2020-11416. Proposed Requirements-The Individuals With Disabilities Education Act (IDEA) Paperwork Reduction Waivers

AGENCY:

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

ACTION:

Proposed requirements and definition.

SUMMARY:

The Department of Education (Department) proposes requirements and a definition for waivers under section 609 of the Individuals with Disabilities Education Act (IDEA). The Department may select as many as 15 States to receive waivers of statutory requirements of, or regulatory requirements relating to, IDEA Part B, for a period of time not to exceed 4 years, to reduce excessive paperwork and noninstructional time burdens that do not assist in improving educational and functional results for children with disabilities. The purpose of these waivers is to increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities. Statutory requirements of, or regulatory requirements relating to, applicable civil rights requirements or procedural safeguards under section 615 of IDEA may not be waived. The Department may use these proposed requirements and definition in fiscal year (FY) 2020 and later years.

DATES:

We must receive your comments on or before August 19, 2020.

ADDRESSES:

Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.

• Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket, is available on the site under “Help.”
• Postal Mail, Commercial Delivery, or Hand Delivery: If you mail or deliver your comments about these proposed requirements, address them to David Egnor, U.S. Department of Education, 400 Maryland Avenue SW, Room 5163, Potomac Center Plaza, Washington, DC 20202-5076.

Privacy Note: The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available.

FOR FURTHER INFORMATION CONTACT:

David Egnor, U.S. Department of Education, 400 Maryland Avenue SW, Room 5163, Potomac Center Plaza, Washington, DC 20202-5076. Telephone: [phone]. Email: [e-mail].

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

Invitation to Comment: We invite you to submit comments regarding the proposed requirements and definition. To ensure that your comments have maximum effect in developing the final requirements and definition, we urge you to identify clearly the specific section of the proposed requirements or definition that each comment addresses.

We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 13771 and their overall requirement of reducing regulatory burden that might result from these proposed requirements and definition. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.

Directed Questions

1. We invite public comment on whether there are other specific issues the Department should consider when evaluating waiver proposals and whether we should require States, in their proposals, to provide further explanations of the legal and research-based supports for their proposals.

2. The Department's regulations implementing Section 504 of the Rehabilitation Act of 1973 (Section 504) and covering recipients that serve school-aged children with disabilities, as set out in 34 CFR 104.31 through 104.36, contain civil rights protections that often overlap with, or can be met through the implementation of, the protections in IDEA Part B. For example, implementation of an individualized education program (IEP) developed in accordance with IDEA Part B is one means of meeting the standard for an appropriate education under the Section 504 implementing regulations. See 34 CFR 104.33(b)(2). Likewise, the Section 504 implementing regulations require evaluations and reevaluations that meet certain criteria. 34 CFR 104.35(a), (b), and (d).

(a) Given the limitation that the Secretary may not waive any statutory or regulatory requirements of, or relating to, applicable civil rights requirements, the Department is seeking public comment on the best ways to address the close relationship between IDEA and the Section 504 protections that apply to school-aged children with disabilities.

(b) Because of the overlap between IDEA and Section 504, should States, in their waiver proposals, be required to include a specific explanation of why the waiver sought would not conflict with requirements of, or relating to, Section 504 and its implementing regulations?

3. We are particularly interested in comments regarding paragraphs (a)(6) and (a)(7) of the proposed requirements. These requirements originally appeared in the 2007 final requirement. (We discuss the 2007 final requirements in greater detail in the Background section of this notice.) However, we are interested in public comment on whether these paragraphs are sufficiently clear that parents have the right to understand and consent to changes that affect their children's education and do not imply that waivers of FAPE are permitted under this program.

During and after the comment period, you may inspect all public comments about the proposed requirements and definition by accessing Regulations.gov. You may also inspect the comments in person in room 5163, 550 12th Street SW, Potomac Center Plaza, Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern Time, Monday through Friday of each week except Federal holidays. Please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Assistance to Individuals with Disabilities in Reviewing the Rulemaking Record: On request, we will provide an appropriate accommodation or auxiliary aid to an individual with a disability who needs assistance to review the comments or other documents in the public rulemaking record for the proposed requirements and definition. If you want to schedule an appointment for this type of accommodation or auxiliary aid, please contact the person listed under FOR FURTHER INFORMATION CONTACT.

Purpose of Program: The purpose of this program is to provide an opportunity for States to reduce excessive paperwork and noninstructional time burdens on special education teachers, related services providers, and State and local administrators, thus increasing time and resources available for instruction and other activities that would improve educational and functional results for children with disabilities.

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

Proposed Requirements

Background

The Secretary believes that all students should be given the opportunity to succeed and that their success should be the primary focus of everyone in the educational system. When teachers, related services providers, and administrators who serve children with disabilities spend time completing unnecessary paperwork, their ability to prioritize and focus on improving outcomes for children with disabilities is hampered.

In the 2004 reauthorization of IDEA, Congress recognized that some Federal IDEA Part B requirements could create excessive paperwork and noninstructional time burdens on special education teachers, related services providers, and State and local administrators, thus diverting time and resources away from instruction and other activities that would improve educational and functional results for children with disabilities.

As such, under section 609 of IDEA, Congress gave the Department limited authority to grant waivers of certain requirements of IDEA Part B. Waivers may be granted to not more than 15 States and for a period not to exceed 4 years. Further, the Secretary may not waive any statutory or regulatory provisions relating to applicable civil rights requirements or allow a State or local educational agency to waive procedural safeguards under section 615 of IDEA, and waivers may not affect the right of a child with a disability to receive a free appropriate public education (FAPE) under IDEA Part B. In short, States' waiver proposals must preserve the fundamental rights of children with disabilities under IDEA.^[1] In addition, States have always had the authority, within the constraints of State law, to change or waive State requirements that exceed IDEA statutory and regulatory requirements in order to reduce administrative burden.

In this document, we are proposing requirements and a definition for States to apply for paperwork waivers under section 609 of IDEA and thereby increase the time and resources available for instruction and other activities aimed at improving educational and functional results for children with disabilities.

Elsewhere in this issue of the Federal Register, we are proposing priorities, requirements, and selection criteria for the IDEA Paperwork Reduction Planning and Implementation program, through which the Department intends to make grant funds available to plan for and implement reductions of excessive paperwork and noninstructional time burdens under IDEA section 609.

IDEA is silent with respect to the selection criteria the Department may use to evaluate State proposals. On October 12, 2007, through a notice published in the Federal Register, the Department solicited State proposals under what was then called the IDEA Paperwork Waiver Demonstration Program (72 FR 58066). At that time, the Department relied on a notice of final additional requirements and selection criteria published in the Federal Register on July 6, 2007 (72 FR 36970), which, in part, governed how States could apply for a waiver under IDEA section 609. However, that notice specified that the additional requirements and selection criteria were only eligible to be used once, which the Department did in 2007.

We are, therefore, again issuing a notice of proposed requirements and definition for waiver proposals. The Department is proposing to use many of the same requirements for the waivers as it did in 2007 because we believe they still represent a sensible and practical approach to implementating the statutory requirements in section 609 of IDEA. Specifically, paragraphs (a)(1) through (7) of these proposed requirements come from the 2007 notice. We invite public comment on the extent to which those requirements remain appropriate and whether the Department should include fewer, additional, or different requirements.

Further, section 609(a)(3) of IDEA establishes requirements for a State's waiver proposal. Paragraphs (a)(8) and (9) of the proposed requirements reflect those requirements. Consistent with IDEA sections 602(22), 602(31), and 610, “State” means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, each of the outlying areas (United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands), and the freely associated States (the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau).

Finally, the Department is primarily interested in granting waiver proposals designed to produce the greatest benefits as measured by the number of burden hours reduced, the number of instructional hours gained, and the number of personnel and students with disabilities positively affected by the waivers. As a result, paragraphs (a)(10), (a)(11), (b), (c), (d), and (e) of the proposed requirements require States, in their waiver proposals, to include a discussion of (1) the interaction between the Federal IDEA Part B requirements they propose to waive and any related State requirements, (2) activities the State proposes to undertake to implement the proposed waiver, and (3) how the State will evaluate the effectiveness of the proposed waiver.

The Department intends to accept waiver proposals from States for 12 months following publication of an appropriate notice. The Department will review each proposal to determine whether the waivers are legally permissible and likely to generate the meaningful benefits contemplated in IDEA for personnel and the students with disabilities they serve.

Proposed Requirements: We propose the following requirements for a proposal to waive certain requirements of, or relating to, IDEA Part B under section 609. We may apply one or more of these requirements in any year in which this program is in effect.

(a) An applicant must include in its proposal the following:

(1) A description of how the State ^[2] met the public participation requirements of section 612(a)(19) of IDEA, including how the State—

(i) Involved multiple stakeholders, including parents, children with disabilities, special education and regular education teachers, related services providers, and school and district administrators, in selecting the requirements proposed for the waiver and any specific proposals for changing those requirements to reduce excessive paperwork; and

(ii) Provided an opportunity for public comment, including from individuals with disabilities and parents of children with disabilities, in selecting the requirements proposed for the waiver.

(iii) Held public hearings, and provided adequate notice of the hearings, to solicit input on the selection of requirements proposed for the waiver.

(2) A summary of public comments received in accordance with paragraph (a)(1) of these requirements and how the public comments were addressed in the proposal.

(3) 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 FAPE to any child with a disability, infringe on any applicable civil rights requirements, or result in a waiver of any procedural safeguards under section 615 of IDEA. This description also must include an assurance that the State will collect and report to the Department, as part of the State's annual performance report to the Secretary in accordance with section 616(b)(2)(C)(ii)(II) of IDEA, all State complaints and due process hearings resulting from the waivers and related to the denial of FAPE to any child with a disability or a waiver of any procedural safeguards under section 615 of IDEA and how the State responded to this information, including the outcome of that response such as providing technical assistance to the local educational agency (LEA) to improve implementation, or suspending or terminating the authority of an LEA to waive paperwork requirements due to unresolved compliance problems.

(4) A description of the procedures the State will employ to ensure that diverse stakeholders (including parents, teachers, administrators, related services providers, and other stakeholders, as appropriate) understand the proposed elements of the State's submission for the IDEA Paperwork Reduction Waivers.

(5) Assurances that every parent of a child with a disability in participating LEAs will be given, in easily understandable language, written notice (in the native language of the parent, unless it is clearly not feasible to do so) of all statutory, regulatory, or State requirements that will be waived and the procedures that the State will employ under paragraph (a)(3) of these requirements.

(6) Assurances that the State will require any participating LEA to obtain voluntary informed written consent from parents for a waiver of any paperwork requirements related to the provision of FAPE.

(7) Assurances that the State will require any participating LEA to inform parents in writing (in the native language of the parents, unless it is clearly not feasible to do so) of—

(i) Any differences between the paperwork requirements under the waiver program approved for the State and the existing paperwork requirements of IDEA related to the provision of FAPE;

(ii) The parent's right to revoke consent to waive any paperwork requirements related to the provision of FAPE at any time; and

(iii) The LEA's responsibility to meet all paperwork requirements related to the provision of FAPE if the parent does not provide voluntary written informed consent or revokes consent.

(8) A list of any statutory requirements of, or regulatory requirements relating to, IDEA Part B that the State desires the Secretary to waive, in whole or in part. For each requirement, the State should discuss how waiving the requirement will—

(i) Reduce excessive paperwork and noninstructional time burdens on special education teachers, related services providers, and State and local administrators;

(ii) Not affect the right of a child with a disability to receive FAPE under IDEA Part B, infringe on any applicable civil rights requirements, or result in the waiver of any procedural safeguards under section 615 of IDEA.

(9) A list of any State requirements that the State proposes to waive or change, in whole or in part, to carry out a waiver granted to the State by the Secretary.

(10) A description of the interplay between the requirements described in paragraph (a)(8) and any State requirements including, but not limited to, those described in paragraph (a)(9).

(11) A description of the anticipated benefits of the proposed waiver, including, but not limited to—

(i) The total reduction in burden hours on State and local personnel and the total number of instructional hours gained, disaggregated by applicable statutory or regulatory provision;

(ii) The total number of administrators and direct service providers affected, including the number of individuals in each group, disaggregated by applicable statutory or regulatory provision; and

(iii) The total number of likely beneficiaries, and the magnitude and scope of anticipated benefits and other activities intended to improve educational and functional results for children with disabilities.

(12) A State that received a planning grant under the IDEA Paperwork Reduction Planning and Implementation Program (84.326F) must include in its waiver proposal the plan the State developed under that program.

(b) An applicant must include in its proposal its proposed plan to disseminate information and materials regarding any revisions to requirements, policies, procedures, or practices made in conjunction with the waiver to relevant stakeholders, including, but not limited to, LEAs; private schools (including parochial schools) that provide services to children with disabilities; charter management organizations; the State Advisory Panel, as defined in section 612(a)(21) of IDEA; and parent organizations, as that term is defined in sections 671(a)(2) and 672(a)(2) of IDEA.

(c) An applicant must assure that it will make publicly available all information regarding changes to requirements, policies, procedures, or practices made in conjunction with the waiver.

(d) An applicant must include in its proposal its proposed plan to provide training on revisions to requirements, policies, procedures, or practices made under the waiver to staff in LEAs, private schools (including parochial schools) that provide services to children with disabilities, and other appropriate service providers and administrators.

(e) An applicant must include in its proposal its proposed plan to collect and analyze data on specific and measurable goals, objectives, and outcomes of the project related to the implementation of any waiver granted, including data on the effectiveness of the waiver in—

(1) Reducing—

(i) The paperwork burden on teachers, principals, administrators, and related services providers; and

(ii) Noninstructional time spent by teachers in complying with IDEA Part B;

(2) Enhancing longer-term educational planning;

(3) Improving positive outcomes, including educational and functional results, for children with disabilities;

(4) Promoting collaboration between IEP Team members; and

(5) Ensuring satisfaction of family members.

(f) An applicant must submit its proposal with a letter signed by an appropriate State official, or his or her designee, stating that—

(1) The appropriate State official is authorized to make the proposal for a waiver under State law; and

(2) The proposal meets all of the applicable requirements for a waiver.

Proposed Definition

We propose the following definition for the proposed requirements. We may apply this definition in any year in which the requirements are in effect.

“Applicable civil rights requirements,” includes, but is not limited to, the civil rights protections in the United States Constitution and the requirements in the following legislation and their respective implementing regulations:

(1) Section 504 of the Rehabilitation Act of 1973, as amended.

(2) Title VI of the Civil Rights Act of 1964.

(3) Title IX of the Education Amendments of 1972.

(4) Title II of the Americans with Disabilities Act of 1990.

(5) Age Discrimination Act of 1975.

Final Requirements and Definition

We will announce the final requirements and definition in a document in the Federal Register. We will determine the final requirements and definition after considering public comments on the proposed requirements and definition and other information available to the Department. This document does not preclude us from proposing priorities, additional requirements, additional definitions, or selection criteria subject to meeting applicable rulemaking requirements.

Note:

This document does not solicit applications. In any year in which we choose to use the resulting final requirements and definition, we intend to invite applications through a separate notice in the Federal Register.

Executive Orders 12866, 13563, and 13771 Regulatory Impact Analysis

Under Executive Order 12866, the Office of Management and Budget (OMB) determines whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—

(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);

(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;

(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.

OMB has determined that this proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.

Under Executive Order 13771, for each new rule that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2020, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because the proposed regulatory action is not significant, the requirements of Executive Order 13771 do not apply.

We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—

(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);

(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;

(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);

(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and

(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.

Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”

We are issuing the proposed requirements and definition based on a reasoned determination that the benefits would justify the costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.

We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.

In accordance with both Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities. These potential costs are those that would be incurred by a State making an application for a waiver to the Secretary following the requirements proposed by this regulatory action.

In addition, we have considered the potential benefits of this regulatory action and have noted these benefits in the background section of this document. The potential benefits include a reduction in the administrative burden hours under IDEA on State and local personnel and a corresponding gain in instructional time and services for children with disabilities.

Paperwork Reduction Act of 1995

The proposed requirements contain information collection requirements that are approved by OMB under OMB control number 1820-0028; the proposed requirements do not affect the currently approved data collection.

Clarity of the Regulations

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

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

• Are the requirements in the proposed regulations clearly stated?
• Do the proposed regulations contain technical terms or other wording that interferes with their clarity?
• Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
• Would the proposed regulations be easier to understand if we divided them into more (but shorter) sections?
• Could the description of the proposed regulations in the SUPPLEMENTARY INFORMATION section of this preamble be more helpful in making the proposed regulations easier to understand? If so, how?
• What else could we do to make the proposed regulations easier to understand?

To send any comments that concern how the Department could make these proposed regulations easier to understand, see the instructions in the ADDRESSES section.

Regulatory Flexibility Act (RFA) Certification: The Secretary certifies that this proposed regulatory action would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration (SBA) Size Standards define “small entities” as for-profit or nonprofit institutions with total annual revenue below $7,000,000 or, if they are institutions controlled by small governmental jurisdictions (that are comprised of cities, counties, towns, townships, villages, school districts, or special districts), with a population of less than 50,000.

The proposed requirements and definition would not affect any small entities, as only States, as defined in the IDEA, are eligible to apply. No States qualify as small entities for purposes of the RFA.

Intergovernmental Review: This program is subject to Executive Order 12372 and the regulations in 34 CFR part 79. One of the objectives of the Executive order is to foster an intergovernmental partnership and a strengthened federalism. The Executive order relies on processes developed by State and local governments for coordination and review of proposed Federal financial assistance.

This document provides early notification of our specific plans and actions for this program.

Accessible Format: Individuals with disabilities can obtain this document in an accessible format (e.g., braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations at www.govinfo.gov. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

You may also access documents of the Department published in the Federal Register by using the article search feature at www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

Mark Schultz,

Commissioner, Rehabilitation Services Administration. Delegated the authority to perform the functions and duties of the Assistant Secretary for the Office of Special Education and Rehabilitative Services.

Footnotes

1.  For any State that receives a waiver of Federal IDEA Part B requirements, the Secretary will terminate the waiver if the Secretary determines that the State failed to appropriately implement its waiver, or the Secretary determines the State needs assistance in implementing IDEA requirements and the waiver has contributed to or caused such need for assistance. The Secretary will also terminate the waiver if the Secretary determines the State needs intervention in implementing IDEA requirements, or needs substantial intervention in implementing IDEA requirements.

2.  Consistent with IDEA sections 602(22), 602(31), and 610, “State” means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, each of the outlying areas (United States Virgin Islands, Guam, American Samoa, and the Commonwealth of the Northern Mariana Islands), and the freely associated States (the Republic of the Marshall Islands, the Federated States of Micronesia, and the Republic of Palau).