E5-7507. The Individuals With Disabilities Education Act Paperwork Waiver Demonstration Program

AGENCY:

Office of Special Education and Rehabilitative Services, Department of Education.

ACTION:

Notice of proposed requirements and selection criteria.

SUMMARY:

The Assistant Secretary for Special Education and Rehabilitative Services proposes requirements and selection criteria for a competition in which the Department will select up to 15 States to participate in a pilot program, the Paperwork Waiver Demonstration Program (Paperwork Waiver Program). State proposals approved under this program would create opportunities for participating States to reduce paperwork burdens and other administrative duties in order to increase time for instruction and other activities to improve educational and functional results for children with disabilities. The proposed requirements and selection criteria focus on an identified national need to reduce the paperwork burden associated with the requirements of Part B of the Individuals with Disabilities Education Act, as amended, while preserving students' civil rights and promoting academic achievement.

The requirements and selection criteria proposed in this notice will be used for a single, one-time-only competition under this program.

DATES:

We must receive your comments on or before March 6, 2006.

ADDRESSES:

Address all comments about this notice to Troy Justesen, U.S. Department of Education, 400 Maryland Avenue, SW., Potomac Center Plaza, room 5126, Washington, DC 20202-2641. If you prefer to send your comments through the Internet, you may address them to us at the following address: [e-mail].

You must include the term “Paperwork Waiver Public Comment” in the subject line of your electronic message. Please submit your comments only one time, in order to ensure that we do not receive duplicate copies.

FOR FURTHER INFORMATION CONTACT:

Troy Justesen. Telephone: [phone].

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

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

SUPPLEMENTARY INFORMATION:

Invitation to Comment

We invite you to submit comments regarding the proposed requirements and selection criteria. To ensure that your comments have maximum effect in developing the notice of final requirements and selection criteria, we urge you to identify clearly the specific proposed requirement or selection criterion that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Order 12866 and its overall requirement of reducing regulatory burden that might result from the proposed requirements and selection criteria. Please let us know of any further opportunities we should take to reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

During and after the comment period, you may inspect all public comments about this notice in room 5126, 550 12th Street, SW., Washington, DC, between the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday of each week except Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking Record

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

Statutory Background of the Paperwork Waiver Program

On December 3, 2004, President Bush signed into law Public Law 108-446, 118 Stat. 2647, the Individuals with Disabilities Education Improvement Act of 2004, reauthorizing and amending the Individuals with Disabilities Education Act (Act). This new law reflects the importance of strengthening our Nation's efforts to ensure every child with a disability has available a free appropriate public education (FAPE) that is (1) of high quality and (2) designed to achieve the high standards established in the No Child Left Behind Act of 2001.

The Paperwork Waiver Program is one of two demonstration programs authorized under the new law that is designed to address parents', special educators' and States' desire to reduce excessive and repetitious paperwork, administrative burden, and non-instructional teacher time and, at the same time, to increase the resources and time available for classroom instruction and other activities focused on improving educational and functional results of children with disabilities.

Paperwork burden in special education affects (1) the time school staff can devote to instruction or service provision and (2) retention of staff, particularly special education teachers. In 2002, the Office of Special Education Programs (OSEP) funded a nationally representative study of teachers' perceptions of sources of paperwork burden, the hours devoted to these activities, and possible explanations for variations among teachers in the hours devoted to these tasks. Among the findings related to the Individualized Education Program (IEP), student evaluations, progress reporting, and case management was that teachers whose administrative duties and paperwork exceeded four hours per week were more likely to perceive these responsibilities as interfering with their job of teaching. Moreover, the study found that the mean number of hours reported by teachers to be devoted to these tasks was 6.3 hours per week.

Through the Paperwork Waiver Program, established under section 609(a) of the Act, the Secretary may grant waivers of certain statutory and regulatory requirements under Part B of the Act to not more than 15 States, including Puerto Rico, the District of Columbia, and the outlying areas (States) based on State proposals to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities. The Secretary is authorized to grant these waivers for a period of up to four years.

Although the purpose of the Paperwork Waiver Program is to reduce the paperwork burden associated with the Act, not all statutory and regulatory requirements under Part B of the Act may be waived. Specifically, the Secretary may not waive any statutory or regulatory provisions relating to applicable civil rights requirements or procedural safeguards. Furthermore, waivers may not affect the right of a child with a disability to receive FAPE. In short, State proposals must preserve the basic rights of students with disabilities.

Statutory Requirements for Paperwork Waiver Program

The Act establishes the following requirements to govern the Paperwork Waiver Program proposals:

1. States applying for approval under this program must submit a proposal to reduce excessive paperwork and non-instructional time burdens that do not assist in improving educational and functional results for children with disabilities.

2. A State submitting a proposal for the Paperwork Waiver Program must include in its proposal a list of any statutory requirements of, or regulatory requirements relating to, Part B of the Act that the State desires the Secretary to waive, in whole or in part (not including civil rights requirements and procedural safeguards as noted elsewhere in this notice); and a list of any State requirements that the State proposes to waive or change, in whole or in part, to carry out the waiver granted to the State by the Secretary. Waivers may be granted for a period of up to four years.

3. The Secretary is prohibited from waiving any statutory requirements of, or regulatory requirements relating to applicable civil rights requirements or procedural requirements under section 615 of the Act. A waiver may not affect the right of a child with a disability to receive FAPE (as defined in section 602(9) of the Act).

4. The Secretary will not grant any waiver to a State if the Secretary has determined that the State currently meets the conditions under section 616(d)(2)(A)(iii) or (iv) of the Act relative to its implementation of Part B of the Act.

5. The Secretary will terminate a State's waiver granted as part of this program if the Secretary determines that the State (a) needs assistance under section 616(d)(2)(A)(ii) of the Act and that the waiver has contributed to or caused the need for assistance; (b) needs intervention under section 616(d)(2)(A)(iii) of the Act or needs substantial intervention under section 616(d)(2)(A)(iv) of the Act; or (c) fails to appropriately implement its waiver.

Background for Proposed Requirements and Selection Criteria

Although the Act sets out the previously-described situations in which requirements cannot be waived, it does not provide specificity as to the particular requirements that are not subject to waiver or provide for other requirements that are necessary for implementation of this program. For instance, the Act does not address what requirements States may propose to waive without affecting the right of a child with a disability to receive FAPE. The Act also does not establish the selection criteria for the Department to use to evaluate State proposals. Thus, in this notice, we are proposing additional Paperwork Waiver Program requirements to address these and other implementation issues and selection criteria that we will use to evaluate State proposals.

Under section 609(b) of the Act, the Department is required to report on the effectiveness of the waiver program. In this notice, we are proposing requirements with which States must comply that will allow the Department to evaluate the effectiveness of this program. To accomplish this, the Institute of Education Sciences (Institute) will conduct an evaluation using a quasi-experimental design that collects data on the following outcomes: (a) Educational and functional results for students with disabilities, (b) allocation and engagement of instructional time for students with disabilities, (c) administrative duties, paperwork requirements, and resources by teaching and related services personnel, (d) quality of special education services and plans incorporated in IEPs, and (e) teacher, parent and administrator satisfaction. These outcomes will be compared for students who participate in the Paperwork Waiver Demonstration Program, and students who are matched on disability and prior educational outcomes who do not participate in the paperwork waiver program. Specifics of the design will be confirmed during discussion with the evaluator, a technical workgroup, and the participating States during the first several months of the study.

Participating States will play a crucial supportive role in this evaluation. They will, at minimum, assist in developing the evaluation plan, assure that districts participating in the Paperwork Waiver Demonstration Program will collaborate with the evaluation, provide background information on relevant State policies and practices, and supply data relevant to the outcomes from State data sources (e.g., student achievement and functional performance data, complaint numbers), provide access to current student IEPs (if appropriate and paperwork waiver affects an IEP) during Year 1 of the evaluation, and complete questionnaires, surveys, and participate in interviews. Data collection and analysis will be the responsibility of the Institute through its contractor. States can expect to allocate resources for this purpose at minimum during Year 1 to assist with planning the details of the evaluation, ensuring participation of involved districts, providing access to relevant State records, and completing questionnaires or participating in interviews. Over the course of the evaluation, participating States will receive an annual incentive payment (described in the next section) that will offset the cost of participating in the evaluation.

We will announce the final requirements and selection criteria in a notice in the Federal Register. We will determine the final requirements and selection criteria after considering responses to this notice and other information available to the Department.

Note:

An application and award for the Paperwork Waiver Program does not preclude application and award for the Multi-Year Individualized Education Program Demonstration Program, which is the subject of a separate notice of proposed requirements and selection criteria.

Note:

This notice does not solicit applications. We will invite applications through a notice in the Federal Register at a later date.

Proposed Additional Requirements for Paperwork Waiver Program

The Secretary proposes the following additional requirements for the Paperwork Waiver Program.

1. A State submitting a proposal under the Paperwork Waiver Program must include the following material in its proposal:

(a) A description of how the State obtained input from school and district personnel and parents in selecting the requirements it is proposing for waiver and a description of any specific proposals for changing those requirements to reduce paperwork.

(b) A detailed description of how the State obtained broad stakeholder input on the proposal.

(c) A description of the procedures the State will employ to ensure that, if the waiver is granted, it will not result in a denial of the right to FAPE to any child with a disability.

(d) Assurances that parents will be given notice of any statutory requirements that will be waived.

(e) If a State is applying for a waiver of any paperwork requirements related to IEPs, assurances that the State will require that (i) any participating local educational agency (LEA) obtain informed consent from the parents before an IEP that does not meet the requirements of 614(d) of the Act is developed for a child; and (ii) before an LEA requests a parent's informed consent, the LEA inform the parent in writing of (A) Any differences between the requirements of section 614(d) of the Act relating to the content, development, review and revision of IEPs and the requirements relating to the content, development, review and revision of IEPs under the State's approved Paperwork Waiver Program proposal; (B) the parent's right to revoke consent to the use of the IEP under the Paperwork Waiver Program proposal at any time; and (C) the LEA's responsibility to conduct, within 30 calendar days after revocation by the parent, an IEP meeting to develop an IEP that meets all the requirements of section 614(d) of the Act.

(f) Assurances that the State will cooperate fully, if selected, in a national evaluation of the Paperwork Waiver Program. Cooperation includes devoting a minimum of 4 months between the award and the implementation of the State's waiver to conduct joint planning with the evaluator. It also includes participation by the State educational agency (SEA) in the following evaluation activities:

(i) For each item in the list of statutory, regulatory, or State requirements submitted pursuant to paragraph 2 in the Statutory Requirements for Paperwork Waiver Program section of this notice, ensuring that the evaluator will have access to the original and all subsequent new versions of the associated documents for each child involved in the evaluation, together with a general description of the process for completing each of the documents. For example, if elements of the IEP process are waived, the evaluator shall have access to the most recent IEP created under previous guidelines for each participating child, as well as all of the new IEPs created under the waiver, along with a description of the process for completing both types of IEPs.

(ii) Recruiting districts or schools to participate in the evaluation (as established in the evaluation design) and ensuring their continued cooperation with the evaluation. Providing a list of districts and schools that have been recruited and have agreed to implement the proposed Paperwork Waiver Program, allow data collection to occur, and cooperate fully with the evaluation. For each participating school or district, providing basic demographic information such as student enrollment, district wealth and ethnicity breakdowns, the number of children with disabilities by category, and the number or type of personnel, as requested by the evaluator.

(iii) Serving in an advisory capacity to assist the evaluator in identifying valid and reliable data sources and improving the design of data collection instruments and methods.

(iv) Providing to the evaluator an inventory of existing State-level data relevant to the evaluation questions or consistent with the identified data sources. Supplying requested State-level data in accordance with the timeline specified in the evaluation design.

(v) Providing assistance to the evaluator with the collection of data from parents, including obtaining informed consent, for parent interviews and responses to surveys and questionnaires, if necessary to the final design of the evaluation.

(vi) Designating a coordinator for the project who will monitor the implementation of the project and work with the evaluator. This coordinator also will serve as the primary point of contact for the OSEP project officer.

2. For purposes of the statutory requirement prohibiting the Secretary from waiving any statutory requirements of, or regulatory requirements relating to, but not limited to, applicable civil rights requirements, the term applicable civil rights requirements as used in this notice includes all civil rights requirements in: (a) Section 504 of the Rehabilitation Act of 1973, as amended; (b) Title VI of the Civil Rights Act of 1964; (c) Title IX of the Education Amendments of 1972; (d) Title II of the Americans with Disabilities Act of 1990; and (e) Age Discrimination Act of 1975 and their implementing regulations. The term does not include other requirements under the Act.

3. Each State receiving approval to participate in the Paperwork Waiver Program will be awarded an annual incentive payment of $10,000 to be used exclusively to support program-related evaluation activities, including one trip to Washington, DC, annually to meet with the project officer and the evaluator. Each participating State will receive an additional incentive payment of $15,000 annually from the evaluation contractor to support evaluation activities in the State. Incentive payments may also be provided to participating districts to offset the cost of their participation in the evaluation of the Paperwork Waiver Demonstration Program.

Proposed Selection Criteria

We propose that the following selection criteria be used to evaluate State proposals submitted under this program. These particular criteria were selected because they address the statutory requirements and proposed program requirements and permit applicants to propose a distinctive approach to addressing these requirements.

Note:

The maximum score for all of these criteria will be 100 points. We will inform applicants of the points or weights assigned to each criterion and sub-criterion in a notice published in the Federal Register inviting States to submit applications for this program.

1. Significance. The Secretary considers the significance of the proposed project. In determining the significance of the proposed project, the Secretary considers the following factors:

(a) The extent to which the proposed project involves the development or demonstration of promising new strategies that build on, or are alternatives to, existing strategies.

(b) The likelihood that the proposed project will reduce the paperwork burden and increase instructional time and improve academic achievement.

2. Quality of the project design. The Secretary considers the quality of the design of the proposed project. In determining the quality of the design of the proposed project, the Secretary considers the following factors:

(a) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified, measurable, and address active participation in the program evaluation.

(b) The extent to which the design of the proposed project will successfully reduce excessive paperwork and increase instructional time.

(c) The extent to which the proposed project encourages consumer involvement, including parental involvement.

3. Quality of the management plan. The Secretary considers the quality of the management plan for the proposed project. In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:

(a) The adequacy of procedures for ensuring feedback and continuous improvement in the operation of the proposed project.

(b) The extent to which the applicant has devoted sufficient resources to the evaluation of the waiver program.

(c) How the applicant will ensure that a diversity of perspectives are brought to bear in the operation of the proposed project, including those of parents, teachers, related services providers, school administrators, or others, as appropriate.

Executive Order 12866

This notice of proposed requirements and selection criteria has been reviewed 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 this regulatory action are those resulting from statutory requirements and those we have determined as necessary for administering this program effectively and efficiently.

In assessing the potential costs and benefits—both quantitative and qualitative—of the actions proposed in this notice, we have determined that the benefits of the proposed requirements and selection criteria justify the costs.

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.

Intergovernmental Review

This program is not subject to Executive Order 12372 and the regulations in 34 CFR part 79.

Electronic Access to This Document

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

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.gpoaccess.gov/​nara/​index.html.

Program Authority: 20 U.S.C. 1408.

Dated: December 14, 2005.

John H. Hager,

Assistant Secretary for Special Education and Rehabilitative Services.