Public Comment Summary and Responses

ED Responses to 60 day public comments 1810-0662- OME 03 23 17.docx

Migrant Education Program Regulations and Certificate of Eligibility

Public Comment Summary and Responses

OMB: 1810-0662

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Docket ED-2016-ICCD-0148

60-day Public Comment Period: January 5, 2017 – March 6, 2017

Department of Education (ED), Office of Migrant Education (OME) Responses to Public Comments

Shape1

ID: ED-2016-ICCD-0148-0004

January 11, 2017

Submitter Name: Lionel Campos

Category: Individual

Comment

For the National COE, on section III Qualifying Moves and Work, wouldn't 2. b. i (the child moved on) only be completed on "to join or precede) moves?

OME Response

The Office of Migrant Education (OME) agrees with the commenter’s suggestion. In cases where the child(ren) moved as a migratory agricultural worker or migratory fisher, or with a parent/guardian or spouse who is a migratory agricultural worker or migratory fisher, the date of that qualifying move will be the Qualifying Arrival Date (QAD) listed in #3. Therefore, the dates in #2bi will only be applicable if the child(ren) moved to join or precede the worker. This change is reflected in the revised version of the COE Instructions, to be published for the 30-day public comment period.

Shape2

ID: ED-2016-ICCD-0148-0005

January 27, 2017

Submitter Name: Connie Granados

[email protected]

Category: Other

Comment

On the National Certificate of Eligibility, on the section regarding Qualifying Move and Work, Numeral 4, the date that the worker moved seems unnecessary. If the children moved WITH or AS the worker, wouldn't the date be in 2 b i and if it is to precede or to join, wouldn't the date be in 2 b ii?

OME Response

The Office of Migrant Education (OME) appreciates your comment and provides a few points of clarification below:

We have modified the COE instructions so that the dates listed in #2bi are only applicable in cases where the child(ren)’s move was to join or precede the worker. In cases where the child(ren) moved as a migratory agricultural worker or migratory fisher, or with a parent/guardian or spouse who is a migratory agricultural worker or migratory fisher, the date of the child(ren)’s qualifying move will be the Qualifying Arrival Date (QAD) listed in #3.

The date listed in #4 is the worker’s qualifying move which establishes the individual as a migratory agricultural worker or migratory fisher— i.e., the move soon after which he or she engaged in new qualifying work, or before or after which he or she actively sought new qualifying work (provided he or she has a recent history of moves for such work).

If the child is the worker, the date in #4 will be the same as the date in #3 (QAD).

If the child is not the worker, then the move listed in #4 may be, but is not necessarily, the same qualifying move that the child made with the worker, or to join or precede the worker (#1 - 3).

As a reflection of the statutory language which refers in separate definitions to a migratory child’s qualifying move and a migratory agricultural worker’s or migratory fisher’s qualifying move, the COE must record the two moves separately, to account for situations in which the child’s move with (#3), or to join or precede the worker (#2bi) is different from the move that established the worker as a migratory agricultural worker or migratory fisher (#4).

Shape3

ID: ED-2016-ICCD-0148-0015

February 16, 2017

Submitter Name: Heather Rhorer

[email protected]

City: Frankfort

Country: United States

State or Province: KY

Category: Individual

Comment

Birth date verification code. Currently this is recorded as a two digit code but is proposed to be a four digit code. Would two digits be acceptable on the COE as long as the four digit code is used in MSIX?

OME Response

The proposed COE instruction to record the birth date verification as a four digit code is a change made by ED in response to prior requests from States to align the COE requirements to requirements for a separate information collection, the Migrant Student Information Exchange (MSIX). In response to the comment above and similar comments, we have amended the COE Instructions to provide flexibility for States. States may choose to record the birth date verification as a two digit code (in accordance with the current COE Instructions), or record the entire four digit code on the COE (to align with the format required for MSIX).

Comment

Can section IV, the comment section, be broken down on the state COE into multiple sections? We would like to separate the field into multiple sections, one for each required comment, to improve data quality checks.

OME Response

In order to provide flexibility for States, we have amended the COE Instructions to allow States to divide the Comment section into multiple subsections for formatting purposes. All Comments must be contained in one section of the COE (even if that section is divided into subsections), and the content of those Comments must meet the minimum requirements of the national COE Instructions.

Comment
What does the Department consider "recent history"? This is referenced in section III, 4b.

OME Response

Based on the Department’s interpretation of this second eligibility criterion (i.e., where an individual has not engaged in qualifying work “soon after a qualifying move”), only those individuals who in the recent past have moved and then been employed on a temporary or seasonal basis in agriculture or fishing would be considered a “migratory agricultural worker” or “migratory fisher.” The Department believes that that the period of one’s “recent history” should not exceed 36 months prior to the date of the recruiter’s interview. Given the plural form of the word “moves,” an individual must have made at least two moves for qualifying work within the time period the State establishes in which the “recent history of moves” must have occurred. Therefore, the Comments on the COE regarding the worker’s recent history should include the dates and locations of the moves (to establish that there were at least two moves in the individual’s recent history), and the qualifying work. For more information about the phrase “recent history” in the context of migratory agricultural workers and migratory fishers, please see Questions C13 – C18 in Chapter II of the Department’s Non-Regulatory Guidance for the Title I, Part C Education of Migratory Children (March 2017).

Comment
The comment section on attachment 2 refers to number 4c (in section III) but there is no longer number 4c. This is correct on attachment 1.

OME Response

We appreciate your identification of this error in formatting of the sample COE template (Attachment 2). We have corrected this issue, and the correction is reflected in the revised version of the COE Instructions, to be published for the 30-day public comment period.

Comment
Interviewee signature section. The instructions say that states may include other statements but if they require a signature that the signature must be separate from the interviewee signature. Does this mean that if a state requires a FERPA statement, or other statement, and a signature that the interviewee would have to sign the COE more than one time?

OME Response

As noted on page 12 of the Instructions, the Interviewee signature identifies the individual who is the source of the information contained in the document (and who verified any information provided by another source). The interviewee may be, but is not necessarily, the child(ren)’s parent/guardian. If a State chooses to add an additional statement that would require a parent/guardian signature specifically (e.g., a FERPA statement), such additional statements would require a separate signature. Based on page 3 of the COE Instructions, which explain that State-specific required/requested information may be placed anywhere on the COE, except inside any of the Required Data sections, additional statements requiring a signature must be kept outside of the “Interviewee Signature” section (which is a Required Data section). ED strongly recommends that States obtain the approval of their legal counsel to ensure that additional statements they add to this section comply with the applicable Federal, State, and local laws and policies. Shape4

ID: ED-2016-ICCD-0148-0016

February 16, 2017

Submitter Name: Cindy Sasser

[email protected]

City: Madisonville

Country: United States

State or Province: Kentucky

Category: Individual

Comment

The committee to develop our state COE based on the new national COE has the following questions.

In the past states were allowed to customize their COEs to collect additional information required by the state as long as Section III (Qualifying Moves & Work) was not altered in any way. May we alter other sections of the COE to collect additional data as long as we take none of the data from the new National COE away?

OME Response

Page 3 of the COE Instructions explains that State-specific required/requested information may be placed anywhere on the COE, except inside any of the Required Data sections. The Required Data sections are: Section III: Qualifying Moves and Work, Section IV: Comments, Section V: Interviewee Signature, and Section VI: Eligibility Certification. States can place the Required Data sections on the COE according to State preference and need, but those sections must be maintained in whole and unaltered (e.g., order, numbering, and wording of items within the Qualifying Moves and Work section must remain the same), with specific exceptions noted (e.g., the Comments section must be self-contained and include at a minimum, the required comments, but may be divided into subsections for each required comment).

Comment

The codes to verify the child's birthdate (Section II): Our state currently uses the last 2-digits of the 4-digit code (03-13, 82 & 99) to denote verification on the COE. Is this still acceptable or must we use the complete 4-digit code referenced on pages 5 & 6 of the instructions? Also, if 4-digits are required, we were just wondering if all of the codes could be consistent, beginning with the same leading "10XX"?

OME Response

Comment

On the National COE, the header for Section IV. Comments says, "Must include 2bi, 4b, 4c, 5, 6a and 6b of the Qualifying Moves & Work Section if applicable". 4a was omitted from the header on the new National COE but the need for a comment is referenced in both Section III, 4a on the COE and on page 11 of the instructions. 4c is no longer an option on the new National COE and it is not referenced in the instructions on page 11. We believe these to just be oversights.

OME Response

We appreciate your identification of this error in formatting of the sample COE template (Attachment 2). The correction is reflected in the revised version of the COE Instructions, to be published for the 30-day public comment period.

Comment
On page 7 of the instructions, in the middle of the page, it says, "If the child and the worker moved from different previous residences, record the child's prior residence in response to #1 and record the worker's prior residence in the Comments section." The worker's prior residence is to be recorded in Section III, #4 so we were wondering why the additional comment was necessary?

OME Response

The date listed in #4 is the worker’s qualifying move which establishes the individual as a migratory agricultural worker or migratory fisher— i.e., the move soon after which he or she engaged in new qualifying work, or before or after which he or she actively sought qualifying work (provided he or she has a recent history of moves for such work). The move in #4 may be, but is not necessarily, the same as the move the child made with, or to join or precede, the worker. Therefore, if the worker did not move from the same school district as the child (listed in #1), a Comment would be required. This helps to provide clarity so that COE reviewers and independent parties who have no prior knowledge of the eligibility determination can understand the circumstances of the qualifying moves and the recruiter’s reasoning for determining that the child(ren) is eligible.

Comment
On the middle of page 9 in the instructions there is an example of comments for recent history. Do we need to include the worker's entire recent history, or just the one most recent. And, how does the department define "recent history", a certain number of moves, a certain number of years?

OME Response

Comment

On the middle of page 9 in the instructions it says, "Explain in the comments section how and when the worker actively sought new qualifying work. For example, a local farmer or grower confirmed that the worker applied for qualifying work." This sounds like credible evidence, yet that is no longer an option on the new National COE. It appears that justification choices for #4 of Section III are basically the same as the current National COE but have just been condensed and reworded. Is this accurate?

OME Response

There is no longer a requirement to document “other credible evidence” that the worker actively sought qualifying work, but for reasons beyond the worker’s control, the work was not available. That requirement was part of the regulatory definition of “in order to obtain”— which is no longer applicable because that wording no longer appears in the statute. We did not intend for the example provided in the COE Instructions on page 9 to be interpreted as requiring separate verification of the worker’s statement regarding his or her efforts to actively seek qualifying work. For purposes of clarification, we have revised the example to instead focus on information that might be contained in a worker’s statement.

Shape5

ID: ED-2016-ICCD-0148-0017

February 21, 2017

Submitter Name: Sheila A

Category: Education Consultant

Comment

Section III 4b
What does the Department consider "recent history"?

OME Response

Based on the Department’s interpretation of this second eligibility criterion (i.e., where an individual has not engaged in qualifying work “soon after a qualifying move”), only those individuals who in the recent past have moved and then been employed on a temporary or seasonal basis in agriculture or fishing would be considered a “migratory agricultural worker” or “migratory fisher.” The Department believes that that the period of one’s “recent history” should not exceed 36 months prior to the date of the recruiter’s interview. Given the plural form of the word “moves,” an individual must have made at least two moves for qualifying work within the time period the State establishes in which the “recent history of moves” must have occurred. Therefore, the Comments on the COE regarding the worker’s recent history must include the dates and locations of the moves (to establish that there were at least two moves in the individual’s recent history), and the qualifying work. For more information about the phrase “recent history” in the context of migratory agricultural workers and migratory fishers, please see Questions C13 – C18 in Chapter II of the Department’s Non-Regulatory Guidance for the Title I, Part C Education of Migratory Children (March 2017).

Comment
Can the comment section, be broken down on the state COE into multiple sections?

OME Response

In order to provide flexibility for States, we have amended the COE Instructions to allow States to divide the Comment section into multiple subsections for formatting purposes. All comments must be contained in one section of the COE, and the content of those Comments must meet the requirements of the national COE Instructions.

Comment
Section III 4b
What does the Department consider "recent history"?

OME Response

See response to first question, above.

Shape6

ID: ED-2016-ICCD-0148-0018

February 22, 2017

Submitter Name: Gloria Santillan

Category: Local Educational Agency

Comment

More space is needed in Section III, item 1 and 4 for school district and city information.

OME Response

One of the attachments included in the COE Instructions is a template demonstrating how the required data elements and required data sections might be arranged on the COE. States may add additional space for entering school district and city information, as needed.

Comment

Also, on section III, item 4a says: "provide a comment if worker engaged more than 60 days after the move" Does that mean that they can still qualify for the program if they find qualifying work after the 60 days?

OME Response

For purposes of the MEP, the Department recommends that “soon after the move” be within 60 days of the worker’s move. While States may interpret the wording “soon after” to mean more or less than 60 days, each State should establish a written standard that all recruiters are to apply, and which the State can rely upon in the event of an audit or investigation questioning the reasonableness of the State’s policy. Consistent with the COE’s instructions, recruiters must note in the Comments section of the COE why they determined an individual to be a migratory agricultural worker or migratory fisher, if the individual engaged in new qualifying work more than 60 days after the individual’s qualifying move.

Shape7

ID: ED-2016-ICCD-0148-0019

March 2, 2017

Submitter Name: Jeff Gaiche

[email protected]

Organization: MSEdD

City: Little Rock

Country: United States

State or Province: Arkansas

Category: Business

Comment

In the proposed changes to the National Certificate of Eligibility, in the Qualifying Moves and Work section, the new question 4 "The worker moved due to economic necessity on MM/DD/YY" date field seems unnecessary as it it would be collected in question 2bii if the worker moved "to join or precede".

OME Response

The Office of Migrant Education (OME) appreciates your comment and provides a few points of clarification below:

We have modified the COE instructions so that the dates listed in #2bi are only applicable in cases where the child(ren)’s move was to join or precede the worker. In cases where the child(ren) moved as a migratory agricultural worker or migratory fisher, or with a parent/guardian or spouse who is a migratory agricultural worker or migratory fisher, the date of the child(ren)’s qualifying move will be the Qualifying Arrival Date (QAD) listed in #3.
The date listed in #4 is the worker’s qualifying move which establishes the individual as a migratory agricultural worker or migratory fisher— i.e., the move soon after which he or she engaged in new qualifying work, or before or after which he or she actively sought new qualifying work (provided he or she has a recent history of moves for such work).
If the child is the worker, the date in #4 will be the same as the date in #3 (QAD).
If the child is not the worker, then the move listed in #4 may be, but is not necessarily, the same qualifying move that the child made with the worker, or to join or precede the worker (#1 - 3).
As a reflection of the statutory language which refers in separate definitions to a migratory child’s qualifying move and a migratory agricultural worker’s or migratory fisher’s qualifying move, the COE must record the two moves separately, to account for situations in which the child’s move with (#3), or to join or precede the worker (#2bi) is different from the move that established the worker as a migratory agricultural worker or migratory fisher (#4).

Shape8

ID: ED-2016-ICCD-0148-0020

March 3, 2017

Submitter Name: Anonymous Davis

Category: Institution of Higher Education

Comment

On pg. 3-"General Instructions"

Will OME provide specific instructions and/or guidance on whether to document "dashes" or "N/A" for electronic COEs and databases? And, can students who did not make the qualifying move be documented in the comment section?

OME Response

The Office of Migrant Education (OME) recommends that questions, regarding how to document “dashes” or “N/A” on electronic COEs and databases, be sent to the applicable State Educational Agency (SEA) for State-specific guidance. There is no Federal requirement to document, in the Comment section of the COE, students who did not make a qualifying move. This would be considered State-specific required or requested information, and such questions are best posed to the applicable SEA.

Comment
Pgs. 3&4- "Family Data"

Since mother's name is one of the key factors when matching near identical student records in MSIX, how will this affect the collection of MSIX data elements?
In many states, when OSY are unwilling to share their parent's name, and because they were traveling alone, recruiters were instructed to write the name of the OSY in the parent's name. What should recruiters do know regarding entry of information for OSY? How will dash or "N/A" be entered in electronic COEs and databases?

OME Response

The name of a child(ren)’s current female parent/guardian(s) may be documented on the COE under Parent/Guardian 1 and/or Parent/Guardian 2. Please note that the COE requires the name of a child(ren)’s current parent/guardian(s), while MSIX requests the names of a child(ren)’s legal parent/guardian(s), when available (this facilitates resolution of near-matches in student records). If the child(ren)’s legal parent/guardian is different from the current parent/guardian, the COE Instructions recommend providing the name of the child(ren)’s legal parent/guardian in the Comments section. MSIX will also accept names of current parent/guardian(s), if legal parent/guardian information is not available. The change on the COE to Parent/Guardian 1 and 2 will not affect the search or match process in MSIX.

On page 5, the COE Instructions state: if there is no parent/guardian information disclosed, or if the child is responsible for his or her own welfare (e.g., emancipated youth), write a dash (-) or “N/A.” OME recommends that questions regarding how to document “dashes” or “N/A” on electronic COEs and databases, be sent to the applicable State Educational Agency (SEA), for State-specific guidance.

Comment

Pg. 5- "Child Data"

Will OME provide guidance or recommendations on how to enter "dashes" and/or "N/A" in electronic COEs and migrant databases?
How will recruiters and data entry specialists enter gender for students who are identified as "transgender"?
Can recruiters put "M" or "F" instead of writing out "male" or "female"?
Can "Y" or "N" be entered instead of writing out "Yes" or "No"?
Requiring the use of four (4) digits reduces the amount of space available for recruiters to enter other valuable information. Allowances should be made to facilitate COE completion and data entry. Can recruiters continue to enter the last two digits of the verification code, since these are unique for each code?

OME Response

The Office of Migrant Education (OME) recommends that questions regarding how to document “dashes” or “N/A” on electronic COEs and databases, be sent to the applicable State Educational Agency (SEA), for State-specific guidance.

OME recommends that recruiters record a child’s sex as presented by the interviewee.

The proposed COE instruction to record “Sex” as “Male” or “Female” is a change made by ED in response to prior requests from States to align the COE requirements to requirements for a separate information collection, the Migrant Student Information Exchange (MSIX). In response to this comment and similar comments, and in order to provide flexibility for States, we have amended the COE Instructions to allow States to abbreviate these responses as “M” or “F”, respectively.

The proposed COE instruction to record “Multiple Birth Flag” as “Yes” or “No” is a change made by ED in response to prior requests from States to align the COE requirements to requirements for a separate information collection, the Migrant Student Information Exchange (MSIX). In response to this comment and similar comments, and in order to provide flexibility for States, we have amended the COE Instructions to allow States to abbreviate these responses as “Y” or “N”, respectively.

The proposed COE instruction to record the birth date verification as a four digit code is a change made by ED in response to prior requests from States to align the COE requirements to requirements for a separate information collection, the Migrant Student Information Exchange (MSIX). In response to this comment and similar comments, we have amended the COE Instructions to provide flexibility for States. States may choose to record the birth date verification as a two digit code (in accordance with the current COE Instructions), or record the entire four digit code on the COE (to align with the format required for MSIX).

Comment

Pg. 6- "Qualifying moves and work section"

By removing "in order to obtain", does this mean "intent" is no longer a part of the definition?

OME Response

As amended, the Elementary and Secondary Education Act of 1965 (ESEA) no longer requires that a worker needed to move “in order to obtain” qualifying work. The new statutory definitions enable individuals to be considered migratory agricultural workers, and migratory fishers without the need for recruiters or States to determine the intent, or purpose(s) of the worker’s move.

Comment

Pg. 7- "Qualifying moves and work section"

Is there a reason for removing the sentence "In order for the child to be eligible, both the child and the parent must have moved across school district lines and changed residences in the process"?
Could the table providing different scenarios of moves across district lines be placed back in the instructions?
Please provide guidance on what to do when both parents are also the workers.
Should the recruiter pick one of the parents as the worker, or can both parents be entered?

OME Response

That sentence was removed as unnecessary. The COE documents in #1 of Section III, the child’s qualifying move (which by definition is a change from one residence to another, and from one school district to another), which the child(ren) made with, or to join or precede, the parent/guardian or spouse who is a migratory agricultural worker or fisher. Page 4 of the COE Instructions states: “The QAD is the date that both the child and worker completed moves to the same school district (listed in #1 of the Qualifying Moves and Work section.)”

The tables in the previous (currently approved) version of the COE were removed in order to simplify and streamline the instructions. Page 8 of the COE Instructions state: “Provide as much of this information in these blanks as available. At a minimum (with the exception of States comprised of single school districts or school districts of more than 15,000 square miles), the State must be able to document that the child moved from one school district to another and changed residences in the process. In the case of States comprised of a single school district, the State must be able to document that the child moved from one administrative area to another and changed residences in the process. In the case of school districts of more than 15,000 square miles, the State must be able to document that the child migrated a distance of 20 miles or more and changed residences in the process.”

States may choose to add additional, more detailed instructions for the child’s qualifying move to their State-specific COEs, as long as the instructions in State-specific COEs do not contradict those of the national COE.

and 4. When both parents are workers (migratory agricultural workers or migratory fishers), OME generally recommends that the COE document the information for the parent with whom the child(ren) made a qualifying move most recently (or whom the children joined or preceded most recently)— i.e., establishing the most recent Qualifying Arrival Date (QAD) for the child(ren). The COE documents one individual as the worker with whom the child(ren) made a qualifying move (or whom the child(ren) joined or preceded). If the child(ren) moved with (or to join or precede) both parents on the same date, and thus the QAD would be the same regardless of which parent is listed as the worker, we recommend that the interviewee decide which parent to record on the COE as the worker. Please contact your SEA for more specific guidance.

Comment

Pg. 8-"Qualifying moves and work section"

If it is not a "to join" move, should the recruiter enter a "dash" or "N/A"?
Could a statement be added that recruiters should document where the worker moved from, if different from where the child(ren) moved from?
When the worker and the child(ren) moved together, this information will be the same as in #1 above; this would require recruiters spending more time entering information that was already collected.
Could the instructions clarify that the information is to be entered only when it is different from # 1 in the Qualifying Moves & Work Section?
Does "new" mean a different type of work than perform before or work in a different location?
Does this mean even if the worker did not intend to perform qualifying work, they are eligible if they are performing qualifying work?
Is 60 days the new definition for "soon after"?

OME Response

There are three checkboxes in #2a, one of which must be selected to describe the child’s move: “as the worker, OR  with the worker, OR  to join or precede the worker.” We have revised the Instructions to only require dates in #2bi if “to join or precede the worker” is selected in #2a.

The Instructions on page 9 contain a direction for how to document such situations in the Comment section: “If the worker moved separately from the child(ren), record the date that the child(ren) moved to the school district listed in #1 and record the date the worker moved to the school district listed in #1. Also record the reason for the different move dates, and whether the worker moved from a different location than the child(ren), in the Comments section.

and 4. In order to explain why the information in #4 may be different from the information that precedes it in Section III, OME provides a few points of clarification below:

We have modified the COE instructions so that the dates listed in #2bi are only applicable in cases where the child(ren)’s move was to join or precede the worker. In cases where the child(ren) moved as a migratory agricultural worker or migratory fisher, or with a parent/guardian or spouse who is a migratory agricultural worker or migratory fisher, the date of the child(ren)’s qualifying move will be the Qualifying Arrival Date (QAD) listed in #3.

The date listed in #4 is the worker’s qualifying move which establishes the individual as a migratory agricultural worker or migratory fisher— i.e., the move soon after which he or she engaged in new qualifying work, or before or after which he or she actively sought new qualifying work (provided he or she has a recent history of moves for such work).

If the child is the worker, the date in #4 will be the same as the date in #3 (QAD).

If the child is not the worker, then the move listed in #4 may be, but is not necessarily, the same qualifying move that the child made with the worker, or to join or precede the worker (#1 - 3).

As a reflection of the statutory language which refers in separate definitions to a migratory child’s qualifying move and a migratory agricultural worker’s or migratory fisher’s qualifying move, the COE must record the two moves separately, to account for situations in which the child’s move with (#3), or to join or precede the worker (#2bi) is different from the move that established the worker as a migratory agricultural worker or migratory fisher (#4).

We appreciate the commenter’s suggestion to clarify how the Department interprets the term “new” in reference to qualifying work. We interpret the term “new” to reference a new period of employment. Because qualifying work must be seasonal or temporary employment, such employment cannot be permanent. We do not believe this wording precludes employment in which the individual was previously employed as long as there is a break in employment (e.g., workers who are employed for a season, then re-employed by the same employer on a seasonal basis the following year). We will make every attempt to provide such clarification in future policy responses.

As amended, the Elementary and Secondary Education Act of 1965 (ESEA) no longer requires that a worker needed to move “in order to obtain” qualifying work. The new statutory definitions enable individuals to be considered migratory agricultural workers, and migratory fishers without the need for recruiters or States to determine the intent, or purpose(s) of the worker’s move.

For purposes of the MEP, the Department recommends that “soon after the move” be within 60 days of the worker’s move. While States may interpret the wording “soon after” to mean more or less than 60 days, each State should establish a written standard that all recruiters are to apply, and which the State can rely upon in the event of an audit or investigation questioning the reasonableness of the State’s policy. Consistent with the COE’s instructions, recruiters must note in the Comments section of the COE why they determined an individual to be a migratory agricultural worker or migratory fisher, if the individual engaged in new qualifying work more than 60 days after the individual’s qualifying move.

Comment

Pg. 9-"Qualifying moves and work section"

What does "actively" mean?, Does this rule out anyone who moved for the first time (lack of prior history)?
What does "recent history" means?
How far back?

OME Response

While an individual may actively seek employment in a variety of ways, the phrase “actively sought” implies the need to take positive actions to seek such work. For example, the individual (or someone on his or her behalf) may have: applied for qualifying work at a particular agricultural or fishing job site, applied at a center that coordinates available temporary or seasonal employment, applied for such employment before moving, or have moved reasonably believing, based on newspaper ads or word of mouth, that such work would be available after the move.

An individual who, for whatever reason, does not engage in new qualifying work soon after a qualifying move may only be considered a migratory agricultural worker or migratory fisher worker if that individual has both:

Actively sought new qualifying work; and
A recent history of moves for qualifying work.

For more information about the phrase “actively sought” in the context of migratory agricultural workers and migratory fishers, please see Questions C10 – C12 in Chapter II of the Department’s Non-Regulatory Guidance for the Title I, Part C Education of Migratory Children (March 2017).

and 3. Based on the Department’s interpretation of this second eligibility criterion (i.e., where an individual has not engaged in qualifying work “soon after a qualifying move”), only those individuals who in the recent past have moved and then been employed on a temporary or seasonal basis in agriculture or fishing would be considered a “migratory agricultural worker” or “migratory fisher.” The Department believes that that the period of one’s “recent history” should not exceed 36 months prior to the date of the recruiter’s interview. Given the plural form of the word “moves,” an individual must have made at least two moves for qualifying work within the time period the State establishes in which the “recent history of moves” must have occurred. Therefore, the Comments on the COE regarding the worker’s recent history must include the dates and locations of the moves (to establish that there were at least two moves in the individual’s recent history), and the qualifying work. For more information about the phrase “recent history” in the context of migratory agricultural workers and migratory fishers, please see Questions C13 – C18 in Chapter II of the Department’s Non-Regulatory Guidance for the Title I, Part C Education of Migratory Children (March 2017).

Comment

Pg. 12-"Comments Section"

Could a bullet be added that indicates "Record where worker moved from, if the child(ren) moved separately from where the worker moved from."?

OME Response

The Instructions on page 7 explain that such situations must be documented in the Comment section: “If the child and the worker moved from different previous residences, record the child’s prior residence in response to #1 and record the worker’s prior residence in the Comments section.” This instruction is repeated in the bullet for #2bi, on page 11: “If the worker moved from a different school district than the child(ren), record the name of the school district in which in the worker resided immediately prior to the move.”

Shape9

ID: ED-2016-ICCD-0148-0021

March 6, 2017

Submitter Name: CA Dept of Education Anonymous

Celina Torres, Administrator Migrant Education Office, English Learner Support Division

[email protected]

Category: State Educational Agency

Comment

The purpose of this letter is to provide the U.S. Department of Education (ED) with comments on the proposed rules on the proposed National Certificate of Eligibility (COE) for the Migrant Education Program (MEP). The California Department of Education has the following comments on the proposed COE:

Clarity Issues

The proposed COE instructions (and COE Section III) use the plural of “move” and seem to imply that more than one qualifying move can appear on the COE. The instructions imply that the children have a qualifying move and the worker has a qualifying move. This implication is not consistent with the eligibility requirements under the Every Student Succeeds Act (ESSA) of 2015, because what makes a move qualifying depends on the worker (moving to seek or obtain qualifying work) and the child making the same move (regardless if the move is with, before, or after the worker—it is always to the same location). In other words, a qualifying move is always singular, bringing together what the worker and the children did in common. The singularity of the qualifying move is supported by the fact that only one qualifying arrival date (QAD) can exist per COE.

OME Response

The Office of Migrant Education (OME) appreciates your comment and provides a few points of clarification below:

The term “qualifying move” was, prior to the ESSA, used to refer to a single move that established a child’s eligibility for the Migrant Education Program (MEP). Prior to the ESSA, “migratory child” was defined as one “who is, or whose parent or spouse 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 or spouse, in order to obtain, [qualifying work]—has moved from one school district to another…”

Under section 1309(5) of the ESEA as reauthorized by the ESSA, a qualifying move is: made due to economic necessity; from one residence to another residence; and from one school district to another school district (within specific exceptions for States comprised of a single school district and school districts of more than 15,000 square miles). There is no requirement that a qualifying move be made “in order to obtain” qualifying work.

The definition of a migratory child under section 1309(3) requires that such individual made a qualifying move in the preceding 36 months as a migratory agricultural worker or a migratory fisher, or did so with, or to join a parent/guardian or spouse who is a migratory agricultural worker or a migratory fisher.

The definitions of migratory agricultural worker and migratory fisher (sections 1309(2) and 1309(4), respectively) require that such individuals must have made a qualifying move within the previous 36 months, and, after doing so, engaged in new qualifying work (if the individual did not engage in such new employment soon after a qualifying move, such individual may still be considered a migratory agricultural worker or migratory fisher if he or actively sought such new employment; and has a recent history of moves for qualifying work).

As long as the child made a qualifying move with, or to join, a parent/guardian or spouse who meets the definition of “migratory agricultural worker” or “migratory fisher” (see above), the statute does not require that the qualifying move made by the child with, or to join such parent/guardian or spouse, be to the school district where the worker moved in order to obtain qualifying work, engaged in qualifying work, or actively sought qualifying work.

Comment

Suggested correction on page 4 of the proposed instructions: “Note, although it is possible to record a residency date that precedes the QAD, a COE cannot be filled out and a child cannot be enrolled in the MEP until after the child and worker each make a ~~the~~ qualifying move.”

OME Response

Please see response to first set of comments, above, for an explanation of why there is more than one “qualifying move.”

Comment

Redundancy Issues

For the reasons indicated above, the proposed COE’s inclusion of multiple move dates is often redundant. Consider the following three examples:

The children moved with the worker: The “move to/move from” locations in (#1) and (#4) are identical. The QAD (#3) will always be the same as the move date in (#4).
The child is the worker (i.e., self-qualifier): The “move to/move from” locations in (#1) and (#4) are identical. The date in (2bi) will always be the same as the QAD (#3), which will always be the same as the worker move date in (#4).
The children moved “to join or precede” the worker: The “move to/move from” locations in (#1) and (#4) are identical. The date in (2bii) will always be the same as the move date in (#4).

Rather than separately documenting the children’s move and the worker’s move, it would be less confusing to retain the current COE’s focus on the single qualifying move that a COE may record. The worker and the children must make the qualifying move, meaning the same move in which the worker sought or obtained qualifying work. There is always only one qualifying move (on a COE) because it is tied to a worker who moved to seek/obtain qualifying work; the children must also make this same move in order to have made a “qualifying” move. (The link to qualifying work is conferred by the worker).

Even if the ED wanted to document the qualifying worker’s “move to/move from” locations, the order on the form is not logical. The children’s move is followed by the QAD, then by the worker’s move. But the QAD depends on both moves when it is a “to-join” or “to-precede” move. This means that a recruiter cannot determine the QAD (item # 3) prior to completing the worker’s move information (item #4). In order to determine (#3), the recruiter must complete (#2bi) and (#4) first. The correct order (if the Office of Migrant Education [OME] wishes to keep the worker’s move information separate from the child’s move) should be both the children’s and worker’s move dates first, then the QAD. The need for this order is seen by referencing the table on page (8) of the proposed instructions.

Resulting Suggestions

Because the children’s qualifying move always depends on the worker’s qualifying move, requiring two separate questions (#1 and #4) to document the “move to/move from” location is not necessary. The proposed instructions recognize this:

“The QAD is the date that both the child and the worker completed the move to the school district listed in (#1). The child must have moved as a worker, or with or to join a parent/guardian or spouse who is a migratory agricultural worker or migratory fisher.” (See page 8.)

The current COE format concisely captures the variety of move date combinations without being redundant. In order to align with ESSA, item (#4) can be simplified as follows:

“The worker moved due to economic necessity and:

 engaged in new qualifying work soon after the move (provide comment if worker engaged in qualifying work more than 60 days after the move), or
 actively sought new qualifying work after the qualifying move and has a recent history of moves for qualifying work (provide comment)”

As in the current COE, (2bi) and (2bii) can be simplified to apply only to “to join or precede” move types.

OME Response

In addition to the clarifying information we provided in response to an earlier comment regarding “qualifying moves” (plural), we provide the following additional clarification:

We have modified the COE instructions so that the dates listed in #2bi are only applicable in cases where the child(ren)’s move was to join or precede the worker. In cases where the child(ren) moved as a migratory agricultural worker or migratory fisher, or with a parent/guardian or spouse who is a migratory agricultural worker or migratory fisher, the date of the child(ren)’s qualifying move will be the Qualifying Arrival Date (QAD) listed in #3.

The date listed in #4 is the worker’s qualifying move which establishes the individual as a migratory agricultural worker or migratory fisher— i.e., the move soon after which he or she engaged in new qualifying work, or before or after which he or she actively sought new qualifying work (provided he or she has a recent history of moves for such work).

If the child is the worker, the date in #4 will be the same as the date in #3 (QAD).

If the child is not the worker, then the move listed in #4 may be, but is not necessarily, the same qualifying move that the child made with the worker, or to join or precede the worker (#1 - 3).

As a reflection of the statutory language which refers in separate definitions to a migratory child’s qualifying move and a migratory agricultural worker’s or migratory fisher’s qualifying move, the COE must record the two moves separately, to account for situations in which the child’s move with (#3), or to join or precede the worker (#2bi) is different from the move that established the worker as a migratory agricultural worker or migratory fisher (#4).

Comment

Other Miscellaneous Suggestions

The phrase “new qualifying work” is not defined. We recommend that it be defined as “work that was not held prior to the move” to clarify that the job was not already obtained. As such, in a qualifying move the impetus for moving (at least one reason) would be to obtain “new” work.

OME Response

We appreciate the commenter’s suggestion to clarify how the Department interprets the term “new” in reference to qualifying work. We interpret the term “new” to reference a new period of employment. Because qualifying work must be seasonal or temporary employment, such employment cannot be permanent. We do not believe this wording precludes employment in which the individual was previously employed as long as there is a break in employment (e.g., workers who are employed for a season, then re-employed by the same employer on a seasonal basis the following year). We will make every attempt to provide such clarification in future policy responses.

In response to the commenter’s reference to the impetus for moving, we note that as amended, the ESEA no longer requires that a worker needed to move “in order to obtain” qualifying work. The new statutory definitions enable individuals to be considered migratory agricultural workers, and migratory fishers without the need for recruiters or States to determine the intent, or purpose(s) of the worker’s move.

Comment

On page (9), the proposed examples of how to document qualifying work can be improved:

A) “grape pruning” could be “pruning grapevines”

B) “crab harvesting” could be “harvesting crab” to maintain consistency with the proposed instructions to use an action verb, then a noun.

OME Response

We appreciate the commenter’s suggestion, but decline to make these edits, as the examples provided are not intended to be an exhaustive list of qualifying work activities, and are instead intended to illustrate that the verb and noun may be placed in order of preference.

Comment

On page 9, in the instructions for collecting information about temporary work, a couple of clarifications would be useful:

A) While completing the COE, the interviewee could be the worker, the worker’s spouse, or a guardian.

B) This means that the source of the worker’s statement (6a) or the employer’s statement (6b) could be one of the three interviewees possible.

OME Response

We agree with your comment that interviewees are not limited to the worker, and individuals other than the worker may provide information regarding the temporary nature of employment (#6a and #6b in Section III of the COE). In Chapter II of the recently revised Non-Regulatory Guidance for Title I, Part C- Education of Migratory Children (March 2017), we explain in the introduction that: “Information necessary to determine a child’s eligibility for the MEP, and to document such eligibility on the COE, is based on an interview with the child’s parent/guardian or spouse, the child (if the child is the migratory worker), or another individual who is not the child’s parent/guardian or spouse (e.g., an older sibling or other household member), but who has direct knowledge of the information needed by the recruiter to determine eligibility. …While it is preferable to obtain information regarding qualifying work directly from the worker, workers’ statements may be relayed by the interviewee if the worker is not available at the time of the interview.”

Comment

On page (12), the proposed instructions read: “If the interviewee refuses to sign his or her name, the recruiter must document the interviewee’s refusal in the Comments section and print the interviewee’s name and relationship to the child.”

Does this mean that a recruiter should add comments and then store the attempted COE for his or her records? Should he or she submit the COE to the State as an attempted but incomplete COE?

Or does this mean that a recruiter should proceed to complete the COE and submit it to a State Education Agency-designated Reviewer for final approval? Additional clarification would be helpful.

OME Response

If a parent/guardian or other interviewee refuses to sign the COE because they does not want their child to participate in the Migrant Education Program (MEP), then the recruiter must not proceed with completing and approving the COE. If the interviewee’s refusal to sign the COE is not based on a refusal to have the child participate in the program, the recruiter may proceed with completing and approving the COE. The MEP Guidance states that, except in the case of a few limited exceptions, the interviewee must sign the national COE (see Chapter II, H9 of the Non-Regulatory Guidance for Title I, Part C Education of Migratory Children). However, the lack of an interviewee’s signature on the COE does not necessarily invalidate the COE or otherwise preclude the child from being determined eligible for MEP services. As you noted, the National COE Instructions state that “If an interviewee refuses to sign his or her name, the recruiter must document the interviewee’s refusal in the Comments section and print the interviewee’s name and relationship to the child.”

Shape10

ID: ED-2016-ICCD-0148-0022

March 6, 2017

Submitter Name: Anonymous

Category: Individual

Comment

Will OME provide specific instructions and/or guidance on whether to document "dashes" or "N/A" for electronic COEs and databases?

OME Response

The Office of Migrant Education (OME) recommends that questions regarding how to document “dashes” or “N/A” on electronic COEs and databases, be sent to the applicable State Educational Agency (SEA), for State-specific guidance.

Comment

Can students who did not make the qualifying move be documented in the comment section? By including those students in the comment section, local programs will be aware of other non-eligible students present in the home, and this may minimize confusion during home visits and provisions of services.

OME Response

There is no Federal requirement to document in the Comment section of the COE, students who did not make a qualifying move. This would be considered State-specific required or requested information, and such questions are best posed to the applicable SEA.

Comment

Will OME provide guidance or recommendations on how to enter "dashes" and/or "N/A" in electronic COEs and migrant databases?

OME Response

See response to first comment, above.

Comment

How will recruiters and data entry specialists enter gender for students who are identified as "transgender"? Can recruiters put "M" or "F" instead of writing out "male" or "female"?

OME Response

OME recommends that recruiters record a child’s sex as presented by the interviewee. The proposed COE instruction to record “Sex” as “Male” or “Female” is a change made by ED in response to prior requests from States to align the COE requirements to requirements for a separate information collection, the Migrant Student Information Exchange (MSIX). In response to this comment and similar comments, and in order to provide flexibility for States, we have amended the COE Instructions to allow States to abbreviate these responses as “M” or “F”, respectively.

Comment

Requiring the use of four (4) digits reduces the amount of space available for recruiters to enter other valuable information. Allowances should be made to facilitate COE completion and data entry. Can recruiters continue to enter the last two digits of the verification code, since these are unique for each code?

OME Response

Comment

By removing "in order to obtain", does this mean "intent" is no longer a part of the definition?

OME Response

Comment

Is there a reason for removing the sentence "In order for the child to be eligible, both the child and the parent must have moved across school district lines and changed residences in the process"? This sentence is extremely useful during training to remind recruiters that both the child and the worker have to complete the move. Leaving the sentence out can be misinterpreted as the worker not having to complete the move.

OME Response

That sentence was removed as unnecessary. The COE documents in #1 of Section III, the child’s qualifying move (which by definition is from one residence to another and from one school district to another), which the child(ren) made with, or to join or precede, the parent/guardian or spouse who is a migratory agricultural worker or fisher. Page 4 of the COE Instructions states: “The QAD is the date that both the child and worker completed moves to the same school district (listed in #1 of the Qualifying Moves and Work section.)”

Comment

Please provide guidance on what to do when both parents are also the workers. Should the recruiter pick one of the parents as the worker, or can both parents be entered?

OME Response

When both parents are workers (migratory agricultural workers or migratory fishers), OME generally recommends that the COE document the information for the parent with whom the child(ren) made a qualifying move most recently (or whom the children joined or preceded most recently)— i.e., establishing the most recent Qualifying Arrival Date (QAD) for the child(ren). The COE documents one individual as the worker with whom the child(ren) made a qualifying move (or whom the child(ren) joined or preceded). If the child(ren) moved with (or to join or precede) both parents on the same date, and thus the QAD would be the same regardless of which parent is listed as the worker, we recommend that the interviewee decide which parent to record on the COE as the worker. Please contact your SEA for more specific guidance.

Comment

Could a statement be added that recruiters should document where the worker moved from, if different from where the child(ren) moved from? When the worker and the child(ren) moved together, this information will be the same as in #1 above; this would require recruiters spending more time entering information that was already collected. Could the instructions clarify that the information is to be entered only when it is different from # 1 in the Qualifying Moves & Work Section?

OME Response

The information listed in #4 (date and locations) is the worker’s qualifying move which establishes the individual as a migratory agricultural worker or migratory fisher— i.e., the move soon after which he or she engaged in new qualifying work, or before or after which he or she actively sought new qualifying work (provided he or she has a recent history of moves for such work). That move may be, but is not necessarily, the same as the child’s qualifying move with the worker documented in #1 – 3.

Comment

In page 8, does "new" mean a different type of work than performed before or work in a different location? Does this mean even if the worker did not intend to perform qualifying work, they are eligible if they are performing qualifying work? Is 60 days the new definition for "soon after"?

OME Response

As amended, the ESEA no longer requires that a worker needed to move “in order to obtain” qualifying work. The new statutory definitions enable individuals to be considered migratory agricultural workers, and migratory fishers without the need for recruiters or States to determine the intent, or purpose(s) of the worker’s move.

Comment

In page 9, what does "actively" mean? Does this rule out anyone who moved for the first time (lack of prior history)? What does "recent history" means? How far back?

OME Response

While an individual may actively seek employment in a variety of ways, the phrase “actively sought” implies the need to take positive actions to seek such work. For example, the individual (or someone on his or her behalf) may have: applied for qualifying work at a particular agricultural or fishing job site, applied at a center that coordinates available temporary or seasonal employment, applied for such employment before moving, or have moved reasonably believing, based on newspaper ads or word of mouth, that such work would be available after the move.

a) Actively sought new qualifying work; and

b) A recent history of moves for qualifying work.

Based on the Department’s interpretation of this second eligibility criterion (i.e., where an individual has not engaged in qualifying work “soon after a qualifying move”), only those individuals who in the recent past have moved and then been employed on a temporary or seasonal basis in agriculture or fishing would be considered a “migratory agricultural worker” or “migratory fisher.” The Department believes that that the period of one’s “recent history” should not exceed 36 months prior to the date of the recruiter’s interview. Given the plural form of the word “moves,” an individual must have made at least two moves for qualifying work within the time period the State establishes in which the “recent history of moves” must have occurred. Therefore, the Comments on the COE regarding the worker’s recent history must include the dates and locations of the moves (to establish that there were at least two moves in the individual’s recent history), and the qualifying work. For more information about the phrase “recent history” in the context of migratory agricultural workers and migratory fishers, please see Questions C13 – C18 in Chapter II of the Department’s Non-Regulatory Guidance for the Title I, Part C Education of Migratory Children (March 2017).

Comment

In page 12, could a bullet be added that indicates "Record where worker moved from, if the child(ren) moved separately from where the worker moved from."?

OME Response

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File Title	ED Responses to 60 day public comments - sm draft 03 20 17
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