Head Start Program

AGENCY:

Office of Head Start (OHS), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).

ACTIONS:

Final rule; delay compliance date and request for information.

SUMMARY:

The Office of Head Start will further delay the compliance date for programs to meet the new comprehensive background checks requirements and to participate in their state or local Quality Rating and Improvement Systems (QRIS). We are delaying the compliance date for these standards, based on concerns states still will not have systems developed that can accommodate Head Start programs by the current compliance date. Head Start programs are still encouraged to conduct comprehensive background checks where state systems support Head Start requests and are required to meet the background check requirements in section 648A of the Head Start Act that requires them to obtain a State, tribal, or Federal criminal record check for all staff members prior to employment. The Office of Head Start also requests comments on the issues set out in this final rule.

DATES:

The date for programs to comply with background checks procedures as described in 45 CFR 1302.90(b) and to participate in QRIS as described in 45 CFR 1302.53(b)(2), delayed September 28, 2017 (82 FR 45205) and September 26, 2018 (83 FR 48558), is further delayed until September 30, 2021. Comments are due December 26, 2019.

ADDRESSES:

You may send comments, identified by HHS-ACF-2019-0006 and/or RIN 0970-AC78, by either of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov . Follow instructions for sending comments. We prefer to receive comments via this method.
• Mail: Office of Head Start, Attention: Colleen Rathgeb, Director, Division of Planning, Oversight and Policy, 330 C Street SW, Washington, DC 20024.

Instructions: All submissions received must include our agency name and the docket number or Regulatory Information Number (RIN) for this notice. All comments will be posted without change to https://www.regulations.gov,, including any personal information provided. We accept anonymous comments. If you wish to remain anonymous, enter “N/A” in the required fields.

FOR FURTHER INFORMATION CONTACT:

Colleen Rathgeb, Office of Head Start, Planning, Oversight, and Policy Division Director, (202) 358-3263, OHS_NPRM@acf.hhs.gov. Deaf and hearing impaired individuals may call the Federal Dual Party Relay Service at 1-800-877-8339 between 8 a.m. and 7 p.m. Eastern Standard Time.

SUPPLEMENTARY INFORMATION:

Background

Head Start programs must comply with background check requirements and participate in their States' QRIS by September 30, 2019. We have already delayed the compliance date for background check requirements, through documents published in the Federal Register on September 28, 2017 (82 FR 45205) and on September 26, 2018 (83 FR 48558). We issued the first notice to align our compliance date for background checks with the background check requirements deadline in the Child Care Development Block Grant (CCDBG) Act of 2014, Public Law 113-186. We issued the second notice to accommodate and reduce burden on States that received waivers to comply with CCDBG requirements.

We took that approach because States that receive CCDBG funds are required to establish systems that implement the same set of comprehensive background checks for all child care teachers and staff. These systems will enable Head Start programs to meet the more comprehensive background checks requirements in the final rule at 45 CFR XIII subpart B. We also extended the compliance date for programs to participate in QRIS in those notices to allow States more time to develop systems that could allow Head Start programs to participate. We are still concerned programs will not be able to implement fully either of these requirements by September 30, 2019, without unintended regulatory and administrative burdens. While States and Head Start programs are making significant progress in implementing the new requirements, very few States are fully compliant with the CCDBG Act requirements. In order for Head Start programs to comply with the comprehensive background check requirement in the Head Start regulations at 45 CFR 1302.90(b), it is necessary for the State background check systems to be operational.

Background Check Procedures in the Regulation

Our standards at 45 CFR 1302.90(b) require that, before a person is hired at a Head Start facility, programs must conduct comprehensive background checks on such prospective employees that consist of (1) a sex offender registry check, (2) State or tribal criminal history records check (including fingerprint check), and Federal Bureau of Investigation criminal history records check (including fingerprint check), and (3) a child abuse and neglect State registry check, if available. We also require programs to conduct comprehensive background checks for each employee at least once every five years.

The Improving Head Start for School Readiness Act of 2007 (Act) sets forth standard background checks requirements for Head Start programs. We added more comprehensive background check requirements in the Head Start Program Performance Standards final rule by adding fingerprint checks and other components, which align with background check requirements in the CCDBG. To date, only two States have developed systems that fully meet CCDBG background check requirements. We understand that States may request time-limited waivers, in one year increments (i.e., potentially through September 30, 2020), to design systems that can accommodate these background check requests. Nearly two-thirds of States have met critical milestones in complying with CCDBG Act background check requirements, but these States need this additional time to fully comply.

Therefore, we will extend the compliance date for 45 CFR 1302.90(b) to September 30, 2021. If we do not delay the compliance date for comprehensive background checks, Head Start programs, States, tribes, territories, and State and local law enforcement agencies would experience unintended burden. Many States are experiencing serious backlog in completing child care background check requests already in the queue and Head Start background check requests would add to this backlog. If expanded Head Start background checks went into effect before State systems were fully operational, many programs would not be able to complete all of the necessary components to comply with the regulation. This would likely result in programs leaving vacancies unfilled, not be able to provide adequate staffing for classrooms and other critical functions, and children going unserved.

Until all Head Start programs have systems in place that fully comply with 45 CFR 1302.90(b), we require them to continue to adhere to the criminal record check requirements in section 648A of the Head Start Act, as amended by the Improving Head Start for School Readiness Act of 2007, Public Law 110-134, which states Head Start agencies must “obtain—(A) a State, tribal, or Federal criminal record check covering all jurisdictions where the grantee provides Head Start services to children; (B) a State, tribal, or Federal criminal record check as required by the law of the jurisdiction where the grantee provides Head Start services; or (C) a criminal record check as otherwise required by Federal law.”

QRIS Requirement in the Regulation

We require programs that meet certain conditions, except for American Indian and Alaska Native programs, to participate in State or local QRIS, as prescribed at 45 CFR 1302.53(b)(2). A QRIS is a systematic approach to assess, improve, and communicate the level of quality in early and school-age care and education programs within a state or locality. The criteria Head Start programs must meet to enter the QRIS and maintain participation vary greatly by State. We recognize some Head Start programs were already participating in their State and local quality improvement efforts before we introduced this standard in the regulation. Now that we have included this standard in the regulation, we understand programs have taken steps to participate in QRIS and that many States are assessing their QRIS with new Head Start QRIS participation policies. However, programs and States need additional time to align these systems. We want to minimize any unintended burden on States that choose to adapt their systems to allow Head Start programs to participate in QRIS, as well as alleviate programs' concerns about meeting the current compliance date. To avoid duplication efforts between Head Start and QRIS monitoring systems, as well as to eliminate undue burden on Head Start programs and States as they work to align these systems, we will delay the compliance date for this standard until September 30, 2021.

Request for Information

We are seeking comment from the public to gain more information about the problems Head Start programs are encountering as they attempt to come into compliance with the comprehensive background checks. Specifically, we invite the public to share with us:

1. How feasible is it for programs and other stakeholders to conduct comprehensive background checks by September 30, 2021?

2. What obstacles are programs facing today as they attempt to comply with these performance standards?

3. What steps, if any, can ACF take to help programs and other stakeholders comply with these performance standards by September 30 2021?

Conclusion

We ordinarily publish a notice of proposed rulemaking in the Federal Register to provide a period for public comment before the provisions of a rule take effect in accordance with section 553(b) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). However, we can waive this notice and comment procedure if the Secretary finds, for good cause, that the notice and comment process is impracticable, unnecessary, or contrary to the public interest, and incorporates a statement of the finding and the reasons therefore in the notice.

The Secretary finds good cause to waive public comment under section 553(b) of the APA because it is unnecessary and contrary to the public interest to provide for public comment in this instance.

State, localities, and Head Start grantees will likely be subjected to undue and unnecessary administrative burdens as they expend time trying to find ways to implement these standards without support from local and State law enforcement agencies and without QRIS systems that can accommodate Head Start programs. A period for public comment would only extend programs' concerns as they attempt to meet these standards by the compliance dates. Head Start programs are still required to comply with statutory background check requirements in the Improving Head Start for School Readiness Act of 2007, Public Law 110-134, until they can develop systems that will enable them to conduct complete background checks with fingerprints. Therefore, if we delay compliance dates, we will pose no harm or burden to programs or the public. Moreover, programs that already have systems in place to meet background check standards at 45 CFR 1302.90(b) and to participate in their States' QRIS at 45 CFR 1302.53(b)(2) may voluntarily come into compliance by the current compliance date. However, programs that do not have systems in place will have until September 30, 2021, the new compliance date, to comply.