Regulation

Monday,
December 2, 2002

Part IV

Department of
Education
34 CFR Part 200
Title I—Improving the Academic
Achievement of the Disadvantaged; Final
Rule

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Federal Register / Vol. 67, No. 231 / Monday, December 2, 2002 / Rules and Regulations

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: Final regulations.
SUMMARY: The Secretary amends the
regulations governing the programs
administered under Title I, parts A, C,
and D of the Elementary and Secondary
Education Act of 1965 (ESEA), as
amended (hereinafter referred to as the
Title I programs.) These 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: These regulations are effective
January 2, 2003.
FOR FURTHER INFORMATION CONTACT: For
subparts A, D, and E of part 200,
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 3W202, FB–6, Washington, DC
20202–6132. Telephone: (202) 260–
0826.
For subparts B and C of part 200,
Francisco Garcia, Director, Migrant
Education Program, Office of
Elementary and Secondary Education,
U.S. Department of Education, 400
Maryland Avenue, SW., room 3E217,
FB–6, Washington, DC 20202–6135.
Telephone: (202) 260–0089.
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 persons listed
under FOR FURTHER INFORMATION
CONTACT.

These
regulations implement changes to Title
I of the ESEA, as amended by the NCLB
Act (Public Law 107–110), enacted
January 8, 2002. On August 6, 2002, the
Secretary published a notice of
proposed rulemaking (NPRM) for these
programs in the Federal Register (67 FR
50986).
In the preamble to the NPRM, the
Secretary discussed on pages 50986
through 51001 the major revisions

SUPPLEMENTARY INFORMATION:

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proposed in that document to
implement changes in the provisions of
Title I made by the NCLB Act. These
included the following:
• Clarifying in § 200.11 that a
condition of receiving Title I funds is
that, if selected, the local educational
agency (LEA) must participate in the
National Assessment for Educational
Progress (NAEP).
• Specifying in § 200.12 that the
implementation of the statutory
provisions requiring a single, statewide
accountability system take effect
beginning with the 2002–2003 school
year.
• Requiring in § 200.12 that States
include, in their accountability systems,
guidelines for identifying the students
with disabilities who should take
alternate assessments and that States
report on the number of students who
take an alternate assessment.
• Clarifying in §§ 200.13 through
200.20 statutory provisions in section
1111(b)(2) of the NCLB Act requiring
each State to demonstrate what
constitutes adequate yearly progress
(AYP), particularly the interrelationship
among the timeline, starting points,
intermediate goals, and annual
measurable objectives that are part of
AYP.
• Clarifying in § 200.13(c)(1) and (2)
that States can define achievement
standards for students with the most
significant cognitive disabilities who
take an alternate assessment, but that
the percentage of students with
disabilities included in accountability
measures using alternate standards
cannot be more than .5 percent of all
students assessed in a State or LEA.
• Specifying in § 200.16 that a State
must set separate starting points for
reading/language arts and mathematics,
and permitting the establishment of
separate starting points by grade span.
• Clarifying in § 200.20 the statutory
requirement that 95 percent of the
students enrolled in each subgroup
must take the State’s academic
assessment for the school to make AYP.
• Requiring in § 200.21 that the
Secretary review both a State’s AYP and
its annual measurable achievement
objectives relating to the English
proficiency of limited English proficient
students.
• Reorganizing in §§ 200.25 through
200.28 schoolwide program regulations
to emphasize the fundamental purpose
of a schoolwide program and to create
smaller and simpler sections.
• Clarifying in §§ 200.30 and 200.31
the statutory requirement that an LEA
conduct an annual review of the
performance of all schools receiving
funds under subpart A of the ESEA and

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provide schools with the data on which
it has based a proposed identification
for improvement, corrective action, or
restructuring.
• Clarifying in §§ 200.32 through
200.35 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.
• Clarifying in §§ 200.36 through
200.38 the manner in which State
educational agencies (SEAs), LEAs, and
schools must meet notification
requirements under section 1116 of the
ESEA.
• Restating in §§ 200.39 through
200.41 the statutory requirements
related to both LEA and school-level
responsibilities under the school
improvement process.
• Clarifying in §§ 200.42 and 200.43
the statutory requirements related to
corrective action and restructuring.
• Restating and reorganizing in
§ 200.44 the statutory provisions related
to the public school choice option and
clarifying the statutory deadline to
provide this option.
• Specifying in §§ 200.45 through
200.47 requirements for the provision of
supplemental services.
• Clarifying in § 200.48 statutory
provisions regarding the reservation of
funds to pay for choice-related
transportation and supplemental
educational services.
• Clarifying in §§ 200.49 through
200.51 statutory provisions related to
SEA responsibilities in the school
improvement process, including SEA
review of LEA progress and notice
requirements.
• Including in §§ 200.52 and 200.53
the statutory requirements for LEA
improvement and corrective action.
• Incorporating in § 200.54 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.
• Incorporating in §§ 200.55 through
200.57 the statutory provisions
regarding qualifications of teachers, and
clarifying that the requirements apply to
teachers of the core academic subjects
and do not apply to teachers who do not
teach core subjects, employees of thirdparty contractors, or supplemental
services providers.
• Incorporating in §§ 200.58 and
200.59 statutory provisions governing
paraprofessionals, clarifying that the
term applies to individuals performing
instructional support duties and to
paraprofessionals in both targeted
assistance and schoolwide program

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schools supported by funds under
subpart A of this part.
• Clarifying in § 200.60 that
professional development funds may be
used for paraprofessionals as well as
teachers.
• Incorporating in §§ 200.61 through
200.66 statutory changes from the
previous law governing the
participation of eligible children in
private schools and clarifying
provisions in this area about which
questions have arisen in the past.
• Specifying in §§ 200.70 through
200.75 procedures that SEAs must
follow in adjusting allocations
determined by the Secretary to account
for unique situations within their states.
• Clarifying in §§ 200.77 and 200.78
within-district allocation procedures as
specified in section 1113 of the ESEA.
• Restating in § 200.79 the criteria a
State or local program must meet in
order to be excluded from ‘‘supplement
not supplant’’ and ‘‘comparability’’
determinations, and incorporating a
change in the poverty threshold for
schoolwide programs.
• Clarifying in §§ 200.81 through
200.88 program specific regulations for
subpart C—Migrant Education Program
(MEP).
• Specifying that the regulations for
subpart D—Prevention Programs for
Children and Youth Who Are Neglected,
Delinquent, or At-risk of Dropping Out
have not changed.
• Clarifying in §§ 200.100 through
200.103 new procedures an SEA must
follow when reserving funds for school
improvement, State administration, and
the State academic achievement awards
program, addressing the use of funds
reserved for State administration, and
providing certain definitions that apply
to all of the programs governed by the
regulations.
The final regulations reflect these
provisions, modified as noted in the
analysis of comments and changes in
the appendix.
Significant Changes From the NPRM
• AYP Requirements: Numerous
comments were received from states
requesting information on potential
flexibility in determining AYP. One of
the cornerstones of the NCLB is its
strong emphasis on accountability for
results. Only if we hold schools and
LEAs accountability for the improved
achievement of all students will we
meet the goal of leaving no child
behind. As a result, the NCLB Act
included very specific, rigorous
requirements that States must
implement to determine the AYP of
each public school, LEA, and the State
itself. In preparing the final regulations,

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the Secretary has faithfully
implemented the statutory provisions
governing AYP, addressing additional
flexibility wherever possible. The
Secretary realizes that the accountability
systems currently in place in many
States may not fully meet the statutory
and regulatory requirements. To meet
the requirements in NCLB and these
final regulations, a State may continue
to use its current State accountability
system, consistent with Secretary’s July
24, 2002 Dear Colleague letter, if that
system integrates AYP, as defined in the
statute and regulations, into its system.
A State must submit evidence to the
Secretary, for peer review, that
thoroughly describes the State’s
accountability system and demonstrates
how it has integrated the AYP
provisions required by the statute and
regulations.
• AYP for students with the most
significant cognitive disabilities: Section
200.13 of the NPRM would have
allowed the use of alternate
achievement standards for students with
the most significant cognitive
disabilities for determining the AYP of
states and LEAs, provided that use did
not exceed 0.5 percent of all students.
Numerous comments were received on
this proposal, with many of them
indicating that commenters
misunderstood this proposal as limiting
the number of students with disabilities
who could take an alternate assessment,
rather than providing flexibility by
allowing the use of alternate
achievement standards to determine
proficiency for calculating AYP for a
limited group of students with
disabilities. Because the Secretary
believes that the policy may need
further clarification, the Secretary will
be seeking public comment in an NPRM
to be published shortly on a proposed
policy regarding the appropriate use of
alternate achievement standards in
determining AYP for students with the
most significant cognitive disabilities.
However, because it is critical to
ensure that students with disabilities are
not excluded from state accountability
systems, the final regulations provide
that the same grade level academic
content and achievement standards that
apply to all public schools and public
school students in the State will be
applied to alternate assessments. The
Secretary anticipates that the separate
NPRM will propose an exception to this
policy for a small group of students with
disabilities.
• Graduation Rates and Other
Indicators: Section 200.19 of the NPRM
required States to include in their
definition of AYP graduation rates and
one other academic indicator for

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elementary and middle schools. The
final regulation clarifies that States are
required to use the other indicators to
determine whether or not a school or
LEA has made AYP.
• Restructuring: Section 200.34 of the
NPRM did not address school status
after implementation of restructuring.
The final regulations modify the NPRM
by clarifying that a school in
restructuring must continue to provide
supplemental educational services and
choice, and to implement its
restructuring plan, until it has made
AYP for two consecutive years.
• School choice and capacity:
Numerous commenters requested
clarification of the NPRM on the issue
of a school district’s capacity to provide
choice for all students. Section
200.44(d) of the final regulation clarifies
that an LEA may not use lack of
capacity to deny an eligible student the
opportunity to transfer to another school
not identified for improvement.
• LEA responsibility for supplemental
educational services. Sections
200.46(a)(4) and 200.47(a)(5) of the
NPRM did not address the
responsibility of LEAs and SEAs to
ensure that limited English proficient
students receive appropriate
educational services and language
assistance in the provision of
supplemental services. The final
regulation clarifies that both the LEA
and SEA are required to ensure that
students with limited English
proficiency receive appropriate
supplemental educational services and
language assistance in the provision of
those services.
• Providers of supplemental
educational services: Section
200.47(b)(3) of the NPRM stated: ‘‘A
private provider may not, on the basis
of disability, exclude a qualified student
with disabilities or a student covered
under Section 504 if the student can,
with minor adjustments, be provided
supplemental educational services
designed to meet the individual
educational needs of the student unless
otherwise provided by law.’’ NPRM
provisions §§ 200.46(a)(4) and
200.47(a)(5) provided that LEAs and
SEAs must ensure that eligible students
with disabilities and students covered
by Section 504 receive appropriate
supplemental educational services and
accommodations in the provision of
those services. The final regulation is
amended to eliminate the ‘‘minor
adjustments’’ standard for private
providers of supplemental services.
• Scientifically Based Research and
Supplemental Services Providers:
Section 200.47(b)(4)(ii) of the NPRM
prohibited states from requiring

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providers to demonstrate that their
instructional strategies were based on
scientifically based research as a
condition of approval. The final
regulation removes this restriction.
• Alternate Certification: The NPRM
specified that one of the requirements of
being a ‘‘highly qualified teacher’’ is
having obtained full State certification
as a teacher—which may include
certification obtained through
alternative routes to certification. The
final regulation adds language that
requires teachers who are enrolled in
alternative route programs to receive
high-quality professional development
before and while teaching, to participate
in a program of intensive supervision or
a teacher mentoring program, to assume
the functions of a teacher while in the
alternative route program only for a
specified period of time not to exceed
three years, and to demonstrate
satisfactory progress toward full
certification as prescribed by the State.
The regulations have been further
amended by requiring the State to
ensure, through its certification and
licensure process, that these provisions
are met.
Analysis of Comments and Changes
In response to the Secretary’s
invitation in the NPRM, approximately
140 parties submitted comments. An
analysis of the comments and of the
changes in the regulations since
publication of the NPRM is published as
an appendix at the end of these final
regulations.
We group major issues according to
subject. We discuss other substantive
issues under the sections of these
regulations to which they pertain.
Generally, we do not address regulatory
provisions that are technical or
otherwise minor in effect.
Waiver of Rulemaking
In response to comments, the
Secretary has added § 200.61 in these
final regulations regarding parents’ right
to know the qualifications of their
child’s teachers. This section merely
incorporates statutory requirements in
section 1111(h)(6) of Title I. The
Secretary has included it, however, to
emphasize the important responsibility
of LEAs to notify parents of students in
Title I schools that they have a right to
request information regarding the
professional qualifications of their
child’s teachers. Under the
Administrative Procedure Act (5 U.S.C.
553), the Department generally offers
interested parties the opportunity to
comment on proposed regulations.
However, these regulations merely
reflect statutory provisions and do not

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establish or affect substantive policy.
Therefore, under 5 U.S.C. 553(b)(B), the
Secretary has determined that proposed
regulations are unnecessary.
Executive Order 12866
We have reviewed these final
regulations in accordance with
Executive Order 12866. Under the terms
of the order, we have assessed the
potential costs and benefits of this
regulatory action.
The potential costs associated with
the final regulations are those resulting
from statutory requirements, and those
we have determined to be necessary for
administering this program effectively
and efficiently. Based on our assessment
of the regulatory burden on States,
LEAs, and schools, we estimate that the
total cost of administering these
regulations is $52 million. In deriving
this cost estimate, we calculated the
burden hours at the SEA level to be
55,952 hours. Using a cost rate of $25
per hour at the SEA level, we estimated
the administrative burden cost to States
to be $1.4 million. At the LEA and
school levels, we calculated the burden
hours to be 2,530,476 hours. Based on
a cost rate of $20 per hour, the estimated
administrative burden cost at the local
level is $50.6 million. The section of
this preamble on the Paperwork
Reduction Act of 1995 discusses the
burden that the statutory requirements
of the NCLB Act impose on States,
LEAs, and schools in more detail. The
fiscal year (FY) 2002 appropriation for
Title I, part A provided a $1.6 billion
(18 percent) increase in funds. This
increase in funding will enable States,
LEAs, and schools to meet the
administrative costs associated with the
requirements of the NCLB Act at the
State, LEA, and school levels.
In assessing the potential costs of
implementing these regulations
compared to the $10.6 billion in Title I,
Part A, Part C, and Part D, subpart 1
funds received by the States and LEAs,
we have determined that the benefits of
the regulations justify the costs. The FY
2002 appropriation of $10.6 billion for
these programs, which represents an 18
percent increase over the prior year
appropriation, will provide enough
resources for States, LEAs, and schools
to carry out the requirements of the
statute. The NCLB Act represents a
sweeping overhaul of Federal efforts to
support elementary and secondary
education in the United States and is a
landmark in education reform designed
to improve student achievement and
change the culture of our nation’s
schools. The new law is based on four
basic principles—stronger
accountability for results; greater

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flexibility for States, school districts,
and schools in the use of Federal funds;
more choices for parents of children
from disadvantaged backgrounds; and
an emphasis on teaching methods that
have been demonstrated to work.
We have also determined that this
regulatory action does not unduly
interfere with State, local, and tribal
governments in the exercise of their
governmental functions.
Most of the final regulations would
add clarity where the statute is
ambiguous or unclear or would
reorganize statutory provisions to
facilitate a better understanding of their
requirements. These regulations would
not add significantly to the costs of
implementing the Title I programs
authorized by the Elementary and
Secondary Education Act (ESEA) or
alter the benefits that the Secretary
believes will be obtained through
successful implementation. The vast
majority of the implementation costs
and benefits will stem from the
underlying legislation.
The programs authorized by Title I of
the ESEA, 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, migratory,
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 highquality 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 hightechnology, knowledge-driven economy.

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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.
The reauthorized Title I programs,
and the final regulations 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
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. For purposes of the
Unfunded Mandates Reform Act of
1995, these regulations do not include a
Federal mandate that might result in

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increased expenditures by State, local,
and tribal governments, or increased
expenditures by the private sector of
more than $100 million in any one year.
Regulatory Flexibility Act
This Final Regulatory Flexibility
Analysis (FRFA) has been prepared in
accordance with the Regulatory
Flexibility Act. It involves final
regulations under Title I of the ESEA, as
amended by the NCLB Act. Its
provisions require LEAs, without regard
to size, to take certain actions to
improve student academic achievement.
1. Need for, Objectives of, and Legal
Basis for Final Regulations
The purpose of the final regulations is
to implement recent changes to Title I
of the ESEA made by the NCLB Act. We
are issuing final regulation under the
authority in section 1901(a) of Title I.
2. Summary of Significant Issues Raised
in Response to the Initial Regulatory
Flexibility Analysis (IRFA)
We have received no comments
concerning the cost implications of
these regulations on small entities as
result of our request for comments to the
IRFA published in the NPRM on August
6, 2002. However, there was one
comment on the proposed regulation
regarding the impact of particular
provisions on small LEAs.
Comment: One commenter
recommended that the final regulations
provide flexibility in defining AYP for
small school districts, and single-school
LEAs in particular, that may find it
difficult to implement the subgroupbased accountability requirements of the
Act.
Discussion: The intent of the law is to
ensure that all schools and districts are
held accountable for student
achievement. In those instances where
schools and districts are too small to
include any subgroups, the school and
district will need to make a decision
about AYP at least on the basis of all its
students who were within the school or
district for a full academic year. The
Department of Education will issue
nonregulatory guidance to advise States
about particular methodologies for
handling this issue. The regulations
clarify at § 200.7(d) that subgroups too
small to be reported or identified at one
level must be included at the next
higher level, assuming the subgroup
reaches the appropriate size.
3. A Description of the Small Entities to
Which These Regulations Will Apply
The small entities that would be
affected by these final regulations are
small LEAs receiving Federal funds

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under Title I programs. Based on the
Small Business Administration’s (SBA)
standards, which defines ‘‘small
entities’’ as those jurisdictions serving a
population of less than 50,000, 13,231
LEAs out of a total of 13,335 LEAs that
receive Title I, part A funds would be
considered small. As noted earlier, the
FY 2002 appropriation provides a $1.6
billion increase in the Title I, part A
amount available for school year 2002–
03 to States and to all LEAs, both large
and small.
4. Reporting, Recordkeeping and Other
Compliance Requirements
Under these regulations, an 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 led to the
identification, and (4) for schools
subject to restructuring, prepare a plan
to carry out alternative governance
arrangements. An LEA also must
maintain in its records, and provide to
the SEA, a written affirmation, signed
by officials of each private school with
participating children or appropriate
private school representatives, that the
required consultation has occurred. The
potential costs and benefits of
associated with these regulations are
discussed in the section on Executive
Order 12866.
5. 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. Although the NCLB Act makes
no special provisions for ‘‘small’’ LEAs
that serve fewer than 50,000 students,
which account for 99 percent of all
school districts receiving Title I part A
funds, the Department has, to the extent
allowable under the statute
accommodated small LEAs in these
regulations. For example, § 200.74 of the
regulations outlines procedures a State
must use in using alternative poverty
data, which it believes better reflect
where poor children are located, to
determine final Title I allocations for
LEAs with a total population of less
than 20,000. This provision potentially
applies to roughly 80 percent of all
LEAs nationally that meet this criteria.
LEAs with fewer than 1,000 students
enrolled are exempt from the withindistrict allocation requirements outlined

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in § 200.78. More than 4,060 LEAs
receiving Title I Part A funds are
affected by this policy. Moreover,
activities required under these
regulations would be financed through
the appropriations for Title I programs,
which have increased by $1.6 billion for
FY 2002, 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.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995
does not require you to respond to a
collection of information unless it
displays a valid Office of Management
and Budget (OMB) control number. We
display the valid OMB control numbers
assigned to the collections of
information in these final regulations at
the end of the affected sections of the
regulations.
Title I, part A of the Elementary and
Secondary Education, as amended by
the No Child Left Behind Act, contains
several provisions that require SEAs,
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, 200.37, 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, 200.61, and 200.62.
Section 200.61 was added to the final
regulation to incorporate statutory
language requiring LEAs to notify
parents that they may request
information about the professional
qualifications of their child’s classroom
teacher. All these sections relate to OMB
control number 1810–0581. 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 and 200.100 are
covered under OMB control numbers
1810–0620 and 1810–0622. Section
200.83, 200.84, and 200.88 are covered
under OMB control number 1810–0659.
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, (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

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to annually review the progress of each
LEA to determine whether schools are
making AYP, 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.
As part of their responsibility to
annually review the progress of schools
to determine whether they are making
AYP, 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
intent and purpose of each Federal
program included.
The total estimated burden hours for
SEA activities covered by the paperwork
requirements are 55,952 across 52 SEAs.
The total estimated burden hours for
LEA activities covered by the paperwork
requirements are 1,119,500 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 AYP after one full year in

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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. The
estimate of the burden hours at the LEA
level includes an estimate of additional
hours that result from adding a new
§ 200.61 to the final regulations, which
requires an LEA to notify parents that
they can request information about the
professional qualifications of their
child’s classroom teacher.
Section 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. Section
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
regulatory requirements is 19,925 hours.
The Department requested that the
Office of Management and Budget
(OMB)review the information
collections, 1810–0581 and 1810–0659,
on an emergency basis. Although these
information collections have been
approved on an emergency basis, we
continue to invite your comments
through January 31, 2003. We request
those wishing to comment to send their
comments to the individual identified
in the FOR FURTHER INFORMATION
CONTACT section of this notice.
Unfunded Mandates Reform Act of
1995
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA) establishes
requirements for Federal agencies to
assess the effect of their regulatory
actions on State, local and tribal
government and the private sector.
These regulations contain no Federal
mandates (under the regulatory
provisions of Title II of the UMRA) for
State, local, and tribal governments or
the private sector. As noted in the cost/
benefit analysis, the fiscal year 2002
appropriation for Title I, part A
provided a $1.6 billion (18 percent)
increase in funds for States to use in
implementing the changes mandated by
the NCLB Act. Therefore, these
regulations are not subject to the
requirements of sections 202 and 205 of
UMRA.
Federalism
Executive Order 13132 requires us to
ensure meaningful and timely input by
State and local elected officials in the

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Federal Register / Vol. 67, No. 231 / Monday, December 2, 2002 / Rules and Regulations
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 did
not believe our NPRM would have
federalism implications, we encouraged
State and local elected officials to
review the NPRM for federalism
implications and to provide comments.
We did not receive any comments on
federalism implications. We also
consulted extensively with Chief State
School Officers, other State
representatives, Superintendents, and
leaders of various education
organizations. In May of 2002, we
hosted a series of regional meetings to
share important information about the
proposed regulations during the public
comment period. We also conducted
numerous teleconferences with State
Chiefs and their staff to learn more
about the implications of these
regulations.
These regulations implement various
statutory changes to Title I of the ESEA
made by the NCLB Act. We do not
believe that these regulations have
federalism implications as defined in
Executive Order 13132 or that they
preempt State law. Accordingly, the
Secretary has determined that these
regulations do not contain policies that
have federalism implications.
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: http://www.ed.gov/
legislation/FedRegister/.
To use PDF you must have Adobe
Acrobat Reader, which is available free
at this site. If you have questions about
using PDF, call the U.S. Government
Printing Office (GPO), toll free, at 1–
888–293–6498; or in the Washington,
DC, area at (202) 512–1530.
Note: The official version of this document
is the document published in the Federal
Register. Free Internet access to the official
edition of the Federal Register and the Code
of Federal Regulations is available on GPO
Access at: http://www.access.gpo.gov/nara/
index.html.
(Catalog of Federal Domestic Assistance
Numbers: 84.010 Improving Programs
Operated by Local Educational Agencies,
84.011 Education of Migrant Children,
84.013, Prevention and Intervention
Programs for Children and Youth Who Are
Neglected, Delinquent, or At-Risk of

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Dropping Out, 84.214A Even Start—Migrant
Education)

List of Subjects in 34 CFR Part 200
Administrative practice and
procedure, Adult education, Children,
Coordination, Education of children
with disabilities, Education of
disadvantaged children, Elementary and
secondary education, Eligibility, Family,
Family-centered education, Grant
programs-education, Indians education,
Institutions of higher education,
Interstate coordination, Intrastate
coordination, Juvenile delinquency,
Local educational agencies, Migratory
children, Migratory workers, Neglected,
Nonprofit private agencies, Private
schools, Public agencies, Reporting and
recordkeeping requirements, Stateadministered programs, State
educational agencies, Subgrants.
Dated: November 25, 2002.
Rod Paige,
Secretary of Education.

The Secretary amends part 200 of title
34 of the Code of Federal Regulations as
follows:
PART 200—TITLE I—IMPROVING THE
ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
1–2. The authority citation for part
200 is revised to read as follows:
Authority: 20 U.S.C. 6301 through 6578,
unless otherwise noted.

Subpart A—Improving Basic Programs
Operated by Local Educational
Agencies
3. In § 200.6, revise paragraph (a)(2) to
read as follows:
§ 200.6

Inclusion of all students.

(a) * * *
(2) Alternate assessments. (i) The
State’s academic assessment system
must provide for one or more alternate
assessments for a child with a disability
as defined under section 602(3) of the
Individuals with Disabilities Education
Act (IDEA) whom the child’s IEP team
determines cannot participate in all or
part of the State assessments under
paragraph (a)(1) of this section, even
with appropriate accommodations.
(ii) Alternate assessments must yield
results for the grade in which the
student is enrolled in at least reading/
language arts, mathematics, and,
beginning in the 2007–2008 school year,
science.
*
*
*
*
*
4. In § 200.7, add new paragraphs (c)
and (d) to read as follows:

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§ 200.7

71715

Disaggregation of data.

*

*
*
*
*
(c) Inclusion of subgroups in
assessments. If a subgroup under
§ 200.2(b)(10) is not of sufficient size to
produce statistically reliable results, the
State must still include students in that
subgroup in its State assessments under
§ 200.2.
(d) Disaggregation at the LEA and
State. If the number of students in a
subgroup is not statistically reliable at
the school level, the State must include
those students in disaggregations at each
level for which the number of students
is statistically reliable—e.g., the LEA or
State level.
5. In subpart A to part 200, remove
the undesignated center headings
‘‘Participation of Eligible Children in
Private Schools’’, ‘‘Capital Expenses’’,
‘‘Schoolwide Programs’’, Procedures for
the Within-State Allocation of LEA
Program Funds’’, and ‘‘Procedures for
the Within-District Allocation of LEA
Program Funds’’.
6. Add a new undesignated center
heading to subpart A of part 200 and
place it after § 200.10 to read as follows:
Participation in National Assessment of
Educational Progress (NAEP)
7. Revise § 200.11 and place it under
the new undesignated center heading
‘‘Participation in National Assessment
of Educational Progress (NAEP)’’ in
subpart A of part 200 to read as follows:
§ 200.11

Participation in NAEP.

(a) State participation. Beginning in
the 2002–2003 school year, each State
that receives funds under subpart A of
this part must participate in biennial
State academic assessments of fourth
and eighth grade reading and
mathematics under the State National
Assessment of Educational Progress
(NAEP), if the Department pays the
costs of administering those
assessments.
(b) Local participation. In accordance
with section 1112(b)(1)(F) of the
Elementary and Secondary Education
Act of 1965 (ESEA), and
notwithstanding section 411(d)(1) of the
National Education Statistics Act of
1994, an LEA that receives funds under
subpart A of this part must participate,
if selected, in the State-NAEP
assessments referred to in paragraph (a)
of this section.
(Authority: 20 U.S.C. 6311(c)(2);
6312(b)(1)(F), 9010(d)(1))

8. Add a new undesignated center
heading to subpart A of part 200 and
place it after revised § 200.11 to read as
follows:

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State Accountability System
9. Revise § 200.12 and place it under
the new undesignated center heading
‘‘State Accountability System’’ in
subpart A of part 200 to read as follows:
§ 200.12
system.

Single State accountability

(a)(1) Each State must demonstrate in
its State plan that the State has
developed and is implementing,
beginning with the 2002–2003 school
year, a single, statewide accountability
system.
(2) The State’s accountability system
must be effective in ensuring that all
public elementary and secondary
schools and LEAs in the State make
adequate yearly progress (AYP) as
defined in §§ 200.13 through 200.20.
(b) The State’s accountability system
must—
(1) Be based on the State’s academic
standards under § 200.1, academic
assessments under § 200.2, and other
academic indicators under § 200.19;
(2) Take into account the achievement
of all public elementary and secondary
school students;
(3) Be the same accountability system
the State uses for all public elementary
and secondary schools and all LEAs in
the State; and
(4) Include sanctions and rewards that
the State will use to hold public
elementary and secondary schools and
LEAs accountable for student
achievement and for making AYP,
except that the State is not required to
subject schools and LEAs not
participating under subpart A of this
part to the requirements of section 1116
of the ESEA. (Approved by the Office of
Management and Budget under control
number 1810–0576)
(Authority: 20 U.S.C. 6311(b)(2)(A))

10. Add a new undesignated center
heading to subpart A of part 200 and
place it after revised § 200.12 to read as
follows:
Adequate Yearly Progress (AYP)
11. Revise §§ 200.13 through 200.18
and place them under the new
undesignated center heading ‘‘Adequate
Yearly Progress (AYP)’’ in subpart A of
part 200 to read as follows:
§ 200.13 Adequate yearly progress in
general.

(a) Each State must demonstrate in its
State plan what constitutes AYP of the
State and of all public schools and LEAs
in the State—
(1) Toward enabling all public school
students to meet the State’s student
academic achievement standards; while

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(2) Working toward the goal of
narrowing the achievement gaps in the
State, its LEAs, and its public schools.
(b) A State must define, in accordance
with §§ 200.14 through 200.20, in a
manner that—
(1) Applies the same high standards of
academic achievement to all public
school students in the State;
(2) Is statistically valid and reliable;
(3) Results in continuous and
substantial academic improvement for
all students;
(4) Measures the progress of all public
schools, LEAs, and the State based
primarily on the State’s academic
assessment system under § 200.2;
(5) Measures progress separately for
reading/language arts and for
mathematics;
(6) Is the same for all public schools
and LEAs in the State; and
(7) Consistent with § 200.7, applies
the same annual measurable objectives
under § 200.18 separately to each of the
following:
(i) All public school students.
(ii) Students in each of the following
subgroups:
(A) Economically disadvantaged
students.
(B) Students from major racial and
ethnic groups.
(C) Students with disabilities, as
defined in section 9101(5) of the ESEA.
(D) Students with limited English
proficiency, as defined in section
9101(25) of the ESEA.
(c) The State must establish a way to
hold accountable schools in which no
grade level is assessed under the State’s
academic assessment system (e.g., K–2
schools), although the State is not
required to administer a formal
assessment to meet this requirement.
(Approved by the Office of Management and
Budget under control number 1810–0576)
(Authority: 20 U.S.C. 6311(b)(2))
§ 200.14 Components of Adequate Yearly
Progress.

A State’s definition of AYP must
include all of the following:
(a) A timeline in accordance with
§ 200.15.
(b) Starting points in accordance with
§ 200.16.
(c) Intermediate goals in accordance
with § 200.17.
(d) Annual measurable objectives in
accordance with § 200.18.
(e) Other academic indicators in
accordance with § 200.19.

school year, all students in each group
described in § 200.13(b)(7) will meet or
exceed the State’s proficient level of
academic achievement.
(b) Notwithstanding subsequent
changes a State may make to its
academic assessment system or its
definition of AYP under §§ 200.13
through 200.20, the State may not
extend its timeline for all students to
reach proficiency beyond the 2013–2014
school year.
(Authority: 20 U.S.C. 6311(b)(2))
§ 200.16

Starting points.

(a) Using data from the 2001–2002
school year, each State must establish
starting points in reading/language arts
and in mathematics for measuring the
percentage of students meeting or
exceeding the State’s proficient level of
academic achievement.
(b) Each starting point must be based,
at a minimum, on the higher of the
following percentages of students at the
proficient level:
(1) The percentage in the State of
proficient students in the lowestachieving subgroup of students under
§ 200.13(b)(7)(ii).
(2) The percentage of proficient
students in the school that represents 20
percent of the State’s total enrollment
among all schools ranked by the
percentage of students at the proficient
level. The State must determine this
percentage as follows:
(i) Rank each school in the State
according to the percentage of proficient
students in the school.
(ii) Determine 20 percent of the total
enrollment in all schools in the State.
(iii) Beginning with the lowest-ranked
school, add the number of students
enrolled in each school until reaching
the school that represents 20 percent of
the State’s total enrollment among all
schools.
(iv) Identify the percentage of
proficient students in the school
identified in paragraph (iii).
(c)(1) Except as permitted under
paragraph (c)(2) of this section, each
starting point must be the same
throughout the State for each school,
each LEA, and each group of students
under § 200.13(b)(7).
(2) A State may use the procedures
under paragraph (b) of this section to
establish separate starting points by
grade span.

(Authority: 20 U.S.C. 6311(b)(2))

(Authority: 20 U.S.C. 6311(b)(2))

§ 200.15

§ 200.17

Timeline.

(a) Each State must establish a
timeline for making AYP that ensures
that, not later than the 2013–2014

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Intermediate goals.

Each State must establish
intermediate goals that increase in equal

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increments over the period covered by
the timeline under § 200.15 as follows:
(a) The first incremental increase
must take effect not later than the 2004–
2005 school year.
(b) Each following incremental
increase must occur in not more than
three years.
(Authority: 20 U.S.C. 6311(b)(2))
§ 200.18

Annual measurable objectives.

(a) Each State must establish annual
measurable objectives that—
(1) Identify for each year a minimum
percentage of students that must meet or
exceed the proficient level of academic
achievement on the State’s academic
assessments; and
(2) Ensure that all students meet or
exceed the State’s proficient level of
academic achievement within the
timeline under § 200.15.
(b) The State’s annual measurable
objectives—
(1) Must be the same throughout the
State for each school, each LEA, and
each group of students under
§ 200.13(b)(7); and
(2) May be the same for more than one
year, consistent with the State’s
intermediate goals under § 200.17.
(Authority: 20 U.S.C. 6311(b)(2))

12. Add § 200.19 and place it under
the new undesignated center heading
‘‘Adequate Yearly Progress (AYP)’’ in
subpart A of part 200 to read as follows:
§ 200.19

Other academic indicators.

(a) Each State must use the following
other academic indicators to determine
AYP:
(1) High schools. (i) The graduation
rate for public high schools, which
means—
(A) The percentage of students,
measured from the beginning of high
school, who graduate from high school
with a regular diploma (not including
an alternative degree that is not fully
aligned with the State’s academic
standards, such as a certificate or a GED)
in the standard number of years; or
(B) Another definition, developed by
the State and approved by the Secretary
in the State plan, that more accurately
measures the rate of students who
graduate from high school with a regular
diploma as defined in paragraph
(a)(1)(i)(A) of this section.
(ii) In defining graduation rate, the
State must avoid counting a dropout as
a transfer.
(2) Elementary and middle schools. At
least one academic indicator for public
elementary schools and at least one
academic indicator for public middle
schools, such as those under paragraph
(b) of this section.

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(b) The State may include additional
academic indicators determined by the
State, including, but not limited to, the
following:
(1) Additional State or locally
administered assessments not included
in the State assessment system under
§ 200.2.
(2) Grade-to-grade retention rates.
(3) Attendance rates.
(4) Percentages of students completing
gifted and talented, advanced
placement, and college preparatory
courses.
(c) A State must ensure that its other
academic indicators are—
(1) Valid and reliable;
(2) Consistent with relevant,
nationally recognized professional and
technical standards, if any; and
(3) Consistent throughout the State
within each grade span.
(d)(1) A State may, but is not required
to, increase the goals of its other
academic indicators over the course of
the timeline under § 200.15.
(2) The State—
(i) Must disaggregate its other
academic indicators by each group in
§ 200.13(b)(7) for purposes of
§ 200.20(b)(2) and section 1111(h) of the
ESEA; but
(ii) Need not disaggregate those
indicators for determining AYP except
as required under section
1111(b)(2)(C)(vii) of the ESEA.
(e) Except as provided in
§ 200.20(b)(2), a State—
(1) May not use the indicators in
paragraphs (a) and (b) of this section to
reduce the number, or change the
identity, of schools that would
otherwise be subject to school
improvement, corrective action, or
restructuring if those indicators were
not used; but
(2) May use the indicators to identify
additional schools for school
improvement, corrective action, or
restructuring.
(Authority: 20 U.S.C. 6311(b)(2), (h))

13. Revise §§ 200.20 and 200.21 and
place them under the new undesignated
center heading ‘‘Adequate Yearly
Progress (AYP)’’ in subpart A of part 200
to read as follows:
§ 200.20

Making adequate yearly progress.

A school or LEA makes AYP if it
complies with paragraph (c) and with
either paragraph (a) or (b) of this section
separately in reading/language arts and
in mathematics.
(a)(1) A school or LEA makes AYP
if—
(i) Each group of students under
§ 200.13(b)(7) meets or exceeds the
State’s annual measurable objectives
under § 200.18; and

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71717

(ii) The school or LEA, respectively,
meets or exceeds the State’s other
academic indicators under § 200.19.
(2) For a group under § 200.13(b)(7) to
be included in the determination of
AYP for a school or LEA, the number of
students in the group must be sufficient
to yield statistically reliable information
under § 200.7(a).
(b) If students in any group under
§ 200.13(b)(7) in a school or LEA do not
meet the State’s annual measurable
objectives under § 200.18, the school or
LEA makes AYP if—
(1) The percentage of students in that
group below the State’s proficient
achievement level decreased by at least
10 percent from the preceding year; and
(2) That group made progress on one
or more of the State’s academic
indicators under § 200.19 or the LEA’s
academic indicators under § 200.30(c).
(c)(1) A school or LEA makes AYP
if—
(i) Not less than 95 percent of the
students enrolled in each group under
§ 200.13(b)(7) takes the State
assessments under § 200.2; and
(ii) The group is of sufficient size to
produce statistically reliable results
under § 200.7(a).
(2) The requirement in paragraph
(c)(1) of this section does not authorize
a State, LEA, or school to systematically
exclude 5 percent of the students in any
group under § 200.13(b)(7).
(3) If a student takes the State
assessments for a particular subject or
grade level more than once, the State
must use the student’s results from the
first administration to determine AYP.
(d) For the purpose of determining
whether a school or LEA has made AYP,
a State may establish a uniform
procedure for averaging data that
includes one or more of the following:
(1) Averaging data across school
years. (i) A State may average data from
the school year for which the
determination is made with data from
one or two school years immediately
preceding that school year.
(ii) If a State averages data across
school years, the State must—
(A) Implement, on schedule, the
assessments in reading/language arts
and mathematics in grades 3 through 8
and once in grades 10 through 12
required under § 200.5(a)(2);
(B) Report data resulting from the
assessments under § 200.5(a)(2);
(C) Determine AYP under §§ 200.13
through 200.20, although the State may
base that determination on data only
from the reading/language arts and
mathematics assessments in the three
grade spans required under
§ 200.5(a)(1); and
(D) Implement the requirements in
section 1116 of the ESEA.

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(iii) A State that averages data across
years must determine AYP on the basis
of the assessments under § 200.5(a)(2) as
soon as it has data from two or three
years to average. Until that time, the
State may use data from the reading/
language arts and mathematics
assessments required under § 200.5(a)(1)
to determine adequate yearly progress.
(2) Combining data across grades.
Within each subject area and subgroup,
the State may combine data across
grades in a school or LEA.
(e)(1) In determining the AYP of an
LEA, a State must include all students
who were enrolled in schools in the
LEA for a full academic year, as defined
by the State.
(2) In determining the AYP of a
school, the State may not include
students who were not enrolled in that
school for a full academic year, as
defined by the State.
(Authority: 20 U.S.C. 6311(b)(2), (b)(3)(C)(xi))
§ 200.21
State.

Adequate yearly progress of a

For each State that receives funds
under subpart A of this part and under
subpart 1 of part A of Title III of the
ESEA, the Secretary must, beginning
with the 2004–2005 school year,
annually review whether the State has—
(a)(1) Made AYP as defined by the
State in accordance with §§ 200.13
through 200.20 for each group of
students in § 200.13(b)(7); and
(2) Met its annual measurable
achievement objectives under section
3122(a) of the ESEA relating to the
development and attainment of English
proficiency by limited English
proficient students.
(b) A State must include all students
who were enrolled in schools in the
State for a full academic year in
reporting on the yearly progress of the
State.
(Authority: 20 U.S.C. 7325)

14. Remove and reserve §§ 200.22
through 200.24 and place them under
the new undesignated center heading
‘‘Adequate Yearly Progress (AYP)’’ in
subpart A of part 200.
15. Add a new undesignated center
heading to subpart A of part 200 and
place it after § 200.24 to read as follows:
Schoolwide Programs
16. Revise § 200.25 and place it under
the undesignated center heading
‘‘Schoolwide Programs’’ in subpart A of
part 200 to read as follows:
§ 200.25

Schoolwide programs in general.

(a) Purpose. (1) The purpose of a
schoolwide program is to improve

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academic achievement throughout a
school so that all students, particularly
the lowest-achieving students,
demonstrate proficiency related to the
State’s academic standards under
§ 200.1.
(2) The improved achievement is to
result from improving the entire
educational program of the school.
(b) Eligibility. (1) A school may
operate a schoolwide program if—
(i) The school’s LEA determines that
the school serves an eligible attendance
area or is a participating school under
section 1113 of the ESEA; and
(ii) For the initial year of the
schoolwide program—
(A) The school serves a school
attendance area in which not less than
40 percent of the children are from lowincome families; or
(B) Not less than 40 percent of the
children enrolled in the school are from
low-income families.
(2) In determining the percentage of
children from low-income families
under paragraph (b)(1)(ii) of this section,
the LEA may use a measure of poverty
that is different from the measure or
measures of poverty used by the LEA to
identify and rank school attendance
areas for eligibility and participation
under subpart A of this part.
(c) Participating students and
services. A school operating a
schoolwide program is not required to—
(1) Identify particular children as
eligible to participate; or
(2) As required under section
1120A(b) of the ESEA, provide services
that supplement, and do not supplant,
the services participating children
would otherwise receive if they were
not participating in a program under
subpart A of this part.
(d) Supplemental funds. A school
operating a schoolwide program must
use funds available under subpart A of
this part and under any other Federal
program included under paragraph (e)
of this section and § 200.29 only to
supplement the total amount of funds
that would, in the absence of the
Federal funds, be made available from
non-Federal sources for that school,
including funds needed to provide
services that are required by law for
children with disabilities and children
with limited English proficiency.
(e) Consolidation of funds. An eligible
school may, consistent with § 200.29,
consolidate and use funds or services
under subpart A of this part, together
with other Federal, State, and local
funds that the school receives, to
operate a schoolwide program in
accordance with §§ 200.25 through
200.29.

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(f) Prekindergarten program. A school
operating a schoolwide program may
use funds made available under subpart
A of this part to establish or enhance
prekindergarten programs for children
below the age of 6, such as Even Start
programs or Early Reading First
programs.
(Authority: 20 U.S.C. 6314)

17. Add a new § 200.26 and place it
under the undesignated center heading
‘‘Schoolwide Programs’’ in subpart A of
part 200 to read as follows:
§ 200.26 Core elements of a schoolwide
program.

(a) Comprehensive needs assessment.
(1) A school operating a schoolwide
program must conduct a comprehensive
needs assessment of the entire school
that—
(i) Is based on academic achievement
information about all students in the
school, including all groups under
§ 200.13(b)(7) and migratory children as
defined in section 1309(2) of the ESEA,
relative to the State’s academic
standards under § 200.1 to—
(A) Help the school understand the
subjects and skills for which teaching
and learning need to be improved; and
(B) Identify the specific academic
needs of students and groups of
students who are not yet achieving the
State’s academic standards; and
(ii) Assesses the needs of the school
relative to each of the components of the
schoolwide program under § 200.28.
(2) The comprehensive needs
assessment must be developed with the
participation of individuals who will
carry out the schoolwide program plan.
(3) The school must document how it
conducted the needs assessment, the
results it obtained, and the conclusions
it drew from those results.
(b) Comprehensive plan. Using data
from the comprehensive needs
assessment under paragraph (a) of this
section, a school that wishes to operate
a schoolwide program must develop a
comprehensive plan, in accordance with
§ 200.27, that describes how the school
will improve academic achievement
throughout the school, but particularly
for those students furthest away from
demonstrating proficiency, so that all
students demonstrate at least
proficiency on the State’s academic
standards.
(c) Evaluation. A school operating a
schoolwide program must—
(1) Annually evaluate the
implementation of, and results achieved
by, the schoolwide program, using data
from the State’s annual assessments and
other indicators of academic
achievement;

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(2) Determine whether the schoolwide
program has been effective in increasing
the achievement of students in meeting
the State’s academic standards,
particularly for those students who had
been furthest from achieving the
standards; and
(3) Revise the plan, as necessary,
based on the results of the evaluation,
to ensure continuous improvement of
students in the schoolwide program.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6314)

18. Revise §§ 200.27 and 200.28 and
place them under the undesignated
center heading ‘‘Schoolwide Programs’’
in subpart A of part 200 to read as
follows:
§ 200.27 Development of a schoolwide
program plan.

(a)(1) A school operating a schoolwide
program must develop a comprehensive
plan to improve teaching and learning
throughout the school.
(2) The school must develop the
comprehensive plan in consultation
with the LEA and its school support
team or other technical assistance
provider under section 1117 of the
ESEA.
(3) The comprehensive plan must—
(i) Describe how the school will carry
out each of the components under
§ 200.28;
(ii) Describe how the school will use
resources under subpart A of this part
and from other sources to carry out the
components under § 200.28; and
(iii) Include a list of State and local
programs and other Federal programs
under § 200.29 that the school will
consolidate in the schoolwide program.
(b)(1) The school must develop the
comprehensive plan, including the
comprehensive needs assessment, over a
one-year period unless—
(i) The LEA, after considering the
recommendations of its technical
assistance providers under section 1117
of the ESEA, determines that less time
is needed to develop and implement the
schoolwide program; or
(ii) The school was operating a
schoolwide program on or before
January 7, 2002, in which case the
school may continue to operate its
program, but must amend its existing
plan to reflect the provisions of
§§ 200.25 through 200.29 during the
2002–2003 school year.
(2) The school must develop the
comprehensive plan with the
involvement of parents, consistent with
the requirements of section 1118 of the
ESEA, and other members of the
community to be served and individuals
who will carry out the plan, including—

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(i) Teachers, principals, and
administrators, including administrators
of programs described in other parts of
Title I of the ESEA;
(ii) If appropriate, pupil services
personnel, technical assistance
providers, and other school staff; and
(iii) If the plan relates to a secondary
school, students from the school.
(3) If appropriate, the school must
develop the comprehensive plan in
coordination with other programs,
including those carried out under
Reading First, Early Reading First, Even
Start, the Carl D. Perkins Vocational and
Technical Education Act of 1998, and
the Head Start Act.
(4) The comprehensive plan remains
in effect for the duration of the school’s
participation under §§ 200.25 through
200.29.
(c)(1) The schoolwide program plan
must be available to the LEA, parents,
and the public.
(2) Information in the plan must be—
(i) In an understandable and uniform
format, including alternative formats
upon request; and
(ii) To the extent practicable,
provided in a language that the parents
can understand.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6314)
§ 200.28 Schoolwide program
components.

A schoolwide program must include
the following components:
(a) Schoolwide reform strategies. The
schoolwide program must incorporate
reform strategies in the overall
instructional program. Those strategies
must—
(1) Provide opportunities for all
students to meet the State’s proficient
and advanced levels of student
academic achievement;
(2)(i) Address the needs of all
students in the school, particularly the
needs of low-achieving students and
those at risk of not meeting the State’s
student academic achievement
standards who are members of the target
population of any program included in
the schoolwide program; and
(ii) Address how the school will
determine if those needs have been met;
(3) Use effective methods and
instructional practices that are based on
scientifically based research, as defined
in section 9101 of the ESEA, and that—
(i) Strengthen the core academic
program;
(ii) Provide an enriched and
accelerated curriculum;
(iii) Increase the amount and quality
of learning time, such as providing an
extended school year and before- and

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after-school and summer programs and
opportunities;
(iv) Include strategies for meeting the
educational needs of historically
underserved populations; and
(v) Are consistent with, and are
designed to implement, State and local
improvement plans, if any.
(b) Instruction by highly qualified
teachers. A schoolwide program must
ensure instruction by highly qualified
teachers and provide ongoing
professional development. The
schoolwide program must—
(1) Include strategies to attract highly
qualified teachers, as defined in
§ 200.56;
(2)(i) Provide high-quality and
ongoing professional development in
accordance with sections 1119 and
9101(34) of the ESEA for teachers,
principals, paraprofessionals and, if
appropriate, pupil services personnel,
parents, and other staff, to enable all
students in the school to meet the
State’s student academic standards; and
(ii) Align professional development
with the State’s academic standards;
(3) Devote sufficient resources to carry
out effectively the professional
development activities described in
paragraph (b)(2) of this section; and
(4) Include teachers in professional
development activities regarding the use
of academic assessments described in
§ 200.2 to enable them to provide
information on, and to improve, the
achievement of individual students and
the overall instructional program.
(c) Parental involvement. (1) A
schoolwide program must involve
parents in the planning, review, and
improvement of the schoolwide
program plan.
(2) A schoolwide program must have
a parental involvement policy,
consistent with section 1118(b) of the
ESEA, that—
(i) Includes strategies, such as family
literacy services, to increase parental
involvement in accordance with
sections 1118(c) through (f) and
9101(32) of the ESEA; and
(ii) Describes how the school will
provide individual student academic
assessment results, including an
interpretation of those results, to the
parents of students who participate in
the academic assessments required by
§ 200.2.
(d) Additional support. A schoolwide
program school must include activities
to ensure that students who experience
difficulty attaining the proficient or
advanced levels of academic
achievement standards required by
§ 200.1 will be provided with effective,
timely additional support, including
measures to—

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(1) Ensure that those students’
difficulties are identified on a timely
basis; and
(2) Provide sufficient information on
which to base effective assistance to
those students.
(e) Transition. A schoolwide program
in an elementary school must include
plans for assisting preschool students in
the successful transition from early
childhood programs, such as Head Start,
Even Start, Early Reading First, or a
preschool program under IDEA or a
State-run preschool program, to the
schoolwide program.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6314)

19. Add § 200.29 and place it under
the undesignated center heading
‘‘Schoolwide Programs’’ in subpart A of
part 200 to read as follows:
§ 200.29 Consolidation of funds in a
schoolwide program.

(a) In addition to funds under subpart
A of this part, a school may consolidate
and use in its schoolwide program
Federal funds from any program
administered by the Secretary that is
included in the most recent notice
published for this purpose in the
Federal Register.
(2) For purposes of §§ 200.25 through
200.29, the authority to consolidate
funds from other Federal programs also
applies to services provided to the
school with those funds.
(b)(1) Except as provided in
paragraphs (b)(2) and (c) of this section,
a school that consolidates and uses in a
schoolwide program funds from any
other Federal program administered by
the Secretary—
(i) Is not required to meet the
statutory or regulatory requirements of
that program applicable at the school
level; but
(ii) Must meet the intent and purposes
of that program to ensure that the needs
of the intended beneficiaries of that
program are addressed.
(2) A school that chooses to
consolidate funds from other Federal
programs must meet the requirements of
those programs relating to—
(i) Health;
(ii) Safety;
(iii) Civil rights;
(iv) Student and parental
participation and involvement;
(v) Services to private school
children;
(vi) Maintenance of effort;
(vii) Comparability of services;
(viii) Use of Federal funds to
supplement, not supplant non-Federal
funds in accordance with § 200.25(d);
and

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(ix) Distribution of funds to SEAs or
LEAs.
(c) A school must meet the following
requirements if the school consolidates
and uses funds from these programs in
its schoolwide program:
(1) Migrant education. Before the
school chooses to consolidate in its
schoolwide program funds received
under part C of Title I of the ESEA, the
school must—
(i) Use these funds, in consultation
with parents of migratory children or
organizations representing those
parents, or both, first to meet the unique
educational needs of migratory students
that result from the effects of their
migratory lifestyle, and those other
needs that are necessary to permit these
students to participate effectively in
school, as identified through the
comprehensive Statewide needs
assessment under § 200.83; and
(ii) Document that these needs have
been met.
(2) Indian education. The school may
consolidate funds received under
subpart 1 of part A of Title VII of the
ESEA if the parent committee
established by the LEA under section
7114(c)(4) of the ESEA approves the
inclusion of these funds.
(3) Special education. (i) The school
may consolidate funds received under
part B of the IDEA.
(ii) However, the amount of funds
consolidated may not exceed the
amount received by the LEA under part
B of IDEA for that fiscal year, divided
by the number of children with
disabilities in the jurisdiction of the
LEA, and multiplied by the number of
children with disabilities participating
in the schoolwide program.
(iii) The school may also consolidate
funds received under section 8003(d) of
the ESEA (Impact Aid) for children with
disabilities in a schoolwide program.
(iv) A school that consolidates funds
under part B of IDEA or section 8003(d)
of the ESEA may use those funds for any
activities under its schoolwide program
plan but must comply with all other
requirements of part B of IDEA, to the
same extent it would if it did not
consolidate funds under part B of IDEA
or section 8003(d) of the ESEA in the
schoolwide program.
(d) A school that consolidates and
uses in a schoolwide program funds
under subpart A of this part or from any
other Federal program administered by
the Secretary—
(1) Is not required to maintain
separate fiscal accounting records, by
program, that identify the specific
activities supported by those particular
funds; but

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(2) Must maintain records that
demonstrate that the schoolwide
program, as a whole, addresses the
intent and purposes of each of the
Federal programs whose funds were
consolidated to support the schoolwide
program.
(e) Each State must—
(1) Encourage schools to consolidate
funds from other Federal, State, and
local sources in their schoolwide
programs; and
(2) Modify or eliminate State fiscal
and accounting barriers so that schools
can easily consolidate funds from other
Federal, State, and local sources in their
schoolwide programs.
(Authority: 20 U.S.C. 6314, 1413(a)(s)(D),
6396(b), 7703(d), 7815(c))

20. Add a new undesignated center
heading to subpart A of part 200 and
place it after § 200.29 to read as follows:
LEA and School Improvement
21. Transfer §§ 200.30 through 200.69
to subpart A of part 200.
22. Revise § 200.30 and place it under
the new undesignated center heading
‘‘LEA and School Improvement’’ in
subpart A of part 200 to read as follows:
§ 200.30

Local review.

(a) Each LEA receiving funds under
subpart A of this part must use the
results of the State assessment system
described in § 200.2 to review annually
the progress of each school served under
subpart A of this part to determine
whether the school is making AYP in
accordance with § 200.20.
(b)(1) In reviewing the progress of an
elementary or secondary school
operating a targeted assistance program,
an LEA may choose to review the
progress of only the students in the
school who are served, or are eligible for
services, under subpart A of this part.
(2) The LEA may exercise the option
under paragraph (b)(1) of this section so
long as the students selected for services
under the targeted assistance program
are those with the greatest need for
special assistance, consistent with the
requirements of section 1115 of the
ESEA.
(c)(1) To determine whether schools
served under subpart A of this part are
making AYP, an LEA also may use any
additional academic assessments or any
other academic indicators described in
the LEA’s plan.
(2)(i) The LEA may use these
assessments and indicators—
(A) To identify additional schools for
school improvement or in need of
corrective action or restructuring; and

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(B) To permit a school to make AYP
if, in accordance with § 200.20(b), the
school also reduces the percentage of a
student group not meeting the State’s
proficient level of academic
achievement by at least 10 percent.
(ii) The LEA may not, with the
exception described in paragraph
(c)(2)(i)(B) of this section, use these
assessments and indicators to reduce
the number of, or change the identity of,
the schools that would otherwise be
identified for school improvement,
corrective action, or restructuring if the
LEA did not use these additional
indicators.
(d) The LEA must publicize and
disseminate the results of its annual
progress review to parents, teachers,
principals, schools, and the community.
(e) The LEA must review the
effectiveness of actions and activities
that schools are carrying out under
subpart A of this part with respect to
parental involvement, professional
development, and other activities
assisted under subpart A of this part.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(a) and (b))

23. Add new §§ 200.31 through
200.39 and place them under the new
undesignated center heading ‘‘LEA and
School Improvement’’ in subpart A of
part 200 to read as follows:
§ 200.31 Opportunity to review schoollevel data.

(a) Before identifying a school for
school improvement, corrective action,
or restructuring, an LEA must provide
the school with an opportunity to
review the school-level data, including
academic assessment data, on which the
proposed identification is based.
(b)(1) If the principal of a school that
an LEA proposes to identify for school
improvement, corrective action, or
restructuring believes, or a majority of
the parents of the students enrolled in
the school believe, that the proposed
identification is in error for statistical or
other substantive reasons, the principal
may provide supporting evidence to the
LEA.
(2) The LEA must consider the
evidence referred to in paragraph (b)(1)
of this section before making a final
determination.
(c) The LEA must make public a final
determination of the status of the school
with respect to identification not later
than 30 days after it provides the school
with the opportunity to review the data
on which the proposed identification is
based.
(Approved by the Office of Management and
Budget under control number 1810–0581)

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(Authority: 20 U.S.C. 6316(b)(2))
§ 200.32 Identification for school
improvement.

(a)(1) An LEA must identify for school
improvement any elementary or
secondary school served under subpart
A of this part that fails, for two
consecutive years, to make AYP as
defined under §§ 200.13 through 200.20.
(2) The LEA must make the
identification described in paragraph
(a)(1) of this section 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 AYP for a
second consecutive year.
(b)(1) An LEA must treat any school
that was in the first year of school
improvement status on January 7, 2002
as a school that is in the first year of
school improvement under § 200.39 for
the 2002–2003 school year.
(2) Not later than the first day of the
2002–2003 school year, the LEA must,
in accordance with § 200.44, provide
public school choice to all students in
the school.
(c)(1) An LEA must treat any school
that was identified for school
improvement for two or more
consecutive years on January 7, 2002 as
a school that is in its second year of
school improvement under § 200.39 for
the 2002–2003 school year.
(2) Not later than the first day of the
2002–2003 school year, the LEA must—
(i) In accordance with § 200.44,
provide public school choice to all
students in the school; and
(ii) In accordance with § 200.45, make
available supplemental educational
services to eligible students who remain
in the school.
(d) An LEA may remove from
improvement status a school otherwise
subject to the requirements of
paragraphs (b) or (c) of this section if, on
the basis of assessments the LEA
administers during the 2001–2002
school year, the school makes AYP for
a second consecutive year.
(e)(1) An LEA may, but is not required
to, identify a school for improvement if,
on the basis of assessments the LEA
administers during the 2001–2002
school year, the school fails to make
AYP for a second consecutive year.
(2) An LEA that does not identify
such a school for improvement,
however, must count the 2001–2002
school year as the first year of not
making AYP for the purpose of
subsequent identification decisions
under paragraph (a) of this section.
(f) If an LEA identifies a school for
improvement after the beginning of the
school year following the year in which

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the LEA administered the assessments
that resulted in the school’s failure to
make AYP for a second consecutive
year—
(1) The school is subject to the
requirements of school improvement
under § 200.39 immediately upon
identification, including the provision
of public school choice; and
(2) The LEA must count that school
year as a full school year for the
purposes of subjecting the school to
additional improvement measures if the
school continues to fail to make AYP.
(Authority: 20 U.S.C. 6316)
§ 200.33
action.

Identification for corrective

(a) If a school served by an LEA under
subpart A of this part fails to make AYP
by the end of the second full school year
after the LEA has identified the school
for improvement under § 200.32(a) or
(b), or by the end of the first full school
year after the LEA has identified the
school for improvement under
§ 200.32(c), the LEA must identify the
school for corrective action under
§ 200.42.
(b) If a school was subject to
corrective action on January 7, 2002, the
LEA must—
(1) Treat the school as a school
identified for corrective action under
§ 200.42 for the 2002–2003 school year;
and
(2) Not later than the first day of the
2002–2003 school year—
(i) In accordance with § 200.44,
provide public school choice to all
students in the school;
(ii) In accordance with § 200.45, make
available supplemental educational
services to eligible students who remain
in the school; and
(iii) Take corrective action under
§ 200.42.
(c) An LEA may remove from
corrective action a school otherwise
subject to the requirements of
paragraphs (a) or (b) of this section if, on
the basis of assessments administered
by the LEA during the 2001–2002
school year, the school makes AYP for
a second consecutive year.
(Approved by the Office of Management and
Budget under control number 1810–0576)
(Authority: 20 U.S.C. 6316)
§ 200.34

Identification for restructuring.

(a) If a school continues to fail to
make AYP after one full school year of
corrective action under § 200.42, the
LEA must prepare a restructuring plan
for the school and make arrangements to
implement the plan.
(b) If the school continues to fail to
make AYP, the LEA must implement the

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restructuring plan no later than the
beginning of the school year following
the year in which the LEA developed
the restructuring plan under paragraph
(a) of this section.
(Approved by the Office of Management and
Budget under control number 1810–0576)
(Authority: 20 U.S.C. 6316(b)(8))
§ 200.35

Delay and removal.

(a) Delay. (1) An LEA may delay, for
a period not to exceed one year,
implementation of requirements under
the second year of school improvement,
under corrective action, or under
restructuring if—
(i) The school makes AYP for one
year; or
(ii) The school’s failure to make AYP
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.
(2) The LEA may not take into
account a period of delay under
paragraph (a) of this section in
determining the number of consecutive
years of the school’s failure to make
AYP.
(3) Except as provided in paragraph
(b) of this section, the LEA must subject
the school to further actions as if the
delay never occurred.
(b) Removal. If any school identified
for school improvement, corrective
action, or restructuring makes AYP for
two consecutive school years, the LEA
may not, for the succeeding school
year—
(1) Subject the school to the
requirements of school improvement,
corrective action, or restructuring; or
(2) Identify the school for
improvement.
(Authority: 20 U.S.C. 6316(b))
§ 200.36

Communication with parents.

(a) Throughout the school
improvement process, the State, LEA, or
school must communicate with the
parents of each child attending the
school.
(b) The State, LEA, or school must
ensure that, regardless of the method or
media used, it provides the information
required by §§ 200.37 and 200.38 to
parents—
(1) In an understandable and uniform
format, including alternative formats
upon request; and
(2) To the extent practicable, in a
language that parents can understand.
(c) The State, LEA, or school must
provide information to parents—
(1) Directly, through such means as
regular mail or e-mail, except that if a
State does not have access to individual

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(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316)

services must include, at a minimum,
the following:
(A) The identity of approved
providers of those services available
within the LEA, including providers of
technology-based or distance-learning
supplemental educational services, and
providers that make services reasonably
available in neighboring LEAs.
(B) A brief description of the services,
qualifications, and demonstrated
effectiveness of the providers referred to
in paragraph (b)(5)(ii)(A) of this section.

§ 200.37 Notice of identification for
improvement, corrective action, or
restructuring.

(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316)

student addresses, it may provide
information to the LEA or school for
distribution to parents; and
(2) Through broader means of
dissemination such as the Internet, the
media, and public agencies serving the
student population and their families.
(d) All communications must respect
the privacy of students and their
families.

(a) If an LEA identifies a school for
improvement or subjects the school to
corrective action or restructuring, the
LEA must, consistent with the
requirements of § 200.36, promptly
notify the parent or parents of each
child enrolled in the school of this
identification.
(b) The notice referred to in paragraph
(a) of this section must include the
following:
(1) An explanation of what the
identification means, and how the
school compares in terms of academic
achievement to other elementary and
secondary schools served by the LEA
and the SEA involved.
(2) The reasons for the identification.
(3) An explanation of how parents can
become involved in addressing the
academic issues that led to
identification.
(4)(i) An explanation of the parents’
option to transfer their child to another
public school, including the provision
of transportation to the new school, in
accordance with § 200.44.
(ii) The explanation of the parents’
option to transfer must include, at a
minimum, information on the academic
achievement of the school or schools to
which the child may transfer.
(iii) The explanation may include
other information on the school or
schools to which the child may transfer,
such as—
(A) A description of any special
academic programs or facilities;
(B) The availability of before- and
after-school programs;
(C) The professional qualifications of
teachers in the core academic subjects;
and
(D) A description of parental
involvement opportunities.
(5)(i) If the school is in its second year
of improvement or subject to corrective
action or restructuring, a notice
explaining how parents can obtain
supplemental educational services for
their child in accordance with § 200.45.
(ii) The annual notice of the
availability of supplemental educational

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§ 200.38

Information about action taken.

(a) An LEA must publish and
disseminate to the parents of each
student enrolled in the school,
consistent with the requirements of
§ 200.36, and to the public information
regarding any action taken by a school
and the LEA to address the problems
that led to the LEA’s identification of
the school for improvement, corrective
action, or restructuring.
(b) The information referred to in
paragraph (a) of this section must
include the following:
(1) An explanation of what the school
is doing to address the problem of low
achievement.
(2) An explanation of what the LEA or
SEA is doing to help the school address
the problem of low achievement.
(3) If applicable, a description of
specific corrective actions or
restructuring plans.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(b))
§ 200.39 Responsibilities resulting from
identification for school improvement.

(a) If an LEA identifies a school for
school improvement under § 200.32—
(1) The LEA must—
(i) Not later than the first day of the
school year following identification,
with the exception described in
§ 200.32(f), provide all students enrolled
in the school with the option to transfer,
in accordance with § 200.44, to another
public school served by the LEA; and
(ii) Ensure that the school receives
technical assistance in accordance with
§ 200.40; and
(2) The school must develop or revise
a school improvement plan in
accordance with § 200.41.
(b) If a school fails to make AYP by
the end of the first full school year after
the LEA has identified it for
improvement under § 200.32, the LEA
must—
(1) Continue to provide all students
enrolled in the school with the option

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to transfer, in accordance with § 200.44,
to another public school served by the
LEA;
(2) Continue to ensure that the school
receives technical assistance in
accordance with § 200.40; and
(3) Make available supplemental
educational services in accordance with
§ 200.45.

effectively to the activities most likely
to—
(i) Increase student academic
achievement; and
(ii) Remove the school from school
improvement status.
(d) Technical assistance provided
under this section must be based on
scientifically based research.

(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(b))

(Authority: 20 U.S.C. 6316(b)(4))

24. Revise §§ 200.40 through 200.45
and place them under the new
undesignated center heading ‘‘LEA and
School Improvement’’ in subpart A of
part 200 to read as follows:
§ 200.40

Technical assistance.

(a) An LEA that identifies a school for
improvement under § 200.32 must
ensure that the school receives technical
assistance as the school develops and
implements its improvement plan under
§ 200.41 and throughout the plan’s
duration.
(b) The LEA may arrange for the
technical assistance to be provided by
one or more of the following:
(1) The LEA through the statewide
system of school support and
recognition described under section
1117 of the ESEA.
(2) The SEA.
(3) An institution of higher education
that is in full compliance with all of the
reporting provisions of Title II of the
Higher Education Act of 1965.
(4) A private not-for-profit
organization, a private for-profit
organization, an educational service
agency, or another entity with
experience in helping schools improve
academic achievement.
(c) The technical assistance must
include the following:
(1) Assistance in analyzing data from
the State assessment system, and other
examples of student work, to identify
and develop solutions to problems in—
(i) Instruction;
(ii) Implementing the requirements for
parental involvement and professional
development under this subpart; and
(iii) Implementing the school plan,
including LEA- and school-level
responsibilities under the plan.
(2) Assistance in identifying and
implementing professional development
and instructional strategies and methods
that have proved effective, through
scientifically based research, in
addressing the specific instructional
issues that caused the LEA to identify
the school for improvement.
(3) Assistance in analyzing and
revising the school’s budget so that the
school allocates its resources more

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§ 200.41

School improvement plan.

(a)(1) Not later than three months after
an LEA has identified a school for
improvement under § 200.32, the school
must develop or revise a school
improvement plan for approval by the
LEA.
(2) The school must consult with
parents, school staff, the LEA, and
outside experts in developing or
revising its school improvement plan.
(b) The school improvement plan
must cover a 2-year period.
(c) The school improvement plan
must—
(1) Specify the responsibilities of the
school, the LEA, and the SEA serving
the school under the plan, including the
technical assistance to be provided by
the LEA under § 200.40;
(2)(i) Incorporate strategies, grounded
in scientifically based research, that will
strengthen instruction in the core
academic subjects at the school and
address the specific academic issues
that caused the LEA to identify the
school for improvement; and
(ii) May include a strategy for
implementing a comprehensive school
reform model described in section 1606
of the ESEA;
(3) With regard to the school’s core
academic subjects, adopt policies and
practices most likely to ensure that all
groups of students described in
§ 200.13(b)(7) and enrolled in the school
will meet the State’s proficient level of
achievement, as measured by the State’s
assessment system, not later than the
2013–2014 school year;
(4) Establish measurable goals that—
(i) Address the specific reasons for the
school’s failure to make adequate
progress; and
(ii) Promote, for each group of
students described in § 200.13(b)(7) and
enrolled in the school, continuous and
substantial progress that ensures that all
these groups meet the State’s annual
measurable objectives described in
§ 200.18;
(5) Provide an assurance that the
school will spend not less than 10
percent of the allocation it receives
under subpart A of this part for each
year that the school is in school
improvement status, for the purpose of
providing high-quality professional

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development to the school’s teachers,
principal, and, as appropriate, other
instructional staff, consistent with
section 9101(34) of the ESEA, that—
(i) Directly addresses the academic
achievement problem that caused the
school to be identified for improvement;
(ii) Is provided in a manner that
affords increased opportunity for
participating in that professional
development; and
(iii) Incorporates teacher mentoring
activities or programs;
(6) Specify how the funds described
in paragraph (c)(5) of this section will be
used to remove the school from school
improvement status;
(7) Describe how the school will
provide written notice about the
identification to parents of each student
enrolled in the school;
(8) Include strategies to promote
effective parental involvement at the
school; and
(9) As appropriate, incorporate
activities before school, after school,
during the summer, and during any
extension of the school year.
(d)(1) Within 45 days of receiving a
school improvement plan, the LEA
must—
(i) Establish a peer-review process to
assist with review of the plan;
(ii) Promptly review the plan;
(iii) Work with the school to make any
necessary revisions; and
(iv) Approve the plan if it meets the
requirements of this section.
(2) The LEA may condition approval
of the school improvement plan on—
(i) Inclusion of one or more of the
corrective actions specified in § 200.42;
or
(ii) Feedback on the plan from parents
and community leaders.
(e) A school must implement its
school improvement plan immediately
on approval of the plan by the LEA.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(b)(3))
§ 200.42

Corrective action.

(a) Definition. ‘‘Corrective action’’
means action by an LEA that—
(1) Substantially and directly
responds to—
(i) The consistent academic failure of
a school that led the LEA to identify the
school for corrective action; and
(ii) Any underlying staffing,
curriculum, or other problems in the
school;
(2) Is designed to increase
substantially the likelihood that each
group of students described in
§ 200.13(b)(7) and enrolled in the school
will meet or exceed the State’s
proficient levels of achievement as

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measured by the State assessment
system; and
(3) Is consistent with State law.
(b) Requirements. If an LEA identifies
a school for corrective action, in
accordance with § 200.33, the LEA must
do the following:
(1) Continue to provide all students
enrolled in the school with the option
to transfer to another public school in
accordance with § 200.44.
(2) Continue to ensure that the school
receives technical assistance consistent
with the requirements of § 200.40.
(3) Make available supplemental
educational services in accordance with
§ 200.45.
(4) Take at least one of the following
corrective actions:
(i) Replace the school staff who are
relevant to the school’s failure to make
AYP.
(ii) Institute and fully implement a
new curriculum, including the
provision of appropriate professional
development for all relevant staff, that—
(A) Is grounded in scientifically based
research; and
(B) Offers substantial promise of
improving educational achievement for
low-achieving students and of enabling
the school to make AYP.
(iii) Significantly decrease
management authority at the school
level.
(iv) Appoint one or more outside
experts to advise the school on—
(A) Revising the school improvement
plan developed under § 200.41 to
address the specific issues underlying
the school’s continued failure to make
AYP and resulting in identification for
corrective action; and
(B) Implementing the revised
improvement plan.
(v) Extend for that school the length
of the school year or school day.
(vi) Restructure the internal
organization of the school.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(b)(7))
§ 200.43

Restructuring.

(a) Definition. ‘‘Restructuring’’ means
a major reorganization of a school’s
governance arrangement by an LEA
that—
(1) Makes fundamental reforms, such
as significant changes in the school’s
staffing and governance, to improve
student academic achievement in the
school;
(2) Has substantial promise of
enabling the school to make AYP as
defined under §§ 200.13 through 200.20;
and
(3) Is consistent with State law.
(b) Requirements. If the LEA identifies
a school for restructuring in accordance

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with § 200.34, the LEA must do the
following:
(1) Continue to provide all students
enrolled in the school with the option
to transfer to another public school in
accordance with § 200.44.
(2) Make available supplemental
educational services in accordance with
§ 200.45.
(3) Prepare a plan to carry out one of
the following alternative governance
arrangements:
(i) Reopen the school as a public
charter school.
(ii) Replace all or most of the school
staff, which may include the principal,
who are relevant to the school’s failure
to make AYP.
(iii) Enter into a contract with an
entity, such as a private management
company, with a demonstrated record of
effectiveness, to operate the school as a
public school.
(iv) Turn the operation of the school
over to the SEA, if permitted under
State law and agreed to by the State.
(v) Any other major restructuring of a
school’s governance arrangement
consistent with this section.
(4) Provide to parents and teachers—
(i) Prompt notice that the LEA has
identified the school for restructuring;
and
(ii) An opportunity for parents and
teachers to—
(A) Comment before the LEA takes
any action under a restructuring plan;
and
(B) Participate in the development of
any restructuring plan.
(c) Implementation. (1) If a school
continues to fail to make AYP, the LEA
must—
(i) Implement the restructuring plan
no later than the beginning of the school
year following the year in which the
LEA developed the restructuring plan
under paragraph (b)(3) of this section;
and
(ii) Continue to offer public school
choice and supplemental educational
services in accordance with §§ 200.44
and 200.45.
(2) An LEA is no longer required to
carry out the requirements of paragraph
(c)(1) of this section if the restructured
school makes AYP for two consecutive
school years.
(d) Rural schools. On request, the
Secretary will provide technical
assistance for developing and carrying
out a restructuring plan to any rural
LEA—
(1) That has fewer than 600 students
in average daily attendance at all of its
schools; and
(2) In which all of the schools have a
School Locale Code of 7 or 8, as
determined by the National Center for
Education Statistics.

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(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(b)(8))
§ 200.44

Public school choice.

(a) Requirements. (1) In the case of a
school identified for school
improvement under § 200.32, for
corrective action under § 200.33, or for
restructuring under § 200.34, the LEA
must provide all students enrolled in
the school with the option to transfer to
another public school served by the
LEA.
(2) The LEA must offer this option not
later than the first day of the school year
following the year in which the LEA
administered the assessments that
resulted in its identification of the
school for improvement, corrective
action, or restructuring.
(3) The schools to which students
may transfer under paragraph (a)(1) of
this section—
(i) May not include schools that—
(A) The LEA has identified for
improvement under § 200.32, corrective
action under § 200.33, or restructuring
under § 200.34; or
(B) Are persistently dangerous as
determined by the State; and
(ii) May include one or more public
charter schools.
(4) If more than one school meets the
requirements of paragraph (a)(3) of this
section, the LEA must—
(i) Provide to parents of students
eligible to transfer under paragraph
(a)(1) of this section a choice of more
than one such school; and
(ii) Take into account the parents’
preferences among the choices offered
under paragraph (a)(4)(i) of this section.
(5) The LEA must offer the option to
transfer described in this section unless
it is prohibited by State law in
accordance with paragraph (b) of this
section.
(6) Except as described in §§ 200.32(d)
and 200.33(c), if a school was in school
improvement or subject to corrective
action before January 8, 2002, the State
must ensure that the LEA provides a
public school choice option in
accordance with paragraph (a)(1) of this
section not later than the first day of the
2002–2003 school year.
(b) Limitation on State law
prohibition. An LEA may invoke the
State law prohibition on choice
described in paragraph (a)(5) of this
section 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.
(c) Desegregation plans. (1) If an LEA
is subject to a desegregation plan,
whether that plan is voluntary, court-

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ordered, or required by a Federal or
State administrative agency, the LEA is
not exempt from the requirement in
paragraph (a)(1) of this section.
(2) In determining how to provide
students with the option to transfer to
another school, the LEA may take into
account the requirements of the
desegregation plan.
(3) If the desegregation plan forbids
the LEA from offering the transfer
option required under paragraph (a)(1)
of this section, the LEA must secure
appropriate changes to the plan to
permit compliance with paragraph (a)(1)
of this section.
(d) Capacity. An LEA may not use
lack of capacity to deny students the
option to transfer under paragraph (a)(1)
of this section.
(e) Priority. (1) In providing students
the option to transfer to another public
school in accordance with paragraph
(a)(1) of this section, the LEA must give
priority to the lowest-achieving students
from low-income families.
(2) The LEA must determine family
income on the same basis that the LEA
uses to make allocations to schools
under subpart A of this part.
(f) Status. Any public school to which
a student transfers under paragraph
(a)(1) of this section must ensure that
the student is enrolled in classes and
other activities in the school in the same
manner as all other students in the
school.
(g) Duration of transfer. (1) If a
student exercises the option under
paragraph (a)(1) of this section to
transfer to another public school, the
LEA must permit the student to remain
in that school until the student has
completed the highest grade in the
school.
(2) The LEA’s obligation to provide
transportation for the student may be
limited under the circumstances
described in paragraph (i) of this section
and in § 200.48.
(h) No eligible schools within an LEA.
If all public schools to which a student
may transfer within an LEA are
identified for school improvement,
corrective action, or restructuring, the
LEA—
(1) Must, to the extent practicable,
establish a cooperative agreement for a
transfer with one or more other LEAs in
the area; and
(2) May offer supplemental
educational services to eligible students
under § 200.45 in schools in their first
year of school improvement under
§ 200.39.
(i) Transportation. (1) If a student
exercises the option under paragraph
(a)(1) of this section to transfer to
another public school, the LEA must,

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consistent with § 200.48, provide or pay
for the student’s transportation to the
school.
(2) The limitation on funding in
§ 200.48 applies only to the provision of
choice-related transportation, and does
not affect in any way the basic
obligation to provide an option to
transfer as required by paragraph (a) of
this section.
(3) The LEA’s obligation to provide
transportation for the student ends at
the end of the school year in which the
school from which the student
transferred is no longer identified by the
LEA for school improvement, corrective
action, or restructuring.
(j) Students with disabilities and
students covered under Section 504 of
the Rehabilitation Act of 1973 (Section
504). For students with disabilities
under the IDEA and students covered
under Section 504, the public school
choice option must provide a free
appropriate public education as that
term is defined in section 602(8) of the
IDEA or 34 CFR 104.33, respectively.
(Authority: 20 U.S.C. 6316)
§ 200.45 Supplemental educational
services.

(a) Definition. ‘‘Supplemental
educational services’’ means tutoring
and other supplemental academic
enrichment services that are—
(1) In addition to instruction provided
during the school day;
(2) Specifically designed to—
(i) Increase the academic achievement
of eligible students as measured by the
State’s assessment system; and
(ii) Enable these children to attain
proficiency in meeting State academic
achievement standards; and
(3) Of high quality and researchbased.
(b) Eligibility. (1) Only students from
low-income families are eligible for
supplemental educational services.
(2) The LEA must determine family
income on the same basis that the LEA
uses to make allocations to schools
under subpart A of this part.
(c) Requirement. (1) If an LEA
identifies a school for a second year of
improvement under § 200.32, corrective
action under § 200.33, or restructuring
under § 200.34, the LEA must arrange,
consistent with paragraph (d) of this
section, for each eligible student in the
school to receive supplemental
educational services from a Stateapproved provider selected by the
student’s parents.
(2) Except as described in §§ 200.32(d)
and 200.33(c), if a school was in school
improvement status for two or more
consecutive school years or subject to
corrective action on January 7, 2002, the

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State must ensure that the LEA makes
available, consistent with paragraph (d)
of this section, supplemental
educational services to all eligible
students not later than the first day of
the 2002–2003 school year.
(3) The LEA must, consistent with
§ 200.48, continue to make available
supplemental educational services to
eligible students until the end of the
school year in which the LEA is making
those services available.
(4)(i) At the request of an LEA, the
SEA may waive, in whole or in part, the
requirement that the LEA make
available supplemental educational
services if the SEA determines that—
(A) None of the providers of those
services on the list approved by the SEA
under § 200.47 makes those services
available in the area served by the LEA
or within a reasonable distance of that
area; and
(B) The LEA provides evidence that it
is not otherwise able to make those
services available.
(ii) The SEA must notify the LEA,
within 30 days of receiving the LEA’s
request for a waiver under paragraph
(c)(4)(i) of this section, whether it
approves or disapproves the request
and, if it disapproves, the reasons for
the disapproval, in writing.
(iii) An LEA that receives a waiver
must renew its request for that waiver
on an annual basis.
(d) Priority. If the amount of funds
available for supplemental educational
services is insufficient to provide
services to each student whose parents
request these services, the LEA must
give priority to the lowest-achieving
students.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316)

25. Add new §§ 200.46 through
200.49 and place them under the new
undesignated center heading ‘‘LEA and
School Improvement’’ in subpart A of
part 200 to read as follows:
§ 200.46 LEA responsibilities for
supplemental educational services.

(a) If an LEA is required to make
available supplemental educational
services under § 200.39(b)(3),
§ 200.42(b)(3), or § 200.43(b)(2), the LEA
must do the following:
(1) Provide the annual notice to
parents described in § 200.37(b)(5).
(2) If requested, assist parents in
choosing a provider from the list of
approved providers maintained by the
SEA.
(3) Apply fair and equitable
procedures for serving students if the
number of spaces at approved providers
is not sufficient to serve all eligible

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students whose parents request services
consistent with § 200.45.
(4) Ensure that eligible students with
disabilities under IDEA and students
covered under Section 504 receive
appropriate supplemental educational
services and accommodations in the
provision of those services.
(5) Ensure that eligible students who
have limited English proficiency receive
appropriate supplemental educational
services and language assistance in the
provision of those services.
(6) Not disclose to the public, without
the written permission of the student’s
parents, the identity of any student who
is eligible for, or receiving,
supplemental educational services.
(b)(1) In addition to meeting the
requirements in paragraph (a) of this
section, the LEA must enter into an
agreement with each provider selected
by a parent or parents.
(2) The agreement must—
(i) Require the LEA to develop, in
consultation with the parents and the
provider, a statement that includes—
(A) Specific achievement goals for the
student;
(B) A description of how the student’s
progress will be measured; and
(C) A timetable for improving
achievement;
(ii) Describe procedures for regularly
informing the student’s parents and
teachers of the student’s progress;
(iii) Provide for the termination of the
agreement if the provider is unable to
meet the goals and timetables specified
in the agreement;
(iv) Specify how the LEA will pay the
provider; and
(v) Prohibit the provider from
disclosing to the public, without the
written permission of the student’s
parents, the identity of any student who
is eligible for, or receiving,
supplemental educational services.
(3) In the case of a student with
disabilities under IDEA or a student
covered under Section 504, the
provisions of the agreement referred to
in paragraph (b)(2)(i) of this section
must be consistent with the student’s
individualized education program
under section 614(d) of the IDEA or the
student’s individualized services under
Section 504.
(4) The LEA may not pay the provider
for religious worship or instruction.
(c) If State law prohibits an SEA from
carrying out one or more of its
responsibilities under § 200.47 with
respect to those who provide, or seek
approval to provide, supplemental
educational services, each LEA must
carry out those responsibilities with
respect to its students who are eligible
for those services.

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(Authority: 20 U.S.C. 6316(e))
(Approved by the Office of Management and
Budget under control number 1810–0581)
§ 200.47 SEA responsibilities for
supplemental educational services.

(a) If one or more LEAs in a State are
required to make available
supplemental educational services
under § 200.39(b)(3), § 200.42(b)(3), or
§ 200.43(b)(2), the SEA for that State
must do the following:
(1)(i) In consultation with affected
LEAs, parents, teachers, and other
interested members of the public,
promote participation by as many
providers as possible.
(ii) This promotion must include
annual notice to potential providers of—
(A) The opportunity to provide
supplemental educational services; and
(B) Procedures for obtaining the SEA’s
approval to be a provider of those
services.
(2) Consistent with paragraph (b) of
this section, develop and apply to
potential providers objective criteria.
(3) Maintain by LEA an updated list
of approved providers, including any
technology-based or distance-learning
providers, from which parents may
select.
(4) Develop, implement, and publicly
report on standards and techniques
for—
(i) Monitoring the quality and
effectiveness of the services offered by
each approved provider; and
(ii) Withdrawing approval from a
provider that fails, for two consecutive
years, to contribute to increasing the
academic proficiency of students
receiving supplemental educational
services from that provider.
(5) Ensure that eligible students with
disabilities under IDEA and students
covered under Section 504 receive
appropriate supplemental educational
services and accommodations in the
provision of those services.
(6) Ensure that eligible students who
have limited English proficiency receive
appropriate supplemental educational
services and language assistance in the
provision of those services.
(b) Standards for approving providers.
(1) As used in this section and in
§ 200.46, ‘‘provider’’ means a non-profit
entity, a for-profit entity, an LEA, an
educational service agency, a public
school, including a public charter
school, or a private school that—
(i) Has a demonstrated record of
effectiveness in increasing the academic
achievement of students in subjects
relevant to meeting the State’s academic
content and student achievement
standards described under § 200.1;
(ii) Is capable of providing
supplemental educational services that

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are consistent with the instructional
program of the LEA and with the State
academic content standards and State
student achievement standards
described under § 200.1;
(iii) Is financially sound; and
(iv) In the case of—
(A) A public school, has not been
identified under §§ 200.32, 200.33, or
200.34; or
(B) An LEA, has not been identified
under § 200.50(d) or (e).
(2) In order for the SEA to include a
provider on the State list, the provider
must agree to—
(i)(A) Provide parents of each student
receiving supplemental educational
services and the appropriate LEA with
information on the progress of the
student in increasing achievement; and
(B) This information must be in an
understandable and uniform format,
including alternative formats upon
request, and, to the extent practicable,
in a language that the parents can
understand;
(ii) Ensure that the instruction the
provider gives and the content the
provider uses—
(A) Are consistent with the
instruction provided and the content
used by the LEA and the SEA;
(B) Are aligned with State student
academic achievement standards; and
(C) Are secular, neutral, and
nonideological; and
(iii) Meet all applicable Federal, State,
and local health, safety, and civil rights
laws.
(3) As a condition of approval, a State
may not require a provider to hire only
staff who meet the requirements under
§§ 200.55 and 200.56.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(e))
§ 200.48 Funding for choice-related
transportation and supplemental
educational services.

(a) Amounts required. (1) To pay for
choice-related transportation and
supplemental educational services
required under section 1116 of the
ESEA, an LEA may use—
(i) Funds allocated under subpart A of
this part;
(ii) Funds, where allowable, from
other Federal education programs; and
(iii) State, local, or private resources.
(2) Unless a lesser amount is needed,
the LEA must spend an amount equal to
20 percent of its allocation under
subpart A of this part to—
(i) Provide, or pay for, transportation
of students exercising a choice option
under § 200.44;
(ii) Satisfy all requests for
supplemental educational services
under § 200.45; or

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(iii) Pay for both paragraph (a)(2)(i)
and (ii) of this section, except that—
(A) The LEA must spend a minimum
of an amount equal to 5 percent of its
allocation under subpart A of this part
on transportation under paragraph
(a)(2)(i) of this section and an amount
equal to 5 percent of its allocation under
subpart A of this part for supplemental
educational services under paragraph
(a)(2)(ii) of this section, unless lesser
amounts are needed to meet the
requirements of §§ 200.44 and 200.45;
and
(B) The LEA may not include costs for
administration or transportation
incurred in providing supplemental
educational services, or administrative
costs associated with the provision of
public school choice options under
§ 200.44, in the amounts required under
paragraph (a)(2) of this section.
(3) If the amount specified in
paragraph (a)(2) of this section is
insufficient to pay all choice-related
transportation costs, or to meet the
demand for supplemental educational
services, the LEA may make available
any additional needed funds from
Federal, State, or local sources.
(4) To assist an LEA that does not
have sufficient funds to make available
supplemental educational services to all
students requesting these services, an
SEA may use funds that it reserves
under part A of Title I and part A of
Title V of the ESEA.
(b) Cap on school-level reduction. (1)
An LEA may not, in applying paragraph
(a) of this section, reduce by more than
15 percent the total amount it makes
available under subpart A of this part to
a school it has identified for corrective
action or restructuring.
(c) Per-child funding for supplemental
educational services. For each student
receiving supplemental educational
services under § 200.45, the LEA must
make available the lesser of—
(1) The amount of its allocation under
subpart A of this part, divided by the
number of students from families below
the poverty level, as counted under
section 1124(c)(1)(A) of the ESEA; or
(2) The actual costs of the
supplemental educational services
received by the student.
(Authority: 20 U.S.C. 6316)
§ 200.49 SEA responsibilities for school
improvement, corrective action, and
restructuring.

(a) Transition requirements for public
school choice and supplemental
educational services. (1) Except as
described in §§ 200.32(d) and 200.33(c),
if a school was in school improvement
or subject to corrective action on
January 7, 2002, the SEA must ensure

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that the LEA for that school provides
public school choice in accordance with
§ 200.44 not later than the first day of
the 2002–2003 school year.
(2) Except as described in §§ 200.32(d)
and 200.33(c), if a school was in school
improvement status for two or more
consecutive school years or subject to
corrective action on January 7, 2002, the
SEA must ensure that the LEA for that
school makes available supplemental
educational services in accordance with
§ 200.45 not later than the first day of
the 2002–2003 school year.
(b) State reservation of funds for
school improvement. (1) In accordance
with § 200.100(a), an SEA must reserve
2 percent of the amount it receives
under this part for fiscal years 2002 and
2003, and 4 percent of the amount it
receives under this part for fiscal years
2004 through 2007, to—
(i) Support local school improvement
activities;
(ii) Provide technical assistance to
schools identified for improvement,
corrective action, or restructuring; and
(iii) Provide technical assistance to
LEAs that the SEA has identified for
improvement or corrective action in
accordance with § 200.50.
(2) Of the amount it reserves under
paragraph (b)(1) of this section, the SEA
must—
(i) Allocate not less than 95 percent
directly to LEAs serving schools
identified for improvement, corrective
action, and restructuring to support
improvement activities; or
(ii) With the approval of the LEA,
directly provide for these improvement
activities or arrange to provide them
through such entities as school support
teams or educational service agencies.
(3) In providing assistance to LEAs
under paragraph (b)(2) of this section,
the SEA must give priority to LEAs
that—
(i) Serve the lowest-achieving schools;
(ii) Demonstrate the greatest need for
this assistance; and
(iii) Demonstrate the strongest
commitment to ensuring that this
assistance will be used to enable the
lowest-achieving schools to meet the
progress goals in the school
improvement plans under § 200.41.
(c) Technical assistance. The SEA
must make technical assistance
available, through the statewide system
of support and improvement required
by section 1117 of the ESEA, to schools
that LEAs have identified for
improvement, corrective action, or
restructuring.
(d) LEA failure. If the SEA determines
that an LEA has failed to carry out its
responsibilities with respect to school
improvement, corrective action, or

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71727

restructuring, the SEA must take the
actions it determines to be appropriate
and in compliance with State law.
(e) Assessment results. (1) The SEA
must ensure that the results of academic
assessments administered as part of the
State assessment system in a given
school year are available to LEAs before
the beginning of the next school year
and in such time as to allow for the
identification described in
§ 200.32(a)(2).
(2) The SEA must provide the results
described in paragraph (e)(1) of this
section to a school before an LEA may
identify the school for school
improvement under § 200.32, corrective
action under § 200.33, or restructuring
under § 200.34.
(f) Accountability for charter schools.
The accountability provisions under
section 1116 of the ESEA must be
overseen for charter schools in
accordance with State charter school
law.
(g) Factors affecting student
achievement. The SEA must notify the
Secretary of Education of major factors
that have been brought to the SEA’s
attention under section 1111(b)(9) of the
ESEA that have significantly affected
student academic achievement in
schools and LEAs identified for
improvement within the State.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6311 and 6316)

26. Revise §§ 200.50 and 200.51 and
place them under the new undesignated
center heading ‘‘LEA and School
Improvement’’ in subpart A of part 200
to read as follows:
§ 200.50

SEA review of LEA progress.

(a) State review. (1) An SEA must
annually review the progress of each
LEA in its State that receives funds
under subpart A of this part to
determine whether—
(i) The LEA’s schools served under
this part are making AYP, as defined
under §§ 200.13 through 200.20, toward
meeting the State’s student academic
achievement standards; and
(ii) The LEA is carrying out its
responsibilities under this part with
respect to school improvement,
technical assistance, parental
involvement, and professional
development.
(2) In reviewing the progress of an
LEA, the SEA may, in the case of
targeted assistance schools served by the
LEA, consider the progress only of the
students served or eligible for services
under this subpart, provided the
students selected for services in such
schools are those with the greatest need

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for special assistance, consistent with
the requirements of section 1115 of the
ESEA.
(b) Rewards. If an LEA has exceeded
AYP as defined under §§ 200.13 through
200.20 for two consecutive years, the
SEA may—
(1) Reserve funds in accordance with
§ 200.100(c); and
(2) Make rewards of the kinds
described under section 1117 of the
ESEA.
(c) Opportunity for review of LEAlevel data. (1) Before identifying an LEA
for improvement or corrective action,
the SEA must provide the LEA with an
opportunity to review the data,
including academic assessment data, on
which the SEA has based the proposed
identification.
(2)(i) If the LEA believes that the
proposed identification is in error for
statistical or other substantive reasons,
the LEA may provide supporting
evidence to the SEA.
(ii) The SEA must consider the
evidence before making a final
determination not later than 30 days
after it has provided the LEA with the
opportunity to review the data under
paragraph (c)(1) of this section.
(d) Identification for improvement. (1)
The SEA must identify for improvement
an LEA that, for two consecutive years,
including the period immediately before
January 8, 2002, fails to make AYP as
defined in the SEA’s plan under section
1111(b)(2) of the ESEA.
(2) The SEA must identify for
improvement an LEA that was in
improvement status on January 7, 2002.
(3)(i) The SEA may identify an LEA
for improvement if, on the basis of
assessments the LEA administers during
the 2001–2002 school year, the LEA
fails to make AYP for a second
consecutive year.
(ii) An SEA that does not identify
such an LEA for improvement, however,
must count the 2001–2002 school year
as the first year of not making AYP for
the purpose of subsequent identification
decisions under paragraph (d)(1) of this
section.
(4) The SEA may remove an LEA from
improvement status if, on the basis of
assessments the LEA administers during
the 2001–2002 school year, the LEA
makes AYP for a second consecutive
year.
(e) Identification for corrective action.
After providing technical assistance
under § 200.52(b), the SEA—
(1) May take corrective action at any
time with respect to an LEA that the
SEA has identified for improvement
under paragraph (d) of this section;
(2) Must take corrective action—

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(i) With respect to an LEA that fails
to make AYP, as defined under
§§ 200.13 through 200.20, by the end of
the second full school year following
the year in which the LEA administered
the assessments that resulted in the
LEA’s failure to make AYP for a second
consecutive year and led to the SEA’s
identification of the LEA for
improvement under paragraph (d) of
this section; and
(ii) With respect to an LEA that was
in corrective action status on January 7,
2002; and
(3) May remove an LEA from
corrective action if, on the basis of
assessments administered by the LEA
during the 2001–2002 school year, it
makes AYP for a second consecutive
year.
(f) Delay of corrective action. (1) The
SEA may delay implementation of
corrective action under § 200.53 for a
period not to exceed one year if—
(i) The LEA makes AYP for one year;
or
(ii) The LEA’s failure to make AYP is
due to exceptional or uncontrollable
circumstances, such as a natural disaster
or a precipitous and unforeseen decline
in the LEA’s financial resources.
(2)(i) The SEA may not take into
account the period of delay referred to
in paragraph (f)(1) of this section in
determining the number of consecutive
years the LEA has failed to make AYP;
and
(ii) The SEA must subject the LEA to
further actions following the period of
delay as if the delay never occurred.
(g) Continuation of public school
choice and supplemental educational
services. An SEA must ensure that an
LEA identified under paragraph (d) or
(e) of this section continues to offer
public school choice in accordance with
§ 200.44 and supplemental educational
services in accordance with § 200.45.
(h) Removal from improvement or
corrective action status. If an LEA
makes AYP for two consecutive years
following identification for
improvement under paragraph (d) or
corrective action under paragraph (e) of
this section, the SEA need no longer—
(1) Identify the LEA for improvement;
or
(2) Subject the LEA to corrective
action for the succeeding school year.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(c))
§ 200.51

Notice of SEA action.

(a) In general. (1) An SEA must—
(i) Communicate with parents
throughout the review of an LEA under
§ 200.50; and

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(ii) Ensure that, regardless of the
method or media used, it provides
information to parents—
(A) In an understandable and uniform
format, including alternative formats
upon request; and
(B) To the extent practicable, in a
language that parents can understand.
(2) The SEA must provide information
to the parents of each student enrolled
in a school served by the LEA—
(i) Directly, through such means as
regular mail or e-mail, except that if an
SEA does not have access to individual
student addresses, it may provide
information to the LEA or school for
distribution to parents; and
(ii) Through broader means of
dissemination such as the Internet, the
media, and public agencies serving the
student population and their families.
(3) All communications must respect
the privacy of students and their
families.
(b) Results of review. The SEA must
promptly publicize and disseminate to
the LEAs, teachers and other staff, the
parents of each student enrolled in a
school served by the LEA, students, and
the community the results of its review
under § 200.50, including statistically
sound disaggregated results in
accordance with §§ 200.2 and 200.7.
(c) Identification for improvement or
corrective action. If the SEA identifies
an LEA for improvement or subjects the
LEA to corrective action, the SEA must
promptly provide to the parents of each
student enrolled in a school served by
the LEA—
(1) The reasons for the identification;
and
(2) An explanation of how parents can
participate in improving the LEA.
(d) Information about action taken. (1)
The SEA must publish, and disseminate
to the parents of each student enrolled
in a school served by the LEA and to the
public, information on any corrective
action the SEA takes under § 200.53.
(2) The SEA must provide this
information—
(i) In a uniform and understandable
format, including alternative formats
upon request; and
(ii) To the extent practicable, in a
language that parents can understand.
(3) The SEA must disseminate the
information through such means as the
Internet, the media, and public agencies.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(c))

27. Add new §§ 200.52 and 200.53
and place them under the new
undesignated center heading ‘‘LEA and
School Improvement’’ in subpart A of
part 200 to read as follows:

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§ 200.52

LEA improvement.

(a) Improvement plan. (1) Not later
than 3 months after an SEA has
identified an LEA for improvement
under § 200.50(d), the LEA must
develop or revise an LEA improvement
plan.
(2) The LEA must consult with
parents, school staff, and others in
developing or revising its improvement
plan.
(3) The LEA improvement plan
must—
(i) Incorporate strategies, grounded in
scientifically based research, that will
strengthen instruction in core academic
subjects in schools served by the LEA;
(ii) Identify actions that have the
greatest likelihood of improving the
achievement of participating children in
meeting the State’s student academic
achievement standards;
(iii) Address the professional
development needs of the instructional
staff serving the LEA by committing to
spend for professional development not
less than 10 percent of the funds
received by the LEA under subpart A of
this part for each fiscal year in which
the SEA identifies the LEA for
improvement. These funds—
(A) May include funds reserved by
schools for professional development
under § 200.41(c)(5); but
(B) May not include funds reserved
for professional development under
section 1119 of the ESEA;
(iv) Include specific measurable
achievement goals and targets—
(A) For each of the groups of students
under § 200.13(b)(7); and
(B) That are consistent with AYP as
defined under §§ 200.13 through 200.20;
(v) Address—
(A) The fundamental teaching and
learning needs in the schools of the
LEA; and
(B) The specific academic problems of
low-achieving students, including a
determination of why the LEA’s
previous plan failed to bring about
increased student academic
achievement;
(vi) As appropriate, incorporate
activities before school, after school,
during the summer, and during any
extension of the school year;
(vii) Specify the responsibilities of the
SEA and LEA under the plan, including
the technical assistance the SEA must
provide under paragraph (b) of this
section and the LEA’s responsibilities
under section 1120A of the ESEA; and
(viii) Include strategies to promote
effective parental involvement in the
schools served by the LEA.
(4) The LEA must implement the
improvement plan—including any
revised plan—expeditiously, but not

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later than the beginning of the school
year following the year in which the
LEA administered the assessments that
resulted in the LEA’s failure to make
AYP for a second consecutive year and
led to the SEA’s identification of the
LEA for improvement under § 200.50(d).
(b) SEA technical assistance. (1) An
SEA that identifies an LEA for
improvement under § 200.50(d) must, if
requested, provide or arrange for the
provision of technical or other
assistance to the LEA, as authorized
under section 1117 of the ESEA.
(2) The purpose of the technical
assistance is to better enable the LEA
to—
(i) Develop and implement its
improvement plan; and
(ii) Work with schools needing
improvement.
(3) The technical assistance provided
by the SEA or an entity authorized by
the SEA must—
(i) Be supported by effective methods
and instructional strategies grounded in
scientifically based research; and
(ii) Address problems, if any, in
implementing the parental involvement
and professional development activities
described in sections 1118 and 1119,
respectively, of the ESEA.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6316(c))
§ 200.53

LEA corrective action.

(a) Definition. For the purposes of this
section, the term ‘‘corrective action’’
means action by an SEA that—
(1) Substantially and directly
responds to—
(i) The consistent academic failure
that caused the SEA to identify an LEA
for corrective action; and
(ii) Any underlying staffing,
curriculum, or other problems in the
LEA;
(2) Is designed to meet the goal that
each group of students described in
§ 200.13(b)(7) and enrolled in the LEA’s
schools will meet or exceed the State’s
proficient levels of achievement as
measured by the State assessment
system; and
(3) Is consistent with State law.
(b) Notice and hearing. Before
implementing any corrective action
under paragraph (c) of this section, the
SEA must provide notice and a hearing
to the affected LEA—if State law
provides for this notice and hearing—
not later than 45 days following the
decision to take corrective action.
(c) Requirements. If the SEA identifies
an LEA for corrective action, the SEA
must do the following:
(1) Continue to make available
technical assistance to the LEA.

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(2) Take at least one of the following
corrective actions:
(i) Defer programmatic funds or
reduce administrative funds.
(ii) Institute and fully implement a
new curriculum based on State and
local content and academic achievement
standards, including the provision of
appropriate professional development
for all relevant staff that—
(A) Is grounded in scientifically based
research; and
(B) Offers substantial promise of
improving educational achievement for
low-achieving students.
(iii) Replace the LEA personnel who
are relevant to the failure to make AYP.
(iv) Remove particular schools from
the jurisdiction of the LEA and establish
alternative arrangements for public
governance and supervision of these
schools.
(v) Appoint a receiver or trustee to
administer the affairs of the LEA in
place of the superintendent and school
board.
(vi) Abolish or restructure the LEA.
(vii) In conjunction with at least one
other action in paragraph (c)(2) of this
section—
(A) Authorize students to transfer
from a school operated by the LEA to a
higher-performing public school
operated by another LEA in accordance
with § 200.44, and
(B) Provide to these students
transportation, or the costs of
transportation, to the other school
consistent with § 200.44(h).
(Approved by the Office of Management and
Budget under control number 1810–0516)
(Authority: 20 U.S.C. 6316(c)(10))

28. Place reserved § 200.54 under the
undesignated center heading ‘‘LEA and
school improvement’’ in subpart A of
part 200.
29. Add a new undesignated center
heading to subpart A of part 200 and
place it after § 200.54 to read as follows:
Qualifications Of Teachers And
Paraprofessionals
30. Add new §§ 200.55 through
200.59 and place them under the new
undesignated center heading
‘‘Qualifications of Teachers and
Paraprofessionals’’ in subpart A of part
200 to read as follows:
§ 200.55

Qualifications of teachers.

(a) Newly hired teachers in Title I
programs. (1) An LEA must ensure that
all teachers hired after the first day of
the 2002–2003 school year who teach
core academic subjects in a program
supported with funds under subpart A
of this part are highly qualified as
defined in § 200.56.

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(2) For the purpose of paragraph (a)(1)
of this section, a teacher teaching in a
program supported with funds under
subpart A of this part is—
(i) A teacher in a targeted assisted
school who is paid with funds under
subpart A of this part;
(ii) A teacher in a schoolwide program
school; or
(iii) A teacher employed by an LEA
with funds under subpart A of this part
to provide services to eligible private
school students under § 200.62.
(b) All teachers of core academic
subjects. (1) Not later than the end of the
2005–2006 school year, each State that
receives funds under subpart A of this
part, and each LEA in that State, must
ensure that all public elementary and
secondary school teachers in the State
who teach core academic subjects,
including teachers employed by an LEA
to provide services to eligible private
school students under § 200.62, are
highly qualified as defined in § 200.56.
(2) A teacher who does not teach a
core academic subject—such as some
vocational education teachers—is not
required to meet the requirements in
§ 200.56.
(c) Definition. The term ‘‘core
academic subjects’’ means English,
reading or language arts, mathematics,
science, foreign languages, civics and
government, economics, arts, history,
and geography.
(d) Private school teachers. The
requirements in this section do not
apply to teachers hired by private
elementary and secondary schools.
(Authority: 20 U.S.C. 6319; 7801(11))
§ 200.56 Definition of ‘‘highly qualified
teacher.’’

To be a ‘‘highly qualified teacher,’’ a
teacher covered under § 200.55 must
meet the requirements in paragraph (a)
and either paragraph (b) or (c) of this
section.
(a) In general. (1) Except as provided
in paragraph (a)(3) of this section, a
teacher covered under § 200.55 must—
(i) Have obtained full State
certification as a teacher, which may
include certification obtained through
alternative routes to certification; or
(ii)(A) Have passed the State teacher
licensing examination; and
(B) Hold a license to teach in the
State.
(2) A teacher meets the requirement in
paragraph (a)(1) of this section if the
teacher—
(i) Has fulfilled the State’s
certification and licensure requirements
applicable to the years of experience the
teacher possesses; or

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(ii) Is participating in an alternative
route to certification program under
which—
(A) The teacher—
(1) Receives high-quality professional
development that is sustained,
intensive, and classroom-focused in
order to have a positive and lasting
impact on classroom instruction, before
and while teaching;
(2) Participates in a program of
intensive supervision that consists of
structured guidance and regular ongoing
support for teachers or a teacher
mentoring program;
(3) Assumes functions as a teacher
only for a specified period of time not
to exceed three years; and
(4) Demonstrates satisfactory progress
toward full certification as prescribed by
the State; and
(B) The State ensures, through its
certification and licensure process, that
the provisions in paragraph (a)(2)(ii) of
this section are met.
(3) A teacher teaching in a public
charter school in a State must meet the
certification and licensure requirements,
if any, contained in the State’s charter
school law.
(4) If a teacher has had certification or
licensure requirements waived on an
emergency, temporary, or provisional
basis, the teacher is not highly qualified.
(b) Teachers new to the profession. A
teacher covered under § 200.55 who is
new to the profession also must—
(1) Hold at least a bachelor’s degree;
and
(2) At the public elementary school
level, demonstrate, by passing a rigorous
State test (which may consist of passing
a State certification or licensing test),
subject knowledge and teaching skills in
reading/language arts, writing,
mathematics, and other areas of the
basic elementary school curriculum; or
(3) At the public middle and high
school levels, demonstrate a high level
of competency by—
(i) Passing a rigorous State test in each
academic subject in which the teacher
teaches (which may consist of passing a
State certification or licensing test in
each of these subjects); or
(ii) Successfully completing in each
academic subject in which the teacher
teaches—
(A) An undergraduate major;
(B) A graduate degree;
(C) Coursework equivalent to an
undergraduate major; or
(D) Advanced certification or
credentialing.
(c) Teachers not new to the
profession. A teacher covered under
§ 200.55 who is not new to the
profession also must—
(1) Hold at least a bachelor’s degree;
and

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(2)(i) Meet the applicable
requirements in paragraph (b)(2) or (3)
of this section; or
(ii) Based on a high, objective,
uniform State standard of evaluation in
accordance with section 9101(23)(C)(ii)
of the ESEA, demonstrate competency
in each academic subject in which the
teacher teaches.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 7801(23))
§ 200.57

Plans to increase teacher quality.

(a) State plan. (1) A State that receives
funds under subpart A of this part must
develop, as part of its State plan under
section 1111 of the ESEA, a plan to
ensure that all public elementary and
secondary school teachers in the State
who teach core academic subjects are
highly qualified not later than the end
of the 2005–2006 school year.
(2) The State’s plan must—
(i) Establish annual measurable
objectives for each LEA and school that
include, at a minimum, an annual
increase in the percentage of—
(A) Highly qualified teachers at each
LEA and school; and
(B) Teachers who are receiving highquality professional development to
enable them to become highly qualified
and effective classroom teachers;
(ii) Describe the strategies the State
will use to—
(A) Help LEAs and schools meet the
requirements in paragraph (a)(1) of this
section; and
(B) Monitor the progress of LEAs and
schools in meeting these requirements;
and
(iii) Until the SEA fully complies with
paragraph (a)(1) of this section, describe
the specific steps the SEA will take to—
(A) Ensure that Title I schools provide
instruction by highly qualified teachers,
including steps that the SEA will take
to ensure that minority children and
children from low-income families are
not taught at higher rates than other
children by inexperienced, unqualified,
or out-of-field teachers; and
(B) Evaluate and publicly report the
progress of the SEA with respect to
these steps.
(3) The State’s plan may include other
measures that the State determines are
appropriate to increase teacher
qualifications.
(b) Local plan. An LEA that receives
funds under subpart A of this part must
develop, as part of its local plan under
section 1112 of the ESEA, a plan to
ensure that—
(1) All public elementary and
secondary school teachers in the LEA
who teach core academic subjects,
including teachers employed by the

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LEA to provide services to eligible
private school students under § 200.62,
are highly qualified not later than the
end of the 2005–2006 school year; and
(2) Through incentives for voluntary
transfers, professional development,
recruitment programs, or other effective
strategies, minority students and
students from low-income families are
not taught at higher rates than other
students by unqualified, out-of-field, or
inexperienced teachers.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6311(b)(8)(C),
6312(c)(1)(I), (L); 6319(a)(2)–(3); 7801(34))
§ 200.58 Qualifications of
paraprofessionals.

(a) Applicability. (1) An LEA must
ensure that each paraprofessional who
is hired by the LEA and who works in
a program supported with funds under
subpart A of this part meets the
requirements in paragraph (b) of this
section and, except as provided in
paragraph (e) of this section, the
requirements in either paragraph (c) or
(d) of this section.
(2) For the purpose of this section, the
term ‘‘paraprofessional’’—
(i) Means an individual who provides
instructional support consistent with
§ 200.59; and
(ii) Does not include individuals who
have only non-instructional duties (such
as providing technical support for
computers, providing personal care
services, or performing clerical duties).
(3) For the purpose of paragraph (a) of
this section, a paraprofessional working
in ‘‘a program supported with funds
under subpart A of this part’’ is—
(i) A paraprofessional in a targeted
assisted school who is paid with funds
under subpart A of this part;
(ii) A paraprofessional in a
schoolwide program school; or
(iii) A paraprofessional employed by
an LEA with funds under subpart A of
this part to provide instructional
support to a public school teacher
covered under § 200.55 who provides
equitable services to eligible private
school students under § 200.62.
(b) All paraprofessionals. A
paraprofessional covered under
paragraph (a) of this section, regardless
of the paraprofessional’s hiring date,
must have earned a secondary school
diploma or its recognized equivalent.
(c) New paraprofessionals. A
paraprofessional covered under
paragraph (a) of this section who is
hired after January 8, 2002 must have—
(1) Completed at least two years of
study at an institution of higher
education;

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(2) Obtained an associate’s or higher
degree; or
(3)(i) Met a rigorous standard of
quality, and can demonstrate—through
a formal State or local academic
assessment—knowledge of, and the
ability to assist in instructing, as
appropriate—
(A) Reading/language arts, writing,
and mathematics; or
(B) Reading readiness, writing
readiness, and mathematics readiness.
(ii) A secondary school diploma or its
recognized equivalent is necessary, but
not sufficient, to meet the requirement
in paragraph (c)(3)(i) of this section.
(d) Existing paraprofessionals. Each
paraprofessional who was hired on or
before January 8, 2002 must meet the
requirements in paragraph (c) of this
section no later than January 8, 2006.
(e) Exceptions. A paraprofessional
does not need to meet the requirements
in paragraph (c) or (d) of this section if
the paraprofessional—
(1)(i) Is proficient in English and a
language other than English; and
(ii) Acts as a translator to enhance the
participation of limited English
proficient children under subpart A of
this part; or
(2) Has instructional-support duties
that consist solely of conducting
parental involvement activities.
(Authority: 20 U.S.C. 6319(c)–(f))
§ 200.59

Duties of paraprofessionals.

(a) A paraprofessional covered under
§ 200.58 may not be assigned a duty
inconsistent with paragraph (b) of this
section.
(b) A paraprofessional covered under
§ 200.58 may perform the following
instructional support duties:
(1) One-on-one tutoring for eligible
students if the tutoring is scheduled at
a time when a student would not
otherwise receive instruction from a
teacher.
(2) Assisting in classroom
management.
(3) Assisting in computer instruction.
(4) Conducting parent involvement
activities.
(5) Providing instructional support in
a library or media center.
(6) Acting as a translator.
(7) Providing instructional support
services.
(c)(1) A paraprofessional may not
provide instructional support to a
student unless the paraprofessional is
working under the direct supervision of
a teacher who meets the requirements in
§ 200.56.
(2) A paraprofessional works under
the direct supervision of a teacher if—
(i) The teacher plans the instructional
activities that the paraprofessional
carries out;

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(ii) The teacher evaluates the
achievement of the students with whom
the paraprofessional is working; and
(iii) The paraprofessional works in
close and frequent physical proximity to
the teacher.
(d) A paraprofessional may assume
limited duties that are assigned to
similar personnel who are not working
in a program supported with funds
under subpart A of this part—including
non-instructional duties and duties that
do not benefit participating students—if
the amount of time the paraprofessional
spends on those duties is the same
proportion of total work time as the time
spent by similar personnel at the same
school.
(Authority: 20 U.S.C. 6319(g))

31. Revise §§ 200.60 and 200.61 and
place them under the new undesignated
center heading ‘‘Qualifications of
Teachers and Paraprofessionals’’ in
subpart A of part 200 to read as follows:
§ 200.60 Expenditures for professional
development.

(a)(1) Except as provided in paragraph
(a)(2) of this section, an LEA must use
funds it receives under subpart A of this
part as follows for professional
development activities to ensure that
teachers and paraprofessionals meet the
requirements of §§ 200.56 and 200.58:
(i) For each of fiscal years 2002 and
2003, the LEA must use not less than 5
percent or more than 10 percent of the
funds it receives under subpart A of this
part.
(ii) For each fiscal year after 2003, the
LEA must use not less than 5 percent of
the funds it receives under subpart A of
this part.
(2) An LEA is not required to spend
the amount required in paragraph (a)(1)
of this section for a given fiscal year if
a lesser amount is sufficient to ensure
that the LEA’s teachers and
paraprofessionals meet the requirements
in §§ 200.56 and 200.58, respectively.
(b) The LEA may use additional funds
under subpart A of this part to support
ongoing training and professional
development, as defined in section
9101(34) of the ESEA, to assist teachers
and paraprofessionals in carrying out
activities under subpart A of this part.
(Authority: 20 U.S.C. 6319(h), (l); 7801(34))
§ 200.61

Parents’ right to know.

(a) At the beginning of each school
year, an LEA that receives funds under
subpart A of this part must notify the
parents of each student attending a Title
I school that the parents may request,
and the LEA will provide the parents on
request, information regarding the
professional qualifications of the

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student’s classroom teachers, including,
at a minimum, the following:
(1) Whether the teacher has met State
qualification and licensing criteria for
the grade levels and subject areas in
which the teacher provides instruction.
(2) Whether the teacher is teaching
under emergency or other provisional
status through which State qualification
or licensing criteria have been waived.
(3) The baccalaureate degree major of
the teacher and any other graduate
certification or degree held by the
teacher, and the field of discipline of the
certification or degree.
(4) Whether the child is provided
services by paraprofessionals and, if so,
their qualifications.
(b) A school that participates under
subpart A of this part must provide to
each parent—
(1) Information on the level of
achievement of the parent’s child in
each of the State academic assessments
required under § 200.2;
(2) Timely notice that the parent’s
child has been assigned, or has been
taught for four or more consecutive
weeks by, a teacher of a core academic
subject who is not highly qualified.
(c) An LEA and school must provide
the notice and information required
under this section—
(1) In a uniform and understandable
format, including alternative formats
upon request; and
(2) To the extent practicable, in a
language that parents can understand.
(Approved by the Office of Management
and Budget under control number 1810–
0581)
(Authority: 20 U.S.C. 6311(h)(6))

32. Add a new undesignated center
heading to subpart A of part 200 and
place it after § 200.61 to read as follows:
Participation of Eligible Children in
Private Schools
33. Add § 200.62 and place it under
the undesignated center heading
‘‘Participation of Eligible Children in
Private Schools’’ in subpart A of part
200 to read as follows:
§ 200.62 Responsibilities for providing
services to private school children.

(a) After timely and meaningful
consultation with appropriate officials
of private schools, an LEA must—
(1) In accordance with §§ 200.62
through 200.67 and section 1120 of the
ESEA, provide special educational
services or other benefits under subpart
A of this part, on an equitable basis and
in a timely manner, to eligible children
who are enrolled in private elementary
and secondary schools; and
(2) Ensure that teachers and families
of participating private school children

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participate on a basis equitable to the
participation of teachers and families of
public school children receiving these
services in accordance with § 200.65.
(b)(1) Eligible private school children
are children who—
(i) Reside in participating public
school attendance areas of the LEA,
regardless of whether the private school
they attend is located in the LEA; and
(ii) Meet the criteria in section 1115(b)
of the ESEA.
(2) Among the eligible private school
children, the LEA must select children
to participate, consistent with § 200.64.
(c) The services and other benefits an
LEA provides under this section must
be secular, neutral and nonideological.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6315(b); 6320(a))

34. Revise § 200.63 and place it under
the undesignated center heading
‘‘Participation of Eligible Children in
Private Schools’’ in subpart A of part
200 to read as follows:
§ 200.63

Consultation.

(a) In order to have timely and
meaningful consultation, an LEA must
consult with appropriate officials of
private schools during the design and
development of the LEA’s program for
eligible private school children.
(b) At a minimum, the LEA must
consult on the following:
(1) How the LEA will identify the
needs of eligible private school
children.
(2) What services the LEA will offer
to eligible private school children.
(3) How and when the LEA will make
decisions about the delivery of services.
(4) How, where, and by whom the
LEA will provide services to eligible
private school children.
(5) How the LEA will assess
academically the services to eligible
private school children in accordance
with § 200.10, and how the LEA will use
the results of that assessment to improve
Title I services.
(6) The size and scope of the equitable
services that the LEA will provide to
eligible private school children, and,
consistent with § 200.64, the proportion
of funds that the LEA will allocate for
these services.
(7) The method or sources of data that
the LEA will use under § 200.78 to
determine the number of private school
children from low-income families
residing in participating public school
attendance areas, including whether the
LEA will extrapolate data if a survey is
used.
(8) The equitable services the LEA
will provide to teachers and families of
participating private school children.

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(c)(1) Consultation by the LEA must—
(i) Include meetings of the LEA and
appropriate officials of the private
schools; and
(ii) Occur before the LEA makes any
decision that affects the opportunity of
eligible private school children to
participate in Title I programs.
(2) The LEA must meet with officials
of the private schools throughout the
implementation and assessment of the
Title I services.
(d)(1) Consultation must include—
(i) A discussion of service delivery
mechanisms the LEA can use to provide
equitable services to eligible private
school children; and
(ii) A thorough consideration and
analysis of the views of the officials of
the private schools on the provision of
services through a contract with a thirdparty provider.
(2) If the LEA disagrees with the
views of the officials of the private
schools on the provision of services
through a contract, the LEA must
provide in writing to the officials of the
private schools the reasons why the LEA
chooses not to use a contractor.
(e)(1) The LEA must maintain in its
records and provide to the SEA a
written affirmation, signed by officials
of each private school with participating
children or appropriate private school
representatives, that the required
consultation has occurred.
(2) If the officials of the private
schools do not provide the affirmations
within a reasonable period of time, the
LEA must submit to the SEA
documentation that the required
consultation occurred.
(f) An official of a private school has
the right to complain to the SEA that the
LEA did not—
(1) Engage in timely and meaningful
consultation; or
(2) Consider the views of the official
of the private school.
(Approved by the Office of Management and
Budget under control number 1810–0581)
(Authority: 20 U.S.C. 6320(b))

35. Add § 200.64 and place it under
the undesignated center heading
‘‘Participation of Eligible Children in
Private Schools’’ in subpart A of part
200 to read as follows:
§ 200.64 Factors for determining equitable
participation of private school children.

(a) Equal expenditures. (1) Funds
expended by an LEA under subpart A of
this part for services for eligible private
school children in the aggregate must be
equal to the amount of funds generated
by private school children from lowincome families under paragraph (a)(2)
of this section.

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(2) An LEA must meet this
requirement as follows:
(i)(A) If the LEA reserves funds under
§ 200.77 to provide instructional and
related activities for public elementary
or secondary school students at the
district level, the LEA must also provide
from those funds, as applicable,
equitable services to eligible private
school children.
(B) The amount of funds available to
provide equitable services from the
applicable reserved funds must be
proportionate to the number of private
school children from low-income
families residing in participating public
school attendance areas.
(ii) The LEA must reserve the funds
generated by private school children
under § 200.78 and, in consultation with
appropriate officials of the private
schools, may—
(A) Combine those amounts, along
with funds under paragraph (a)(2)(i) of
this section, if appropriate, to create a
pool of funds from which the LEA
provides equitable services to eligible
private school children, in the aggregate,
in greatest need of those services; or
(B) Provide equitable services to
eligible children in each private school
with the funds generated by children
from low-income families under
§ 200.78 who attend that private school.
(b) Services on an equitable basis. (1)
The services that an LEA provides to
eligible private school children must be
equitable in comparison to the services
and other benefits that the LEA provides
to public school children participating
under subpart A of this part.
(2) Services are equitable if the LEA—
(i) Addresses and assesses the specific
needs and educational progress of
eligible private school children on a
comparable basis as public school
children;
(ii) Meets the equal expenditure
requirements under paragraph (a) of
section; and
(iii) Provides private school children
with an opportunity to participate
that—
(A) Is equitable to the opportunity
provided to public school children; and
(B) Provides reasonable promise of the
private school children achieving the
high levels called for by the State’s
student academic achievement
standards or equivalent standards
applicable to the private school
children.
(3)(i) The LEA may provide services
to eligible private school children either
directly or through arrangements with
another LEA or a third-party provider.
(ii) If the LEA contracts with a thirdparty provider—

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(A) The provider must be
independent of the private school and of
any religious organization; and
(B) The contract must be under the
control and supervision of the LEA.
(4) After timely and meaningful
consultation under § 200.63, the LEA
must make the final decisions with
respect to the services it will provide to
eligible private school children.
(Authority: 20 U.S.C. 6320)

36. Revise § 200.65 and place it under
the undesignated center heading
‘‘Participation of Eligible Children in
Private Schools’’ in subpart A of part
200 to read as follows:
§ 200.65 Determining equitable
participation of teachers and families of
participating private school children.

(a)(1) From applicable funds reserved
for parent involvement and professional
development under § 200.77, an LEA
shall ensure that teachers and families
of participating private school children
participate on an equitable basis in
professional development and parent
involvement activities, respectively.
(2) The amount of funds available to
provide equitable services from the
applicable reserved funds must be
proportionate to the number of private
school children from low-income
families residing in participating public
school attendance areas.
(b) After consultation with
appropriate officials of the private
schools, the LEA must conduct
professional development and parent
involvement activities for the teachers
and families of participating private
school children either—
(1) In conjunction with the LEA’s
professional development and parent
involvement activities; or
(2) Independently.
(c) Private school teachers are not
covered by the requirements in § 200.56.
(Authority: 20 U.S.C. 6320(a))

37. Add new §§ 200.66 and 200.67
and place them under the undesignated
center heading ‘‘Participation of Eligible
Children in Private Schools’’ in subpart
A of part 200 to read as follows:
§ 200.66 Requirements to ensure that
funds do not benefit a private school.

(a) An LEA must use funds under
subpart A of this part to provide
services that supplement, and in no case
supplant, the services that would, in the
absence of Title I services, be available
to participating private school children.
(b)(1) The LEA must use funds under
subpart A of this part to meet the special
educational needs of participating
private school children.

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(2) The LEA may not use funds under
subpart A of this part for—
(i) The needs of the private school; or
(ii) The general needs of children in
the private school.
(Authority: 20 U.S.C. 6320(a), 6321(b))
§ 200.67 Requirements concerning
property, equipment, and supplies for the
benefit of private school children.

(a) The LEA must keep title to and
exercise continuing administrative
control of all property, equipment, and
supplies that the LEA acquires with
funds under subpart A of this part for
the benefit of eligible private school
children.
(b) The LEA may place equipment
and supplies in a private school for the
period of time needed for the program.
(c) The LEA must ensure that the
equipment and supplies placed in a
private school—
(1) Are used only for Title I purposes;
and
(2) Can be removed from the private
school without remodeling the private
school facility.
(d) The LEA must remove equipment
and supplies from a private school if—
(1) The LEA no longer needs the
equipment and supplies to provide Title
I services; or
(2) Removal is necessary to avoid
unauthorized use of the equipment or
supplies for other than Title I purposes.
(e) The LEA may not use funds under
subpart A of this part for repairs, minor
remodeling, or construction of private
school facilities.
(Authority: 20 U.S.C. 6320(d))

38. Place reserved §§ 200.68 and
200.69 under the undesignated center
heading ‘‘Participation of Eligible
Children in Private Schools’’ in subpart
A of part 200.
39. Add a new undesignated center
heading to subpart A of part 200 and
place it after reserved § 200.69 to read
as follows:
Allocations To LEAS
40. Add new §§ 200.70 through
200.75 and place them under the
undesignated center heading
‘‘Allocations to LEAs’’ in subpart A of
part 200 to read as follows:
§ 200.70 Allocation of funds to LEAs in
general.

(a) The Secretary allocates basic
grants, concentration grants, targeted
grants, and education finance incentive
grants, through SEAs, to each eligible
LEA for which the Bureau of the Census
has provided data on the number of
children from low-income families
residing in the school attendance areas

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of the LEA (hereinafter referred to as the
‘‘Census list’’).
(b) In establishing eligibility and
allocating funds under paragraph (a) of
this section, the Secretary counts
children ages 5 to 17, inclusive
(hereinafter referred to as ‘‘formula
children’’)—
(1) From families below the poverty
level based on the most recent
satisfactory data available from the
Bureau of the Census;
(2) From families above the poverty
level receiving assistance under the
Temporary Assistance for Needy
Families program under Title IV of the
Social Security Act;
(3) Being supported in foster homes
with public funds; and
(4) Residing in local institutions for
neglected children.
(c) Except as provided in §§ 200.72,
200.75, and 200.100, an SEA may not
change the Secretary’s allocation to any
LEA that serves an area with a total
census population of at least 20,000
persons.
(d) In accordance with § 200.74, an
SEA may use an alternative method,
approved by the Secretary, to distribute
the State’s share of basic grants,
concentration grants, targeted grants,
and education finance incentive grants
to LEAs that serve an area with a total
census population of less than 20,000
persons.
(Approved by the Office of Management and
Budget under control numbers 1810–0620
and 1810–0622)
(Authority: 20 U.S.C. 6333–6337)
§ 200.71

LEA eligibility.

(a) Basic grants. An LEA is eligible for
a basic grant if the number of formula
children is—
(1) At least 10; and

(2) Greater than two percent of the
LEA’s total population ages 5 to 17
years, inclusive.
(b) Concentration grants. An LEA is
eligible for a concentration grant if—
(1) The LEA is eligible for a basic
grant under paragraph (a) of this section;
and
(2) The number of formula children
exceeds—
(i) 6,500; or
(ii) 15 percent of the LEA’s total
population ages 5 to 17 years, inclusive.
(c) Targeted grants. An LEA is eligible
for a targeted grant if the number of
formula children is—
(1) At least 10; and
(2) At least five percent of the LEA’s
total population ages 5 to 17 years,
inclusive.
(d) Education finance incentive
grants. An LEA is eligible for an
education finance incentive grant if the
number of formula children is—
(1) At least 10; and
(2) At least five percent of the LEA’s
total population ages 5 to 17 years,
inclusive.
(Approved by the Office of Management and
Budget under control numbers 1810–0620
and 1810–0622)
(Authority: 20 U.S.C. 6333–6337)
§ 200.72 Procedures for adjusting
allocations determined by the Secretary to
account for eligible LEAs not on the Census
list.

(a) General. For each LEA not on the
Census list (hereinafter referred to as a
‘‘new’’ LEA), an SEA must determine
the number of formula children and the
number of children ages 5 to 17,
inclusive, in that LEA.
(b) Determining LEA eligibility. An
SEA must determine basic grant,
concentration grant, targeted grant, and

education finance incentive grant
eligibility for each new LEA and redetermine eligibility for the LEAs on the
Census list, as appropriate, based on the
number of formula children and
children ages 5 to 17, inclusive,
determined in paragraph (a) of this
section.
(c) Adjusting LEA allocations. An SEA
must adjust the LEA allocations
calculated by the Secretary to determine
allocations for eligible new LEAs based
on the number of formula children
determined in paragraph (a) of this
section.
(Approved by the Office of Management and
Budget under control numbers 1810–0620
and 1810–0622)
(Authority: 20 U.S.C. 6333–6337)
§ 200.73 Applicable hold-harmless
provisions.

(a) General. (1) Except as authorized
under paragraph (c) of this section and
§ 200.100(d)(2), an SEA may not reduce
the allocation of an eligible LEA below
the hold-harmless amounts established
under paragraph (a)(4) of this section.
(2) The hold-harmless protection
limits the maximum reduction of an
LEA’s allocation compared to the LEA’s
allocation for the preceding year.
(3) Except as provided in § 200.100(d),
an SEA must apply the hold-harmless
requirement separately for basic grants,
concentration grants, targeted grants,
and education finance incentive grants
as described in paragraph (a)(4) of this
section.
(4) Under section 1122(c) of the ESEA,
the hold-harmless percentage varies
based on the LEA’s proportion of
formula children, as shown in the
following table:

LEA’s number of formula children ages 5 to 17, inclusive, as a
percentage of its total population of children ages 5 to 17, inclusive

Hold-harmless
percentage

Applicable grant formulas

(i) 30% or more ...........................................................................
(ii) 15% or more but less than 30% ............................................
(iii) Less than 15% ......................................................................

95
90
85

Basic Grants, Concentration Grants, Targeted Grants, and
Education Finance Incentive Grants.

(b) Targeted grants and education
finance incentive grants. The number of
formula children used to determine the
hold-harmless percentage is the number
before applying the weights described in
section 1125 and section 1125A of the
ESEA.
(c) Adjustment for insufficient funds.
If the amounts made available to the
State are insufficient to pay the full
amount that each LEA is eligible to
receive under paragraph (a)(4) of this
section, the SEA must ratably reduce the

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allocations for all LEAs in the State to
the amount available.
(d) Eligibility for hold-harmless
protection. (1) An LEA must meet the
eligibility requirements for a basic grant,
targeted grant, or education finance
incentive grant under § 200.71 in order
for the applicable hold-harmless
provision to apply.
(2) An LEA not meeting the eligibility
requirements for a concentration grant
under § 200.71 must be paid its hold-

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harmless amount for four consecutive
years.
(Approved by the Office of Management and
Budget under control numbers 1810–0620
and 1810–0622)
(Authority: 20 U.S.C. 6332(c))
§ 200.74 Use of an alternative method to
distribute grants to LEAs with fewer than
20,000 total residents.

(a) For eligible LEAs serving an area
with a total census population of less
than 20,000 persons (hereinafter

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referred to as ‘‘small LEAs’’), an SEA
may apply to the Secretary to use an
alternative method to distribute basic
grant, concentration grant, targeted
grant, and education finance incentive
grant funds.
(b) In its application, the SEA must—
(1) Identify the alternative data it
proposes to use; and
(2) Assure that it has established a
procedure through which a small LEA
that is dissatisfied with the
determination of its grant may appeal
directly to the Secretary.
(c) The SEA must base its alternative
method on population data that best
reflect the current distribution of
children from low-income families
among the State’s small LEAs and use
the same poverty measure consistently
for small LEAs across the State for all
Title I, part A programs.
(d) Based on the alternative poverty
data selected, the SEA must—
(1) Re-determine eligibility of its
small LEAs for basic grants,
concentration grants, targeted grants,
and education finance incentive grants
in accordance with § 200.71;
(2) Calculate allocations for small
LEAs in accordance with the provisions
of sections 1124, 1124A, 1125, and
1125A of the ESEA, as applicable; and
(3) Ensure that each LEA receives the
hold-harmless amount to which it is
entitled under § 200.73.
(e) The amount of funds available for
redistribution under each formula is the
separate amount determined by the
Secretary under sections 1124, 1124A,
1125, and 1125A of the ESEA for
eligible small LEAs after the SEA has
made the adjustments required under
§ 200.72(c).
(f) If the amount available for
redistribution to small LEAs under an
alternative method is not sufficient to
satisfy applicable hold-harmless
requirements, the SEA must ratably
reduce all eligible small LEAs to the
amount available.
(Approved by the Office of Management and
Budget under control numbers 1810–0620
and 1810–0622)
(Authority: 20 U.S.C. 6333–6337)
§ 200.75 Special procedures for allocating
concentration grant funds in small States.

(a) In a State in which the number of
formula children is less than 0.25
percent of the national total on January
8, 2002 (hereinafter referred to as a
‘‘small State’’), an SEA may either—
(1) Allocate concentration grants
among eligible LEAs in the State in
accordance with §§ 200.72 through
200.74, as applicable; or
(2) Without regard to the allocations
determined by the Secretary—

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(i) Identify those LEAs in which the
number or percentage of formula
children exceeds the statewide average
number or percentage of those children;
and
(ii) Allocate concentration grant
funds, consistent with § 200.73, among
the LEAs identified in paragraph
(a)(2)(i) of this section based on the
number of formula children in each of
those LEAs.
(b) If the SEA in a small State uses an
alternative method under § 200.74, the
SEA must use the poverty data
approved under the alternative method
to identify those LEAs with numbers or
percentages of formula children that
exceed the statewide average number or
percentage of those children for the
State as a whole.
(Approved by the Office of Management and
Budget under control numbers 1810–0620
and 1810–0622)
(Authority: 20 U.S.C. 6334(b))

41. Add and reserve new § 200.76 and
place it under the revised undesignated
center heading ‘‘Allocations to LEAs’’ in
subpart A of part 200.
42. Add a new undesignated center
heading to subpart A of part 200 and
place it after § 200.76 to read as follows:
Procedures for the Within-District
Allocation of LEA Program Funds
43. Add new §§ 200.77 and 200.78
and place them under the undesignated
center heading ‘‘Procedures for the
Within-District Allocation of LEA
Program Funds’’ in subpart A of part
200 to read as follows:
§ 200.77

Reservation of funds by an LEA.

Before allocating funds in accordance
with § 200.78, an LEA must reserve
funds as are reasonable and necessary
to—
(a) Provide services comparable to
those provided to children in
participating school attendance areas
and schools to serve—
(1) Homeless children who do not
attend participating schools, including
providing educationally related support
services to children in shelters and
other locations where homeless children
may live;
(2) Children in local institutions for
neglected children; and
(3) If appropriate—
(i) Children in local institutions for
delinquent children; and
(ii) Neglected and delinquent children
in community-day school programs;
(b) Provide, where appropriate under
section 1113(c)(4) of the ESEA, financial
incentives and rewards to teachers who
serve students in Title I schools
identified for school improvement,

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corrective action, and restructuring for
the purpose of attracting and retaining
qualified and effective teachers;
(c) Meet the requirements for choicerelated transportation and supplemental
educational services in § 200.48, unless
the LEA meets these requirements with
non-Title I funds;
(d) Address the professional
development needs of instructional
staff, including—
(1) Professional development
requirements under § 200.52(a)(3)(iii) if
the LEA has been identified for
improvement or corrective action; and
(2) Professional development
expenditure requirements under
§ 200.60;
(e) Meet the requirements for parental
involvement in section 1118(a)(3) of the
ESEA;
(f) Administer programs for public
and private school children under this
part, including special capital expenses,
if any, incurred in providing services to
eligible private school children, such
as—
(1) The purchase and lease of real and
personal property (including mobile
educational units and neutral sites);
(2) Insurance and maintenance costs;
(3) Transportation; and
(4) Other comparable goods and
services, including non-instructional
computer technicians; and
(g) Conduct other authorized
activities, such as school improvement
and coordinated services.
(Authority: 20 U.S.C. 6313(c)(3) and (4),
6316(b)(10), (c)(7)(iii), 6318(a)(3), 6319(l),
6320, 7279d)
§ 200.78 Allocation of funds to school
attendance areas and schools.

(a)(1) An LEA must allocate funds
under subpart A of this part to school
attendance areas and schools, identified
as eligible and selected to participate
under section 1113(a) or (b) of the
ESEA, in rank order on the basis of the
total number of children from lowincome families in each area or school.
(2)(i) In calculating the total number
of children from low-income families,
the LEA must include children from
low-income families who attend private
schools.
(ii) To obtain a count of private school
children, the LEA may—
(A) Use the same poverty data the
LEA uses to count public school
children;
(B)(1) Use comparable poverty data
from a survey of families of private
school students that, to the extent
possible, protects the families’ identity;
and

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(2) Extrapolate data from the survey
based on a representative sample if
complete actual data are unavailable;
(C) Use comparable poverty data from
a different source, such as scholarship
applications;
(D) Apply the low-income percentage
of each participating public school
attendance area to the number of private
school children who reside in that
school attendance area; or
(E) Use an equated measure of low
income correlated with the measure of
low income used to count public school
children.
(iii) An LEA may count private school
children from low-income families
every year or every two years.
(iv) After timely and meaningful
consultation in accordance with
§ 200.63, the LEA shall have the final
authority in determining the method
used to calculate the number of private
school children from low-income
families;
(3) If an LEA ranks its school
attendance areas and schools by grade
span groupings, the LEA may determine
the percentage of children from lowincome families in the LEA as a whole
or for each grade span grouping.
(b)(1) Except as provided in
paragraphs (b)(2) and (d) of this section,
an LEA must allocate to each
participating school attendance area or
school an amount for each low-income
child that is at least 125 percent of the
per-pupil amount of funds the LEA
received for that year under part A,
subpart 2 of Title I. The LEA must
calculate this per-pupil amount before it
reserves funds under § 200.77, using the
poverty measure selected by the LEA
under section 1113(a)(5) of the ESEA.
(2) If an LEA is serving only school
attendance areas or schools in which the
percentage of children from low-income
families is 35 percent or more, the LEA
is not required to allocate a per-pupil
amount of at least 125 percent.
(c) An LEA is not required to allocate
the same per-pupil amount to each
participating school attendance area or
school provided the LEA allocates
higher per-pupil amounts to areas or
schools with higher concentrations of
poverty than to areas or schools with
lower concentrations of poverty.
(d) An LEA may reduce the amount of
funds allocated under this section to a
school attendance area or school if the
area or school is spending supplemental
State or local funds for programs that
meet the requirements in § 200.79(b).
(e) If an LEA contains two or more
counties in their entirety, the LEA must
distribute to schools within each county
a share of the LEA’s total grant that is
no less than the county’s share of the

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child count used to calculate the LEA’s
grant.
(Authority: 20 U.S.C. 6313(c), 6320(a) and
(c)(1), 6333(c)(2))

44. Add a new undesignated center
heading to subpart A of part 200 and
place it after new § 200.78 to read as
follows:
Fiscal Requirements
45. Add new § 200.79 and place it
under the new undesignated center
heading ‘‘Fiscal Requirements’’ in
subpart A of part 200 to read as follows:
§ 200.79 Exclusion of supplemental State
and local funds from supplement, not
supplant and comparability determinations.

(a) For the purpose of determining
compliance with the supplement not
supplant requirement in section
1120A(b) and the comparability
requirement in section 1120A(c) of the
ESEA, a grantee or subgrantee under
subpart A of this part may exclude
supplemental State and local funds
spent in any school attendance area or
school for programs that meet the intent
and purposes of Title I.
(b) A program meets the intent and
purposes of Title I if the program
either—
(1)(i) Is implemented in a school in
which the percentage of children from
low-income families is at least 40
percent;
(ii) Is designed to promote schoolwide
reform and upgrade the entire
educational operation of the school to
support students in their achievement
toward meeting the State’s challenging
academic achievement standards that all
students are expected to meet;
(iii) Is designed to meet the
educational needs of all students in the
school, particularly the needs of
students who are failing, or most at risk
of failing, to meet the State’s challenging
student academic achievement
standards; and
(iv) Uses the State’s assessment
system under § 200.2 to review the
effectiveness of the program; or
(2)(i) Serves only students who are
failing, or most at risk of failing, to meet
the State’s challenging student academic
achievement standards;
(ii) Provides supplementary services
designed to meet the special educational
needs of the students who are
participating in the program to support
their achievement toward meeting the
State’s student academic achievement
standards; and
(iii) Uses the State’s assessment
system under § 200.2 to review the
effectiveness of the program.
(c) The conditions in paragraph (b) of
this section also apply to supplemental

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State and local funds expended under
section 1113(b)(1)(D) and 1113(c)(2)(B)
of the ESEA.
(Authority: 20 U.S.C. 6321(b)–(d))

46. Revise subpart B of part 200 to
read as follows:
Subpart B—Even Start Family Literacy
Programs
Sec.
200.80 Migrant Education Even Start
Program definition.

Subpart B—Even Start Family Literacy
Programs
§ 200.80 Migrant Education Even Start
Program definition.

Eligible participants under the
Migrant Education Even Start Program
(MEES) must meet the definitions of a
migratory child, a migratory agricultural
worker, or a migratory fisher in § 200.81.
(Authority: 20 U.S.C. 6381a and 20 U.S.C.
6399)

47. Revise subpart C of part 200 to
read as follows:
Subpart C—Migrant Education Program
Sec.
200.81 Program definitions.
200.82 Use of program funds for unique
program function costs.
200.83 Responsibilities of SEAs to
implement projects through a
comprehensive needs assessment and a
comprehensive State plan for service
delivery.
200.84 Responsibilities of SEAs for
evaluating the effectiveness of the MEP.
200.85 Responsibilities of SEAs and
operating agencies for improving
services to migratory children.
200.86 Use of MEP funds in schoolwide
projects.
200.87 Responsibilities for participation of
children in private schools.
200.88 Exclusion of supplemental State and
local funds from supplement, not
supplant and comparability
determinations.
200.89 [Reserved]

Subpart C—Migrant Education
Program
§ 200.81

Program definitions.

The following definitions apply to
programs and projects operated under
subpart C of this part:
(a) Agricultural activity means—
(1) Any activity directly related to the
production or processing of crops, dairy
products, poultry or livestock for initial
commercial sale or personal
subsistence;
(2) Any activity directly related to the
cultivation or harvesting of trees; or
(3) Any activity directly related to fish
farms.
(b) Fishing activity means any activity
directly related to the catching or

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processing of fish or shellfish for initial
commercial sale or personal
subsistence.
(c) Migratory agricultural worker
means a person who, in the preceding
36 months, has moved from one school
district to another, or from one
administrative area to another within a
State that is comprised of a single
school district, in order to obtain
temporary or seasonal employment in
agricultural activities (including dairy
work) as a principal means of
livelihood.
(d) Migratory child means a child who
is, or whose parent, spouse, or guardian
is, a migratory agricultural worker,
including a migratory dairy worker, or
a migratory fisher, and who, in the
preceding 36 months, in order to obtain,
or accompany such parent, spouse,
guardian in order to obtain, temporary
or seasonal employment in agricultural
or fishing work—
(1) Has moved from one school
district to another;
(2) In a State that is comprised of a
single school district, has moved from
one administrative area to another
within such district; or
(3) Resides in a school district of more
than 15,000 square miles, and migrates
a distance of 20 miles or more to a
temporary residence to engage in a
fishing activity.
(e) Migratory fisher means a person
who, in the preceding 36 months, has
moved from one school district to
another, or from one administrative area
to another within a State that is
comprised of a single school district, in
order to obtain temporary or seasonal
employment in fishing activities as a
principal means of livelihood. This
definition also includes a person who,
in the preceding 36 months, resided in
a school district of more than 15,000
square miles, and moved a distance of
20 miles or more to a temporary
residence to engage in a fishing activity
as a principal means of livelihood.
(f) Principal means of livelihood
means that temporary or seasonal
agricultural or fishing activity plays an
important part in providing a living for
the worker and his or her family.
(Authority: 20 U.S.C. 6391–6399, 6571)
§ 200.82 Use of program funds for unique
program function costs.

An SEA may use the funds available
from its State Migrant Education
Program (MEP) to carry out other
administrative activities, beyond those
allowable under § 200.101, that are
unique to the MEP, including those that
are the same or similar to administrative
activities performed by LEAs in the
State under subpart A of this part. These

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activities include but are not limited
to—
(a) Statewide identification and
recruitment of eligible migratory
children;
(b) Interstate and intrastate
coordination of the State MEP and its
local projects with other relevant
programs and local projects in the State
and in other States;
(c) Procedures for providing for
educational continuity for migratory
children through the timely transfer of
educational and health records, beyond
that required generally by State and
local agencies;
(d) Collecting and using information
for accurate distribution of subgrant
funds;
(e) Development of a statewide needs
assessment and a comprehensive State
plan for MEP service delivery;
(f) Supervision of instructional and
support staff;
(g) Establishment and implementation
of a State parent advisory council; and
(h) Conducting an evaluation of the
effectiveness of the State MEP.
(Authority: 20 U.S.C. 6392, 6571)
§ 200.83 Responsibilities of SEAs to
implement projects through a
comprehensive needs assessment and a
comprehensive State plan for service
delivery.

(a) An SEA that receives a grant of
MEP funds must develop and update a
written comprehensive State plan
(based on a current statewide needs
assessment) that, at a minimum, has the
following components:
(1) Performance targets. The plan
must specify—
(i) Performance targets that the State
has adopted for all children in reading
and mathematics achievement, high
school graduation, and the number of
school dropouts, as well as the State’s
performance targets, if any, for school
readiness; and
(ii) Any other performance targets that
the State has identified for migratory
children.
(2) Needs assessment. The plan must
include an identification and
assessment of—
(i) The unique educational needs of
migratory children that result from the
children’s migratory lifestyle; and
(ii) Other needs of migratory students
that must be met in order for migratory
children to participate effectively in
school.
(3) Service delivery. The plan must
describe the strategies that the SEA will
pursue on a statewide basis to achieve
the performance targets in paragraph
(a)(1) of this section by addressing—

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(i) The unique educational needs of
migratory children consistent with
paragraph (a)(2)(i) of this section; and
(ii) Other needs of migratory children
consistent with paragraph (a)(2)(ii) of
this section.
(4) Evaluation. The plan must
describe how the State will evaluate the
effectiveness of its program.
(b) The SEA must develop its
comprehensive State plan in
consultation with the State parent
advisory council or, for SEAs not
operating programs for one school year
in duration, in consultation with the
parents of migratory children. This
consultation must be in a format and
language that the parents understand.
(c) Each SEA receiving MEP funds
must ensure that its local operating
agencies comply with the
comprehensive State plan.
(Approved by the Office of Management and
Budget under control number 1810–0659)
(Authority: 20 U.S.C. 6396)
§ 200.84 Responsibilities of SEAs for
evaluating the effectiveness of the MEP.

Each SEA must determine the
effectiveness of its program through a
written evaluation that measures the
implementation and results achieved by
the program against the State’s
performance targets in § 200.83(a)(1),
particularly for those students who have
priority for service as defined in section
1304(d) of the ESEA.
(Approved by the Office of Management and
Budget under control number 1810–0659)
(Authority: 20 U.S.C. 6394)
§ 200.85 Responsibilities of SEAs and
operating agencies for improving services
to migratory children.

While the specific school
improvement requirements of section
1116 of the ESEA do not apply to the
MEP, SEAs and local operating agencies
receiving MEP funds must use the
results of the evaluation carried out
under § 200.84 to improve the services
provided to migratory children.
(Authority: 20 U.S.C. 6394)
§ 200.86 Use of MEP funds in schoolwide
projects.

Funds available under part C of Title
I of the ESEA may be used in a
schoolwide program subject to the
requirements of § 200.28(c)(3)(i).
(Authority: 20 U.S.C. 6396)
§ 200.87 Responsibilities for participation
of children in private schools.

An SEA and its operating agencies
must conduct programs and projects
under subpart C of this part in a manner
consistent with the basic requirements
of section 9501 of the ESEA.

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(Authority: 20 U.S.C. 6394)
§ 200.88 Exclusion of supplemental State
and local funds from supplement, not
supplant and comparability determinations.

(a) For purposes of determining
compliance with the comparability
requirement in section 1120A(c) and the
supplement, not supplant requirement
in section 1120A(b) of the ESEA, a
grantee or subgrantee under part C of
Title I may exclude supplemental State
and local funds expended in any school
attendance area or school for carrying
out special programs that meet the
intent and purposes of part C of Title I.
(b) Before funds for a State and local
program may be excluded for purposes
of these requirements, the SEA must
make an advance written determination
that the program meets the intent and
purposes of part C of Title I.
(c) A program meets the intent and
purposes of part C of Title I if it meets
the following requirements:
(1) The program is specifically
designed to meet the unique educational
needs of migratory children, as defined
in section 1309 of the ESEA.
(2) The program is based on
performance targets related to
educational achievement that are
similar to those used in programs
funded under part C of Title I of the
ESEA, and is evaluated in a manner
consistent with those program targets.
(3) The grantee or subgrantee keeps,
and provides access to, records that
ensure the correctness and verification
of these requirements.
(4) The grantee monitors program
performance to ensure that these
requirements are met.
(Approved by the Office of Management and
Budget under control number 1810–0659)
(Authority 20 U.S.C. 6321(d))
§ 200.89

[Reserved]

48. Revise subpart D of part 200 to
read as follows:
Subpart D—Prevention and Intervention
Programs for Children and Youth Who are
Neglected, Delinquent, or At-Risk of
Dropping Out
Sec.
200.90 Program definitions.
200.91 SEA counts of eligible children.
200.92–200.99 [Reserved]

Subpart D—Prevention and
Intervention Programs for Children and
Youth Who are Neglected, Delinquent,
or At-Risk of Dropping Out
§ 200.90

Program definitions.

(a) The following definitions apply to
the programs authorized in part D,
subparts 1 and 2 of Title I of the ESEA:

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Children and youth means the same
as ‘‘children’’ as that term is defined in
§ 200.103(a).
(b) The following definitions apply to
the programs authorized in part D,
subpart 1 of Title I of the ESEA:
Institution for delinquent children
and youth means, as determined by the
SEA, a public or private residential
facility that is operated primarily for the
care of children and youth who—
(1) Have been adjudicated to be
delinquent or in need of supervision;
and
(2) Have had an average length of stay
in the institution of at least 30 days.
Institution for neglected children and
youth means, as determined by the SEA,
a public or private residential facility,
other than a foster home, that is
operated primarily for the care of
children and youth who—
(1) Have been committed to the
institution or voluntarily placed in the
institution under applicable State law
due to abandonment, neglect, or death
of their parents or guardians; and
(2) Have had an average length of stay
in the institution of at least 30 days.
Regular program of instruction means
an educational program (not beyond
grade 12) in an institution or a
community day program for neglected
or delinquent children that consists of
classroom instruction in basic school
subjects such as reading, mathematics,
and vocationally oriented subjects, and
that is supported by non-Federal funds.
Neither the manufacture of goods within
the institution nor activities related to
institutional maintenance are
considered classroom instruction.
(c) The following definitions apply to
the local agency program authorized in
part D, subpart 2 of Title I of the ESEA:
Immigrant children and youth and
limited English proficiency have the
same meanings as the term ‘‘immigrant
children’’ is defined in section 3301 of
the ESEA and the term ‘‘limited English
proficient’’ is defined in section 9101 of
the ESEA, except that the terms
‘‘individual’’ and ‘‘children and youth’’
used in those definitions mean
‘‘children and youth’’ as defined in this
section.
Locally operated correctional facility
means a facility in which persons are
confined as a result of a conviction for
a criminal offense, including persons
under 21 years of age. The term also
includes a local public or private
institution and community day program
or school not operated by the State that
serves delinquent children and youth.
Migrant youth means the same as
‘‘migratory child’’ as that term is
defined in § 200.81(d).
(Authority: 20 U.S.C. 6432, 6454, 6472, 7801)

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§ 200.91

SEA counts of eligible children.

To receive an allocation under part D,
subpart 1 of Title I of the ESEA, an SEA
must provide the Secretary with a count
of children and youth under the age of
21 enrolled in a regular program of
instruction operated or supported by
State agencies in institutions or
community day programs for neglected
or delinquent children and youth and
adult correctional institutions as
specified in paragraphs (a) and (b) of
this section.
(a) Enrollment. (1) To be counted, a
child or youth must be enrolled in a
regular program of instruction for at
least—
(i) 20 hours per week if in an
institution or community day program
for neglected or delinquent children; or
(ii) 15 hours per week if in an adult
correctional institution.
(2) The State agency must specify the
date on which the enrollment of
neglected or delinquent children is
determined under paragraph (a)(1) of
this section, except that the date
specified must be—
(i) Consistent for all institutions or
community day programs operated by
the State agency; and
(ii) Represent a school day in the
calendar year preceding the year in
which funds become available.
(b) Adjustment of enrollment. The
SEA must adjust the enrollment for each
institution or community day program
served by a State agency by—
(1) Multiplying the number
determined in paragraph (a) of this
section by the number of days per year
the regular program of instruction
operates; and
(2) Dividing the result of paragraph
(b)(1) of this section by 180.
(c) Date of submission. The SEA must
annually submit the data in paragraph
(b) of this section no later than January
31.
(Approved by the Office of Management and
Budget under control number 1810–0060)
(Authority: 20 U.S.C. 6432)
§§ 200.92–200.99

[Reserved]

49. Revise subpart E of part 200 to
read as follows:
Subpart E—General Provisions
Sec.
200.100 Reservation of funds for school
improvement, State administration, and
the State academic achievement awards
program.
200.101–200.102 [Reserved]
200.103 Definitions.
200.104–200.109 [Reserved]

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Subpart E—General Provisions
§ 200.100 Reservation of funds for school
improvement, State administration, and the
State academic achievement awards
program.

A State must reserve funds for school
improvement, State administration, and
State academic achievement awards as
follows:
(a) School improvement. (1) To carry
out school improvement activities
authorized under sections 1116 and
1117 of the ESEA, an SEA must first
reserve—
(i) Two percent from the sum of the
amounts allocated to the State under
section 1002(a) of the ESEA for fiscal
years 2002 and 2003; and
(ii) Four percent from the sum of the
amounts allocated to the State under
section 1002(a) of the ESEA for fiscal
year 2004 and succeeding years.
(2) In reserving funds under
paragraph (a)(1) of this section, a State
may not reduce the sum of the
allocations an LEA receives under
section 1002(a) of the ESEA below the
sum of the allocations the LEA received
under section 1002(a) for the preceding
fiscal year.
(3) If funds under section 1002(a) are
insufficient in a given fiscal year to
implement both paragraphs (a)(1) and
(2) of this section, a State is not required
to reserve the full amount required
under paragraph (a)(1) of this section.
(b) State administration. (1) An SEA
may reserve for State administrative
activities authorized in sections 1004
and 1903 of the ESEA no more than the
greater of—
(i) One percent from each of the
amounts allocated to the State or
Outlying Area under section 1002(a),
(c), and (d) of the ESEA; or
(ii) $400,000 ($50,000 for the Outlying
Areas).
(2)(i) An SEA reserving $400,000
under paragraph (b)(1)(ii) of this section
must reserve proportionate amounts
from each of the amounts allocated to
the State or Outlying Area under section
1002(a), but is not required to reserve
proportionate amounts from section
1002(a), (c), and (d) of the ESEA.
(ii) If an SEA reserves funds from the
amounts allocated to the State or
Outlying Area under section 1002(c) or
(d) of the ESEA, the SEA may not
reserve from those allocations more than
the amount the SEA would have
reserved if it had reserved proportionate
amounts from section 1002(a), (c), and
(d) of the ESEA.
(3) If the sum of the amounts allocated
to all the States under section 1002(a),
(c), and (d) of the ESEA is greater than
$14,000,000,000, an SEA may not

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reserve more than one percent of the
amount the State would receive if
$14,000,000,000 had been allocated
among the States under section 1002(a),
(c), and (d) of the ESEA.
(4) An SEA may use the funds it has
reserved under paragraph (b) of this
section to perform general
administrative activities necessary to
carry out, at the State level, any of the
programs authorized under Title I, parts
A, C, and D of the ESEA.
(c) State academic achievement
awards program. To operate the State
academic achievement awards program
authorized under section 1117(b)(1) and
(c)(2)(A) of the ESEA, an SEA may
reserve up to five percent of the excess
amount the State receives under section
1002(a) of the ESEA when compared to
the amount the State received under
section 1002(a) of the ESEA in the
preceding fiscal year.
(d) Reservations and hold-harmless.
In reserving funds under paragraphs (b)
and (c) of this section, an SEA may—
(1) Proportionately reduce each LEA’s
total allocation received under section
1002(a) of the ESEA while ensuring that
no LEA receives in total less than the
hold-harmless percentage under
§ 200.73(a)(4), except that, when the
amount remaining is insufficient to pay
all LEAs the hold-harmless amount
provided in § 200.73, the SEA shall
ratably reduce each LEA’s holdharmless allocation to the amount
available; or
(2) Proportionately reduce each LEA’s
total allocation received under section
1002(a) of the ESEA even if an LEA’s
total allocation falls below its holdharmless percentage under
§ 200.74(a)(3).
(Approved by the Office of Management and
Budget under control numbers 1810–0620
and 1810–0622)
(Authority: 20 U.S.C. 6303, 6304,
6317(c)(2)(A))
§§ 200.101—200.102
§ 200.103

[Reserved]

Definitions.

The following definitions apply to
programs operated under this part:
(a) Children means—
(1) Persons up through age 21 who are
entitled to a free public education
through grade 12; and
(2) Preschool children below the age
and grade level at which the agency
provides free public education.
(b) Fiscal year means the Federal
fiscal year—a period beginning on
October 1 and ending on the following
September 30—or another 12-month
period normally used by the SEA for
record-keeping.
(Authority: 20 U.S.C. 6315, 6571)

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§§ 200.104—200.109

71739

[Reserved]

Appendix—Analysis of Comments and
Changes
(Note: This appendix will not be codified
in the Code of Federal Regulations)

Section 200.11

Participation In NAEP

Comment: One commenter
recommended that the language
requiring LEAs receiving Title I funds to
participate in State-NAEP assessments
be strengthened by specifying an
expected participation rate for States
and LEAs. The commenter further
requested additional language that
would describe allowable extenuating
circumstances that would excuse
schools from participating in the State
NAEP assessments.
Discussion: Section 1112(b)(1)(F) of
the ESEA requires that an LEA, in its
plan submitted to the State, provide an
assurance that it will participate, if
selected, in NAEP. The statute is clear
that all LEAs, if selected, must
participate. Therefore, the Secretary
does not believe that language
concerning expected participation rates
is needed. The Secretary further
believes that there will be few, if any,
extenuating circumstances that would
excuse a school from participating in
the State-NAEP and will address any
special circumstances on a case-by-case
basis.
Changes: None.
Comment: One commenter, while
agreeing that participation of fourth and
eighth graders in NAEP testing in
mathematics and reading is appropriate,
stated that the costs for administering
those tests should not be taken from a
district’s Title I allocation.
Discussion: Section 200.11 states that
participation in the State NAEP is
mandatory, if the Department pays the
costs of administering those
assessments.
Changes: None.
Comment: One commenter
recommended clarifying that the criteria
used for selecting students to participate
in NAEP reflect the student population
that the State tests for State assessment
purposes and for making
determinations.
Discussion: Section 411(b)(2)of the
National Education Statistics Act of
1994 requires NAEP to ‘‘use a random
sampling process which is consistent
with relevant, widely accepted
professional assessment standards and
that produces data that are
representative on a national and
regional basis.’’
Changes: None.
Comment: One commenter
recommended adding language to

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address the situation for rural schools
with no fourth or eighth grade students
by stating that ‘‘if the selected school
has students in fourth or eighth grade,
the school is required to participate in
NAEP.’’
Discussion: Since it would not be
possible for a school to participate in
NAEP if it had no students enrolled at
the grade(s) tested, no further
clarification is necessary.
Changes: None
Comment: One commenter stated that
if NAEP results are to be valid and
accurate, a district may not be allowed
to opt out of tests that rely on sampling
techniques. To reinforce this policy the
commenter recommended that the
Department request Congress to make a
technical correction to the ESEA and
statutorily modify the contradiction in
§ 602 of that Act, which amended
§ 411(d)(1) of the National Education
Statistics Act of 1994. Another
commenter, however, recommended
that § 200.11 allow for voluntary
participation in NAEP, consistent with
§ 1112(b)(1)(f) of the ESEA.
Discussion: The regulation clarifies
that, if selected, an LEA that receives
funds under part A of Title I of the
ESEA must participate in NAEP
notwithstanding the provisions of
§ 411(d)(1) of the National Education
Statistics Act of 1994, which generally
provides for voluntary participation of
LEAs.
Changes: None.
Comment: One commenter
recommended clarification of the
meaning of ‘‘participate’’ because an
LEA could agree to participate, but all
or most of the selected schools in that
LEA could refuse to participate. The
current NAEP guidelines require 85
percent participation of selected schools
if a State is to report State-level results.
Discussion: Additional clarification is
not necessary because an LEA cannot
meet the NAEP participation
requirement unless it requires all
schools selected to participate.
Changes: None.
Section 200.12 Single State
Accountability System
Comment: One commenter suggested
that States should be directed to
develop accountability systems that
include multiple assessments that
measure higher-order thinking skills.
The commenter’s rationale was that this
would provide more valid and reliable
student data.
Discussion: Section 1111(b)(3)(C)(vi)
of the ESEA requires that statewide
assessments include multiple measures
that assess higher-order thinking skills
and understanding. This requirement is

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clarified in § 200.2(b)(7) of the standards
and assessment regulations published
on July 5, 2002 at 67FR 45038.
Changes: None.
Comment: One commenter suggested
that the statutory requirements for
determining adequate yearly progress
(AYP) be integrated into the State’s
existing system of accountability.
Furthermore, the commenter expressed
opposition to using different
accountability measures in different
States.
Discussion: The Secretary agrees that
the statutory and regulatory provisions
governing AYP must be integrated into
a State’s accountability system. To
comply with the NCLB Act, each State
will need to incorporate these
requirements into its current
accountability system. The statute gives
States flexibility to define achievement
standards, design assessments, and
implement the accountability
provisions. The Secretary believes that
these State responsibilities will
necessarily result in variation among
State accountability systems.
Changes: None.
Comment: One commenter expressed
concerns that State accountability
systems will exclude homeless children.
Discussion: The statute and the
regulations in § 200.6(d) require States
to include homeless students in their
assessment, reporting, and
accountability systems. However, the
Secretary is aware that the NCLB Act
does not specifically identify homeless
students as one of the subgroups whose
progress will be monitored in meeting
the 2013–2014 proficiency goals.
Nevertheless, these students are
required to be included in the
accountability system. Schools and
districts are required to test all students,
and high participation rates in statewide
assessments (i.e., 95 percent) are a
condition of making AYP. Furthermore,
these students will be included in at
least one subgroup—the ‘‘all student’’
category—and schools will be
accountable for ensuring this group of
students is proficient. To the extent that
homeless children are mobile, and many
are, the regulations clarify that students
who have not been in a school for a full
academic year must be included in
district accountability, or in State
accountability in those cases where
students have been in multiple districts.
Changes: None.
Section 200.13 Adequate Yearly
Progress in General
Comment: A number of commenters
urged the Secretary to include flexibility
in the final regulations on to
accommodate ‘‘rigorous models that

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States have already developed that may
achieve the same fundamental
principles of the statute, although
through different approaches,’’ as
discussed in the preamble to the
proposed regulations and the Secretary’s
July 24, 2002 Dear Colleague letter. In
particular, commenters sought
recognition of the validity of models
that use ‘‘growth trajectories,’’
performance indices, or other ‘‘valueadded’’ measures. Other commenters,
however, strongly urged the Secretary to
ensure that any flexibility regarding the
definition in the final regulations does
not go beyond the original intention of
the ESEA.
Discussion: The NCLB Act included
very specific, rigorous requirements that
States must implement to determine the
AYP of each public school, LEA, and
the State itself. In preparing the final
regulations, the Secretary has faithfully
implemented the statutory provisions
governing AYP addressing additional
flexibility wherever possible. The
Secretary realizes that the accountability
systems currently in place in many
States may not fully meet the statutory
and regulatory requirements. To meet
the requirements in the ESEA and these
final regulations, a State may continue
to use its current State accountability
system, consistent with the Secretary’s
July 24, 2002 Dear Colleague letter, if
that system integrates AYP as defined in
the statute and regulations.
Changes: None.
Comment: One commenter requested
clarification regarding the impact of
recent changes in the definitions of
ethnic groups issued by the Office of
Management and Budget (OMB) on the
requirement to ensure by major racial
and ethnic groups. Another commenter
also suggested that any changes in such
definitions could hinder State efforts to
collect student level achievement data.
Discussion: The Department is
developing guidance on the
implementation of OMB standards for
data on multi-racial/ethnic groups of
individuals. Those standards will take
effect for educational agencies no sooner
than the fall of 2004. Once the
Department guidance is issued, the
Department plans to provide adequate
lead-time for educational agencies to
make appropriate adjustments to their
data systems. Until that happens,
educational agencies are under no
obligation to maintain, use, or report
data under the OMB standards.
Although implementation of the new
multi-racial data requirements must
await publication of guidance by the
Department, the Secretary encourages
States to consider taking appropriate
steps to implement other provisions of

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the OMB standards, such as separating
Asians from Native Hawaiians and
Other Pacific Islanders.
Changes: None.
Comment: Several commenters
strongly recommended that any
alternate assessment be based on the
same State academic content standards
used for the regular assessments. The
commenters believed that applying the
same standards to all children is the
cornerstone of standards-based
education. Other commenters, however,
supported alternate standards as long as
they are developed through a
documented and validated process.
Additional commenters urged that any
student prevented by a disability from
completing the regular assessment be
permitted to take an alternate
assessment based on different standards,
not just students with ‘‘the most
significant cognitive disabilities.’’ One
commenter expressed concern that
requiring grade-level testing for students
with disabilities would be unfair both to
individual students and to schools
enrolling such students.
Discussion: Too often in the past,
schools and LEAs have not expected
students with disabilities to meet the
same grade-level standards as other
students. The NCLB Act sought to
correct this problem by requiring each
State to develop grade-level academic
content and achievement standards that
it expects all students—including
students with disabilities—to meet, and
by holding schools and LEAs
responsible for all students meeting
those standards. If students with
disabilities cannot take a State’s regular
assessment, even with accommodations,
§ 200.6(a) of the final Title I regulations
published on July 5, 2002 at 67 FR
45038, 45041 required the State to
provide for one or more alternate
assessments to measure those students’
achievement against the State’s
standards. Those final regulations,
however, did not clearly link those
alternate assessments to grade-level
expectations. To make this link, the
Secretary has revised § 200.6(a)(2)(ii) of
the final regulations issued on July 5,
2002 to make clear that alternate
assessments must yield results for the
grade in which a student with
disabilities is enrolled. This change is
critical to ensure that students with
disabilities are not excluded from State
accountability systems. This policy may
be modified in the future after public
comment on the separate notice of
proposed rulemaking discussed in the
preamble to these final regulations.
Changes: Section 200.6(a)(2)(ii) has
been revised to make clear that alternate
assessments for students with

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disabilities who cannot take the State’s
regular assessment must yield results for
the grade in which the student is
enrolled.
Comment: Several commenters
expressed concern that proposed
§ 200.13(d) would create a ‘‘loophole’’
permitting arbitrary exclusion of some
schools from an SEA’s regular
assessment and accountability system.
The commenters noted in particular that
widely differing definitions of ‘‘full
academic year’’ could lead to abuses of
the proposed regulations, and that the
proposed regulations could be
manipulated to avoid assessment of
certain students. One commenter
recommended clarifying that students
attending a school for only part of the
academic year, but who are in an
assessed grade and who have attended
schools in a single LEA for a full
academic year, must be assessed and
counted in the calculation of AYP for
the LEA.
Discussion: The intent behind the
proposed regulation was to ensure that
schools in which no student attends for
a full academic year are held
accountable. It was in no way intended
to create a ‘‘loophole’’ that would
permit certain students to not be
assessed. In response to these
comments, this proposed regulation is
removed. Instead, these schools are
governed by the final regulation in
§§ 200.20(e) and 200.21(b): any student
who is not in a school for a full
academic year but within a single
district for a full academic year is
included in accountability for the LEA,
and any student who attends schools
within several districts but within the
same State for a full academic year is
included in determinations of State
AYP. Schools in which no student has
attended for a full academic year would
not be subject to determinations of AYP;
those students, however, would be
assessed and included, as discussed
above, in decisions about LEA and State
progress.
Changes: Section 200.13(d) has been
amended to remove the proposed
requirement that a State must establish
a way to hold accountable ‘‘schools
whose purpose is to serve students for
less than a full academic year.’’
Comment: Two commenters sought
clarification of the types of schools
referred to in proposed
§ 200.13(d)(1)(ii)—that is, those whose
purpose was to serve students for less
than a full academic year. In particular,
one commenter expressed concern that
the proposed regulations might require
an SEA to hold accountable schools not
under its jurisdiction, such as juvenile
justice alternative education programs.

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71741

Discussion: As discussed above,
proposed § 200.13(d)(1)(ii) has been
deleted. In accordance with
§ 200.20(e)(2), to the extent that a school
serves students in a juvenile justice
alternative education program for less
than a full academic year, the school
would not be held accountable for those
students in determinations of AYP.
With respect to the issue of whether
a State must hold accountable schools
not under the jurisdiction of the SEA,
§ 200.13 of the regulations, consistent
with the statute, requires each State to
develop a single, statewide
accountability system that will be
effective in ensuring that all LEAs,
public elementary and public secondary
schools make AYP. The Department
generally defers to the State
interpretation of what is a public
elementary and secondary school and
an LEA, in accordance with State law.
In a number of States, juvenile justice
alternative education programs are
conducted in public schools operated
within school districts or other entities
that are LEAs under State law. In some
States, the SEA has oversight
responsibility for juvenile justice
alternative education programs, or
enters into an agreement with the State
agency responsible for such programs.
Changes: Section 200.13(d)(1)(ii) has
been deleted.
Section 200.15

Timeline

Comment: Several commenters
requested clarification of how changes
in assessment systems or AYP
definitions will impact baselines and
AYP calculations over the course of the
12-year timeline for ensuring that all
students are proficient.
Discussion: As a State changes its
assessments and collects new data, the
State may adjust its timeline, annual
measurable objectives and intermediate
goals, as long as the new system has as
its goal that all students achieve
proficiency by 2013–14. Further,
regardless of changing assessment
systems, States must review the progress
of schools each year and, based on this
annual review, identify schools that do
not meet AYP. If a Title I school has not
made AYP for two consecutive years, it
must be identified for improvement,
even if the assessment system changed
between those years, thereby changing
the basis for identification. Similarly, a
school that has been identified for
improvement cannot exit school
improvement status merely because a
different assessment system is used.
Examples of ways in which States can
continue providing accountability
decisions while moving to new

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assessments will be included in
nonregulatory guidance.
Changes: None.
Section 200.16 Starting Points
Comment: One commenter requested
clarification that States are permitted to
average assessment data over a period of
several years to establish starting points
for reading/language arts and
mathematics.
Discussion: The Secretary agrees that,
consistent with § 200.20(d)(1)(i), more
than one year of data can be used to
establish the starting point as long as
that data includes assessment results
from the 2001–02 school year and does
not delay the establishment of the
starting point. This clarification will be
further explained in nonregulatory
guidance.
Changes: None.
Comment: Three commenters
requested that the final regulations
permit States to establish separate
starting points for each subgroup of
students.
Discussion: The NCLB Act clearly
states that the starting point must be the
same for each subgroup of students. The
final regulations maintain this position.
The Secretary believes that this
approach establishes similar
expectations for all schools and requires
high achievement for all students. The
final regulations do allow a State to
establish separate starting points by
grade span.
Changes: None.
Section 200.18 Annual Measurable
Objectives
Comment: Two commenters requested
that the final regulations permit a State
to establish separate baselines and
measurable objectives for each subgroup
of students.
Discussion: The ESEA clearly states
that the starting point and annual
measurable objectives must be the same
for each subgroup of students.
Changes: None.
Comment: One commenter objected to
determining AYP for an LEA based on
the academic achievement of all the
students enrolled in the LEA, rather
than the performance of the schools
within the LEA. On the other hand,
another commenter recommended that
the final regulations clarify that AYP for
an LEA be based on the aggregated
achievement of its students and not its
schools.
Discussion: The ESEA clearly
specifies that LEAs are to be held
accountable for the achievement of
students in the same manner as schools.
This means that each LEA is held
accountable for all students attending

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schools within the district for a full
academic year. These students must
meet or exceed the annual measurable
objectives and State goals for the other
academic indicators. These provisions
are a critical means of ensuring that
students who are mobile within a
district are not excluded from
accountability; they are included in LEA
and State accountability.
Changes: None.
Section 200.19 Other Academic
Indicators
Comment: Several commenters
asserted that, contrary to the ESEA, the
proposed regulations appear to make the
use of other academic indicators,
including graduation rate, optional in
the determination of AYP. The
commenters recommended that the final
regulations clarify that States must
include graduation rate at the high
school level and one other academic
indicator at the elementary and middle
school levels as part of their definitions
of AYP, and that progress toward
intermediate and final objectives for
these indicators is required for a State,
LEA, or school to make AYP. Another
commenter made a similar
recommendation, based on the principle
that a school that improves test scores
by increasing its dropout rate should not
make AYP and should be identified for
improvement. Another commenter
requested that the final regulations
reflect the statutory requirement that the
other academic indicators adopted by a
State be measured separately for each
subgroup of students.
Discussion: As stated in § 200.19(a), a
State must use graduation rate for high
schools and another academic indicator
of its choosing for elementary schools
and for middle schools to determine
AYP. Section 200.19(d)(2) makes clear
that the State must disaggregate its other
academic indicators, including
graduation rate, by each subgroup in
order to report that information under
section 1111(h) of the ESEA and to
calculate whether schools that do not
meet the State’s annual measurable
objectives but have decreased for each
subgroup the percentage of students
below proficient by at least 10 percent
can be considered to have made AYP.
As indicated in § 200.19(d)(2)(ii),
however, the State need not disaggregate
its other academic indicators for
determining AYP. The Secretary is
confident that publicly reporting
disaggregated data on the other
academic indicators will ensure that
schools, LEAs, and the State are held
accountable for subgroup performance.
Changes: Section 200.19(a) and (d)(2)
have been modified as discussed above.

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Comment: One commenter requested
clarification on the definition of ‘‘a
regular diploma,’’ as used in
§ 200.19(a)(1)(i). Another commenter
asked whether a ‘‘certificate of
attendance’’ or similar recognition for
students with disabilities may be
considered a ‘‘regular diploma.’’
Discussion: The Secretary believes it
is important to clarify this term to
ensure that States use graduation rates
that are as accurate and meaningful as
possible. As a result, the final
regulations make clear that a ‘‘regular
diploma’’ must be fully aligned with the
State’s academic content standards and
may not include a certificate or GED.
Thus, if a student with disabilities is
given only a certificate of attendance
that does not reflect the student’s
achievement against the State’s content
standards, that student would not have
received a ‘‘regular diploma’’ and thus
would not be considered to have
graduated for purposes of calculating
graduation rate.
Changes: The final regulations clarify
in § 200.19(a)(1)(i) that a regular
diploma may not include an alternative
degree that is not fully aligned with the
State’s academic standards, such as a
certificate or GED.
Comment: One commenter objected to
the use of the term ‘‘standard number of
years’’ as part of the regulatory
definition of graduation rate, on the
grounds that such a limitation could
penalize schools serving students—such
as students with disabilities, limited
English proficient students, and
returning dropouts—who typically take
longer to graduate.
Discussion: The Secretary believes
that the regulations provide sufficient
flexibility to address such students. For
students that, in very limited instances,
may take longer than the standard
number of years to graduate, a State may
propose a manner for accurately
accounting for these students in an
alternate definition of graduation rate
under § 200.19(a)(1)(i)(B). This
definition must be included with the
State accountability plan and submitted
for peer review.
Changes: None.
Comment: Several commenters
expressed concern that proposed
§ 200.19(a)(1) does not reflect
conference report language
accompanying the NCLB Act that
requires measurement of graduation
rates in a way that ‘‘avoids counting
dropouts as transfers’’ and specifically
includes the graduation rate in the
definition of AYP. Several commenters
also maintained that any alternative to
the statutory definition of graduation
rate must be based on a ‘‘more accurate

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longitudinal system that follows
individual student progress’’ and thus
could accommodate varying numbers of
years required to graduate for students
with special educational needs. Two of
the commenters encouraged the
Secretary to take the lead in establishing
a ‘‘common framework’’ for calculating
graduation and dropout rates in all
States, and one commenter
recommended a specific definition
based on a combination of statutory and
conference report language. Two other
commenters supported the flexibility
regarding graduation rates provided in
the proposed regulation.
Discussion: The Secretary agrees that
the graduation rate should not include
students who have dropped out of
school as students who have transferred
to another school. With the passage of
the NCLB Act, the expectations for
schools to make AYP have increased; it
is critically important that schools do
not make AYP simply because students
have dropped out of school. The
Secretary also agrees that graduation
rate should be measured from the
beginning of high school in order to
capture students who drop out before
reaching 12th grade.
Changes: Section 200.19(a)(1)(ii) of
the final regulations clarifies that a State
must define graduation rate in a manner
that does not count students who have
dropped out of school as students who
have transferred to another school. In
addition, § 200.19(a)(1)(i)(A) of the final
regulations has been amended to require
States to measure graduation rate ‘‘from
the beginning of high school.’’
Comment: One commenter agreed
with proposed § 200.19(c), that gives
States discretion to require progress on
other academic indicators by setting
increasing goals for those indicators, but
recommended that the final regulation
also not permit a decline in such
indicators from the initial baseline level.
Another commenter requested
clarification as to whether the State
must set goals for these indicators or
may simply require ‘‘progress’’ over a
certain ‘‘threshold’’ level. A third
commenter recommended requiring a
timeline for any additional indicators
used by a State, including starting
points, intermediate goals, and annual
measurable objectives for such
indicators.
Discussion: The NCLB Act offers
flexibility to States to define how
progress will be measured relative to the
other academic indicators. The
regulations permit, but do not require, a
State to increase the goals of its other
academic indicators over the course of
the timeline.
Changes: None.

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Section 200.20 Making Adequate
Yearly Progress
Comment: In determining AYP, one
commenter requested clarification
regarding the use of academic indicators
in a school that includes both high
school students and middle or
elementary school students. Since these
schools will have two indicators, the
commenter asked if the groups must
make progress on both for the school to
make AYP.
Discussion: The NCLB Act is silent on
this issue. The use of these indicators in
determining AYP may vary depending
on the configuration of a school (e.g.,
kindergarten through eighth grade,
eighth through twelfth grade). The
Secretary asks States to propose a policy
for addressing this issue when they
submit plans for their State
accountability systems.
Changes: None.
Comment: One commenter expressed
concern that the 95 percent assessment
requirement in proposed
§ 200.20(c)(1)(i) may be misconstrued as
relieving States, LEAs, and schools from
the requirement to assess all students
under §§ 200.2(b)(9) and 200.6.
Discussion: The NCLB Act clearly
states that all students must be assessed
to measure their achievement toward
meeting the State’s challenging
academic standards. Schools and
districts are held accountable for
ensuring high rates of participation: no
less than 95 percent of all students and
student subgroups must participate in
the statewide assessments.
Changes: Section 200.20(c)(2) clarifies
that a State, LEA, or school may not
systematically exclude students from
taking the statewide assessments.
Comment: Several commenters
requested that the final regulations
provide flexibility to States in applying
the requirement that 95 percent of each
subgroup be tested in order to make
AYP. Three of these commenters were
particularly concerned about the impact
on this requirement of State rules
permitting parents to exclude their
children from statewide assessments.
Two other commenters recommended
phasing in the 95 percent requirement
over several years.
Discussion: The ESEA does not allow
for a phase-in of the participation
requirement for AYP. The statute does
acknowledge through the 95 percent
participation rate requirement that there
may be instances in which parents do
not allow their students to take the
statewide assessments. Schools, LEAs,
and States need to carefully and
thoughtfully explain to parents the
importance of participating in such

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assessments and the consequences for
not participating.
Changes: None.
Comment: Two commenters requested
clarification that proposed
§ 200.20(c)(1)(ii), which requires
subgroups to be of sufficient size to
produce statistically reliable results,
applies only to the determination of
AYP and does not change the
requirement that all students must
participate in the annual assessment
system.
Discussion: The ESEA clearly states
that all students must be assessed to
measure their achievement on
challenging academic standards. For
purposes of determining AYP, if a
subgroup within any particular school
or district is too small to produce
statistically reliable results, the
requirement for 95 percent participation
would not apply to that subgroup. The
Secretary clarifies in the final
regulations that a State, LEA, or school
may not systematically exclude students
from participating in the assessments.
Changes: Section 200.20(c)(2) of the
final regulations clarifies that the ‘‘95
percent participation rule’’ does not
permit a school or LEA to systematically
exclude 5 percent of students from
participating in the assessments.
Comment: Several commenters
recommended that the final regulations
clarify that, even if a subgroup is too
small to produce statistically reliable
data at the school level, the results of
that subgroup must be aggregated at the
next level—in this case, for the LEA—
to ensure that the progress of the
subgroup is not simply overlooked or
excluded from all calculations of AYP.
Discussion: The Secretary agrees with
these comments.
Changes: Sections 200.20(e)(1) and
200.21(b) and 200.7(d) make clear that
all students enrolled for a full academic
year in an LEA or in a State must be
included for accountability purposes at
that level, provided the size of a
subgroup is large enough to produce
statistically reliable results. Subgroups
too small to be reported or identified at
one level must be included at the next
higher level, assuming the subgroup
reaches the appropriate size.
Comment: Two commenters
expressed concern that varying
definitions of ‘‘statistical significance’’
applied under proposed
§ 200.20(c)(1)(ii) could undermine the
subgroup-based accountability
provisions of the NCLB Act. One
commenter recommended that the final
regulations include standards to guide
States in determining the number of
students required to yield statistically
reliable information.

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Discussion: Determining the number
of students required to yield statistically
reliable information is the responsibility
of each State. The Secretary will review
and approve these definitions as part of
his approval of State accountability
systems. In nonregulatory guidance, the
Department may offer some guidelines
for States to consider as they make this
decision.
Changes: None.
Comment: One commenter
recommended that the final regulations
provide flexibility in defining AYP for
small school districts and single-school
LEAs, in particular, that may find it
difficult to implement the subgroupbased accountability requirements of the
ESEA.
Discussion: The intent of the law is to
ensure that all schools and districts are
held accountable for student
achievement. In those instances in
which schools and districts are too
small to include any subgroups, the
school and district will need to make a
decision about AYP at least on the basis
of all its students who were enrolled in
the school or district for a full academic
year. The Department of Education will
issue nonregulatory guidance to provide
examples of methodologies for handling
this issue.
Changes: None.
Comment: Two commenters objected
to proposed § 200.20(d)(1)(ii)(B), which
would permit a State to delay the
determination of AYP on the basis of the
new assessments for grades 3–8 required
by the NCLB Act until the State has two
or three years of data to average under
proposed § 200.20(d)(1)(i). One
commenter noted that this provision
potentially delays the use of the new
assessment data until the final year of
the current authorization. Another
commenter, however, expressed support
for the flexibility provided in the
proposed regulation.
Discussion: Section 1111(b)(2)(J) of
the ESEA permits a State to establish a
uniform procedure for averaging data
across grades and across years in
determining AYP. That provision
specifically permits a State averaging
data across years to accumulate two or
three years of data under the new grades
3–8 assessments required by the NCLB
Act before using that data to determine
AYP. The final regulations accurately
reflect this authority. They also make
clear, however, that a State may not
delay implementing the new grades 3–
8 assessment requirements. Moreover,
the State must report these data under
section 1111(h)of the ESEA. Further, at
a minimum, the State must continue
making annual decisions about AYP on
the basis of data from the reading/

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language arts and mathematics
assessments in the three grade spans
required in Section 1111(b)(3)(C)(v)(I) of
the ESEA.
Changes: Section 200.20(d)(1) has
been revised to clarify better the intent
of these provisions.
Comment: Two commenters
recommended modifying proposed
§ 200.20(e) to restore the statutory
emphasis on mitigating the impact of
student mobility on assessment results
and prevent the potential creation of a
loophole permitting the exclusion of
dropouts from the determination of
AYP. Additionally, another commenter
recommended permitting either the
State or the LEA to define ‘‘full
academic year.’’
Discussion: The final regulations are
an accurate reflection of the statute:
students who are enrolled within a
district for a full academic year must be
included in the AYP of an LEA.
Moreover, the final regulations clarify
that students who were not enrolled
within a school for a full academic year
may not be included within that
school’s determination of AYP. The
Secretary also believes that it is
appropriate and justified to leave the
decision of what is a ‘‘full academic
year’’ to each State.
Changes: None.
Section 200.21 Adequate Yearly
Progress of a State
Comment: Three commenters
recommended that the final regulations
specify that students who attend schools
within a State but in more than one LEA
must be included in the determination
of AYP for the State. Two commenters
also urged the Secretary to require
States to report on the progress of these
students.
Discussion: The Secretary concurs
with these comments.
Changes: Section 200.21(b) of the
final regulations specifies that all
students who were enrolled within
schools in a State for a full academic
year must be included in determining
the progress of the State.
Comment: One commenter requested
that the final regulations include a
description of required technical
assistance and other interventions by
the Secretary in the case of States that
do not make AYP.
Discussion: In the case of a State that
does not make AYP, the technical
assistance offered by the Secretary
would be specific to the State’s needs.
In order to offer the maximum amount
of flexibility in designing technical
assistance, this issue will not be
addressed in the regulations but will be

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handled on a case-by-case basis within
the statutory parameters.
Changes: None.
Comment: One commenter urged the
Secretary to include in the final
regulations a description of State
obligations and requirements under
section 1111 of the ESEA to ensure that
each State provides sufficient support to
LEAs and schools in implementation.
Discussion: The ambitious goals for
student achievement contained within
the NCLB Act will best be achieved
when States, districts, and schools work
together. To that end, the Department
will provide nonregulatory guidance
about the roles of each entity and how
they can support improved
achievement. The Secretary understands
the important role of the U.S.
Department of Education as well and
intends to review State accountability
plans in an expeditious manner.
Changes: None.
Comment: Two commenters
recommended that the final regulations
require States to establish English
Language Development Standards
designed to measure the oral, reading,
and written proficiency in English of
limited English proficient students, as
well as annual exams linked to those
standards.
Discussion: These final regulations
cover only those provisions contained
within Title I of the ESEA. The
provisions governing the development
of English proficiency are found in Title
III. The Department plans to issue
nonregulatory guidance on this issue.
Changes: None.
Schoolwide Programs
Section 200.25 Schoolwide Program
Purpose and Eligibility
Comment: One commenter cautioned
that because the final regulations are
used frequently at the district and
school level, they should adhere as
closely as possible to the NCLB Act. The
commenter strongly suggested that the
regulations be restored to reflect the
omitted statutory requirements for
schoolwide programs such as:
opportunities for advanced instruction
and increased learning time, extended
learning opportunities, and provisions
related to the needs assessment. The
commenter also recommended that the
regulations be changed to ensure that
schoolwide programs include strategies
to meet the educational needs of
historically underserved populations.
Discussion: The preamble to the
NPRM makes specific reference to the
major purpose of schoolwide programs,
which is to address the needs and
improve academic achievement of all

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students in the school, especially for
those furthest away from demonstrating
proficiency. The language in the
preamble did not especially address the
comprehensive needs assessment and
its provisions because the needs
assessment is an integral part of the
schoolwide planning process outlined
in § 200.26.
Changes: None.
Comment: One commenter requested
clarification of the apparently
contradictory regulatory language in
§§ 200.25 through 200.27, that defines
low-achieving children as ‘‘those
students furthest away from
demonstrating proficiency,’’ while the
language in § 200.25 states that a
schoolwide program need not identify,
target, or track these children.
Discussion: In defining lowest
achieving children, the preamble refers
to those students furthest away from
meeting proficient and advanced levels
of achievement consistent with sections
1111 and 1116 of the Title I statute. The
Secretary agrees that there is a need to
clarify in guidance that identification of
those students furthest away from
meeting proficient and advanced levels
of achievement and identification of
students for program participation have
different implications. Schoolwide
programs must be able to accomplish
the former. They do not have to perform
the latter as a means to achieve it. The
Department will clarify this issue
further in nonregulatory guidance.
Changes: None.
Comment: One commenter expressed
concern about the requirement that all
paraprofessional instructional staff in
the schoolwide program meet the
requirements for paraprofessionals that
apply to targeted assistance schools. The
commenter expressed concern that
many schools will elect to remain in or
return to targeted assistance status.
Discussion: Section 1119(c) of the
ESEA requires that paraprofessionals
hired after January 8, 2002 and working
in a program supported with Title I, part
A funds be highly qualified. Section
200.58 of the regulations further
clarifies that statutory requirement by
providing that all paraprofessionals
working in a schoolwide program are
considered to be supported by Title I,
Part A funds. The Secretary believes
that individual schools will make the
decision to operate a schoolwide
program, and continue their operation
based on the need to reform the school
and improve student achievement.
Changes: None.
Comments: Two commenters objected
to the provision in § 200.25(b)(1)(ii) that
the 40 percent poverty eligibility
threshold for operating a schoolwide

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program is required for only the initial
year of the program. The commenters
suggested that this provision be deleted,
so that if a school’s poverty level
decreases in subsequent years it can no
longer operate as a schoolwide project.
Discussion: Section 1114(a)(1) of the
ESEA establishes the 40 percent
eligibility threshold for a school to
operate a schoolwide program. The
intent of the statute is to enable the
schoolwide program to improve the
entire educational program of the
school. Long-term reform occurs over
time and requires sustained and
consistent intervention if student
achievement is to improve. The
Secretary believes that making the 40
percent threshold an initial eligibility
requirement, rather than an annual
eligibility requirement, reinforces this
long-range approach.
Changes: None.
Comments: Two commenters
questioned, in § 200.25(b)(2), the
advisability of allowing schools to
choose a measure of poverty to
determine eligibility for schoolwide
programs that is different from the
measure used by LEAs for Title I
allocation purposes. One recommended
requiring identical measures of poverty
across the LEA’s Title I program, or at
least requiring equivalent or comparable
measures of poverty.
Discussion: The provision to allow a
school to use a poverty measure that is
different from the one the LEA selects
for Title I allocation purposes when
determining eligibility for operating a
schoolwide program is a continuation of
flexibility provided under the old
regulations. An LEA may use more
restrictive free school lunch data, rather
than free and reduced-price lunch data
to determine which schools are eligible
for Title I and to allocate funds. Based
on free lunch data, however, a school
might not meet the 40 percent
schoolwide eligibility criteria data,
while it might qualify if free and
reduced-price lunch data were used.
The Secretary wants to continue
providing as much flexibility as possible
to enable schools to qualify for
implementing a schoolwide program.
Changes: None.
Section 200.26 Development and
Evaluation of Schoolwide Program Plan
Comment: One commenter remarked
that the language of the proposed
regulation concerning the development
of the schoolwide plan is complex and
confusing because of its organizational
structure and recommended
reorganizing § 200.26 along the lines of
the NCLB Act.

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Discussion: The language in § 200.26
of the NPRM was intended to clarify
that a schoolwide plan must describe
how the school will improve academic
achievement and make explicit the
process used for developing the plan.
However, the Secretary believes that the
organization in the NPRM may be
confusing and concurs that reorganizing
the regulations to make them more
consistent with the NCLB Act would
make clearer the planning process
required to operate a schoolwide
program.
Changes: The Secretary has
reorganized the regulations by adding a
new § 200.26 (renamed ‘‘Core elements
of a schoolwide program’’) and placed it
under the undesignated center heading
‘‘Schoolwide Programs’’ in subpart A of
part 200 to make the regulations
consistent with the statute. All crossreferences have been amended
appropriately.
Comment: One commenter
recommended an addition to
§ 200.26(b)(1) to acknowledge that the
needs of migratory children are
constantly changing, requiring an
ongoing needs assessment process.
Discussion: The comprehensive needs
assessment described in § 200.26
addresses the needs of the school, in
general, and specifically requires that
the needs of migratory children be taken
into account when conducting the needs
assessment. The Secretary has added
language to this section that includes
migratory children as part of the needs
assessment and provides a specific
reference to the definition contained in
section 1309(2) of the ESEA.
Changes: The Secretary has added a
new § 200.26 and placed it under the
undesignated center heading
‘‘Schoolwide Programs.’’ The language
in this new section provides for the use
of academic achievement information
for all students in the school including
all demographic groups of students as
part of the needs assessment. The
inclusion of migratory students in the
needs assessment, and as defined in
section 1309(2) of the NCLB Act is
referenced in this section.
Comments: Several commenters
referenced language in § 200.26(a)(2)(ii)
requiring a focus on scientifically based
research. One remarked that the
meaning of this term is widely debated
and that the application of science to
improved instruction is often a complex
process. One commenter asked for
clarification about the meaning of
regulatory language that requires a
school’s process for developing its
schoolwide plan to focus on
scientifically based research.

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Discussion: Scientifically based
research is defined in section
9101(B)(37) of the ESEA as ‘‘research
that involves the application of rigorous,
systematic, and objective procedures to
obtain reliable and valid knowledge
relevant to education activities and
programs.’’ The strategies and methods
used in schoolwide programs must be of
high quality and have a reasonably high
probability of increasing student
achievement.
Changes: None.
Comments: Several commenters
requested amplification of language
regarding the schoolwide planning
process to reinforce the notion that the
process must be meaningful, to provide
clarity regarding who should participate
in the evaluation of the program’s
effectiveness, and to require that the
comprehensive needs assessment
include data on school funding and the
school’s capacity to meet needs. One
commenter in this group also requested
that the regulations be more explicit
about the importance of the
comprehensive needs assessment to the
planning process.
Discussion: The Secretary agrees that
the schoolwide planning process must
be meaningful, and reflect data obtained
from the comprehensive needs
assessment. The resulting plan must
include strategies for improved student
achievement, evaluation, monitoring for
effectiveness, and for amendment of the
plan, as needed.
Changes: To make this policy clear
and to address the comenters’ concerns,
the Secretary has reorganized § 200.26
and renamed it ‘‘Core elements of a
schoolwide program’’. In the NPRM,
these provisions were contained under
§ 200.28—Use of funds in a schoolwide
program. The new § 200.26 outlines the
basic elements of the schoolwide
program planning process with regard to
conducting a comprehensive needs
assessment, developing a
comprehensive plan, and evaluating the
program.
Comment: One commenter noted
widespread confusion about the Title I
provisions related to serving homeless
children and recommended further
elaboration in nonregulatory guidance
on needs and issues affecting homeless
students. The commenter also suggested
that the school needs assessment take
into account the needs of homeless as
well as migrant students.
Discussion: The Secretary agrees with
the commenter’s concerns and will
address in nonregulatory guidance the
issue of including the homeless
population in all schoolwide reform
efforts. The language included in
revised § 200.26(a)(1)(i) provides that

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the comprehensive needs assessment
must be based on academic achievement
information about all students in the
school, which includes homeless and
migrant students.
Changes: None.
Comments: One commenter expressed
concern that the needs assessment was
taken out of the listing of components,
thereby eliminating the requirement for
a school to describe the needs
assessment in its schoolwide plan.
Discussion: The needs assessment is
critical to the development of the
comprehensive schoolwide program
plan. A review of the core elements of
the schoolwide program includes the
comprehensive needs assessment, the
comprehensive plan, and the
evaluation. The description of the
comprehensive needs assessment may
be included as a part of this section.
Changes: In the revised § 200.26, the
Secretary has included three subparts
that address the comprehensive needs
assessment, the comprehensive plan,
and the evaluation.
Comments: Two commenters
expressed concern about the importance
of including strategies to increase
parental involvement, and requested
that the regulations make reference to
the parental involvement requirements
contained in section 1118 of the ESEA.
Discussion: The Secretary concurs
that including parents in all aspects of
schoolwide program planning,
development, and implementation is
essential.
Change: The Secretary has included
provisions for parental involvement,
consistent with the ESEA, in
§§ 200.27(b)(2); 200.27(c)(1) and (2); and
200.28 (c)(3)(i).
Section 200.27 Schoolwide Program
Implementation Components
Comments: Several commenters
expressed concern that this section of
the proposed regulations omitted
several key components that are critical
to operating a schoolwide program:
These components include the
participation of teachers in the
decisions regarding use of assessments,
increasing the amount and quality of
learning time, strategies to meet the
needs of historically underserved
populations, methods that help provide
an accelerated and enriched curriculum,
language that refers to proficient and
advanced levels of academic
achievement, inclusion of information
about how the school will determine if
academic needs have been met, and
instruction by highly qualified teachers.
Discussion: The proposed regulations
organized the schoolwide requirements
to emphasize key components necessary

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for the operation of a successful
schoolwide program. The intent of the
NPRM was to outline an approach that
would lead schools to restructure in
ways that would be most likely result in
improved student achievement.
However, the Secretary agrees that the
proposed regulations may be confusing
because those provisions did not
parallel the language in the ESEA.
Changes: The Secretary has amended
and renamed § 200.27—Schoolwide
program components—to make the
regulations parallel the statute more
closely and to address the specific
concerns of the commenters.
Comments: Two commenters
expressed concerns about proposed
language in § 200.27(c) of the NPRM,
which requires the inclusion of parents
in the planning and academic
intervention process, and requires that
student achievement reports be
provided to parents in a language that
they can understand.
Discussion: The Secretary strongly
supports the right of parents to be
involved in the schoolwide planning
process and to have information
regarding the education services
provided to their children in a form and
language they can understand.
Changes: The Secretary has clarified
the parental involvement provisions in
§§ 200.27(b)(2) and 200.27(c) to require
that a school develop its schoolwide
comprehensive plan with the
involvement of parents, consistent with
section 1118 of the ESEA and to make
that plan available to parents in an
understandable format and, to the extent
practicable, in a language that parents
can understand.
Comment: One commenter believed
that the reference in § 200.27(a)
concerning the application of the new
science requirement by 2005–06 was
inappropriate because improvement in
meeting standards cannot be
demonstrated without a proper
assessment.
Discussion: the Secretary agrees that
the reference to science in § 200.27(a) is
confusing and that providing a general
reference to improving the opportunities
of students to meet the State’s proficient
and advanced levels of student
achievement is more appropriate.
Changes: The Secretary has made this
clarifying change in § 200.28(a)(1).
Section 200.28 Use of Funds in a
Schoolwide Program
Comment: One commenter asked that
§ 200.28 be further clarified to confirm
that consolidation of funds does not
constitute a waiver of the school’s
obligation to comply with the
requirements of the NCLB Act, nor does

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it diminish the school’s obligation to
fulfill other programs’ purposes. All
program purposes and needs must be
met, not merely addressed.
Discussion: The Secretary agrees with
the commenter’s concern and will
provide further clarification in
nonregulatory guidance.
Changes: None.
Comments: Several commenters
recommended that § 200.28(c)(3)(i)(A)
and (B) require that before consolidating
Title I part C funds, a school first meet
the unique educational needs of
migratory students that result from their
migratory lifestyle and document that
these needs have been met. Several of
these commenters further recommended
that documentation could consist of
maintaining a record of the actions
taken by the school or LEA on behalf of
migrant students.
Discussion: The Secretary agrees with
these concerns and will provide further
clarification in nonregulatory guidance.
Changes: None.
Comment: Several commenters
recommended an addition to
§ 200.28(c)(3)(i) of the NPRM to include
consultation with parents of migrant
children or organizations representing
those parents, or both.
Discussion: The Secretary concurs
with commenters regarding the
importance of involving parents of
migratory children and the
organizations that represent them.
Changes: The Secretary has clarified
in § 200.28(c)(1)(i) that an LEA must
consult with parents of migratory
children or organizations representing
those parents, or both.
Comment: One commenter noted that
currently the latest list of programs
identified by the Department that may
be combined in a schoolwide program
was published in a September 21, 1995
Federal Register notice. This does not
allow for combining of funds from new
programs created by the NCLB Act. The
commenter recommended that the
regulations specify which Federal funds
administered by the Secretary may be
combined in a schoolwide program.
Discussion: The Secretary
understands the importance of LEAs
and schools knowing which funds may
be combined in a schoolwide program
and will publish an updated list in the
Federal Register soon after publication
of the final regulations.
Changes: None.
Comment: One commenter noted that
the provision in § 200.28(c)(3)(iii)
allowing for consolidation of IDEA
funds in a schoolwide program is not in
the ESEA, and recommended that this
provision should be deleted from the
regulations.

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Discussion: The provisions in the
regulations concerning consolidation of
special education funds are consistent
with the requirements of section
613(a)(2)(D) of the IDEA. The
regulations provide that the amount of
funds consolidated for special education
purposes may not exceed the amount
received by the LEA under part B of
IDEA for that fiscal year, divided by the
number of children with disabilities in
the jurisdiction of the LEA, and
multiplied by the number of children
with disabilities participating in the
schoolwide program.
Changes: None.
Comment: One commenter noted that
§ 200.28(c)(4)(i)(A), of the proposed
regulations, that provides that programs
consolidated in a schoolwide program
are exempt from statutory or regulatory
provisions governing their operation,
does not include an important
qualification contained in section 1114
(a)(3)(A) of the ESEA. This statutory
provision allows programs to be
consolidated only ‘‘if the intent and
purpose of such other programs are
met.’’ This omission must be restored in
order to conform to the ESEA.
Discussion: The Secretary agrees with
the commenter.
Changes: The Secretary has added
clarifying language in § 200.29(b)(1)(ii)
requiring that a school consolidating
and using in a schoolwide program
funds from any other Federal program
administered by the Department meet
the intent and purposes of that program
and ensure that the needs of the
intended beneficiaries of that program
are addressed.
Comment: One commenter urged that
the regulations be changed to ensure
that a school operating a schoolwide
program does not use Title II, part D,
Education Technology Grant funds for
purposes other than those authorized by
the statute. The commenter suggested
that language be added to
§ 200.28(c)(4)(i)(C) to require that a
schoolwide program as a whole,
addresses the ‘‘intent, purposes,
activities and uses’’ of funds, rather than
just the ‘‘intent and purposes’’ of funds,
for each Federal program whose funds
were consolidated to support the
schoolwide program.
Discussion: The Secretary believes
that the language now in § 200.29(d)
requiring that the intent and purposes of
the programs consolidated in a
schoolwide program be met provides
sufficient protection to ensure that the
needs of the children specifically
designed to be served by those programs
are met. The proposed change would
take away the flexibility a school would
have in operating schoolwide programs.

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The purpose of a schoolwide program is
to enable a school to combine its
Federal, State and local resources so it
can focus on providing comprehensive
services that best enable its students to
meet State’s academic content and
student achievement standards. In
exchange for this flexibility, the school
must ensure that its students make
progress toward meeting those academic
content and student achievement
standards.
Changes: None.
Comment: One commenter
recommended adding a new paragraph
(d) to § 200.28 mandating that States
require LEAs to involve providers of
federally funded adult education and
career technical education programs to
ensure the maximum support for the
academic achievement of students in
local schools.
Discussion: While the Secretary agrees
that providers of Federally funded adult
education and career technical
education programs can play an
important role in providing services to
students in local schools, involving
these providers in not a specific
statutory requirement and may not be
appropriate in every schoolwide
program.
Changes: None.
LEA and School Improvement
Section 200.30 Local Review
Comment: One commenter objected to
giving LEAs the responsibility for
conducting the annual progress review
to determine whether participating
schools are making AYP, on the grounds
that a statewide system would better
ensure equity and reliability in making
AYP determinations.
Discussion: The Secretary
understands the concerns of the
commenter, but believes that the
combination of the statewide
assessment system described in § 200.2
and the AYP requirements described in
§§ 200.13 through 200.20, which LEAs
must use in conducting their review of
school performance, will ensure that
such reviews are conducted in a fair and
uniform manner across each State.
While the statute clearly specifies that
the local review and school
improvement process is an LEA
responsibility, it also ensures that, in
carrying out this responsibility, LEAs
will rely primarily on standards and
indicators developed at the State level.
Changes: None.
Comment: One commenter expressed
concern that the proposed regulations
do not address the role of charter school
LEAs or other single-school LEAs in the
school review and improvement
process.

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Discussion: Single-school LEAs have
the same role and responsibilities in the
school review and improvement process
as other LEAs, including responsibility
for review of school progress in meeting
adequately yearly progress
requirements, identifying the school for
improvement, corrective action, or
restructuring, providing public school
choice options under § 200.44, and
making available supplemental
educational services in accordance with
§§ 200.45 and 200.46.
Changes: None.
Comment: One commenter expressed
concern that the proposed regulations
imply that LEAs are not required to use
other academic indicators in
determining whether a school has made
AYP.
Discussion: As clarified in § 200.19(a),
a State must use graduation rate for high
schools and another academic indicator
of its choosing for elementary schools
and for middle schools to determine
AYP. At the local level, an LEA may use
additional academic assessments or
indicators for the purpose of identifying
additional schools for improvement,
corrective action or restructuring. In
addition, progress on these LEA
academic indicators may permit a
school to make AYP in accordance with
the exception clause specified in
§ 200.20(b).
Changes: None.
Comment: One commenter objected to
the proposed regulation permitting an
LEA to limit its review of a school
operating a targeted assistance program
to the academic achievement of only
those children served by the program.
The commenter noted that this
regulation could create a disincentive
for schools to operate schoolwide
programs and could hinder the
development of single, statewide
accountability systems covering all
students.
Discussion: The Secretary agrees with
the concerns expressed by the
commenter, but notes that the
regulations reflect the clear language of
the statute. In addition, the Secretary
believes that few schools will take
advantage of this provision, because it
would, by definition, limit review to the
lowest-achieving students and thus
might make it more difficult for a school
to demonstrate AYP.
Changes: None.
Comment: One commenter
recommended adding to the final
regulations statutory language regarding
the use of the results of the LEA’s
annual review of school performance.
Discussion: The Secretary believes
that in the overall context of AYP and
school improvement requirements, the

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purposes of the annual progress review
and the use of the results of that review
are sufficiently explained in the
regulations. Any further explanation
may be accomplished through
nonregulatory guidance.
Changes: None.
Section 200.32 Identification for
School Improvement
Comment: Several commenters
maintained that the identification
timeline in the proposed regulations
does not allow sufficient time for States
to make available assessment data from
a given school year, or for school
districts to analyze that data and
identify schools for improvement,
corrective action, or restructuring, prior
to the beginning of the next school year.
Discussion: The identification
timeline in the proposed regulations is
faithful to the timeline specified in the
ESEA. The Secretary recognizes that
States may have to adjust their
assessment schedules to comply with
this timeline, but the centrality of the
timeline to the integrity of the entire
improvement process, as well as the
plain language of the statute, permit no
alternative.
Changes: None.
Comment: One commenter
recommended that the timeline for
identifying schools for improvement be
based on the school year in which
assessment results become available,
rather than the school year in which the
assessments are administered.
Discussion: Section 1116(b)(1)(B) of
the ESEA requires identification ‘‘before
the beginning of the school year
following such failure to make.’’ The
Secretary believes that this phrase
unambiguously links identification to
the school year in which the failure
occurred, and not to the availability of
assessment results documenting that
failure. In addition, section 1116(a)(2) of
the ESEA, incorporated into the
regulations as § 200.49(e), reinforces this
approach by requiring SEAs to make
assessment results in a given school
year available to LEAs before the
beginning of the next school year. Any
delay in this identification timeline
would severely undermine the strong
accountability, with consequences for
schools and options for students, that is
at the core of the NCLB Act.
Changes: None.
Comment: Two commenters
expressed concern that the proposed
regulations appear to hold LEAs
responsible for identifying schools for
improvement prior to the beginning of
the school year even if SEAs fail to
make assessment results available on a
timely basis.

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Discussion: Section 200.49(e) of the
final regulations specifically requires
SEAs to ensure that the results of
academic assessments administered as
part of the State assessment system for
a given year are available to LEAs before
the beginning of the next school year. In
addition, § 200.49(e)(1) clarifies that the
SEA must provide the required
assessment data in sufficient time to
permit the LEA to make the
identification in accordance with
§ 200.32(a)(2). Finally, § 200.49(e)(2)
prohibits an LEA from identifying a
school for improvement, corrective
action, or restructuring unless the SEA
has provided assessment results to the
school.
Changes: The final regulations
include additional language in
§ 200.49(e)(1) requiring SEAs to make
available assessment data for a given
school year to LEAs ‘‘in such time as to
allow for the identification’’ for
improvement prior to the beginning of
the next school year.
Comment: Several commenters
objected to the flexibility provided in
proposed § 200.32(d) and (e) regarding
the identification of schools for
improvement or removal of schools
from improvement status on the basis of
2001–2002 assessment results. The
commenters interpret the statute as
requiring the identification for
improvement of any school that fails to
make AYP for two consecutive years, as
well as the removal from improvement
status of any school that makes AYP for
two consecutive years, regardless of the
years involved.
Discussion: The Secretary believes
that the absence of any reference to
2001–2002 assessment results in the
otherwise very specific transition
provisions of the statute, combined with
the strong likelihood that many States
would not be able to make these results
available to LEAs prior to the beginning
of the 2002–2003 school year, supports
a flexible approach to the use of those
results for identification purposes
during the transition to the NCLB Act.
Changes: None.
Comment: Two commenters
expressed concern that the proposed
regulations, which give LEAs flexibility
in the use of 2001–2002 assessment data
in making identification decisions not
specifically covered under the transition
provisions of the statute, could create
confusion regarding the use of 2001–
2002 assessment data in subsequent
years.
Discussion: The Secretary agrees that
the flexibility provided in the proposed
regulations could be interpreted as
permitting LEAs to ignore 2001–2002
assessment data in making

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identification decisions in subsequent
years. The regulations clarify that an
LEA decision not to identify for
improvement a school that, on the basis
of 2001–2002 assessment data, does not
make AYP for a second consecutive
year, does not permit the LEA to ignore
that failure in making future
identification decisions.
Changes: Section 200.32(e) has been
amended to clarify that if an LEA
chooses not to identify for improvement
a school that, on the basis of 2001–2002
assessment results, does not make AYP
for a second consecutive year, it
nevertheless must consider the school’s
2001–2002 performance as the first year
of not making AYP for the purpose of
subsequent identification decisions.
Comment: One commenter asserted
that the proposed regulations unfairly
penalize schools that were hoping to
exit improvement status by making AYP
in two out of three years, as provided for
under the previous statute. For example,
under the old law, a school that made
AYP in the 1999–2000 school year,
failed to make AYP in 2000–2001, and
made AYP in 2001–2002 would be
removed from improvement status.
Under the new law, however, such a
school would continue to be identified
for improvement until it makes AYP for
two consecutive years.
Discussion: The reauthorized ESEA
specifies the identification status of
schools identified for improvement
under the previous law, but makes no
exceptions to the new requirement that
schools may be removed from
improvement only after making AYP for
two consecutive years. The Secretary
has provided limited flexibility to LEAs
to identify for improvement or remove
from improvement schools in certain
situations not covered by the statutory
transition provisions. In both instances,
however, this flexibility is consistent
with the ‘‘two consecutive year’’
standard of the statute. The Secretary’s
authority to provide flexibility in
implementing the new law does not
extend to overriding this standard.
Changes: None.
Comment: Several commenters
objected to the proposed requirement
that LEAs make choice immediately
available to students attending schools
that are identified for improvement after
the beginning of the school year
following the year in which the LEA
administered the assessments that
resulted in the identification for
improvement. The commenters believe
that this requirement will be
unnecessary if identification takes place
in accordance with the statutory
timeline (prior to the beginning of the
school year), and that if identification

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occurs following the beginning of the
school year, the statute requires LEAs to
provide choice no sooner than the first
day of the school year following
identification.
Discussion: The commenters are
correct in their observation that the midyear choice requirement of proposed
§ 200.32(f)(1) is unnecessary if
identification occurs in accordance with
the statutory timeline. The Secretary’s
intention, however, was to encourage
adherence to that statutory timeline by
removing a potential incentive for
delaying identification until after the
beginning of the school year. In other
words, an LEA may not postpone its
obligation to provide public school
options to students attending schools
identified for improvement simply by
delaying identification.
Changes: None.
Comment: Several commenters
objected to the proposed regulations
requiring an LEA to count as a full year
of improvement any year in which the
LEA identifies a school for improvement
after the beginning of the school year.
The commenters maintained that midyear identification would not provide
adequate time for districts and schools
to develop and implement effective
improvement plans. They also noted
that the statutory timeline is linked to
identification and generally requires a
‘‘full school year’’ at each stage of the
improvement process. One commenter
suggested that while a school identified
in mid-year should start the
improvement process, it should not
officially enter improvement status until
the beginning of the next school year.
Discussion: The Secretary
understands the concerns of the
commenters, particularly with regard to
giving schools adequate time to prepare
and carry out effective improvement
plans. However, the clear intention of
the NCLB Act is to impose rigorous
accountability measures on a precise
timeline designed both to bring about
rapid improvement in school quality
and to provide immediate options to
students attending identified schools.
Giving primacy to the ‘‘full school year’’
language of the statute potentially
rewards LEAs that violate the statutory
identification timeline, delays the
availability of public school choice and
supplemental educational services to
students, and unacceptably extends an
already lengthy improvement timeline
(which permits six years of not making
before implementation of restructuring).
The regulations underscore, in
§ 200.49(e), the importance of SEAs
ensuring that LEAs and schools receive
their assessment data in a timely
manner so that they can meet the

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statutory school improvement
deadlines.
Changes: None.
Section 200.33 Identification for
Corrective Action
Comment: Two commenters objected
to the flexibility provided to LEAs in
proposed § 200.33(c) to remove from
corrective action a school that, on the
basis of assessments administered
during the 2001–2002 school year,
makes AYP for a second consecutive
year. They maintained that the statute
requires LEAs to remove schools from
corrective action in such cases, and one
commenter argued that LEAs also
should use 2001–2002 assessment data
to identify additional schools for
corrective action.
Discussion: The Secretary believes
that the proposed regulations are an
appropriate way to address an inequity
in the statutory transition provisions
covering identification for corrective
action. These provisions require LEAs to
treat schools that were identified for
corrective action prior to enactment of
the NCLB Act as subject to corrective
action for the 2002–2003 school year.
Some of these schools, however, may
have made AYP in both 2000–2001 and
2001–2002, thus meeting the statutory
requirement for removal from corrective
action. The proposed regulations permit
LEAs to remove these schools from
corrective action, but does not require
such removal because some LEAs may,
in part due to the uncertain timing of
assessment results, prefer simply to
adhere to the statutory transition
provisions.
On the issue of identifying additional
schools for corrective action,
§ 200.32(c)(1) already specifies the
identification status of schools that have
been identified for improvement for two
or more consecutive years. LEAs must
treat such schools as being in the second
year of improvement under the new law
for the 2002–2003 school year. Failure
to make AYP in 2001–2002 would not
change this designation. The proposed
regulations thus reflect the clear intent
of the NCLB Act to identify for
corrective action, for the 2002–2003
school year, only those schools
identified for corrective action under
the previous law.
Changes: None.
Section 200.36 Communication with
Parents
Comment: One commenter expressed
concern about the rights of parents with
limited English proficiency, in light of
Title VI of the Civil Rights Act and
Executive Order 13166, to receive
communications about their child in a

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language that they understand. In
addition, two commenters urged the
Secretary to require the use of native
language to communicate with parents
in areas where large numbers of
students share the same primary
language.
Discussion: Section 1116 of the ESEA
requires SEAs and LEAs to keep parents
informed during the school
improvement process and, to the extent
practicable, to provide information to
parents with limited English proficiency
in a language the parent understands. In
addition, Title VI of the Civil Rights Act
of 1964 and longstanding Department
policy require SEAs and LEAs to
communicate information to limitedEnglish proficient parents that is
communicated to non-limited English
proficient parents. Under Title VI, SEAs
and LEAs have flexibility in
determining what mix of oral and
written translation services may be
necessary and reasonable for
communicating this information. This
policy is also consistent with Executive
Order 13166.
It is the Department’s position that,
pursuant to the requirements of section
1116 of the ESEA, it is ‘‘practicable’’ to
provide information to limited-English
proficient parents orally in a language
that they understand. This
interpretation of Section 1116 of the
ESEA also is consistent with Title VI,
longstanding Department policy under
Title VI, and Executive Order 13166.
Additionally, section 1116 of the
ESEA requires written translations of
printed information to be provided to
parents with limited English proficiency
in a language they understand,
whenever such written translations are
‘‘practicable.’’ If it is not ‘‘practicable’’
to provide written translations of
notices, section 1116 requires SEAs and
LEAs to ensure that parents with limited
English proficiency are provided oral
translations of the written information.
This requirement to translate orally
written information whenever a written
translation is not practicable is
consistent with Title VI, longstanding
Department policy under Title VI, and
Executive Order 13166.
Changes: None.
Comment: One commenter suggested
additional regulatory language to ensure
effective communication with the
parents of limited English proficient and
migrant students. In particular, the
commenter recommended the use of
non-traditional communication
vehicles, such as posting notices at
churches and distributing information
through social service providers.
Discussion: The Secretary agrees that
effective communication with the

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parents of limited-English proficient
and migrant students is important, but
he believes that widely varying local
circumstances argue in favor of
addressing the concerns raised by the
commenter in nonregulatory guidance
rather than through ‘‘one-size-fits-all’’
regulatory prescription.
Changes: None.
Comment: One commenter expressed
concern that it would not be possible for
a State to communicate directly with
parents, as required by the proposed
regulations, if the State does not
maintain information, such as street or
e-mail addresses, on individual
students. The commenter recommended
requiring States to communicate to
parents only through such broader
means as the Internet and other media.
Another commenter addressed a similar
concern by recommending that States be
permitted to fulfill their obligation by
providing school improvement
information to LEAs and schools, which
would then distribute the information to
parents, rather than requiring States to
communicate directly with parents.
Discussion: The Secretary agrees that
the proposed regulations should be
amended to reflect the limited student
information available to States in some
cases. However, the final regulations
continue to require States to
communicate to individual students and
their families, even if they must do so
indirectly through LEAs and schools.
Changes: Section 200.36(b)(1) has
been amended to permit States to
distribute information to parents
through LEAs and schools.
Comment: One commenter
recommended that any information
provided to parents also be provided to
teachers and other school staff so that
educators know and understand what is
happening in their schools.
Discussion: Section 200.36 is
intended to clarify statutory
requirements regarding communication
with parents during the school
improvement process. Notice
requirements affecting teachers and
school staff are addressed elsewhere,
such as in §§ 200.30 and 200.43.
Changes: None.
Comment: One commenter requested
clarification of proposed § 200.36(c),
which requires all communications to
respect the privacy of students and their
families.
Discussion: The proposed regulations
are intended to help prevent, for
example, the public disclosure of the
names of students receiving
supplemental educational services, as
prohibited by § 200.46(a)(5) and
(b)(2)(v). Further clarification will be
provided in nonregulatory guidance.

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Changes: None.
Section 200.37 Notice of Identification
for Improvement, Corrective Action, or
Restructuring
Comment: Two commenters
recommended adding a definition of
‘‘promptly’’ in proposed § 200.37(a),
which requires LEAs to ‘‘promptly
notify’’ parents when their child’s
school has been identified for
improvement. The commenters
expressed particular concern that
parents have sufficient time to consider
public school choice options.
Discussion: The Secretary agrees that
timely notification is essential to
ensuring that parents are able to make
informed choices regarding their
children’s education. Such notifications
should be made as soon as possible.
However, the precise amount of time
required may vary depending on local
circumstances. The Department has
issued nonregulatory guidance on this
issue.
Changes: None.
Comment: One commenter
recommended including, in the notice
to parents that their child’s school has
been identified for improvement, a
description of the actions being taken to
improve the school.
Discussion: The Secretary agrees that
information on the action being taken to
improve a school is important, and
notes that § 200.38(a) requires an LEA to
provide such information to parents.
However, because parental
consideration of choice and
supplemental educational service
options generally must occur at the
same time a school is developing its
school improvement plan, it will
usually be impossible to include such
information in the initial notice of
identification.
Changes: None.
Comment: One commenter
recommended that the explanation of
the option to transfer described in
§ 200.37(b)(4)(i) include a reference to
the provision of transportation to the
new school.
Discussion: The proposed regulations
referenced proposed § 200.44, which
included choice-related transportation
requirements, but the Secretary agrees
that the restoration of the statutory
reference to transportation in the notice
requirement will clarify this issue.
Changes: Section 200.37(b)(4)(i) has
been amended to include a discussion
of transportation in the explanation of
the option to transfer provided to
parents as part of the notice of
identification for improvement,
corrective action, or restructuring.

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Comment: Two commenters objected
to the proposed requirement in
§ 200.37(b)(4)(ii) that LEAs provide
information to parents on the
performance of the school or schools to
which their children may transfer. Both
commenters found this requirement
administratively burdensome,
particularly in districts that offer a large
number of choices and thus would have
to document the performance of many
schools. One commenter suggested that
LEAs be permitted to ‘‘direct’’ parents to
publicly available sources of such
information, such as a school or district
Web site.
Discussion: Since a basic principle of
the public school choice option required
as part of the school improvement
process is to give parents in lowperforming schools the opportunity to
send their children to a higherperforming school, the Secretary
believes the provision of the
information called for in proposed
§ 200.37(b)(4)(ii) is essential. However,
the regulations provide substantial
flexibility to LEAs in selecting the most
meaningful local measures of academic
achievement, rather than mandating
either the kind or number of such
measures. LEAs are free, and indeed
encouraged, to summarize school
performance in a manageable and
understandable format, rather than
overwhelm parents with detailed
reports. In addition, the final regulations
clarify that, for the purposes of § 200.44,
the only required indicator of
performance is the academic
achievement of students in the receiving
schools. Finally, while it may be
appropriate to direct parents to sources
such as Web sites for additional
information, basic performance
information should be provided directly
to parents, many of whom lack access to
electronic information sources such as
the Internet.
Changes: Section 200.37(b)(4)(ii) has
been amended so that the only
performance information required in the
explanation of the public school choice
option is the academic achievement of
the schools to which a student may
transfer.
Comment: One commenter suggested
that the Secretary require, rather than
encourage, LEAs to provide the
additional information on public school
choice options described in
§ 200.37(b)(4)(iii).
Discussion: The ESEA requires only
that LEAs offer parents and students the
option to transfer to another public
school that is not identified for
improvement, corrective action, or
restructuring. This emphasis on
academic performance is reflected in the

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information required by
§ 200.37(b)(4)(ii). The Secretary agrees
that additional information on the
options available to parents is desirable,
but believes that LEAs should have
flexibility to provide the most useful
information in light of local needs and
circumstances.
Changes: None.
Comment: One commenter
recommended that the information on
the school or schools to which a student
may transfer include a description of
parental involvement programs.
Discussion: The Secretary agrees that,
in addition to the academic quality of
the school, the opportunity for greater
involvement in their child’s education
could be an important consideration for
parents exploring public school choice
options. However, we do not agree that
such information should be required.
Changes: In order to clarify that
information on parent opportunities
may be provided in the explanation of
the parents’ option to transfer their
child to another school,
§ 200.37(b)(4)(iii)(D) has been amended
to specifically authorize provision of a
description of parental involvement
opportunities at the school or schools to
which the student may transfer.
Comment: Two commenters objected
to the proposed requirement that the
annual notice of the availability of
supplemental educational services
include approved providers of
technology-based or distance-learning
services. One commenter maintained
that the proposed regulations are
unnecessary and implied a preference
for technology-based providers over
other providers, while another asserted
that any clarification of means of
providing services is more properly the
role of SEAs, since they are responsible
for approving providers.
Discussion: The success of the
supplemental educational services
component of the school improvement
process depends on the availability of a
sufficient number of providers to meet
the diverse educational needs of
students. Provider availability is a
particular concern in poor urban and
rural areas where it is reasonable to
expect there will be the greatest demand
for supplemental educational services.
Technology provides a means to
overcome geographic and demographic
barriers to the provision of high-quality
services. For this reason, the Secretary
believes it is appropriate to emphasize
the potential role of technology-based
providers. Finally, the ESEA clearly
assigns responsibility for providing
annual notice to parents of the
availability of supplemental educational
services to the LEA, not the SEA.

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Changes: None.
Comment: One commenter
recommended including in the
information about supplemental
educational service providers the
religious affiliation of such providers,
the duration of services, whether
services are school-based, and whether
transportation to the provider is
available.
Discussion: The Secretary believes
that § 200.37(b)(5)(ii)(B) is sufficient to
ensure the provision of such
information in the annual notice of the
availability of supplemental educational
services, and will clarify this
requirement in nonregulatory guidance.
Changes: None.
Comment: One commenter
recommended requiring LEAs to
include, in the explanation of public
school choice and supplemental
educational service options, a detailed
discussion of procedures required to
exercise such options, including any
required forms, documentation, and
schedules or deadlines.
Discussion: Procedures for exercising
a public school choice or supplemental
educational service option may vary
widely from district to district
depending on such factors as preexisting choice programs, the timing of
identification, and the use of
technology. For this reason, the
Secretary believes that the best way to
address the commenter’s concerns is
through general guidelines in
nonregulatory guidance.
Changes: None.
Section 200.38 Information About
Action Taken
Comment: One commenter suggested
that the final regulations require an LEA
to include, in its explanation of
corrective action or restructuring, a
description of actions recommended by
school-level staff or a school-level
governance committee.
Discussion: The ESEA requires only
that LEAs publish and disseminate
information about measures actually
taken to address the problems that led
to the identification of a school for
improvement, corrective action, or
restructuring. Districts are free to
provide additional information on the
process that led to the adoption of such
measures if they believe such
information will support school
improvement efforts.
Changes: None.
Section 200.39 Responsibilities
Resulting From Identification for School
Improvement
Comment: One commenter expressed
concern that proposed § 200.39(a)(1)(i)

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potentially misleads students and their
families by suggesting that all students
in schools identified for improvement
will have the option to transfer to a
better-performing school, when in fact
the ESEA requires LEAs to give priority
to the lowest-achieving students from
low-income families in providing public
school choice options.
Discussion: The regulation, like the
statute, does indeed require that LEAs
provide a public school choice option to
all eligible students, defined as all
students—regardless of achievement or
family income—enrolled in a school
identified for improvement, corrective
action, or restructuring. The statutory
priority on the lowest-achieving
students from low-income families is a
priority in providing transportation, as
well as in making assignments to the
family’s preferred choice among
available schools. It is not an invitation
to LEAs to limit choice to only those
students.
Changes: None.
Section 200.40 Technical Assistance
Comment: One commenter
recommended that all technical
assistance providers comply with the
requirements of Title II of the Higher
Education Act of 1965 (HEA), which
requires institutions of higher education
that conduct teacher preparation
programs and receive Federal financial
assistance under the HEA to issue
reports on the ‘‘pass rates’’ of their
teacher education graduates on State
certification and licensure assessments,
as well as on other aspects of their
teacher education programs.
Discussion: The requirements in Title
II of the Higher Education Act do not
apply to other private organizations or
to technical assistance providers.
Changes: None.
Comment: One commenter
recommended that an LEA be required
to ‘‘publicly identify’’ any entities
providing technical assistance when it
identifies a school for improvement.
Discussion: The ESEA requires only
that an LEA ‘‘ensure the provision of
technical assistance as the school
develops and implements’’ its
improvement plan. In addition, the
improvement plan must include a
description of the technical assistance to
be provided by the LEA. This suggests
that information on the precise nature of
the technical assistance required, as
well as the identity of the providers, is
unlikely to be available at the time of
identification.
Changes: None.
Comment: One commenter observed
that the proposed regulations are
inconsistent with the statutory

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requirements governing technical
assistance to schools identified for
improvement, particularly with regard
to the goals of such technical assistance.
Discussion: The Secretary agrees that
the proposed regulations inadvertently
omitted the statutory reference to
technical assistance in identifying and
addressing any failure of the LEA or
school in implementing the school plan.
Changes: Section 200.40(c)(1) has
been amended to restore the omitted
reference to technical assistance
regarding LEA and school fulfillment of
responsibilities under the school plan.
Section 200.41 School Improvement
Plan
Comment: One commenter requested
that the parental consultation
requirement in § 200.41(a)(2) include a
reference to a similar requirement in
section 1118 of the ESEA.
Discussion: The Secretary believes
that both the ESEA and the proposed
regulations are unambiguous in
requiring schools to consult with
parents in developing or revising their
school improvement plans, and that
further clarification is unnecessary.
Changes: None.
Comment: One commenter suggested
that the required consultation with
parents, school staff, the LEA, and
outside experts should take the form of
written comments that are included in
the school improvement plan.
Discussion: The ESEA does not
require schools to seek comments in
written form as part of the consultation
process, but also does not preclude such
an approach. The final regulations
maintain this flexibility, which helps to
ensure that school improvement
planning is focused on results, not
process.
Changes: None.
Comment: One commenter objected to
the proposed regulation requiring
school improvement plans to include
‘‘measurable goals’’ rather than the
‘‘annual, measurable objectives’’
terminology employed by the ESEA.
Discussion: The Secretary believes
that the term ‘‘annual, measurable
objectives’’ used in section
1116(b)(3)(A)(v) of the ESEA is
ambiguous and, in particular, risks
unintentional confusion with the annual
measurable objectives required by
§ 200.18 as part of the definition of AYP.
The substitution of the term
‘‘measurable goals’’ is intended to
clarify that schools must set their own
separate, interim performance goals that
will contribute to the attainment of the
annual measurable objectives required
to make AYP and gain removal from
improvement status.

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Changes: None.
Comment: Two commenters requested
that schools identified for improvement
be permitted to use both Part A and
non-Part A funds to satisfy the
requirement in § 200.41(c)(5) that such
schools spend not less than 10 percent
of their part A allocation on professional
development designed to help remove
the school from improvement status.
Discussion: The proposed regulations
accurately reflect the specific language
of the ESEA, and the Secretary has no
authority to modify this requirement.
Changes: None.
Comment: One commenter requested
the addition of a reference to section
1119 of the ESEA in proposed
§ 200.41(c)(5), which outlines the
requirements for school improvementrelated professional development.
Discussion: The Secretary modified
the statutory reference to section 1119 of
the ESEA because this provision
specifically covers professional
development intended to ensure that all
teachers are highly qualified, and not
professional development designed to
help remove a school from school
improvement status.
Changes: None.
Comment: One commenter objected to
the omission of the statutory
requirement for an explanation of how
funds reserved for professional
development will be used to remove a
school from improvement status, which
in the proposed regulations was
reflected only in a requirement for an
assurance that such funds would
‘‘contribute to removing the school from
school improvement status.’’
Discussion: The Secretary agrees that
the proposed regulations could have
inadvertently weakened the requirement
for a firm commitment on the use of
professional development funds in
school improvement plans.
Changes: Section 200.41(c)(6) of the
final regulations requires a school to
specify how it will use its 10 percent
reservation of Part A funds to gain
removal from improvement status.
Comment: One commenter objected to
the requirement that school
improvement plans incorporate teacher
mentoring programs.
Discussion: The Secretary has no
authority to remove this requirement,
which is specifically provided for in the
ESEA. However, the final regulations
clarify that the intention is to include
teacher mentoring programs as a
necessary element of the professional
development provided as part of the
school improvement plan.
Changes: The requirement for teacher
mentoring programs has been moved to

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§ 200.41(c)(5)(iii) of the final
regulations.
Comment: One commenter objected to
the omission of the notice requirement
from the proposed regulation on school
improvement plans.
Discussion: The notice requirement
was omitted from proposed § 200.41
both because it concerned the initial
identification for improvement, which
in most cases will precede the
development of the school improvement
plan, and because it was included in
proposed § 200.37, which covers all of
the various statutory notice
requirements related to the school
improvement process. The Secretary
agrees with the commenter, however,
that it is important for the school
improvement plan to describe how the
school will notify parents of the
identification for improvement.
Changes: Section 200.41(c)(7) requires
the school improvement plan to include
a description of how notice of
identification for improvement will be
provided to parents.

covering the two years of improvement
efforts prior to the identification for
corrective action. Since it presumably
was at least in part the failure of this
plan to improve the performance of the
school that led to identification for
corrective action, the Secretary believed
that rather than providing advice based
on this plan, it would be more
appropriate for the outside expert to
assist in revising the plan and in
implementing the revised plan.
Accordingly, § 200.42(b)(4)(iv) requires
this approach when an LEA appoints an
outside expert as a corrective action.
Changes: None.

Section 200.43 Restructuring
Comment: Three commenters
requested clarification of the status of a
school that has implemented a
restructuring plan. One recommended
that it be treated as a new school, and
one asked whether such a school would
be required to offer choice and
supplemental educational services to its
students.
Discussion: The ESEA does not
Section 200.42 Corrective Action
address the status of a school that has
implemented a restructuring plan.
Comment: One commenter expressed
However, section 1116(b)(12) of the
concern that some of the corrective
statute requires an LEA to remove a
actions described in the proposed
school from improvement, corrective
regulations may conflict with State
action, or restructuring status only after
charter school laws.
Discussion: Section 200.42(a) includes the school has made AYP for two
consecutive school years. The Secretary
a range of corrective action options and
believes that the best interpretation of
requires any action taken to be
this language as it applies to a
‘‘consistent with State law.’’ Where
restructured school is that such a school
certain corrective actions specified in
remains ‘‘in improvement’’ until it
the ESEA and regulations conflict with
makes AYP for two consecutive school
State charter school laws, LEAs are not
years. For this reason, the LEA serving
required to adopt those actions.
a restructured school must continue to
Changes: None.
provide public school choice options
Comment: One commenter requested
and make available supplemental
clarification of the role of school
educational services to eligible students
support teams in providing technical
enrolled in the school until the school
assistance during corrective action.
Discussion: As described in
makes AYP for two consecutive school
§ 200.42(b)(2), the LEA must continue to years.
Changes: Section 200.43(c)(2) of the
make available technical assistance,
final regulations requires an LEA to
whether provided through school
provide public school choice options
support teams or through some other
mechanism, that meets the requirements and make available supplemental
educational services to students
of § 200.40.
Changes: None.
enrolled in a restructured school until
Comment: One commenter requested
the school makes AYP for two
explanation of the proposed regulations consecutive school years.
regarding the appointment of an outside
Comment: One commenter
expert as a corrective action.
recommended that any entity selected to
Discussion: The ESEA includes, as
operate a school as part of a
one of the corrective actions that may be restructuring plan be required to
taken by an LEA, the appointment of an demonstrate financial stability.
Discussion: The ESEA and proposed
outside expert ‘‘to advise the school on
regulations require only that such an
its progress toward making AYP, based
on its school plan under paragraph (3).’’ entity have a ‘‘demonstrated record of
effectiveness.’’ States and LEAs, which
The school plan cited in the statute,
presumably will enter into a contract
however, is the school improvement
with the entity, may identify other
plan developed after initial
requirements or standards that the
identification for improvement and

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entity must meet. The ESEA requires
that restructuring options be
implemented ‘‘consistent with state
law.’’
Changes: None.
Section 200.44 Public School Choice
Comment: One commenter requested
clarification regarding LEA flexibility in
providing public school choice options
to students enrolled in schools
identified for improvement, including
whether an LEA may, in view of
capacity constraints, offer choice to
students only at some and not all of the
schools it has identified for
improvement.
Discussion: Both the ESEA and the
proposed regulations clearly require,
except where State law prohibits, LEAs
to offer all students enrolled in all
schools identified for improvement the
option of transferring to another public
school that has not been identified for
improvement.
Changes: None.
Comment: Several commenters
maintained that existing overcrowding
of schools, teacher shortages,
transportation difficulties, class-size
limits, health and safety concerns, and
other capacity issues prevent many
LEAs from implementing the public
school choice option in accordance with
the requirements of § 200.44. One
commenter, for example, recommended
that the final regulations permit LEAs to
preclude transfers to schools that have
reached their ‘‘maximum instructional
capacity under State or local laws or
ordinances.’’ Another asked whether a
State law limiting class size would
permit an LEA to limit choice on the
basis of the ‘‘State law prohibition’’ in
§ 200.44(a)(5).
Discussion: In general, as the
Secretary has made clear in Dear
Colleague letters, nonregulatory
guidance, proposed regulations, and
other policy statements, the ESEA does
not permit an LEA to preclude choice
options on the basis of capacity
constraints. Rather, the statute requires
an LEA to take measures to overcome
issues such as overcrowding, class size
limits, and health and safety concerns,
that otherwise might prevent the LEA
from complying with Title I public
school choice requirements. This could
mean, for example, adding classes and
hiring additional teachers so that the
LEA can offer choices to students while
adhering to State-mandated class size
limits.
In addition, LEAs have broad latitude
in determining the schools to which
students can transfer. They may, for
example, consider health and safety
factors in providing transfer options to

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students and their parents. Such factors
do not permit an LEA, however, to
simply avoid its obligation to provide
public school choice options as required
by section 1116 of the ESEA. The
expectation is that LEAs will need to
find ways to provide choice, consistent
with their obligations to provide a
healthy and safe learning environment.
Changes: Section 200.44(d) of the
final regulations clarifies that an LEA
may not use lack of capacity to deny an
eligible student the opportunity to
transfer to another school not identified
for improvement.
Comment: Two commenters requested
that the final regulations include
language permitting LEAs to limit the
availability of choice options to comply
with ‘‘health and safety code
requirements regarding facility
capacity.’’
Discussion: In implementing the
public school choice requirements, an
LEA must provide parents of students
eligible to transfer a choice of more than
one school if more than one school is
available. The LEA is not required,
however, to make available every school
in the district. Rather, the LEA may take
into consideration factors such as health
and safety requirements or
transportation costs in determining
which schools in the district would be
available to accept transfer students.
Such factors may not be used, however,
to deny students the opportunity to
transfer to any other school.
Changes: Section 200.44(d) of the
final regulations makes clear that an
LEA may not use lack of capacity to
deny an eligible student the opportunity
to transfer to another school not
identified for improvement.
Comment: One commenter
recommended that the final regulations
permit LEAs to offer supplemental
educational services to those students
whose transfer requests cannot be
accommodated due to capacity
constraints.
Discussion: Section 200.44(g)(2) of the
final regulations permits an LEA with
no eligible schools to which a student
may transfer to offer supplemental
educational services to eligible students
enrolled in schools identified for their
first year of improvement. However,
since neither the ESEA nor § 200.44(d)
of the final regulations permits an LEA
to deny public school choice options to
eligible students due to capacity
constraints, there is no reason to offer
supplemental educational services in
lieu of choice under the circumstances
suggested by the commenter.
Changes: None.
Comment: One commenter noted that
some States and school districts

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currently operate public school choice
plans and asked whether the new law
requires additional choices beyond
those already provided.
Discussion: If an existing choice plan
meets the requirements of § 200.44, then
the LEA is already in compliance with
the ESEA. In most cases, however, the
Secretary believes that it will be
necessary to modify existing choice
plans to meet these requirements, which
include, for example, the provision of
transportation, a choice of more than
one school, and a priority for the lowestachieving students from low-income
families.
Changes: None.
Comment: One commenter expressed
concern that proposed § 200.44(a)(2),
which would require LEAs to offer
choice ‘‘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,’’ could require
mid-year implementation of choice that
would lead to major disruptions in both
sending and receiving schools.
Discussion: Proposed § 200.44(a)(2) is
based on the clear language of section
1116(b)(1)(E)(i) of the ESEA, which
assumes SEA and LEA compliance with
the equally clear statutory identification
timeline. SEAs and LEAs that adhere to
this timeline will not face the additional
challenge of implementing the public
school choice requirements of § 200.44
in the middle of a school year. The
Secretary does not believe it is
appropriate, however, to reward LEAs
that do not comply with the law by
permitting them to postpone their
obligations under § 200.44 until the
following school year and thereby deny
students attending identified schools
the opportunity to transfer immediately
to a better school.
Changes: None.
Comment: One commenter noted that
States and school districts may have
their own ‘‘improvement’’ designations
based on different criteria than those
provided under section 1116 of the
ESEA. For this reason, the commenter
requested clarification that the standard
proposed under § 200.44(a)(3)(i)(A)
limits transfers to schools that have not
been identified for improvement,
corrective action, or restructuring under
Title I.
Discussion: The Secretary agrees that
the proposed regulations did not clearly
reflect the statutory requirement under
section 1116(b)(1)(E)(i) of the ESEA that
an LEA provide a public school choice
option ‘‘that has not been identified for
school improvement under this
paragraph.’’ The phrase ‘‘under this

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paragraph’’ expressly limits the
exclusion from eligible choice options
of schools identified under section
1116(b)(1) of the ESEA, and does not
rule out schools that may have been
identified for improvement under other
State or local criteria as possible schools
to which students may transfer.
Changes: The final regulations specify
that transfers are limited to schools that
have not been identified under
§§ 200.32 through 200.34.
Comment: Two commenters requested
clarification that proposed
§ 200.44(a)(3)(ii) refers only to public
charter schools that are served by the
LEA.
Discussion: The Secretary believes
that both the ESEA and the regulations
are clear in requiring choice only within
LEAs. The precise relationship between
public charter schools and LEAs,
however, varies widely and is better
addressed through nonregulatory
guidance.
Changes: No change.
Comment: Several commenters
objected to proposed § 200.44(a)(4)(i),
which requires LEAs to offer parents of
eligible students the choice of more than
one school that is not identified for
improvement, corrective action, or
restructuring. The commenters argued
that this requirement is inconsistent
with both the NCLB Act and the
Secretary’s overall goal of regulating
only where necessary to provide clarity
or flexibility.
Discussion: The Secretary believes
that the principle and intent of choice
embodied in the NCLB Act has meaning
only if parents and students have the
ability to choose from more than one
public school choice option. One school
is effectively no choice. Choice implies,
at a minimum, the opportunity to
choose between at least two betterperforming schools. However, the
regulations do not prohibit an LEA from
limiting choice options on the basis of
such factors as transportation
arrangements, so long as it provides
more than one option to students
enrolled in schools identified for
improvement, corrective action, or
restructuring.
Changes: None.
Comment: One commenter requested
clarification as to whether an LEA may
limit the number of schools to which a
student may transfer on the basis of
such factors as transportation
arrangements, so long as the LEA
provides parents and students more
than one option from which to choose.
Discussion: The Secretary has issued
nonregulatory guidance explaining that
LEAs are indeed permitted to take into
account logistical concerns, such as

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transportation, in limiting the range of
available choices to students exercising
an option under § 200.44.
Changes: None.
Comment: One commenter
recommended deletion of proposed
§ 200.44(a)(4)(ii), which requires LEAs
to ‘‘take into account’’ parent
preferences in making final assignments
among public school choice options
offered to students attending schools
identified for improvement, corrective
action, and restructuring. The
commenter noted that this provision is
not included in the ESEA and
‘‘interferes with the local control of
school systems.’’
Discussion: The Secretary recognizes
that the final decision regarding student
assignment among available choices
rests with the LEA, but believes that
meaningful choice requires that LEAs
take into account parental preferences.
Changes: None.
Comment: One commenter requested
clarification of the eligibility for choice
and supplemental educational services
of students who plan to attend, but are
not yet enrolled in, a school for which
an LEA must provide such options.
Discussion: The answer to this
question depends in large part on State
and local definitions of ‘‘enrollment,’’
but the Secretary believes that in general
LEAs should provide new students the
same options offered to existing
students at a given school.
Changes: None.
Comment: One commenter requested
clarification of the limitation on the
State law prohibition in § 200.44(b),
including examples of improper
application of the prohibition.
Discussion: Section 1116(b)(1)(E)(i) of
the ESEA requires an LEA to provide
public school choice to any student in
a school identified for improvement,
unless such public school choice is
prohibited by State law. Section
200.44(b) of the final regulations
clarifies that an LEA may invoke the
State law exception only if the State law
prohibits choice through restrictions on
public school assignments or student
transfers among schools. Such a State
law could explicitly prohibit an LEA
from permitting students to transfer to
other public schools or it could, for
example, enforce desegregation by
restricting transfers in such a way that
effectively makes choice impossible. A
State law that limits class size, however,
is not a State law prohibiting choice,
because an LEA could add teachers to
meet class size requirements and still
permit students to transfer.
Changes: None.
Comment: Several commenters
objected to the language in proposed

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§ 200.44(c)(3) requiring LEAs to ‘‘secure
appropriate changes’’ to desegregation
plans to permit compliance with the
public school choice requirements of
§ 200.44. Commenters noted that LEAs
could only seek such changes and only
courts or the responsible agencies could
grant the changes. In addition, two
commenters were concerned that this
provision may impose the burden and
expense of protracted litigation on
LEAs.
Discussion: Nothing in the proposed
regulations or these final regulations
provides an LEA with the authority to
violate an applicable desegregation
plan; rather, § 200.44(c)(1) holds that the
existence of a desegregation plan does
not exempt an LEA from the public
school choice requirements of § 200.44.
In addition, § 200.44(c)(2) states that an
LEA may take into account the
requirements of its desegregation plan
in determining how to implement a
transfer option. An LEA is required to
‘‘secure appropriate changes’’ from the
court only if it is unable to implement
the choice requirement consistent with
the plan. The Department of Education
anticipates that courts and responsible
agencies will recognize the benefits of
allowing students to transfer from
schools identified as needing
improvement and will grant
amendments to desegregation plans
permitting such transfers. If a court or
responsible agency denies an LEA’s
request to amend its desegregation plan
to allow for choice, then the LEA should
contact the Department of Education. It
is not the Secretary’s intent to deny
Title I funding to an LEA that in good
faith takes appropriate action to seek
amendments to the desegregation plan
in order to comply with the public
school choice requirements of § 200.44.
Changes: None.
Comment: One commenter
recommended that LEAs be permitted to
limit eligible students to a single public
school choice option, rather than the
multiple options required by
§ 200.44(a)(4)(i), in order to support the
goals of existing desegregation plans.
Discussion: Section 1116(b)(1)(E)(i) of
the ESEA requires an LEA with Title I
schools identified for improvement to
provide students in those schools the
opportunity to transfer to a school not
identified for improvement. Consistent
with § 200.44(a), eligible students must
have the opportunity to express a
preference among at least two eligible
schools and that preference must be
considered by the school district in
making their assignment. An LEA may
take into account the requirements of its
desegregation plan in determining how
to implement the transfer option. If its

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desegregation plan offers no opportunity
for the LEA to implement the choice
requirement consistent with the plan,
the LEA would need to secure
appropriate changes from the court.
Changes: None.
Comment: One commenter
maintained that compliance with the
priority in § 200.44(d), and a similar
priority for supplemental educational
services in § 200.45(d), will require
students to re-apply annually for a
public school choice option to ensure
equity in the context of limited funding
for choice-related transportation and
supplemental educational services.
Discussion: The Secretary
understands the concerns of the
commenter, but notes that § 200.44(f)
contains the statutory requirement
permitting students who exercise a
public school choice option to remain in
the new school until the student has
completed the highest grade in that
school. For this reason, the Secretary
believes that the priority in § 200.44(d)
was intended to apply only to students
requesting a choice option for the first
time, not those who have already
exercised such an option. As for the
commenter’s similar concern regarding
supplemental educational services,
§ 200.45(b)(3) requires LEAs to make
such services available only until the
end of the school year in which they are
first provided, a limitation that
mandates annual re-application for such
services.
Changes: None.
Comment: One commenter
recommended that the Department
regulate the State role in encouraging
cooperative agreements between LEAs
to make available choice to students in
LEAs in which all schools have been
identified for improvement, corrective
action, or restructuring.
Discussion: While the Secretary agrees
that it would helpful, and consistent
with the spirit of the NCLB Act, for
States to encourage cooperative
agreements between LEAs that would
increase the availability of public school
choice options, it would be
inappropriate to regulate in this area of
State authority.
Changes: None.
Comment: One commenter
recommended setting geographic limits
on the distance between LEAs that
arrange cooperative agreements for the
purpose of expanding public school
choice options available to students
enrolled in schools identified for
improvement, corrective action, or
restructuring.
Discussion: The Secretary believes
that geographic limits are the kind of
issue the authorizers intended to

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address when they called for such
cooperative agreements ‘‘to the extent
practicable,’’ a limitation that is
repeated in § 200.44(h)(1).
Changes: None.
Comment: One commenter requested
clarification as to whether ‘‘receiving
school districts,’’ presumably under a
cooperative agreement such as that
provided for under § 200.44(h)(1),
would be permitted to refuse to accept
certain students, such as students with
disabilities who might require special
services and support.
Discussion: All public school
districts, as recipients of Federal
financial assistance, must comply with
applicable Federal civil rights
requirements, including those under
Title VI of the Civil Rights Act of 1964,
Section 504 of the Rehabilitation Act of
1973 (Section 504), and Title II of the
Americans with Disabilities Act of 1990
(ADA).
Changes: None.
Comment: One commenter objected to
§ 200.44(h)(2), which permits LEAs with
no eligible schools to which a student
may transfer to offer supplemental
educational services in lieu of choice to
students enrolled in schools identified
for their first year of improvement. The
commenter stated that the proposed
regulations go beyond the scope of the
statute.
Discussion: The proposed regulations
are consistent with the NCLB Act’s
emphasis on increasing educational
options for all students attending lowperforming schools. The proposed
regulations do not create a new
authority, but merely highlight an
existing one, since the provision of
tutoring and other supplemental
instructional services is already a
permissible use of Federal funds as part
of the regular Title I program in both
schoolwide projects and targeted
assistance schools. An LEA may
implement any corrective action or
restructuring measure earlier than what
is required by the statute.
Changes: None.
Comment: One commenter suggested
that if the transportation costs
associated with public school choice
become excessive, funds might be better
used to pay for supplemental
educational services.
Discussion: Section 200.44(h)(2)
permits an LEA with no eligible schools
to which a student may transfer to offer
supplemental educational services to
eligible students enrolled in a school in
its first year of improvement. Neither
the ESEA nor the regulations, however,
allow an LEA to offer supplemental
educational services in lieu of choice
solely on basis of the costs incurred in

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providing choice in accordance with the
requirements of § 200.44.
Changes: None.
Comment: Two commenters
expressed concern that public school
choice could require costly replication
of specialized services for various
student populations, including limitedEnglish proficient and migrant students
and students with disabilities.
Discussion: In order to provide public
school choice, some school districts
may need to make specialized services
for special populations of students, such
as limited-English proficient students
and students with disabilities, available
in other schools in order to provide
those students with the opportunity to
attend an eligible school, namely, a
school that has not been identified for
school improvement, corrective action
or for restructuring, and that has not
been identified by the State as
persistently dangerous. However, in
offering school choice, the school
district has the flexibility to offer
parents the option to enroll their child
in eligible schools of choice that already
provide the language or disabilityrelated services needed by the student.
Changes: None.
Comment: One commenter expressed
concern about the eligibility for choice
and supplemental services of students
who have been involuntarily transferred
from Title I schools that are identified
for improvement, corrective action, or
restructuring.
Discussion: Generally, Title I affords
parents of students in low-performing
schools an option to choose a school
that has not been identified for
improvement for their child. There are
a very few situations, however, that are
handled differently. If a student is
assigned to a particular school by a
family court for child custody reasons
and that school has been identified for
improvement, the student could be
eligible to transfer under the provisions
in the ESEA. However, the student’s
parents may not be able to exercise that
option without first obtaining
permission from the court to move their
child. In the case of a student assigned
to a particular school by a juvenile court
due to the student’s violent or criminal
behavior, or for disciplinary reasons
sufficiently serious to justify placement
in a particular learning environment,
the LEA may limit or deny the choice
option.
Changes: None.
Comment: Two commenters
expressed concern that parental exercise
of a choice option in the case of a
student receiving special education
services, without the approval of the
student’s Individualized Education

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Program (IEP) team, may constitute a
unilateral change in placement under
the IDEA that could violate the student’s
right to a free appropriate public
education (FAPE).
Discussion: Under the IDEA, a change
in the location of delivery of services, in
and of itself, does not trigger the
‘‘change of placement’’ procedures of
the IDEA. The LEA can allow the school
of choice either to implement the IEP
that the prior school developed for the
new school year, or convene an IEP
team meeting and develop a new IEP
that meets the student’s needs. If the
LEA adopts the student’s existing IEP,
none of the ‘‘change of placement’’
procedures apply. However, the school
district must comply with the ‘‘change
of placement’’ requirements of the IDEA
if the new IEP will change either the
services in the IEP or the extent to
which the student will participate with
nondisabled students in academic and
nonacademic activities. Similar rules
apply to students who are covered only
by Section 504 and Title II of the ADA.
Changes: None.
Comment: One commenter requested
clarification that an LEA would be
permitted to limit the choices of a
student with a disability to those
eligible schools with the capacity to
provide the services required by the
student’s IEP.
Discussion: LEAs are not required to
offer students with disabilities the same
choices of schools as are offered to
nondisabled students, but may match
the abilities and needs of a student with
a disability, as indicated on the
student’s IEP, to those schools that have
the ability to provide FAPE to the
student. However, school districts must
offer students with disabilities and
those eligible under Section 504 and
Title II of the ADA the opportunity to
be educated in an eligible school,
namely, a school that has not been
identified for school improvement,
corrective action, or restructuring and
that has not been identified by the State
as persistently dangerous. Like other
students, students with disabilities and
those covered by Section 504 and Title
II of the ADA must have the opportunity
to express a preference among at least
two eligible schools and that preference
must be considered by the school
district in making their assignment.
Changes: None.
Section 200.45 Supplemental
Educational Services
Comment: Two commenters
expressed concern that proposed
§ 200.45(b)(1) goes beyond the NCLB
Act in requiring LEAs to ‘‘arrange’’ for
each eligible student to receive

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supplemental educational services,
rather than ‘‘make available’’ such
services at the request of parents.
Discussion: The ESEA requires LEAs
that are identified for a second year of
improvement or subject to corrective
action or restructuring to ‘‘make
supplemental services available’’ in
accordance with section 1116(e) of the
statute. Section 1116(e)(1) requires such
LEAs to ‘‘arrange for the provision of
supplemental educational services to
eligible children in the school from a
provider with a demonstrated record of
effectiveness, that is selected by the
parents.’’ The proposed regulations are
consistent with this statutory language.
Changes: None.
Comment: One commenter urged the
Secretary to issue ‘‘clarifying regulations
and guidance’’ encouraging States and
LEAs to promote maximum
participation by providers that utilize
distance-learning technologies.
Discussion: The Secretary recognizes
the potential value of technology as a
means to overcome geographic and cost
barriers to the universal availability of
high-quality supplemental educational
services, particularly in poor urban and
rural areas where it is reasonable to
expect there will be the greatest demand
for such services. This is why
§ 200.37(b)(5)(i)(A) requires the LEA’s
annual notice of the availability of
supplemental educational services to
specifically include providers of
technology-based or distance-learning
services, when such providers are on
the SEA’s list. However, the ESEA does
not give the Secretary authority to
promote one type of provider over
another; rather, it places responsibility
for promoting participation by the
maximum number of providers on
SEAs, which must develop standards for
approving providers and maintain an
updated list of approved providers from
which parents may select. Unless
evidence emerges that the State
approval process presents barriers to
participation by technology-based or
distance-learning providers, the
Secretary believes there is no need for
further regulations on this issue.
Changes: None.
Comment: One commenter requested
additional language in proposed
§ 200.45(b)(4)(i)(A) requiring an SEA,
before granting a waiver from the
requirement to provide supplemental
educational services, to determine that
the providers on its approved list makes
services available within the LEA
requesting the waiver through
technology-based or distance-learning
methods.
Discussion: The proposed regulations
require the SEA to determine that none

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of the providers on its list makes
available supplemental educational
services to students served by the LEA
before granting a waiver from the
requirement to provide such services.
Since the SEA’s list presumably will
include providers using technologybased or distance-learning methods, no
additional language is needed.
Changes: None, except that the final
regulation has been renumbered as
§ 200.45(c)(4)(i)(A).
Comment: One commenter
maintained that since any transportation
costs related to supplemental
educational services would strain
‘‘already tight school budgets,’’ the final
regulations should encourage the use of
school-based services wherever
possible.
Discussion: The Secretary appreciates
the concern of the commenter, and
acknowledges the potential benefits of
providing supplemental educational
services at the school site. However, the
ESEA unambiguously leaves the
selection of services up to the parents of
eligible students.
Changes: None.
Section 200.46 LEA Responsibilities
for Supplemental Educational Services
Comment: One commenter
recommended that the regulations
clarify that for students with
disabilities, supplemental educational
services must ‘‘continue to meet the
goals and objectives of the IEP.’’
Discussion: For a student with
disabilities, the supplemental
educational services agreement must
include a statement of specific
achievement goals for the student, a
description of how the student’s
progress will be measured, and a
timetable for improving achievement,
that are consistent with the student’s
IEP. However, the supplemental
educational services do not also have to
meet the goals and objectives of the IEP.
Changes: Section 200.46(b)(3) of the
final regulations clarifies that each of
the provisions of the statement included
in the supplemental educational
services agreement, and not just the
timetable for improving achievement,
must be consistent with the student’s
IEP or individualized services under
Section 504.
Comment: One commenter requested
clarification of the relationship of
supplemental educational services to
Individualized Education Programs
(IEPs) under IDEA or individualized
services under a section 504 plan, out of
concern that if such services are written
into these plans, they could be subject
to challenge in a due process
proceeding.

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Discussion: § 200.46(b)(2)(i)(c)
requires supplemental educational
services to be ‘‘consistent’’ with IEPs
and section 504 services, but these
services are provided in addition to the
instruction and services provided
during the school day under the IEP or
Section 504 plan and are not considered
part of IEPs or section 504 plans.
Changes: None.
Comment: One commenter requested
that the regulations provide an
exemption from restrictions under the
Family Educational Rights and Privacy
Act to permit the sharing of IEP and
section 504 plans with supplemental
educational services providers.
Discussion: Under the Family
Educational Rights and Privacy Act
(FERPA), parental consent must be
obtained before developing the
supplemental services agreements
provided for in section 1116(e)(3) of the
ESEA and § 200.46(b), without regard to
whether a particular student is a student
with disabilities or a nondisabled
student, because all supplemental
services agreements will require the
LEA to share information from
education records with the services
provider. Therefore, an exemption for
students with IEPs or Section 504 plans
is not appropriate.
Changes: None.
Comment: One commenter
recommended strengthening proposed
§§ 200.46(a)(4) and 200.47(a)(5) by
adding language ensuring that eligible
students with disabilities and students
covered under section 504 of the
Rehabilitation Act of 1973 ‘‘are
provided with equal access to each
provider.’’
Discussion: The Secretary has
determined that no change is necessary.
Sections 200.46(a)(4) and 200.47(a)(5) of
the final regulations must be read
consistent with the requirements of
Section 504 and Title II of the ADA.
Under Section 504, SEAs and LEAS, as
recipients of Federal financial
assistance, have responsibility for
ensuring that there is no discrimination
in the supplemental services program.
SEAs and LEAS have similar duties
under Title II of the ADA, which applies
to public entities. In particular, SEAs
and LEAs must ensure that students
with disabilities and students covered
by Section 504 receive appropriate
supplemental educational services and
necessary accommodations in the
provision of those services. Consistent
with this duty, LEAs may not, through
contractual or other arrangements with
private providers, discriminate against a
student with a disability by failing to
provide for appropriate supplemental
educational services with necessary

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accommodations. Such services and
necessary accommodations must be
available, but not necessarily from each
provider. Rather, SEAs and LEAs are
responsible for ensuring that the
supplemental educational service
providers made available to parents
include some providers that can serve
students with disabilities and students
covered under Section 504 with any
necessary accommodations, with or
without the assistance of the SEA or
LEA. If no provider is able to make the
services with necessary
accommodations available to a student
with a disability, the LEA would need
to provide these services, with
necessary accommodations, either
directly or through a contract.
Changes: None.
Comment: In giving further
consideration to the proposed
regulations during the review of public
comments, the Secretary noted that
while proposed § 200.46(a)(4) required
an LEA to ensure that eligible students
with disabilities and students covered
under Section 504 receive appropriate
supplemental educational services and
accommodations in the provision of
those services, the proposed regulations
were silent on the LEA’s obligation to
ensure the provision of appropriate
services, including any necessary
language assistance, to students with
limited English proficiency.
Discussion: Eligible students are
entitled to supplemental educational
services regardless of their English
proficiency and, in fact, some students
may need such services due to their
limited English proficiency. Under
§ 200.20, each LEA is required to report
on the annual yearly progress of each
subgroup, including students with
limited English proficiency.
Additionally, under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, an
LEA implementing the Title I program
is prohibited from discriminating
against students with limited English
proficiency. For these reasons, the final
regulations include new language
emphasizing an LEA’s responsibility to
ensure that the supplemental education
providers made available to parents
include some who can serve students
with limited English proficiency, with
or without the assistance of the LEA.
Changes: Section 200.46(a)(5) of the
final regulations require LEAs to ensure
that students who have limited English
proficiency receive appropriate
supplemental educational services and
language assistance in the provision of
those services.
Comment: One commenter asked
whether an LEA may identify and
approve providers of supplemental

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educational services if an SEA fails to
provide a list of approved providers in
a timely manner.
Discussion: The ESEA does not
authorize an LEA to identify and
approve providers of supplemental
educational services except, as
described under section 1116(e)(11),
when State law prohibits an SEA from
carrying out this responsibility. In
general, the Secretary would consider
an SEA that fails to provide a list of
approved providers in a timely manner
to be out of compliance with the statute,
and would take action to bring the SEA
into compliance and ensure that LEAs
can arrange for eligible students to
receive supplemental educational
services.
Changes: None.
Comment: One commenter asked
whether LEAs are permitted to establish
additional criteria for supplemental
educational service providers on the
SEA’s list.
Discussion: With the narrow
exception in § 200.46(c), the ESEA
clearly assigns authority for identifying
and approving supplemental service
providers to the SEA. LEAs, which also
may serve as providers and thus would
face a potential conflict of interest in
setting additional barriers to
participation by SEA-approved
providers, are not permitted to set
additional criteria or otherwise modify
the list of providers made available by
the SEA.
Changes: None.
Section 200.47 SEA Responsibilities
for Supplemental Educational Services
Comment: One commenter expressed
concern that proposed § 200.47(a)(3),
which requires SEAs to ‘‘maintain by
LEA an updated list of approved
providers from which parents may
select,’’ could inadvertently lead to the
exclusion of technology-based or
distance-learning providers located
outside the LEA.
Discussion: The Secretary agrees that
the language of the proposed regulations
could be misconstrued to exclude
technology-based or distance-learning
providers.
Changes: Final § 200.47(a)(3) includes
additional language requiring the
updated LEA lists of providers to
include technology-based and distancelearning providers serving the
respective LEAs.
Comment: None.
Discussion: In giving further
consideration to the proposed
regulations during the review of public
comments, the Secretary noted that
while proposed § 200.47(a)(5) requires
an SEA to ensure that eligible students

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with disabilities and students covered
under Section 504 receive appropriate
supplemental educational services and
accommodations in the provision of
those services, the proposed regulations
were silent on the SEA’s obligation to
ensure the provision of appropriate
services, including any necessary
language assistance, to students with
limited English proficiency.
Eligible students are entitled to
supplemental educational services
regardless of their English proficiency
and, in fact, some students may need
such services due to their limited
English proficiency. Under § 200.21,
each SEA is required to report on the
annual yearly progress of each
subgroup, including students with
limited English proficiency.
Additionally, under Title VI of the Civil
Rights Act of 1964, 42 U.S.C. 2000d, an
SEA implementing a Title I program is
prohibited from discriminating against
students with limited English
proficiency. For these reasons, the final
regulations include new language
emphasizing an SEA’s responsibility to
ensure that the supplemental education
providers made available to parents
include some who can serve students
with limited English proficiency, with
or without the assistance of the SEA.
Changes: Section 200.47(a)(6) of the
final regulations requires SEAs to
ensure that students who have limited
English proficiency receive appropriate
supplemental educational services and
language assistance in the provision of
those services.
Comment: One commenter expressed
concern over the exclusion of
educational service agencies from the
list of potential providers in proposed
§ 200.47(b)(1). The commenter noted
that such agencies may be considered
LEAs under section 9101(26) of the
NCLB Act.
Discussion: The Secretary agrees that
it is appropriate to clarify that
educational service agencies may be
supplemental educational service
providers.
Changes: Educational service agencies
have been added to the definition of
entities eligible to be supplemental
educational service providers in
§ 200.47(b)(1).
Comment: Several commenters
objected to proposed § 200.47(b)(1)(iv),
which would prohibit States from
approving as a supplemental service
provider any school that has been
identified for improvement, corrective,
or restructuring. Commenters asserted
that this restriction would prevent some
identified schools that operate ‘‘very
effective’’ after-school programs from
serving as providers, complicate efforts

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to make services available on school
grounds, and limit the availability of
providers in poor and rural
communities.
Discussion: The Secretary believes
that schools that are identified for
improvement or subjected to corrective
action or restructuring need to be
focused on carrying out comprehensive
efforts to make in helping all student
meet challenging State academic
achievement standards, and not divert
staff and other resources to the creation
and operation of supplemental
educational service programs. Though
the proposed regulations excluded only
identified schools as service providers,
the same concerns apply to LEAs
identified for improvement or corrective
action. The purpose of supplemental
educational services—increasing the
academic achievement of eligible
children on State assessments and
helping them attain proficiency in
meeting the State’s academic
achievement standards—is not well
served if students obtain such services
from an entity that is demonstrably
failing to achieve those goals as shown
by a consistent inability to make AYP.
The final regulations do not hinder in
any way the ability of a provider to offer
services on school grounds or in LEA
facilities. Finally, the success of
supplemental educational services
depends not merely on the availability
of services, but on the availability of
high-quality services that meet student
needs. The Secretary believes there will
be sufficient incentive for independent
providers or potential providers,
including those offering technologybased or distance-learning services, to
offer such services in poor urban and
rural communities.
Changes: Section 200.47(b)(1)(v) has
been added to clarify that an LEA that
has been identified for improvement or
corrective action is not eligible to be a
supplemental educational services
provider.
Comment: One commenter supported
proposed § 200.47(b)(1)(iv), which
would prohibit States from approving as
a supplemental service provider any
school that has been identified for
improvement, corrective action, or
restructuring. However, the commenter
requested clarification that highly
qualified teachers employed by such
schools are eligible to provide such
services.
Discussion: The final regulations do
not restrict in any way the ability of a
highly qualified teacher employed by a
school identified for improvement,
corrective action, or restructuring from
forming an entity that would serve as a
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provider, or from working for such an
entity.
Changes: None.
Comment: One commenter expressed
concern that the purpose and quality of
supplemental educational services may
be undermined if providers are
permitted to hire as instructors staff
who teach at schools identified for
improvement, corrective action, or
restructuring.
Discussion: The Secretary
understands the concern of the
commenter, but believes that even the
lowest-performing schools may have
teachers who have the experience and
skill to provide high-quality
supplemental educational services. In
addition, the Secretary has no authority
to limit contractual agreements between
teachers and other entities.
Changes: None.
Comment: One commenter
recommended that the regulations
encourage SEAs to include input from
parents in developing standards for
approving and monitoring supplemental
educational service providers.
Discussion: The ESEA neither
requires nor precludes participation by
parents in the process of approving and
monitoring supplemental educational
service providers, and SEAs that wish to
include parents in this process are free
to do so.
Changes: None.
Comment: Several commenters
maintained that proposed § 200.47(b)(3)
could have permitted providers to
exclude students with disabilities, based
on the possibility of an ‘‘arbitrary
judgment’’ regarding the ‘‘minor
adjustments’’ required to serve them.
Some commenters requested a
definition of ‘‘minor adjustments,’’
including an explanation of who would
pay for such adjustments, while others
recommended that the final regulations
simply prohibit providers from
discriminating against any eligible
student with a disability.
Discussion: The Secretary agrees with
commenters that the proposed
regulations potentially created
confusion regarding the civil rights
obligations that are applicable when
students with disabilities and students
covered by Section 504 and Title II of
the ADA receive supplemental
educational services. Under Section 504
and Title II, SEAs and LEAs have
primary responsibility for ensuring that
there is no discrimination in the
provision of supplemental educational
services. Thus, SEAs and LEAs are
responsible for ensuring that the
supplemental educational service
providers made available to parents
include some providers that can serve

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students with disabilities and students
covered by Section 504 with any
necessary accommodations, with or
without the assistance of the SEA or
LEA.
At the SEA level, this responsibility
must involve efforts to identify and
approve providers that will be available
to serve these students with necessary
accommodations. LEAs also are
responsible for ensuring that
supplemental services are available for
students with disabilities and students
covered by Section 504, and may have
to provide services and necessary
accommodations directly to these
students in the absence of a private
provider that is able to provide
supplemental educational services with
necessary accommodations.
Private supplemental service
providers are not deemed recipients
merely by virtue of their provision of
these services and therefore are not
covered under Section 504; nor are they
covered under Title II of the ADA since
they are not public entities. For this
reason, proposed § 200.47(b)(3), which
governed the obligations of private
providers of supplemental educational
services for students with disabilities
and students covered by Section 504
and Title II of the ADA, has been
removed from the final regulations.
However, private providers may have
certain responsibilities under Federal,
State and local civil rights laws, and
SEAs must ensure that providers fulfill
these responsibilities as a condition of
approval as a supplemental educational
services provider. For example, private
providers that are not religious entities
must comply with the
nondiscrimination requirements of Title
III of the ADA (Title III).
Under Title III, which is enforced by
the U.S. Department of Justice, private
entities that are places of public
accommodation (except for religious
entities) must make reasonable
modifications to their policies,
practices, and procedures to ensure
nondiscrimination on the basis of
disability, unless to do so would
fundamentally alter the nature of the
program. Likewise, these providers must
take those steps necessary to ensure that
students with disabilities are not denied
services or excluded because of the
absence of auxiliary aids and services,
unless taking those steps would
fundamentally alter the nature of the
services or would result in an undue
burden (i.e., significant difficulty or
expense). Private providers may also be
subject to Title VII of the Civil Rights
Act concerning discrimination in
employment.

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Changes: Proposed § 200.47(b)(3) has
been removed from the final regulations.
Comment: Two commenters found
proposed § 200.47(b)(3), which appears
to permit providers to exclude some
students with disabilities, to be
inconsistent with proposed
§§ 200.46(a)(4) and 200.47(a)(5), which
require LEAs and SEAs to ensure that
these students ‘‘receive appropriate
supplemental educational services and
accommodations in the provision of
those services.’’
Discussion: The Secretary agrees with
the commenters, as explained in the
discussion of the previous comment.
Changes: Proposed § 200.47(b)(3) has
been removed from the final regulation.
Comment: Several commenters
objected to proposed § 200.47(b)(4)(i),
which would prohibit States from
requiring providers to hire staff who are
highly qualified, as defined by §§ 200.55
and 200.56. The commenters argued
that the proposed regulations are
inconsistent with the letter and spirit of
the NCLB Act, which prohibits Title I
programs from hiring new teachers who
are not highly qualified and requires
States to adopt plans for ensuring that
all public school teachers are highly
qualified by 2005–2006.
Discussion: The Secretary believes
that requiring supplemental educational
service providers to use only highly
qualified staff, as defined in the NCLB
Act, would severely limit the
availability of providers, particularly in
poor urban and rural areas. For
example, retired teachers might not be
able to provide services through
approved providers. States, LEAs, and
schools receive substantial resources
through Federal education programs
that may be used to help ensure that all
teachers are highly qualified. Because
these resources are unavailable to
supplemental service providers, few
providers would be able to meet the
same standard. In addition,
unprecedented accountability
requirements will help to ensure the
quality of instruction offered by
providers. All providers must have a
‘‘demonstrated record of effectiveness’’
to win approval by the SEA, must be
selected by parents, must enter into
agreements with specific achievement
goals for each student, and must meet
those goals to remain on the SEA’s list
of approved providers. Furthermore,
parents of eligible students must request
services annually, giving providers a
strong incentive both to produce results
as measured by improved achievement
and to offer high-quality customer
service to parents and students. Finally,
even though States may not bar
participation by providers who do not

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use only highly qualified staff, they
would be permitted to indicate the
qualifications of provider staff in
information provided to parents.
Changes: None.
Comment: Several commenters also
objected to proposed § 200.47(b)(4)(ii),
under which States could not require, as
a condition of approval, that
supplemental educational service
providers document that they use
instructional strategies based on
scientifically based research. The
commenters believe that this proposal
would have undermined one of the core
principles of the NCLB Act, which
requires the use of instructional
strategies based on scientifically based
research in nearly all of its authorities,
including Part A of Title I.
Discussion: The use of instruction
based on scientifically based research is
indeed a core principle of the NCLB
Act. It is absent, however, from the
statutory definition of supplemental
educational services, which refers only
to services that are ‘‘research-based.’’
This term suggests that Congress
intended a different standard to apply to
supplemental educational services, one
based on the unique accountability
inherent in such services. However, the
Secretary agrees that States should be
permitted, but not required, to include
the use of instruction grounded in
scientifically based research in the
criteria used to approve supplemental
educational service providers.
Changes: Proposed § 200.47(b)(4)(ii)
has been removed from the final
regulations.
Section 200.48 Funding for ChoiceRelated Transportation and
Supplemental Educational Services
Comment: A number of commenters
raised objections to proposed
§ 200.48(a)(2), which covers funding
requirements related to the provision of
public school choice options and
supplemental educational services.
Their comments focused primarily on
concerns that the proposed regulations
were confusing and deviated from what
commenters believed was the clear
language of the ESEA.
Discussion: Proposed § 200.48(a)(2)
reflects the Secretary’s best
interpretation of a section of the ESEA
that includes ambiguous and sometimes
contradictory provisions. This
interpretation is based primarily on
section 1116(b)(10)(A) of the statute,
which states that ‘‘Unless a lesser
amount is needed to comply with
paragraph (9) [choice-related
transportation] and to satisfy all
requests for supplemental educational
services under subsection (e), a local

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educational agency shall spend an
amount equal to 20 percent of its
allocation under subpart 2 [Title I, Part
A allocations]’’ for choice-related
transportation and supplemental
educational services.
The primary effect of this provision,
as described in proposed § 200.48(a)(2),
is to clearly obligate an LEA to spend
‘‘an amount equal to’’ 20 percent of its
allocation under subpart 2 on choicerelated transportation, supplemental
educational services, or a combination
of the two, regardless of the actual
source of the funds. The emphasis is on
the amount that must be spent—an
amount equal to 20 percent of its
subpart 2 allocation—not the source of
the funds. The final regulations
maintain this requirement.
LEA discretion in spending such
funds is limited by the requirement in
section 1116(b)(10)(A)(i) and (ii) of the
ESEA that an LEA spend an amount
equal to 5 percent of its allocation under
subpart 2 on choice-related
transportation and 5 percent on
supplemental educational services,
assuming there is demand for both. In
other words, if students require
transportation to a school selected
under § 200.44, and parents have
requested supplemental educational
services under § 200.45, the LEA does
not have discretion to use the full 20
percent reservation on only one of these
activities.
Proposed § 200.48(a)(2)(iii)(A), which
was intended to prevent an LEA from
using the entire 20 percent on choicerelated transportation and ignoring
demand for supplemental educational
services, should have clarified that an
LEA also is not permitted to use the
entire amount for supplemental
educational services and potentially
deny choice to students by failing to
provide or pay for choice-related
transportation.
On the other hand, if there is demand
for either choice-related transportation
or supplemental educational services,
but not both, the Secretary believes that
section 1116(b)(10)(A) of the statute
requires an LEA to spend the full 20
percent on the required activity, and not
the maximum of 15 percent suggested
by some commenters.
In addition, the claim by some
commenters that section 1116(b)(10)(B)
of the ESEA caps an LEA’s spending on
supplemental educational services at an
amount equal to 5 percent of its
allocation ignores the requirements of
the introductory clause of section
1116(b)(10)(A) of the statute and the
overall legislative context of this
provision. Section 1116(b)(10)(B)
appears to set such a cap, and thus

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contradict the introductory clause of
subparagraph (A), which requires the
expenditure of an amount equal to 20
percent of an LEA’s subpart 2 allocation
‘‘to satisfy all requests for supplemental
educational services under subsection
(e).’’ However, the plain language of
section 1116(b)(10)(B) of the statute
refers to a maximum amount to be spent
on supplemental services ‘‘under this
part.’’ ‘‘[T]his part’’ refers to the source
of funds, which is Title I, Part A. Thus,
the maximum amount that an LEA is
required to spend out of its Title I, Part
A funds is an amount equal to 5 percent
of its allocation under subpart 2 of this
part. Subparagraph (B) does not change
or otherwise reduce the obligation
under subparagraph (A) for an LEA to
spend an amount equal to 20 percent of
its subpart 2 allocation, but simply
places a 5 percent limitation on the
required use of Title I, Part A funds for
this purpose. An LEA, for example,
could use funds allocated under Part A
of Title V of the ESEA to meet the
remaining 15 percent requirement.
However, the 5 percent limitation on the
required use of Title I, part A funds for
this purpose does not prevent an LEA,
at its option, from using a higher
percentage of Title I, part A funds for
this purpose.
Finally, one commenter observed that
the proposed regulations appear to
ignore section 1116(b)(9) of the ESEA,
which requires affected LEAs to provide
or pay for choice-related transportation,
without specifying either the source of
funds or any limit on such costs.
Section 1116(b)(9) must be read in
context with section 1116(b)(10), which
was negotiated during the House Senate
conference committee meetings on the
ESEA. Earlier versions of the bill had
uniformly required transportation for all
students exercising a choice option until
all needs were met, while limiting the
contribution of subpart 2 funds for
transportation to 15 percent of an LEA’s
allocation. If transportation costs
exceeded this 15 percent cap on subpart
2 funds, an LEA would have had to use
other funds to pay the balance of the
choice-related transportation costs.
However, the final language of the
NCLB Act required only the expenditure
of an ‘‘amount equal to 20 percent of its
allocation under subpart 2,’’ thereby
extending the cap to funding from all
sources and limiting the obligation to
pay transportation costs until all needs
were met.
Changes: The final regulations
maintain the NPRM requirement in
§ 200.48(a)(2) that an LEA spend an
amount equal to 20 percent of its Title
I, part A allocation on choice-related
transportation and supplemental

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educational services, unless a lesser
amount is needed to meet the
requirements of §§ 200.44 and 200.45.
Section 200.48(a)(2)(iii)(A) has been
amended to clarify that an affected LEA
must spend a minimum of an amount
equal to 5 percent of its allocation under
subpart A for transportation required
under § 200.44 and an identical amount
for supplemental educational services
under § 200.45, unless a lesser amount
is needed to comply with all requests
for choice-related transportation and
supplemental educational services.
Comment: One commenter requested
regulatory clarification that Title I, Part
A funds may be used to pay the
administrative costs associated with
supplemental educational services.
Discussion: Section 1116(b)(10) of the
ESEA requires an LEA to spend an
amount equal to 20 percent of its Title
I allocation for transportation costs
related to public school choice and to
provide supplemental educational
services. This requirement establishes a
minimum amount an LEA must spend
on the actual supplemental educational
services in order to make those services
available to as many eligible students as
possible. As a result, the Secretary has
revised § 200.48(a)(2)(iii)(B) of the final
regulations to make clear that an LEA
may not include costs for administration
or transportation incurred in providing
supplemental educational services, or
any administrative costs associated with
the provision of public school choice
options under § 200.44, in the amounts
required to be spent to meet the
requirements of section 1116(b)(10) of
the ESEA. Such costs, however, are
allowable Title I expenditures and may
be taken off the top of the LEA’s Title
I allocation like other proper
administrative costs.
Changes: Section 200.48(a)(2)(iii)(B)
has been amended to clarify that
administrative costs associated with
providing supplemental educational
services may not ‘‘count’’ toward
meeting the minimum expenditure
requirements in section 1116(b)(10) of
the ESEA.
Comment: Two commenters objected
to proposed § 200.48(a)(2)(iii)(B), which
prohibits an LEA from including
supplemental educational servicesrelated administrative or transportation
costs as part of the minimum 5 percent
of an LEA’s Part A allocation that must
be spent on satisfying all requests for
such services. One of the commenters
asserted that since a provider would be
permitted to include transportation
costs in its fees, LEAs should be
permitted to include similar costs under
the 5 percent minimum.

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Discussion: The ESEA is silent on the
treatment of administrative or
transportation costs associated with
supplemental educational services. The
Secretary believes, however, that the
funds made available for supplemental
educational services under
§ 200.48(a)(2) are intended to pay for
actual services and not administrative or
transportation costs. Funding
limitations may restrict significantly the
availability of supplemental educational
services in many LEAs, and permitting
LEAs to count administrative or
transportation costs toward satisfying
the funding requirements of
§ 200.48(a)(2) would only further reduce
the number of students receiving
supplemental educational services. In
addition, the proposed regulations
should have stated that an LEA may not
use administrative or transportation
costs related to supplemental
educational services to satisfy any of the
funding requirements of § 200.48(a)(2),
and not just the 5 percent minimum
requirements under
§ 200.48(a)(2)(iii)(A).
Changes: The final regulations clarify
that LEAs may not include
administrative or transportation costs
associated with the provision of
supplemental educational services in
meeting the funding requirements of
§ 200.48(a)(2).
Comment: One commenter requested
that the final regulations clarify that
LEAs have fulfilled their responsibility
to fund ‘‘all requests for supplemental
educational services’’ once they have
spent an amount equal to 20 percent of
their Part A allocations on choicerelated transportation, supplemental
educational services, or a combination
of the two.
Discussion: The Secretary believes
that it is clear from the proposed
regulations that an LEA’s obligation to
‘‘satisfy all requests for supplemental
educational services’’ is limited by
available funding specified under
§ 200.48(a)(2). This limitation is
explicitly acknowledged in proposed
§ 200.48(a)(3) and (4), which permit but
do not require LEAs and SEAs to make
available additional funding for choicerelated transportation and supplemental
educational services from other sources.
Changes: None.
Comment: One commenter requested
that the final regulations permit the use
of alternatives to census poverty
estimates in calculating the per-child
funding for supplemental educational
services under proposed § 200.48(c).
Discussion: Section 1116(e)(6) of the
ESEA explicitly requires an LEA to use
census poverty estimates to calculate
the per-child amount available for

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providing supplemental educational
services. The Department provides these
estimates to each State when it makes
annual Title I allocations, and thus they
are available to each LEA. The Secretary
has no authority to permit the use of
alternative poverty data to determine
the per-child amount available for
supplemental educational services. We
note, however, that an LEA does not use
the census poverty estimates to identify
those low-income students eligible for
supplemental educational services.
Rather, an eligible student is a student
from a low-income family as determined
by the LEA for purposes of allocating
Title I funds to schools under section
1113 of the ESEA.
Changes: None.
Section 200.49 SEA Responsibilities
for School Improvement, Corrective
Action, and Restructuring
Comment: Several commenters
recommended modifying proposed
§ 200.49(b)(2)(ii), which permits an SEA
to use school improvement funds to
directly provide school improvement
activities ‘‘if requested by an LEA,’’ by
returning to the language of section
1003(b)(2) of the ESEA, which permits
SEA retention of such funds ‘‘with the
approval of the local educational
agency.’’ The proposed regulations
could be interpreted as preventing a
State from developing a cost-effective,
statewide approach to supporting school
improvement efforts absent a request
from LEAs.
Discussion: The Secretary agrees that
the proposed regulations could be
subject to misinterpretation.
Changes: Section 200.49(b)(2)(ii) has
been changed to permit SEAs to directly
support school improvement activities
‘‘with the approval of the LEA.’’
Comment: One commenter expressed
concern that while proposed § 200.49(e)
requires SEAs to make the results of
academic assessments in a given year
available to LEAs before the beginning
of the next school year, the inclusion of
local assessments, over which SEAs
have little or no authority, in State
assessment systems may prevent SEAs
from meeting this requirement.
Discussion: SEAs are responsible for
ensuring that their State assessment
systems, which may include local
assessments, comply with all the
requirements of the ESEA.
Changes: None.
Comment: One commenter expressed
concern that charter schools, many of
which enjoy LEA status or are treated as
LEAs in the administration of Federal
education programs, might not be
subject to the rigorous accountability of

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the NCLB Act if they are effectively
permitted to monitor themselves.
Discussion: Section 1111(b)(2)(K) of
the ESEA recognizes the unique and
varying circumstances of charter schools
by requiring that accountability be
overseen for charter schools in
accordance with State charter school
law. The Secretary agrees that the
inclusion of this language in the final
regulations would help clarify that
while the accountability provisions of
the NCLB Act apply to charter schools,
they are not intended to expand the
authority of SEAs or LEAs over charter
school operations except to the extent
authorized by State charter school law.
Changes: Section 200.49(f) of the final
regulations incorporates the charter
school accountability language of
section 1111(b)(2)(K) of the ESEA.
Section 200.50 SEA Review of LEA
Progress
Comment: One commenter requested
clarification of the SEA review of LEA
progress required by proposed
§ 200.50(a), which does not appear to
include progress on other indicators,
such as graduation rates.
Discussion: The Secretary agrees that
proposed § 200.50(a)(1)(ii)(A) appears to
require progress only in meeting State
student academic achievement
standards, rather than the broader
definition of suggested by the statutory
reference to section 1111(b)(2) of the
ESEA.
Changes: Section 200.50(a)(1)(i) has
been amended to require ‘‘as defined
under §§ 200.13 through 200.20,’’ which
includes progress on other academic
indicators in the State plan.
Comment: Two commenters objected
to the permissive authority in proposed
§§ 200.50(d)(3) and (d)(4) to identify an
LEA for improvement or remove an LEA
from improvement, respectively, on the
basis of 2001–2002 assessment data. The
commenters interpret the ESEA as
requiring the identification for
improvement of any LEA that fails to
make AYP for two consecutive years, as
well as the removal from improvement
status of any LEA that makes AYP for
two consecutive years, regardless of the
years involved.
Discussion: The Secretary believes
that the absence of any reference to
2001–2002 assessment results in the
otherwise very specific transition
provisions of the new law, combined
with the strong likelihood that many
States would not be able to make these
results available to LEAs prior to the
beginning of the 2002–2003 school year,
supports a flexible approach to the use
of those results for identification
purposes during the transition to the

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new law. To avoid any confusion about
the use of 2001–2002 assessment results
in subsequent years, however, the
Secretary has added language clarifying
that an SEA decision not to identify for
improvement an LEA that, on the basis
of 2001–2002 assessment data, does not
make AYP for a second consecutive
year, does not permit the SEA to ignore
that failure in making future
identification decisions.
Changes: Section 200.50(d)(3)(ii)
clarifies that if an SEA chooses not to
identify for improvement a school that,
on the basis of 2001–2002 assessment
results, does not make AYP for a second
consecutive year, it nevertheless must
consider the LEA’s 2001–2002
performance as the first year of not
making AYP for the purpose of
subsequent identification decisions.
Comment: One commenter objected to
the flexibility provided SEAs in
proposed § 200.50(e)(3) to remove from
corrective action an LEA that, on the
basis of assessments administered
during the 2001–2002 school year,
makes AYP for a second consecutive
year. The commenter maintained that
the ESEA requires SEAs to remove LEAs
from corrective action in such cases, as
well as to use 2001–2002 assessment
data to identify additional LEAs for
corrective action.
Discussion: The Secretary believes
that the proposed regulations are an
appropriate way to address an inequity
in the statutory transition provisions
covering identification for corrective
action. These provisions require SEAs to
treat LEAs that were identified for
corrective prior to enactment of the
NCLB Act as subject to corrective action
for the 2002–2003 school year. Some of
these LEAs, however, may have made
AYP in both 2000–2001 and 2001–2002,
thus meeting the statutory requirement
for removal from corrective action. The
proposed regulations thus permit SEAs
to remove these LEAs from corrective
action, but does not require such
removal because some SEAs may, in
part due to the uncertain timing of
assessment results, prefer to simply
adhere to the statutory transition
provisions. As for identifying additional
LEAs for corrective action on the basis
of 2001–2002 assessment data, proposed
§ 200.50(e)(1) already permits an SEA to
take corrective action against any LEA
that it has identified for improvement,
but the statutory transition provisions
suggest that mandatory identification for
corrective action in the 2002–2003
school year is limited to those LEAs
identified under the previous law.
Changes: None.

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Section 200.51

Notice of SEA Action

Comment: Two commenters requested
clarification on whether SEAs, rather
than communicating directly to parents
as required by proposed
§ 200.51(a)(2)(i), are permitted to work
with the LEA to deliver information
about the LEA review and improvement
process directly to parents.
Discussion: The Secretary agrees that
it may be more effective for SEAs, in
cases where an SEA does not have
access to individual student addresses,
to communicate with parents through
means provided by the LEA.
Changes: Section 200.51(a)(2)(i) has
been changed to permit an SEA, in cases
where an SEA does not have access to
individual student addresses, to provide
information on the LEA review and
improvement process by using LEA- and
school-level delivery mechanisms.
Section 200.54 Rights of School and
School District Employees
Comment: Numerous commenters
objected to proposed § 200.54, which
would have given LEAs greater
flexibility in negotiating collective
bargaining agreements and other
agreements between employers and
employees that are consistent with the
school and LEA improvement
requirements of proposed §§ 200.30
through 200.53. Commenters
maintained that the proposed
regulations were inconsistent with both
the statute and with many State and
local laws governing collective
bargaining agreements.
Discussion: The Secretary believes
that section 1116(d) of the ESEA was
not intended to deny LEA and school
leaders the management tools needed to
implement effective LEA and school
improvement measures, which may
often involve changes in the assignment
and duties of LEA and school personnel.
However, the Secretary agrees that the
proposed regulations arguably were
inconsistent with a strict reading of the
NCLB Act and may have conflicted with
applicable State and local laws.
Changes: Proposed § 200.54 has been
removed from the final regulations.
Qualifications of Teachers and
Paraprofessionals
Section 200.55
Teachers

Qualifications of

Comment: Several commenters asked
for clarification as to which subjects are
‘‘core academic subjects.’’ One
commenter asked that foreign languages
and the arts be excluded from the
definition of core academic subjects.
One commenter asked why science was
listed as a stand-alone discipline when

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social studies was broken down into
civics, geography, and history. Another
commenter asked why special education
was not listed as a core academic area.
Discussion: The definition of core
academic subjects is in section 9101(11)
of the ESEA, and is repeated in
§ 200.55(c) of the regulations. The
statute defines core academic subjects as
English, reading or language arts,
mathematics, science, foreign languages,
civics and government, economics, arts,
history, and geography. Hence, the
definition lists science generally but
civics, geography, and history
separately. The statute does not identify
special education as a core academic
subject, and the Secretary lacks
authority to delete or change the
subjects included in this statutory
definition.
Changes: None.
Comment: A commenter
recommended that newly hired Title I
teachers serving private school students
meet the same standards of quality as
those who teach in public schools.
Discussion: We agree with this
recommendation.
Changes: Section 200.55 (a)(2) and (b)
has been modified to clarify that the
requirements governing ‘‘highly
qualified’’ teachers apply to teachers
employed by an LEA with funds under
part A of Title I, who teach eligible
private school students, to the same
extent as they apply to those who teach
eligible public school students.
Comment: One commenter
recommended that the regulations
clarify that a teacher in a targeted
assistance program is one who teaches
students participating in that program.
Discussion: We believe that the
existing language is clear and that no
further clarification is needed.
Changes: None.
Comment: One commenter
recommended that the ‘‘highly
qualified’’ requirement not apply to all
teachers in a school that operates a
schoolwide program.
Discussion: Inherent to the concept of
schoolwide programs is the elimination
of any distinction between Title I and
non-Title I students; that is, a
schoolwide program is intended to
provide an instructional program that
helps all students in the school.
Therefore, it would subvert the intent of
schoolwide programs to have
requirements that govern highly
qualified teachers apply to some, but
not all, teachers in a schoolwide
program school.
Changes: None.
Comment: One commenter
recommended that § 200.55(b)(1) clarify
that the requirement that ‘‘all teachers

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71763

in the State’’ be highly qualified by the
end of the 2005–2006 school year
applies only to public elementary and
secondary school teachers, and not to
others, such as private school and
college teachers.
Discussion: The Secretary agrees with
the comment.
Changes: Section 200.55(b) has been
revised to clarify that the requirements
governing highly qualified teachers
apply to ‘‘all public elementary and
secondary school teachers.’’ This
clarification was also made in
§ 200.56(b)(1) and (b)(2). In addition,
§ 200.55(d) has been added to clarify
that the requirements of the section do
not apply to teachers hired by private
elementary and secondary schools.
Comment: As proposed, § 200.55(b)(2)
provided, as an example of teachers
who do not need to meet the highly
qualified requirements because they do
not teach a core academic subject,
‘‘some vocational educational teachers.’’
One commenter recommended deletion
of the word ‘‘some.’’
Discussion: We disagree with the
comment. If a vocational education
teacher teaches a core academic subject,
such as applied physics, section 1119 of
the ESEA requires that teacher to be
highly qualified. On the other hand, if
a vocational education teacher teaches
only a trade, such as auto mechanics,
the teacher would not need to meet
these requirements since the law does
not treat that area of study as a core
academic subject. Hence, § 200.56(b)(2)
only exempts ‘‘some’’ vocational
educational teachers.
Changes: None.
Comment: A number of commenters
requested clarification about how the
‘‘highly qualified’’ requirements apply
to special education teachers and
teachers of limited-English proficient
(LEP) students. Several recommended
that special education teachers be
deemed to have met the ‘‘highly
qualified’’ requirements that apply to
other teachers if they are certified or
licensed in special education and have
passed an appropriate State test.
Discussion: The ESEA specifies that
all teachers of core academic subjects
are to meet the requirements set forth in
the statute. Students with limited
English proficiency or with disabilities
are expected to meet the same standards
as all other students, and their teachers
should be expected to have met the
same standards for content knowledge.
On the other hand, special educators
who do not directly instruct students on
any core academic subject or who
provide only consultation to highly
qualified teachers of core academic
subjects in adapting curricula, using

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behavioral supports and interventions,
and selecting appropriate
accommodations do not need to meet
the same ‘‘highly qualified’’ subjectmatter competency requirements that
apply under the NCLB Act to teachers
of core academic subjects. SEAs and
LEAs must ensure that all special
education personnel, including related
services providers, meet the personnelstandards requirements of section
612(a)(15) of the IDEA and 34 CFR
§ 300.136. Special education teachers
who are providing instruction in core
academic subjects also must meet the
‘‘highly qualified’’ requirements of the
ESEA.
The Secretary recognizes that there is
an urgent need for highly qualified
teachers, and that critical shortages exist
in some areas, particularly math and
science teachers, and special education
teachers. Nevertheless, the NCLB Act
sets high standards for students, as well
as teachers, and states should work to
meet them. The statute provides a
certain amount of flexibility in how the
standards are met. Teachers can
demonstrate competency by taking a
test, and States have flexibility to tailor
those tests to the subjects taught by
teachers, including special education
teachers and teachers of LEP students.
This issue will be addressed further in
guidance.
Changes: None.
Section 200.56 Definition of ‘‘Highly
Qualified Teacher’’
Comment: Several commenters
recommended tightening the
requirements for teachers in alternative
route programs so that these individuals
receive, as quickly as possible, the
training and full State certification they
need to be effective teachers.
Discussion: We agree with the
comment. Our proposal that a teacher in
an alternative route program be
considered highly qualified if the
teacher ‘‘is making satisfactory progress
toward full certification as prescribed by
the State and the program’’ reflects the
need for States to ensure that alternative
routes to certification do not become
vehicles for granting long-term waivers
of certification requirements. Still, we
understand that, for these teachers to be
effective, those in alternative route
programs need to be prepared to teach
their students from the moment they
step into their classrooms, and receive
the follow-up support they need as
beginning teachers. We also believe that,
in order to ensure that alternative route
programs do not become long-term
vehicles for waiving State requirements
for full certification, it is reasonable to
establish a maximum period—three

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years—in which a teacher in an
alternative route can be considered to be
fully certified without having received
State certification.
Changes: Section 200.56(a)(1)(iii)(B) is
amended by adding language that
requires teachers in alternate route
programs to (1) receive high-quality
professional development that is
sustained, intensive, and classroomfocused in order to have a positive and
lasting impact on classroom instruction,
before and while teaching, (2)
participate in a program of intensive
supervision that consists of structured
guidance and regular ongoing support
for teachers or a teacher mentoring
program, (3) assume functions as a
teacher only for a specified period of
time not to exceed three years before
receiving full State certification, and (4)
demonstrate satisfactory progress
toward full certification as prescribed by
the State. The regulations have been
further amended by requiring that the
State ensure, through its certification
and licensure process, that these
provisions are met.
Comment: A commenter
recommended deleting the proposed
language that would permit teachers in
alternative route programs to be deemed
to have obtained full State certification
for purposes of meeting the
requirements governing highly qualified
teachers. Several other commenters
expressed support for the Department’s
proposal.
Discussion: We do not agree with
those commenters who wish to delete
the flexibility that we would provide
LEAs for teachers in alternative routes
to certification. First, Congress has
chosen both to authorize and fund two
alternative route programs, Troops-toTeachers and Transition to Teaching, in
Title II, part C of the ESEA, and has
permitted States and LEAs to use Title
II, part A formula grant funds to hire
teachers in alternative route programs.
Hence, we do not believe that Congress
intended that teachers in alternative
route program would be unable to teach
until they had obtained full State
certification. Beyond this, we believe
that LEAs can and should be able to
continue to effectively use alternate
routes to certification as a mechanism
for increasing the number of teachers
who are capable of providing effective
instruction, and, indeed that these
alternative routes can also serve as
models for the certification system as a
whole.
Changes: None.
Comment: A commenter
recommended that teachers
participating in alternative certification

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programs be required to demonstrate
subject matter competency.
Discussion: Sections 9101(23)(B) and
(C) of the ESEA, and § 200.56(b) and (c)
of the regulations already require this.
Changes: None.
Comment: A commenter requested
that the regulations clarify that current
teachers may demonstrate their subject
area competency in the same ways as
new teachers can, or through a stateestablished system of evaluation as
section 9101(23)(c)(ii) of the ESEA
permits.
Discussion: Section 200.56(c)(2)
already provides this clarification.
Changes: None.
Comment: One commenter
recommended that teachers be allowed
to demonstrate subject-matter
competency needed to be highly
qualified on the basis of a minor in an
academic area. Another commenter
requested that where an evaluation of
teacher performance is used to
demonstrate competency, LEAs, rather
than SEAs, be allowed to determine the
standard of evaluation.
Discussion: We disagree with both
recommendations. Section 9101(b)(ii) of
the ESEA permits middle and secondary
school teachers to demonstrate subjectmatter competency by successful
completion, in each academic subject
the teacher teaches, of an academic
major or coursework equivalent to an
academic major (or a graduate degree or
advanced certification or
recredentialing). The law does not
authorize receipt of a minor in the
subject being taught as sufficient to
demonstrate competency. Similarly,
section 9101(23)(c)(ii) of the ESEA
expressly permits the demonstration of
subject-matter competency to be based
on ‘‘a high objective State standard of
evaluation,’’ not a ‘‘local standard’’ of
evaluation. Moreover, the Secretary
lacks authority to delete or change the
aspects of this statutory definition.
Changes: None.
Comment: Section 9101(23(A)(ii)) of
the ESEA, like § 200.56(B)(3), provides
that to be highly qualified a teacher may
not have had ‘‘certification or licensure
requirements waived on an emergency,
temporary, or provisional basis.’’ One
commenter recommended that the terms
temporary, emergency, and provisional
licensure be defined.
Discussion: State certification and
licensure is a matter of State law and
policy, and hence the definition of these
terms is left to State decisionmaking.
We do not believe that attempting to
establish a common definition of these
terms is needed. We add only that with
one exception the Secretary interprets
the phrase ‘‘waived on an emergency,

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provisional, or temporary basis,’’ to
encompass any form of a waiver, by
whatever name a State uses, under
which the State permits a teacher to
teach without having obtained full
certification or licensure applicable to
the years of experience the teacher
possesses. That exception is for teachers
in alternative routes to certification
consistent with § 200.56(a)(2)(ii).
Change: None.
Comment: One commenter requested
that all of the highly qualified teacher
provisions apply to charter school
teachers.
Discussion: Section 9101(23)(A)(i) of
the ESEA provides that, for teachers of
public charter schools, obtaining full
State certification (or passing the State
teacher licensing examination and
holding a license to teach) means that
teachers have met the requirements of
their State charter school laws. Thus,
the certification and licensure
requirements of the ESEA do not apply
to charter school teachers if State law
exempts charter school teachers from
these requirements. The statute’s
definition of highly qualified teachers
provides no other exceptions for charter
school teachers.
Changes: None.
Comment: One commenter
recommended that, as part of the
definition of highly qualified, all
teachers be required to complete an
approved educator preparation program.
Discussion: We assume that the
comment was meant to apply to
teachers progressing through alternate
routes to certification. The Secretary
agrees that proposed
§ 200.56(a)(1)(iii)(B) should be modified
to include a requirement that teachers in
alternative route programs receive highquality professional development before
beginning to teach. However, the
Secretary does not believe that those
progressing through alternative routes to
teaching should need to complete a
State ‘‘approved educator preparation
program,’’ particularly since this kind of
requirement would very likely
discourage a great many talented
individuals who would want to change
careers and become teachers from ever
doing so.
Changes: § 200.56(a)(2)(ii)(A) now
contains language that requires teachers
in alternative route programs to receive
rigorous training before assuming
instructional duties and to participate in
a teacher mentoring program.
Comment: One commenter requested
that the language in paragraph (b)(1) be
revised to require teachers new to the
profession either to hold a Bachelor’s
degree or, for those in teacher
preparation programs, to have

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completed all of the requirements for
the degree with the exception of student
teaching.
Discussion: Sections 9101(23)(B)(i)(I),
9101(23)(B)(ii), and 9101(23)(C)(i) of the
ESEA expressly require all teachers to
hold a Bachelor’s degree in order to be
considered highly qualified. The
Secretary lacks authority to delete or
change the subjects included in this
statutory definition.
Changes: None.
Comment: A commenter requested
clarification of the terms ‘‘advanced
certification or credentialing.’’
Discussion: The NCLB Act offers these
vehicles as alternative means by which
middle and high school teachers not
new to the profession may demonstrate
subject matter competency in the
subjects they teach. Each State may
define these terms, and establish
policies that implement them, as it
believes will meet the purpose of the
law—to enable teachers to demonstrate
subject matter competency.
Changes: None.
Section 200.57 Plans to Increase
Teacher Quality
Comment: One commenter
recommended that the regulations
should require the State to outline
specific steps for carrying out the highly
qualified teacher provision, and how the
State intends to monitor LEAs in this
regard.
Discussion: The Secretary agrees with
this recommendation.
Changes: Section 200.57(a) has been
amended to require that the State’s plan
describe the strategies the state will use
to help LEAs and schools have all
teachers meet the highly qualified
requirements no later than the end of
the 2005–2006 school year, and to
monitor the progress of LEAs and
schools in meeting these requirements.
Comment: One commenter
recommended that the regulations
include the statutory references to the
‘‘parents right to know’’ provision.
Discussion: The Secretary believes
that it is critical that parents be kept
well informed on the status of their
child’s education, and so he agrees with
this recommendation.
Changes: A new section, § 200.61, has
been added that restates the language on
a ‘‘parent’s right to know,’’ as stated in
section 1111(h)(6) of the NCLB Act.
Comment: A commenter
recommended that the regulations
clarify that State plans to increase
teacher quality must indicate both the
steps States will take to ensure that
minority students have equal access to
high quality teachers, and how the

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71765

States will measure their progress in
meeting this requirement.
Discussion: The Secretary agrees with
this recommendation. Including this
information in the State plan merely
ensures that, through the plan, the SEA
is ensuring that LEAs implement the
assurance they provide the State in
section 1111(c)(1)(L) of the ESEA that
they ‘‘ensure, through incentives for
voluntary transfers, the provision of
professional development, recruitment
programs, or other effective strategies,
that low-income students and minority
students are not taught at higher rates
than other students by unqualified, outof-field, or inexperienced teachers.’’
Indeed, given this LEA assurance, the
Secretary also believes that comparable
information should be included in the
local plan to increase teacher quality.
Changes: Section 200.57(a) has been
amended to require that the SEA take
specific steps to ensure that Title I
schools provide instruction by highly
qualified teachers, including steps to
ensure that poor and minority children
are not taught at higher rates than other
children by inexperienced, unqualified,
or out-of-field teachers. SEAs must
evaluate and publicly report their
progress with respect to these steps.
Section 200.58 Qualifications of
Paraprofessionals
Comment: One commenter asked that
the regulations clarify that it is the
paraprofessional’s choice as to which of
the three allowable options (two years of
study at an institute of higher education,
an associate’s degree, or demonstrating
knowledge and ability to assist in
instruction through an assessment) the
paraprofessional will meet. The
commenter also recommends that the
regulations clarify that once a
paraprofessional has met qualification
requirements in one district, he or she
does not have to re-qualify after moving
to another school district.
Discussion: The Secretary does not
believe a change in the regulations is
necessary. Any needed clarifications
will be addressed in future
nonregulatory guidance.
Changes: None.
Comment: Several commenters asked
for greater clarification about which
paraprofessionals must meet the
requirements in § 200.58. One
commenter requested that the
regulations be revised to clarify that the
requirements apply only to
paraprofessionals hired by the school
district or school. Another commenter
asked whether the requirements apply
to paraprofessionals with noninstructional duties working in a
schoolwide project school.

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Discussion: The requirements of
section 1119(c) of the ESEA and
§ 200.58 apply to individuals hired by
an LEA whether individually or as part
of a partnership. They do not apply to
volunteers or other paraprofessionals
who may be employed by a private
contractor. They also do not apply to
individuals with solely noninstructional roles in schoolwide project
schools.
Changes: Section 200.58(a)(1) has
been amended to clarify that the
qualification requirements apply to each
paraprofessional ‘‘who is hired by the
LEA’’ and who meets the other criteria
set out in this section of the regulations.
Comment: Two commenters asked
that the regulations be modified to
provide a four-year transition period for
paraprofessionals to obtain a high
school diploma or the equivalent.
Another commenter recommended that
the regulations include a grandfather
clause that would exempt
paraprofessionals with ten or more years
of experience from having to meet any
of the qualification requirements.
Discussion: Section 1119(f) of the
ESEA requires that LEAs receiving Title
I, part A funds ensure that all
paraprofessionals working in a program
supported with Title I, part A funds,
regardless of the paraprofessional’s
hiring date, have a high school diploma.
The ESEA provides no authority for a
phase-in of this requirement or to
exempt paraprofessionals with ten or
more years of experience from meeting
this requirement.
Changes: None.
Comment: One commenter requested
that the regulations be modified to
permit a paraprofessional enrolled in an
associate’s degree program to be
considered as meeting the qualification
requirements through an alternative
qualification process.
Discussion: The statute does not
authorize paraprofessionals to meet the
qualification requirements in the
manner suggested.
Changes: None.
Comment: Two commenters objected
to the qualification option that
paraprofessionals have an associate’s
degree.
Discussion: An associate’s degree is
one of the three ways that the statute
provides for paraprofessionals to
demonstrate they are qualified. A
paraprofessional may (1) complete two
years of study at an institution of higher
education, or (2) have an associate’s
degree, or (3) pass a state or local
assessment that demonstrates
knowledge of and ability to assist in the
instruction of reading, writing or
mathematics (or reading readiness,

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writing readiness, or mathematics
readiness), as appropriate. The options
recognize that, depending on a
paraprofessional’s background and
experience, there is more than one way
to demonstrate the appropriate
competency.
Changes: None.
Comment: Several commenters sought
clarification of what it means for a
paraprofessional to have completed at
least two years of study at an institution
of higher education. One commenter
asked that the regulations specify the
specific number of semester hours
necessary to demonstrate that a
paraprofessional has completed the
required two years of study. On the
other hand, other commenters asked
that the regulations make it clear that
there is no specific number of credit
hours that defines two years of study.
Discussion: The number of credit
hours necessary to demonstrate that a
paraprofessional has completed at least
two years of study at an institution of
higher education will vary by
institution. Therefore, a ‘‘one-size-fitsall’’ definition would be inappropriate.
Each State may choose to define, for
paraprofessionals working in the State,
what these two years of study
encompass. If it does not do so, the
policies of each institution will govern
whether a paraprofessional has
completed two years of study.
Changes: None.
Comment: One commenter requested
that the regulations make it clear that
paraprofessionals providing
instructional support for teachers of
eligible students attending private
schools must meet the same standards
as other paraprofessionals.
Discussion: The Secretary agrees with
this recommendation. Paraprofessionals
hired by an LEA to provide instructional
support for Title I, part A teachers of
eligible students attending private
schools are employees of the school
district and must meet the same
requirements as any other
paraprofessionals providing
instructional support in a program
supported by Title I, part A funds.
Change: Section 200.58(a)(3)(iii) is
added to clarify that the qualification
requirements apply to paraprofessionals
hired by an LEA to provide instructional
support to public school teachers
providing Title I services to eligible
private school students.
Comment: Several commenters sought
clarification of the option that
paraprofessionals may meet a rigorous
standard of quality by demonstrating
competency through a formal State or
local academic assessment. One
commenter requested clarification that

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the assessment does not have to be in
writing. Other commenters wanted the
regulations to require States and
districts to develop these assessments;
make clear that States or districts may
adopt an existing assessment; require
that assessments be available before
September 2003; specify that the
assessment should be made available at
no cost to the paraprofessionals; and
clarify that Title I, part A funds may be
used to develop or purchase such
assessments.
Discussion: Under the ESEA, States
and LEAs have considerable flexibility
in how they design and administer their
assessments. The Secretary does not
believe that additional regulations are
necessary and intends to highlight this
flexibility in future nonregulatory
guidance.
Change: None.
Comment: Two commenters sought
clarification on how the requirements
apply to paraprofessionals hired ‘‘on’’
January 8, 2002 as opposed to those
before or after that date.
Discussion: The Secretary agrees that
clarification is needed.
Changes: Section 200.58(d) is
amended to clarify that existing
paraprofessionals are those hired on or
before January 8, 2002.
Comment: Several commenters sought
clarification on how the requirements
apply to paraprofessionals in specified
circumstances, e.g., paraprofessionals
with multiple roles, such as translators
who also provide instructional support,
paraprofessionals who provide
instructional support to teachers of
subjects other than core academic
subjects, such as physical education,
and non-instructional computer
technicians.
Discussion: The ESEA is very explicit
about the requirements and to whom
they apply. The requirements apply to
any paraprofessionals in Title I, part A
programs who are assigned an
instructional support duty, even as one
of many assigned responsibilities,
identified in section 1111(g)(2) of the
ESEA and § 200.59(b). With regard to
computer technicians, § 200.58(a)(2)(ii)
of the regulations states that solely
providing technical support for
computers is a non-instructional duty.
Changes: None.
Comment: One commenter sought
clarification on how the requirements
apply to paraprofessionals working in a
variety of pre-Kindergarten programs,
such as Head Start, or pre-Kindergarten
programs funded with Head Start and
State pre-Kindergarten funds.
Discussion: A number of questions
have been raised about how the
paraprofessional qualification

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requirements apply to paraprofessionals
working in these pre-Kindergarten
programs. The Secretary intends to
address this issue in nonregulatory
guidance.
Change: None.
Section 200.59 Duties of
Paraprofessionals
Comment: One commenter wanted
changes in the proposed § 200.59 in
order to reinforce the difference
between instructional and noninstructional duties.
Discussion: The Secretary agrees with
the recommendation.
Changes: Section 200.59(b) is
amended to read, ‘‘A paraprofessional
covered under § 200.58 may perform the
following instructional support duties:’’
Regardless of an employee’s title, an
individual hired by an LEA who does
not perform instructional support duties
as identified in § 200.59 is not a
‘‘paraprofessional’’ for purposes of
Section 1119 of the ESEA or these
regulations. Moreover, it is possible that
one employee, for example, performs
parental involvement that is
instructional support while another
employee performs parental
involvement that is not instructional
support. The Department intends to
issue guidance to help explain that
distinction.
Comment: Several commenters
recommended deleting language that
would specify that one-on-one tutoring
must take place outside of the regular
school day.
Discussion: The Secretary agrees that
there may be circumstances in which
tutoring could be provided during the
school day at a time when a student is
not receiving instruction from a teacher.
Changes: Section 200.59(b)(1) is
amended to remove the language
requiring one-on-one tutoring to take
place outside of the regular school day.
Comment: Many commenters
addressed the regulatory provisions in
paragraph (c), and asked that it clarify
what it means for a paraprofessional to
work under the direct supervision of a
teacher. For example, several
commenters said that the proposed
language was too prescriptive, while
another proposed that the regulations
require paraprofessionals to work in the
same room as the teacher. One
commenter sought additional
clarification of what ‘‘close and physical
proximity to a teacher’’ means, while
still another commenter recommended
deleting this language.
Discussion: This regulatory provision
responds to a finding of the National
Assessment of Title I that, even though
the prior statute also required

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paraprofessionals to work under the
direct supervision of a teacher, 41
percent of paraprofessionals reported
that half or more of the time they spent
teaching or helping to teach was on
their own, without a teacher present.
Changes: None.
Participation of Eligible Children in
Private Schools
Section 200.62 Responsibilities for
Providing Services to Private School
Children
Comment: One commenter
recommended that the regulations
confirm that Title I services and benefits
to private school students be secular,
neutral, and non-ideological.
Discussion: The Secretary concurs.
Section 1120(a) of the ESEA requires
that Title I services and benefits
provided to eligible private school
children be secular, neutral, and non
ideological.
Changes: Section 200.62 incorporates
the statutory language that reflects the
recommended change.
Section 200.63

Consultation

Comment: One commenter
recommended that the consultation
topics listed in § 200.63(b) be examples
of timely and meaningful consultation
by the LEA rather than required topics
for consultation.
Discussion: Section 1120(b)(2) of the
ESEA requires that consultation by an
LEA occur prior to an LEA’s making any
decision that affects the opportunities of
private school children to participate in
Title I. The Secretary believes that all of
the consultation topics listed in
§ 200.63(b) are necessary because they
affect the opportunities of private school
children to participate in Title I.
Changes: None.
Comment: One commenter asked that
§ 200.63(b)(5), concerning an LEA’s
responsibility for assessing services to
private school children, be clarified by
adding a reference to the LEA’s
assessment responsibility under
§ 200.10.
Discussion: The Secretary concurs
that a reference to § 200.10 clarifies the
LEA’s assessment responsibility.
Changes: Section 200.63(b)(5)
contains a reference to § 200.10.
Comment: One commenter
recommended that § 200.63(b)(6),
concerning size and scope of equitable
services, be clarified by including a
reference to § 200.64, that addresses
factors for determining equitable
participation of private school children.
Discussion: The Secretary agrees that
a reference to § 200.64 clarifies an LEA’s
responsibility to consider the factors

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listed in that section when determining
equitable participation for private
school students.
Changes: Section 200.63(b)(6)
contains a reference to § 200.64.
Comment: One commenter suggested
that § 200.63(b)(7) singles out one
method for determining poverty data for
private school children, and asked that
the words ‘‘including whether the LEA
will extrapolate data from a survey’’ be
deleted.
Discussion: Section 1120(c) of the
ESEA lists four ways an LEA may
determine the number of private school
children from low-income families. The
Secretary’s intent is to give direction for
consultation rather than to indicate a
preference for any method.
Changes: To make the intent clear,
§ 200.63(b)(7) has been amended to
clarify that consultation regarding the
source of poverty data for private school
children must include a discussion of
extrapolation only if a survey is used.
Comment: One commenter
recommended that the SEA be allowed
flexibility in implementing
§ 200.63(e)(1), that outlines the records
an LEA must maintain and submit to the
SEA when documenting that it has
consulted with private school officials.
Discussion: The Secretary believes
that the language in § 200.63(e)
accurately reflects the statute and gives
an SEA the flexibility needed to
implement provisions of this section.
Changes: None.
Comment: One commenter requested
that § 200.63(e)(2), that requires an LEA
to report to the SEA that it has
consulted private school
representatives, be amended by adding
a provision requiring that an LEA
indicate the reason why the private
school officials did not provide
affirmation.
Discussion: The Secretary believes
that the proposed regulations accurately
reflect the NCLB Act. The Secretary
assumes, and would encourage, that any
documentation that an LEA provides to
the SEA concerning its consultation
with private school officials would
include an explanation about why
private school officials did not provide
the requisite affirmation.
Changes: None.
Section 200.64 Factors for Determining
Equitable Participation of Private
School Children
Comment: One commenter asked that
the clause ‘‘In the aggregate,’’ at the
beginning of § 200.64(a)(1), concerning
equal expenditures, be deleted.
Discussion: The Secretary concurs
and believes that this clause was

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included in error. This same clause is
contained elsewhere in § 200.64(a)(1).
Changes: Section 200.64(a)(1) has
been amended to remove ‘‘In the
aggregate.’’
Comment: One commenter stated that
the language concerning equal
expenditures lacks specificity and could
result in confusion. The equitable
services requirements would not apply
to all of the district-wide activities for
which an LEA must reserve funds under
§ 200.77. For example, an LEA would
not need to ensure that private school
students receive equitable services from
funds reserved to meet transportation
costs related to public school choice or
to provide supplemental services to
students in public schools identified as
in need of improvement. The
commenter asked that § 200.64(a)(2) be
changed to make clear that the equitable
services requirement applies only to
reserved funds that affect services to
private school students. Another
commenter stated that funds reserved
under § 200.77 are not limited to
instructional activities, and that
§ 200.64(a)(2) should not limit the use of
the funds only to ‘‘instructional
activities.’’ In order to be consistent
with the language in § 200.77, the
commenter recommended the use of the
more inclusive word ‘‘services.’’
Discussion: The Secretary agrees that,
where applicable, funds an LEA
reserves under § 200.77 must be used to
provide equitable services for private
school children. An LEA must also,
when reserving funds under § 200.77,
ensure that it provides instructional and
related activities for eligible private
school children that are equitable to
activities provided for public
elementary or secondary school
students.
Changes: Section 200.64(a)(2)(i)(A) is
amended to make clear that an LEA
must provide equitable services to
private school students from funds it
reserves off the top of its allocation if
those funds are used to provide
instructional and related activities to
public elementary and secondary school
students.
Comment: One commenter
recommended that § 200.64(a)(2)(i) be
changed to specify that the equitable
services an LEA must provide include
‘‘necessary educational support such as
technology and interpreters’’.
Discussion: The needs of the private
school participants determine what
Title I services an LEA provides.
Technology and interpreters are two of
many Title I service options available,
but may not be what is required in all
instances.
Change: None.

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Comment: One commenter stated the
language in § 200.64(a)(2)(i), concerning
district-level funds reserved for student
instructional and related activities, is
confusing with regard to how an LEA
provides equitable services to private
school children from Title I funds
reserved by the LEA for district-wide
activities. The commenter believes that
equitable services should be based on a
comparison to services and benefits
provided to public school students
rather than on the proportion to the
number of private school children from
low-income families residing in
participating attendance areas.
Discussion: The Secretary believes
that, in order to ensure that private
school children receive an equitable
share of services from funds an LEA
reserves under § 200.77, the amount of
funds made available from that reserve
for equitable services must be
proportionate to the number of private
school children from low-income
families residing in participating
attendance areas. The Secretary agrees
that this regulatory language needs to be
modified in order to make this policy
clearer.
Changes: The Secretary has amended
proposed § 200.62(a)(2)(i)(B) to clarify
that equitable services must be
proportionate to the number of private
school children from low-income
families residing in participating public
school attendance areas.
Comment: None.
Discussion: In giving further
consideration to the proposed
regulations, Departmental staff
determined that § 200.64(b)(2)(iii)(B)
needed further clarification concerning
the need for private school participants
to meet the State’s student academic
performance standards. Because a
private school’s curriculum may not be
aligned with State standards, it may be
inappropriate to expect private school
participants to meet the same State
standards. The Secretary is making a
clarifying change to give an LEA the
flexibility to use equivalent standards to
measure the academic progress of
private school participants.
Changes: The Secretary has made this
change.
Comment: One commenter
recommended a technical correction in
§ 200.64(b)(3)(i), concerning an LEA’s
choice to provide services to private
school children either directly or
through a third-party contractor, to
replace the word ‘‘must’’ with the word
‘‘may’’ and thereby make the language
consistent with the statute.
Discussion: The Secretary concurs
with this change.

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Changes: Section 200.64(b)(3)(i) has
been amended to make clear that an
LEA may provide equitable services
either directly or through a third-party
provider.
Comment: One commenter suggested
that § 200.64(b)(3)(ii) of the regulations
be clarified so that, if an LEA provides
services through a contract with a thirdparty provider, the contractor must be
independent of the private school and of
any religious organization.
Discussion: The Secretary agrees with
the recommended change. Section
1120(c)(2)(B) of the ESEA requires that
a third-party provider who provides
equitable services to private school
students must be independent of the
private school and of any religious
organization and that the contractor be
under the control and supervision of the
LEA.
Changes: The Secretary has amended
§ 200.64(b)(3)(ii) to include the statutory
language.
Comment: One commenter suggested
that § 200.64(b)(4) be changed to clarify
that timely and meaningful consultation
with private school officials must take
place in accordance with § 200.63 before
an LEA makes final decisions with
respect to providing Title I services to
eligible private school children.
Discussion: The Secretary agrees that
an LEA must make final decisions with
respect to the services it will provide to
eligible private school children only
after timely and meaningful
consultation with private school
officials in accordance with § 200.63.
Changes: Section 200.64(b)(4) has
been amended to reflect the
recommended clarification.
Section 200.65 Determining Equitable
Participation of Teachers and Families
of Participating Private School Children
Comment: A commenter
recommended clarifying § 200.65(a)(1),
concerning the reservation of funds for
parent involvement and professional
development activities, by inserting the
word ‘‘applicable’’ before ‘‘funds’’.
Discussion: The Secretary agrees with
this recommendation because the
equitable services requirements apply to
most, but not all, funds reserved for
professional development and parent
involvement activities. For example,
equitable services for private school
teachers would not apply to
professional development funds an LEA
in improvement must reserve in order to
improve the quality of its schools.
Changes: The Secretary has made this
change.
Comment: A commenter
recommended that § 200.65(a)(1) be
changed so that an LEA must ensure

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that ‘‘pupil services personnel,’’ in
addition to teachers who provide
services to private school children, be
involved in professional development
on an equitable basis.
Discussion: The requirement for
equitable services in section 1120(a) of
the ESEA applies to private school
teachers of students participating in
Title I to improve the achievement of
those students. To the extent that ‘‘pupil
services personnel’’ are involved with
improving the achievement of
participating private school students,
they may participate in professional
development activities under Title I.
Changes: None.
Comment: One commenter did not
agree that the amount of funds an LEA
must make available under
§ 200.65(a)(1) to ensure equitable
services to private school children must
be based on the proportion of private
school children from low-income
families residing in participating school
attendance areas. The commenter
believed that the measure of service
equity is more appropriately based on
the services provided to the teachers
and parents of private school students
compared to services provided to
teachers and parents of public school
students.
Discussion: The Secretary believes
that the best way to ensure that the
equitable participation of teachers and
families of participating private school
children occurs is to base the amount
available for those services from the
applicable reserve on the proportion of
private school children from lowincome families residing in
participating public school attendance
areas. To make this policy more clear,
the Secretary has made a clarifying
amendment.
Change: The Secretary has amended
§ 200.65(a)(2) to clarify that the amount
of funds available to provide equitable
services from reserved funds for parent
involvement and professional
development must be proportionate to
the number of private school children
from low-income families residing in
participating public school attendance
areas.
Allocations to LEAs
Section 200.70 Allocation of Funds to
LEA in General
Comment: One commenter
recommended clarifying the references
to total population used for determining
whether an LEA is a small or large LEA
in § 200.70(c) and (d) to indicate that
this means total census population.
Discussion: The language in the
proposed regulations is consistent with

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the statutory language in section
1124(a)(2)(B)(vi)(II) of the ESEA, which
defines a small LEA as one with a total
population of less than 20,000.
However, the Secretary, in fact, provides
States with data from the Census Bureau
on the total resident population for each
LEA in order for the SEA to identify
large and small LEAs for the purpose of
redistributing Title I, Part A funds
among its small LEAs using alternative
poverty data. We agree that the
commenter’s recommendation adds
clarity. Such a change will make the
regulations consistent with the
Department’s current practice of
providing States with total census
population data for each LEA.
Changes: The Secretary has changed
the ‘‘total population’’ references in
§§ 200.70(c) and (d) and 200.74(a) to
‘‘total census population’’.
Comment: One commenter asked
what was meant by the term ‘‘limited
instances’’ used in the preamble to the
proposed regulations, which stated that
§ 200.70 establishes the principle that
an SEA must change the allocations
determined by the Department in
limited instances.
Discussion: As a general rule, the
Department of Education determines
allocations for LEAs. Sections 200.70
through 200.75 outline the specific,
limited instances when an SEA must
adjust the allocations determined by the
Department. For example, the list of
LEAs that the Secretary uses to
determine LEA allocations is provided
by the Census Bureau and is based on
the geographic boundaries of LEAs as
they existed several years ago. Because
that list does not match the current
universe of LEAs in many States, SEAs
must adjust the Department’s LEA
allocations to account for school district
consolidations, break-ups, and
boundary changes and to account for the
creation of new LEAs (such as charter
school LEAs) that are legitimately
eligible for Title I, part A funds. In
addition, SEAs must adjust the
Department’s allocations to (1) reserve
funds for school improvement, State
administration, and the State academic
achievement awards program; and (2)
allow, in certain cases, for the use of
alternative poverty data to redistribute
Department-determined Title I
allocations among districts with fewer
than 20,000 total residents.
Changes: None.
Section 200.72 Procedures for
Adjusting Allocations Determined by
the Secretary To Account for Eligible
LEAs not on the Census List
Comment: One commenter
recommended that this section be

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71769

revised to require that an SEA provide
final allocations to LEAs no later than
60 days following the receipt of the final
allocation notification from the
Department.
Discussion: While the Secretary
supports the need for SEAs to determine
final allocations as quickly as possible,
it is sometimes impossible for an SEA
with a significant number of newly
created or expanding charter school
LEAs to make final allocations within
the 60 day deadline recommended by
the commenter. In many cases the
poverty and enrollment data for the
charter school LEAs and the districts
from which they draw their students are
not available until the beginning of the
school year. The data available at the
beginning of the school year are often
estimates, which the SEA uses to
determine preliminary allocations. The
SEA must adjust these allocations later
in the school year after it receives actual
data in order to determine final LEA
allocations.
Changes: None.
Section 200.73 Applicable HoldHarmless Provisions
Comment: One commenter believed
that the language of this section implied
that an LEA must meet the eligibility
requirements for three of the four Title
I, part A formulas in order to benefit
from the hold-harmless protection.
Discussion: For the Basic, Targeted,
and Education Finance Incentive Grant
formulas, § 200.73(d)(1) requires that an
LEA be eligible under each of those
formulas in order for the applicable
hold-harmless provision to apply.
Changes: The Secretary has amended
the language in § 200.73(d)(1) to clarify
that, to benefit from the hold-harmless
provision under a particular formula, an
LEA need only be eligible under that
formula.
Section 200.75 Special Procedures for
Allocating Concentration Grant Funds
to Small States
Comment: One commenter raised a
concern whether the Concentration
Grant hold-harmless provision applies
to the special procedures that a small
State may use in allocating those funds
to LEAs.
Discussion: The Concentration Grant
hold-harmless provision described in
§ 200.73(d)(2) applies to LEAs in all
States. Therefore, an SEA must pay an
LEA not meeting the eligibility
thresholds for Concentration Grants its
hold-harmless amount for four
consecutive years. This hold-harmless
provision applies to a small State that
uses the flexibility available to it under
section 1124A(d) of the ESEA and

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§ 200.75 of the regulations when
allocating Concentration Grant funds to
eligible LEAs in which the number or
percentage of formula children equals or
exceeds the Statewide average number
or percentage of those children.
Changes: The Secretary has added a
reference § 200.75(a)(2)(ii) to make clear
that the Concentration Grant holdharmless provision in § 200.73(d)
applies to small States using the special
procedures outlined in § 200.75.
Procedures for the Within-District
Allocation of LEA Program Funds
Section 200.77
by an LEA

Reservation of Funds

Comment: One commenter asked why
there is a provision regarding reserving
funds for capital expenses since there
are no funds appropriated for the
Capital Expenses program and the
authorization for that program will
expire on September 30, 2003.
Discussion: Section 200.77(f) of the
regulations continues the authority for
an LEA reserve Title I funds that are
reasonable and necessary to administer
programs for public and private school
children. An LEA may still use Title I
funds it reserves for administration to
pay for capital expenses associated with
providing services to private school
children even though Congress has
appropriated no funds specifically for
capital expenses in fiscal year 2002 and
the authorization, which governs the
use of funds appropriated for the
program will expire on September 30,
2003.
Changes: None.
Comment: One person commented
that an LEA should have the flexibility
to meet the reserve requirements for
professional development in
§§ 200.52(a)(3)(iii) and 200.60 from nonTitle I funds and asked whether the
parental involvement reserve can be met
from non-Title I funds.
Discussion: In all three instances, the
Title I statute requires that these reserve
requirements be met from Title I funds
received by the LEA.
Change: None.
Section 200.78 Allocation of Funds to
School Attendance Areas and Schools
Comment: One commenter
recommended amending the language in
§ 200.78(a)(2)(ii)(B)(1) related to
obtaining a poverty count of children in
private schools through a survey to
make it consistent with the statute.
Discussion: In obtaining a count of
private school children from lowincome families for within-district Title
I, part A allocation purposes, the
regulations provide that an LEA could,

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instead of using the same poverty data
it uses to count public school children,
use comparable poverty data from a
different source such as a private school
survey so long as that survey protects
the identity of families of private school
children. In order to be consistent with
the language in the statute, the Secretary
agrees with the language change in
§ 200.78(a)(2)(ii)(B)(1) that the
commenter suggests. However, in order
to provide LEAs with the greatest
flexibility possible in obtaining poverty
data for students attending private
schools, the Secretary is adding
language that enables an LEA to use
comparable poverty data from a
different source such as scholarship
applications.
Changes: The Secretary has made the
suggested change and added further
clarifying language noted in the
discussion by adding a new paragraph
(a)(2)(ii)(C) to § 200.78.
Comment: One commenter
recommended changing the language in
§ 200.78(a)(2)(iv) to make it consistent
with the provisions in § 200.63 that
address district consultation with
private school officials and reference
§ 200.78. The commenter believed this
change would make clearer that an LEA
has the final authority to determine the
method used to calculate the number of
private school children from lowincome families for Title I allocation
purposes only after the LEA has engaged
in timely and meaningful consultation
with private school officials.
Discussion: The Secretary agrees that
the commenter’s proposed change
makes it clearer that an LEA must
engage in timely and meaningful
consultations with local private school
officials before making a final decision
about the method it will use to
determine the number of private school
children from low-income families who
reside in participating public school
attendance areas. The change would
also make this provision consistent with
the requirements in § 200.63.
Changes: The Secretary has modified
§ 200.78(a)(2)(iv) to make clear that an
LEA must consult with appropriate
private school officials about the
method of collection of poverty data.
Fiscal Requirements
Section 200.79 Exclusion of
Supplemental State and Local Funds
From Supplement, Not Supplant and
Comparability Determinations
Comment: One commenter asked for
clarification, in either the regulations or
guidance, to indicate that the use of
Title I funds to pay for substantial
increases in transportation costs of an

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LEA directly attributable to the public
school choice provisions of section 1116
of the ESEA do not violate supplement,
not supplant or comparability
provisions. Another commenter asked
whether an LEA could combine State
and local funds with Title I, part A
funds to pay for transportation costs
associated with implementing the
public school choice provision in
section 1116 of the ESEA. If an LEA can
combine State and local funds with
Title I funds for transportation costs, the
commenter further asked whether an
LEA will be in compliance with the
supplement, not supplant requirement
even though it is using Title I funds to
supplement local funds for
transportation.
Discussion: The Secretary will
address this issue in guidance.
Generally, however, an LEA must first
determine what its transportation costs
would be in the absence of Title I.
Additional transportation costs
attributable to the public choice
provision of section 1116 of ESEA may
be met with Title I, part A funds.
Changes: None.
Subpart C—Migrant Education Program
Section 200.82 Use of Program Funds
for Unique Program Function Costs
Comment: One commenter
recommended adding in § 200.82(e) the
term ‘‘MEP’’ to clarify that the
comprehensive State plan is for the
delivery of MEP services.
Discussion: The Secretary agrees with
the suggested editorial change.
Change: Section 200.82(e) has been
amended to refer to a ‘‘comprehensive
State plan for MEP service delivery.’’
Comment: Three commenters
recommended adding several additional
items to the list of examples in § 200.82
of ‘‘other administrative activities * * *
unique to the MEP’’ for which an SEA
may expend MEP funds that it does not
reserve for general administration. The
commenters recommended adding one
or more of the following activities:
parent advisory council activities;
advocacy and outreach activities for
migratory children and their families;
planning, operation and evaluation of
program effectiveness; and services to
migratory children who are failing, or
most at risk of failing, to meet the State’s
academic standards and whose parents
do not have a high school diploma or its
recognized equivalent or who have low
levels of literacy.
Discussion: The Secretary agrees that,
under the statute, MEP funds can be
expended for all of these activities.
However, the Secretary does not agree
that each of these activities constitutes

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the other administrative activities
unique to the MEP, or activities that are
the same or similar to administrative
activities that LEAs perform under Title
I, part A, for which MEP funds not
reserved for general administration may
be expended under § 200.82. Of the
commenters’ suggestions, the Secretary
believes that activities associated with
an SEA’s establishment and operation of
a State parent advisory council, and its
evaluation of the effectiveness of the
State MEP are the appropriate
additional examples of those other
administrative activities that are the
subject of § 200.82.
Change: Section 200.82(g) and (h) has
been added to clarify that the
establishment and implementation of a
State parent advisory committee and the
evaluation of the effectiveness of the
State MEP are additional examples of
other administrative activities, unique
to the MEP, or are the same or similar
to administrative activities that LEAs
perform under Title I, part A for which
an SEA may expend MEP funds that are
not reserved for general administration.
Section 200.83 Responsibilities of
SEAs To Implement Projects Through a
Comprehensive Needs Assessment and
a Comprehensive State Plan for Service
Delivery
Comment: None.
Discussion: In giving further
consideration to the proposed
regulations, Departmental staff
determined that § 200.83(a)(3)(ii) refers
to the ‘‘general educational needs of
migratory children’’ that must be
addressed by an SEA’s MEP service
delivery plan, while § 200.83(a)(2)(ii)
refers to the ‘‘other needs of migratory
children’’ that are to be identified in an
SEA’s needs assessment. Given that
both references are intended to refer to
the same needs, and that section 1306(a)
of the ESEA provides that these needs
are to be ‘‘special educational needs of
migratory children,’’ the Secretary
believes that it is desirable to improve
the clarity of both of these regulations
so that they reflect special educational
needs that an SEA’s needs assessment
must address.
Change: The ‘‘special educational
needs’’ of migratory children that are
identified and addressed through the
SEA’s comprehensive needs assessment
and State plan for service delivery are
those identified in section 1306(b)(1) of
the ESEA, i.e., (1) unique needs arising
from these children’s migratory lifestyle,
and (2) those needs that must be

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addressed in order to permit these
children to participate effectively in
school. Section 200.83(a)(2)(i) and
(a)(3)(i) already provide that the SEA’s
needs assessment and service delivery
must address the unique needs arising
from migratory lifestyle. Section
200.83(a)(2)(ii) and (a)(3)(ii) have been
revised to clarify that the needs
assessment and service delivery also
must address other needs of migratory
children that must be met in order for
these children to participate effectively
in school.
Comment: One commenter
recommended the inclusion of
additional, detailed requirements and
examples for carrying out parental
consultation under § 200.83(b). The
commenter proposed adding language to
this paragraph to require that this
consultation include (1) interpreter
services; (2) notices to parents in a
language that the parents can
understand; taking into account
language proficiency and literacy levels;
(3) the use of non-traditional
communications vehicles, such as
posting notices at churches and other
social service facilities; and (4) the
establishment of networks with other
care-givers who serve the population of
migratory workers. The commenter
stated that providing these examples of
communication strategies would help
ensure more effective communications
with the families of migratory children.
Discussion: Section 200.83(b) requires
an SEA to develop its MEP service
delivery plan in consultation with
parents. The Secretary believes that this
level of detail is more appropriate for
nonregulatory guidance. However, the
Secretary does agree that, consistent
with § 1304(c)(3)(B) of the ESEA,
§ 200.83(b) should clarify that the
required parental consultation regarding
the SEA’s MEP service delivery plan
must be through a format and language
that parents understand.
Change: Section 200.83(b) has been
amended to note that consultation shall
be in a format and language that parents
understand.
Section 200.84 Responsibilities of
SEAs for Evaluating the Effectiveness of
the MEP
Comment: One commenter
recommended amending § 200.84 to
specifically include the use of
alternatives to standardized testing used
with other children when an SEA
evaluates the effectiveness of its MEP.
The commenter suggested that

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migratory children often cannot be
assessed through standard or traditional
means since standardized testing used
with other children to determine overall
program progress is not likely to be
valid with the population of migratory
children.
Discussion: The Secretary does not
believe the commenter’s proposed
additional language to § 200.84 is
needed. The Secretary believes that
specific details about the methods an
SEA might use for determining the
effectiveness of its MEP are more
appropriately presented in
nonregulatory guidance.
Change: None.
Subpart D—Prevention and
Intervention Programs for Children and
Youth Who are Neglected, Delinquent,
or At-risk of Dropping Out
Section 200.90

Program Definitions

Comment: One commenter asked that
a provision be added to clarify that the
supplement, not supplant requirement
applies to Title I, part D, subpart 2.
Discussion: This fiscal requirement
does not apply because NCLB does not
specifically make the supplement, not
supplant requirement applicable to
programs authorized under part D,
Subpart 2 of Title I.
Changes: None.
Subpart E—General Provisions
Section 200.100 Reservation of Funds
for School Improvement, State
Administration, and the State Academic
Achievement Awards Program
Comment: One commenter stated that
the $400,000 cap on the amount a small
State may reserve for State
administration is inadequate.
Discussion: Section 1004 of the ESEA
authorizes an SEA to reserve for State
administration up to one percent from
funds allocated to the State under Title
I, part A (Grants to LEAs), part C
(Migrant Education), and part D,
Subpart 1 (State Agency Neglected or
Delinquent Program. The ESEA further
provides that if the amount calculated
as available to be reserved for State
administration totals less than $400,000,
an SEA may reserve up to $400,000. The
Department cannot increase these
limitations through regulations.
Changes: None.
[FR Doc. 02–30294 Filed 11–25–02; 3:50 pm]
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