a period of time are, instead, providing some type of
remote or virtual services for enrolled children and families. The
CLASS tool was not originally designed to conduct observations of
virtual interactions between teachers and children, and the research on
such use of the tool is very limited. Therefore, if a program is closed
for in-person services for an extended period due to the pandemic, and
even if the program is providing virtual services, ACF cannot conduct
CLASS reviews of virtual teaching for monitoring and oversight purposes
with those programs.
Second, as previously alluded, for Head Start programs that are
providing in-person services to children and families during part or
all of the 2020-2021 program year, ACF is not able to send additional
outside individuals into classrooms to conduct CLASS observations
without increasing the risk of exposing Head Start children and staff
to the virus. This is consistent with best practice guidance from the
Centers for Disease Control and Prevention on safely providing child
care in group settings during the COVID-19 pandemic.\8\
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\8\ https://www.cdc.gov/coronavirus/2019-ncov/community/schools-childcare/guidance-for-childcare.html#open.
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Finally, ACF expects that Head Start services may look very
different during the 2020-2021 program year due to the COVID-19
pandemic and the PHE. Therefore, ACF strongly believes the CLASS
instrument would not capture an accurate picture of teacher-child
interactions during this program year. For instance, due to the fact
that some programs will likely be operating virtual services for part
or all of their enrollment, and this might change throughout the
program year, there is a lot of uncertainty for ACF around the
availability of a sufficient sample size for CLASS observations for any
given grantee.
In addition, ACF expects that in-person classroom interactions and
activities may not be `typical' during the 2020-2021 program year, as
the result of modifications made for the safety of children, families,
and staff. For example, classrooms will likely have smaller group sizes
and more individual time for children to allow for physical distancing
(as opposed to small and large group time, which are usually common in
early childhood classrooms). Staff and children will likely be wearing
masks, and a key part of accurate CLASS observations depends on the
observer being able to observe the reactions of the children to their
teacher during an observation period.
Furthermore, ACF expects child attendance will be lower than normal
during the 2020-2021 program year, whether out of parental fear of
sending their children back to in-person Head Start settings due to
possible exposure to the virus, or out of proactive measures taken by
the program to reduce classroom group sizes. For these reasons, ACF
believes the scores a grantee would receive on a CLASS review during
this unusual time would be systematically different from, and not
representative of, program learning environments that are more
typically observed throughout the 5-year grant period.
While ACF strongly believes it is still important to promote high-
quality learning environments for all children
[[Page 78790]]
served in Head Start, the health and safety of children and staff
during this PHE, as well as the appropriate use of the CLASS tool, are
also paramount considerations for ACF. Therefore, ACF has made the
determination that a valid and reliable observational instrument that
assesses classroom quality as required by the Act does not exist during
the current PHE, so ACF cannot fulfill this requirement during this
time. The implementation of this IFR provides ACF the flexibility to
proceed with DRS determinations in the absence of CLASS data that is
the result of the ongoing PHE. This IFR also provides this flexibility
for a federally declared major disaster, emergency, or PHE in the
future, which could also impact the administration of CLASS or the
collection of other data elements necessary for making DRS
determinations. The flexibility will allow ACF to ensure the continuity
of critical Head Start services for the nation's most vulnerable
children and families. As stated previously, ensuring high quality
classroom learning environments for enrolled children is still an
important priority for ACF. ACF offers a wealth of training and
technical assistance (TTA) resources to promote quality improvement in
classroom learning environments and teacher-child interactions,
including materials on the Early Childhood Learning Knowledge Center
website, interactive webinars and learning modules, and online
opportunities for grantees to share and learn about best practices with
other grantees. ACF also funds a regional TTA system, which includes
individualized support from regional specialists for grantees on an as-
needed basis and at the discretion of each ACF region.
In summary, the provision established in Sec. 1304.17 allows ACF
to make designation renewal decisions with the data available when the
determination must be made in order to ensure the continuity of Head
Start services, even if certain federally declared emergencies or
disasters preclude ACF from collecting all of the data required in the
Head Start Act. This flexibility ensures the safety of Head Start
staff, children, and families and the continuity of Head Start
services.
V. Regulatory Process Matters
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), see 5 U.S.C. 605(b) as
amended by the Small Business Regulatory Enforcement Fairness Act,
requires federal agencies to determine, to the extent feasible, a
rule's impact on small entities, explore regulatory options for
reducing any significant impact on a substantial number of such
entities, and explain their regulatory approach. The term ``small
entities,'' as defined in the RFA, comprises small businesses, not-for-
profit organizations that are independently owned and operated and are
not dominant in their fields, and governmental jurisdictions with
populations of less than 50,000. Under this definition, some Head Start
grantees may be small entities. HHS considers a rule to have a
significant impact on a substantial number of small entities if it has
at least a 3 percent impact on revenue on at least 5 percent of small
entities. However, the Secretary certifies, under 5 U.S.C. 605(b), as
enacted by the RFA (Pub. L. 96-354), that this rule will not have a
significant impact on a substantial number of small entities. During a
major disaster or emergency or PHE--such as COVID-19--in which ACF is
not able to collect all data elements required for DRS determinations
and must exercise the flexibility set forth in Sec. 1304.17 of the
HSPPS, ACF expects there to be fewer grantees in competition for the
relevant competition cycles. Therefore, ACF does not expect there to be
a significant impact on a substantial number of small entities.
However, ACF invites comments on this IFR if any member of the public
believes their business, organization, or governmental jurisdiction
qualifies as a small entity and that the actions set forth in this IFR
would have a significant economic impact on that small entity.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act of 1995 (UMRA), see 2 U.S.C. 1501
et seq., was enacted to avoid imposing unfunded federal mandates on
state, local, and tribal governments, or on the private sector. Section
202 of UMRA requires that agencies assess anticipated costs and
benefits before issuing any rule whose mandates require spending in any
one year of $100 million in 1995 dollars, updated annually for
inflation. In 2020, that threshold is approximately $156 million. This
rule does not contain mandates that will impose spending costs on
state, local, or tribal governments in the aggregate, or on the private
sector, in excess of the threshold.
Treasury and General Government Appropriations Act of 1999
Section 654 of the Treasury and General Government Appropriations
Act of 1999 requires federal agencies to determine whether a policy or
regulation may negatively affect family well-being. If the agency
determines a policy or regulation negatively affects family well-being,
then the agency must prepare an impact assessment addressing seven
criteria specified in the law. ACF believes it is not necessary to
prepare a family policymaking assessment, see Public Law 105-277,
because the action it takes in this interim final rule will not have
any impact on the autonomy or integrity of the family as an
institution. However, ACF invites public comment on whether the actions
set forth in this interim final rule would have a negative effect on
family well-being.
Federalism Assessment Executive Order 13132
Executive Order 13132 requires federal agencies to consult with
state and local government officials if they develop regulatory
policies with federalism implications. Federalism is rooted in the
belief that issues that are not national in scope or significance are
most appropriately addressed by the level of government close to the
people. This rule will not have substantial direct impact on the
states, on the relationship between the federal government and the
states, or on the distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with section 6
of Executive Order 13132, it is determined that this action does not
have sufficient federalism implications to warrant the preparation of a
federalism summary impact statement.
Congressional Review
The Congressional Review Act (CRA) allows Congress to review
``major'' rules issued by federal agencies before the rules take
effect, see 5 U.S.C. 802(a). The CRA defines a major rule as one that
has resulted, or is likely to result, in (1) an annual effect on the
economy of $100 million or more; (2) a major increase in costs or
prices for consumers, individual industries, federal, state, or local
government agencies, or geographic regions; or (3) significant adverse
effects on competition, employment, investment, productivity, or
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets,
see 5 U.S.C. Chapter 8. This action is not a major rule because it will
not have such effect.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995, Public Law 104-13, seeks to
minimize government-imposed burden
[[Page 78791]]
from information collections on the public. In keeping with the notion
that government information is a valuable asset, it also is intended to
improve the practical utility, quality, and clarity of information
collected, maintained, and disclosed.
The Paperwork Reduction Act defines ``information'' as any
statement or estimate of fact or opinion, regardless of form or format,
whether numerical, graphic, or narrative form, and whether oral or
maintained on paper, electronic, or other media (5 CFR 1320.3(h)). This
includes requests for information to be sent to the government, such as
forms, written reports and surveys, recordkeeping requirements, and
third-party or public disclosures (5 CFR 1320.3(c)). This action does
not include any new information collection requirements or changes to
existing information collection requirements.
Regulatory Planning and Review Executive Order 12866, Executive Order
13563, and Executive Order 13771
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 is supplemental to, and reaffirms the principles,
structures, and definitions governing regulatory review as established
in, Executive Order 12866, emphasizing the importance of quantifying
both costs and benefits, of reducing costs, of harmonizing rules, and
of promoting flexibility. Section 3(f) of Executive Order 12866 defines
a ``significant regulatory action'' as an action that is likely to
result in a rule (1) having an annual effect on the economy of $100
million or more in any 1 year, or adversely and materially affecting a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal
governments or communities (also referred to as ``economically
significant''); (2) creating a serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially altering the budgetary impacts of entitlement grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raising novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set forth
in the Executive Order. A regulatory impact analysis must be prepared
for major rules with economically significant effects ($100 million or
more in any 1 year), and an ``economically significant'' regulatory
action is subject to review by the Office of Management and Budget. ACF
does not expect this to be a significant rule.
Executive Order 13771, entitled ``Reducing Regulation and
Controlling Regulatory Costs,'' was issued on January 30, 2017 (82 FR
9339, February 3, 2017) and requires that the costs associated with
significant new regulations ``shall, to the extent permitted by law, be
offset by the elimination of existing costs associated with at least
two prior regulations.'' This rulemaking is not expected to be subject
to the requirements of Executive Order 13771 because it would result in
no more than de minimis costs.
VI. Regulatory Impact Analysis
Need for Regulatory Action
This regulatory action is necessary to provide ACF the flexibility
to make determinations under the Head Start DRS, even in the absence of
all required data, if this lack of data is due to a major disaster or
emergency or PHE. The on-going PHE due to COVD-19 has prevented ACF
from conducting on-site observations of grantees with the CLASS tool
(an observational measure of the quality teacher-child interactions in
the classroom), which is required by regulation. Data from these
observations provide one piece of information for determining whether a
Head Start grant can be renewed non-competitively or must compete with
other potential applicants for continued funding. Several grants (60)
whose five year project periods are ending in FY 2022 would typically
have their CLASS reviews completed by ACF as part of the federal
monitoring process sometime during FY 2020 or FY 2021. However, due to
the PHE, ACF has not conducted CLASS reviews since March 2020 and has
decided not to conduct any future CLASS reviews until at least the fall
of 2021. So these 60 grants whose five year project periods are nearing
completion do not yet have CLASS data as part of federal monitoring.
Without this regulatory action, CLASS reviews for these 60 grants would
have to be conducted in the fall of 2021, and several other decisions
must be made by ACF after the CLASS reviews are completed, but before
funding can be renewed either competitive or non-competitively.
Therefore, having to conduct CLASS reviews for these grants so late in
their project periods creates a strong risk of the project periods
expiring before ACF can complete the grant renewal process for these 60
grants. This puts the Head Start services for enrolled children and
families at great risk in the impacted service areas.
Cost Savings Analysis
There are approximately 2,200 grants in Head Start. Absent this
final rule, it is estimated that 60 or 3 percent of all Head Start
grants will require CLASS reviews to be conducted in FY 2022 for
renewal determinations that must also be made in FY 2022. CLASS reviews
would need to be conducted to acquire the necessary data to make
renewal determinations as described in the Head Start Act and the Head
Start Program Performance Standards. Typically, CLASS reviews cost
about $8,500 per grant to the federal government. This primarily
includes the cost of travel, lodging, and wages for CLASS reviewers.
The total baseline cost of the 60 CLASS reviews in FY 2022 is estimated
at $510,000.
Across all Head Start grants, ACF estimates that approximately 13
percent of grants meet the CLASS condition of the DRS and are,
therefore, required to compete for continued funding. If ACF applies
this percentage to the 60 grants lacking CLASS data due to the COVID-19
pandemic, this results in an estimate of approximately 8 of these 60
grants that would be required to compete for continued funding due to
low CLASS scores if they did have CLASS data available.
The cost for competition associated with completing a competitive
application is estimated at $3,097 per applicant. This assumption
includes 60 hours per competitive application at a cost of
approximately $51.62 per hour in staff time (ACF multiplies an hourly
wage of approximately $25.81 by two to account for fringe benefits).
Applications would likely be completed by a combination of the Head
Start Assistant Director and other managers in an early childhood
program (i.e., Child Development Manager or Family and Community
Partnership Manager). The average hourly wage for these positions is
based on the U.S. Bureau of Labor Statistics Job Code 11-9031. ACF
multiplies $3,097 per applicant by sixteen to account for the eight
incumbent grantees applying for funds as well as eight non-incumbent
applicants for those service areas. This results in a baseline
estimated cost of $49,552 for these eight grantees to complete
competitive applications in FY 2022 if they did in fact have to
compete, as well as eight additional applicants. The total baseline
cost for conducting CLASS reviews for these 60 grants and for
competition associated
[[Page 78792]]
with 8 of these 60 grants is $559,552. With this final rule, these
baseline costs would not apply and are therefore cost savings in this
analysis.
With this final rule, those eight grantees that would have been
required to compete in FY 2022 would instead need to complete an annual
grant application for a new annual award. ACF assumes it takes
approximately 33 hours of staff time to complete a non-competitive
application. Using the same assumptions as above for hourly wage, ACF
estimates it costs approximately $1,703 per grant to complete a non-
competitive application. ACF multiplies this by eight grants, which
results in a total cost of approximately $13,624 for these grantees to
complete a non-competitive continuation application in FY 2022. Taking
this cost into account, the total cost savings associated with this
final rule is approximately $545,928. This includes cost savings to
those entities that are not existing Head Start grantees as there would
be no funding opportunity to which they would submit a competitive
application.
A qualitative opportunity cost for this new rule is fewer
opportunities for entities that are not existing Head Start grantees to
be able to compete and potentially grow as an early childhood provider
in their community, for the eight communities where grants were not
designated for competition due to potentially low CLASS scores. There
is also the qualitative cost of children continuing to be served by
grantees which may be providing lower quality classroom learning
environments that would have led to competition. However, ACF believes
there is an added benefit of existing grantees still receiving DRS
determinations in a timely manner and not experiencing undue stress
around the status of their grant, particularly in the midst of COVID-19
when continuity of Head Start services for children and families is
critically important. Additionally, these grantees would be able to
continue to access and receive support from OHS through OHS' extensive
training and technical assistance system, to facilitate continued
quality improvement in classroom quality care and service provision for
children and families.
ACF does not believe there will be a significant economic impact
from this regulatory action since the flexibility in this interim final
rule will only be exercised when necessary. A federally declared major
disaster, emergency, or PHE that limits the ability of ACF to collect
all data necessary to assess programs for DRS determinations, such as
the COVID-19 PHE, are rare and, therefore, ACF anticipates this
flexibility will rarely be exercised. ACF also anticipates that this
flexibility will be exercised in more localized disasters in the future
that affect a very small subset of grantees.
This RIA analyzes a one-year time horizon covering FY 2022. In the
coming years, ACF anticipates very few grants being impacted by the
provision in this interim final rule. However, ACF also recognizes it
is difficult to predict future potential emergencies or disasters when
ACF may need to again exercise the flexibility laid out in this
regulatory provision, resulting in uncertainty around potential costs
and cost savings. ACF invites public comment on the reasonableness of
the assumptions in this regulatory impact analysis.
Tribal Consultation Statement
ACF conducts an average of five tribal consultations each year for
those tribes operating Head Start and Early Head Start. The
consultations are held in four geographic areas across the country:
Southwest, Northwest, Midwest (Northern and Southern), and Eastern. The
consultations are often held in conjunction with other tribal meetings
or conferences, to ensure the opportunity for most of the 150 tribes
that operate Head Start and Early Head Start programs are be able to
attend and voice their concerns about issues regarding service
delivery. ACF completes a report after each consultation, and then
compiles a final report that summarizes the consultations and submits
the report to the Secretary at the end of the year. ACF invites public
comment on this interim final rule if there are concerns specific to
Native communities and programs.
List of Subjects in 45 CFR Part 1304
Designation Renewal System, Classroom Assessment Scoring System
(CLASS), COVID-19, Education of disadvantaged, Grant programs--social
programs, Head Start, Monitoring.
Dated: November 11, 2020.
Lynn A. Johnson,
Assistant Secretary for Children and Families.
Approved: November 13, 2020.
Alex M. Azar, II,
Secretary.
For the reasons discussed in the preamble, ACF amends 45 CFR part
1304 as follows:
PART 1304--FEDERAL ADMINISTRATIVE PROCEDURES
0
1. The authority citation for part 1304 continues to read as:
Authority: 42 U.S.C. 9801 et seq.
0
2. Add Sec. 1304.17 to Subpart B to read as follows:
Subpart B--Designation Renewal
Sec. 1304.17 Flexibility for Head Start Designation Renewal
Determinations in Certain Emergencies.
(a) In reviewing the relevant data as described in Sec.
1304.15(b), if ACF determines that one or more data elements described
in the conditions in section Sec. 1304.11 is not available due to an
emergency described in paragraph (b) of this section, ACF may make a
designation renewal determination based on the data elements that are
available.
(b) The emergencies are:
(1) A major disaster declared by the President under section 401 of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5170).
(2) An emergency declared by the President under section 501 of the
Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5191).
(3) A public health emergency declared by the Secretary pursuant to
section 319 of the Public Health Service Act (42 U.S.C. 247d).
[FR Doc. 2020-26033 Filed 12-4-20; 8:45 am]
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