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New MEP Regulations §§ 200.81, 200.83 & 200.89

New MEP Regulations §§ 200.81, 200.83 & 200.89. 34 CFR Part 200 as published in the Federal Register Tuesday, July 29, 2008 pp. 44102-44125. What are these regulations?. ED’s formal, published interpretation of the ESEA, Title I Part C statutory provisions regarding: child eligibility,

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New MEP Regulations §§ 200.81, 200.83 & 200.89

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  1. New MEP Regulations§§200.81, 200.83 & 200.89 34 CFR Part 200 as published in the Federal Register Tuesday, July 29, 2008 pp. 44102-44125 MEP Regulations Teleconferences

  2. What are these regulations? • ED’s formal, published interpretation of the ESEA, Title I Part C statutory provisions regarding: • child eligibility, • the service delivery plan, • ID&R quality control, and • the adjustment of FY 2006 and subsequent years allocations. MEP Regulations Teleconferences

  3. What is the Difference between Regulations and Guidance? • Regulations are ED’s formal, published interpretation of the statute. • Regulations are developed through a process of “notice and comment rule-making” and therefore -- • Regulations have the force of law: SEAs & LOAs are required to comply with the regulations. MEP Regulations Teleconferences

  4. What is the Difference between Regulations and Guidance? (cont.) • Guidance represents ED’s official written interpretation of both statute and regulations. • Guidance does not have force of law. • Guidance is binding on the ED program office (though not always on OIG) and is generally a safe harbor for SEAs & LOAs. • SEAs & LOAs can deviate from guidance if they have other interpretations or procedures that they can show comport with statute or regulations. MEP Regulations Teleconferences

  5. In this Federal Register Notice • There are both regulations & guidance. • The regulations consist only of the text provided on p. 44123 (from bottom of column 2) through p. 44125 (to end of column 3): §§200.81, 200.83 & 200.89 • The guidance is provided in the text included in the Notice’s preamble – particularly in the “Analysis of Comments and Changes” section provided on p. 44103 (from the bottom of column 1) through p. 44121 (to the top of column 2). MEP Regulations Teleconferences

  6. Theguidance (as well as the regulatory sections) in this Federal Register Notice -- Needs to be reviewed carefully by SEAs and LOAs in that it represents ED’s official interpretation of what the actual regulatory language means. MEP Regulations Teleconferences

  7. Why did ED regulate now? • The new regulations were needed to address serious eligibility errors identified over the last few years and to provide procedures to avoid such errors in the future. • Essential for improving program integrity and program operations and demonstrating these improvements to Congress and the public. MEP Regulations Teleconferences

  8. When do the new regulations take effect? • In general, especially re the definitions: on August 28, 2008 – 30 days from the notice’s publication. • However, those new regulatory provisions with information collection implications (e.g., retrospective and prospective re-interviewing, the national COE) will only become effective after OMB approval of the associated information collection package: which should occur -- after further public comment -- in approximately 60 days after the notice’s publication. MEP Regulations Teleconferences

  9. What do I do if I have questions about the new regulations? • Send questions/comments/example scenarios to mep.regs@ed.gov. • We will attempt to address them at or after the ID&R Forum in program guidance or a policy letter. MEP Regulations Teleconferences

  10. How/when can I comment on the information collection? • To comment on the information collection: • http://edicsweb.ed.gov/, Click on Browse Pending Collections, Click on (03701) 1810-0662-v.6 -- MEP Final Regulations and Certificate of Eligibility • Comments on information collection requirements should be directed to: Desk Officer for Education Office of Information and Regulatory Affairs Office of Management and Budget OIRA_DOCKET@omb.eop.gov, or (FAX) 202-395-6974 • Copy to mep.regs@ed.gov • Submit your comments within 30 days after the notice’s publication – by 8/28/08. MEP Regulations Teleconferences

  11. How is the regulatory notice organized? • Preamble - summarizes each comment we received, provides discussion as to our thinking and consideration for each comment, summarizes any changes that were made based on comments. • Regulatory text – presents the new regulatory sections (§§200.81, 200.83 & 200.89) as they will appear in the next update of the Code of Federal Regulations (CFR). MEP Regulations Teleconferences

  12. Regulation Discussion Topics • Child Eligibility – significant definitional changes. §200.81 • CNA & SDP – inclusion of Measurable Program Outcomes. §200.83 • Adjustment of FY 06 and future year allocations. §200.89(a)(1) • Re-documentation of children in 06-07 child count. §200.89(a)(2) • Retrospective Re-interviewing/Prospective Re-interview. §200.89(b)(1)-(2) • Minimum requirements for documenting eligibility. §200.89(c) • Minimum requirements for quality control. §200.89(d) MEP Regulations Teleconferences

  13. New Definitions § 200.81 Summary of Regulatory Language MEP Regulations Teleconferences

  14. A Migratory Child is:§200.81(e), Preamble pp. 44106 – 44107 • “a child -- (1) who is a migratory agricultural worker or a migratory fisher; or (2) who, in the preceding 36 months, in order to accompany or join a parent, spouse, or guardian who is a migratory agricultural worker or a migratory fisher – (i)has moved from one school district to another * ….” [emphasis added.] *exceptions apply for moves within States comprised of a single school district and school districts of more than 15,000 square miles. MEP Regulations Teleconferences

  15. A Migratory Agricultural Worker is:§200.81(d), Preamble p. 44106 • “a person who in the preceding 36 months, has moved, as defined in paragraph (g), from one school district to another, … * in order to obtaintemporary employment or seasonal employment in agricultural work, including dairy work.” [emphasis added] *exceptions apply for States comprised of a single school district MEP Regulations Teleconferences

  16. A Migratory Fisher is:§ 200.81(f), Preamble p. 44107 • “a person who, in the preceding 36 months, has moved, as defined in paragraph (g), from one school district to another, … * in order to obtaintemporary employment or seasonal employment in fishing work….” [emphasis added] *exceptions apply for moves within States comprised of a single school district and school districts of more than 15,000 square miles. MEP Regulations Teleconferences

  17. Move or Moved§200.81(g), Preamble pp. 44107 – 44108 • “Move or moved means a change from one residence to another residence that occurs due to economic necessity.” [Used in the definitions of In Order to Obtain, Migratory Child, Migratory Agricultural Worker, and Migratory Fisher.] MEP Regulations Teleconferences

  18. In Order to Obtain (cont.)§200.81(c), Preamble pp. 44105 – 44106 • “(c) When used to describe why a worker moved, means that one of the purposes of the move is to seek or obtain qualifying work….” [emphasis added] [Used in the definitions of Migratory Child, Migratory Agricultural Worker and Migratory Fisher.] MEP Regulations Teleconferences

  19. In Order to Obtain (cont.)§200.81(c), Preamble pp. 44105 – 44106 • “(1) If a worker states that a purpose of the move was to seek any type of employment, i.e., the worker moved with no specific intent to find work in a particular job, the worker is deemed to have moved with a purpose of obtaining qualifying work if the worker obtains qualifying work soon after the move….” MEP Regulations Teleconferences

  20. In Order to Obtain (cont.)200.81(c), Preamble pp. 44105 – 44106 • “(2) Notwithstanding the introductory text of this paragraph (c), a worker who did not obtain qualifying work soon after a move may be considered to have moved in order to obtain qualifying work only if the worker states that at least one purpose of the move was specifically to seek the qualifying work, and-- (i) The worker is found to have a prior history of moves to obtain qualifying work; or (ii) There is other credible evidence that the worker actively sought qualifying work soon after the move but, for reasons beyond the worker's control, the work was not available.” MEP Regulations Teleconferences

  21. Seasonal Employment§200.81(j), Preamble, p. 44109 • “employment that occurs only during a certain period of the year because of the cycles of nature and that, by its nature, may not be continuous or carried on throughout the year.” [Used in the definitions of Migratory Agricultural Worker, Migratory Fisher, and Qualifying Work. ] MEP Regulations Teleconferences

  22. Temporary Employment§ 200.81(k), Preamble, pp. 44109 – 44112 • “Employment that lasts for a limited period of time, usually a few months, but no longer than 12 months. It typically includes employment where the employer states that the worker was hired for a limited time frame; the worker states that the worker does not intend to remain in that employment indefinitely; or the SEA has determined on some other reasonable basis that the employment is temporary…” [Used in the definitions of Migratory Agricultural Worker, Migratory Fisher, and Qualifying Work.] MEP Regulations Teleconferences

  23. Temporary Employment (cont.) • “The definition includes employment that is constant and available year-round only if, within 18 months after the effective date of this regulation and at least once every three years thereafter, the SEA documents that, given the nature of the work, of those workers whose children were previously determined to be eligible based on the State's prior determination of the temporary nature of such employment (or the children themselves if they are the workers), virtually no workers remained employed by the same employer more than 12 months.” MEP Regulations Teleconferences

  24. Agricultural Work§ 200.81(a), Preamble, pp. 44104 – 44105 • “the production or initial processing of crops, dairy products, poultry, or livestock, as well as the cultivation or harvesting of trees. It consists of work performed for wages or personal subsistence.” [emphasis added] [Used in the definition of Migratory Agricultural Worker.] MEP Regulations Teleconferences

  25. Fishing Work§200.81(b), Preamble, pp. 44104 – 44105 • “the catching or initial processing of fish or shellfish or the raising or harvesting of fish or shellfish at fish farms. It consists of work performed for wages or personal subsistence.”[emphasis added] [Used in the definition of Migratory Fisher.] MEP Regulations Teleconferences

  26. Personal Subsistence§200.81(h), Preamble, p. 44108 • “the worker and the worker’s family, as a matter of economic necessity, consume, as a substantial portion of their food intake, the crops, dairy products, or livestock they produce, or the fish they catch.” [Used in the definitions of Agricultural Work and Fishing Work.] MEP Regulations Teleconferences

  27. Qualifying Work§200.81(i), Preamble, pp. 44108 – 44109 • “temporary employment or seasonal employment in agricultural work or fishing work.” [emphasis added] [Used in the definition of In Order To Obtain.] MEP Regulations Teleconferences

  28. Summary:§ 200.81(e), Preamble pp. 44106 - 44107 • “Migratory child means a child -- (1) who is a migratory agricultural worker or a migratory fisher; or (2) who, in the preceding 36 months, in order to accompany or join a parent, spouse, or guardian who is a migratory agricultural worker or a migratory fisher – (i)has moved from one school district to another * ….” [emphasis added.] *exceptions apply for moves within States comprised of a single school district and school districts of more than 15,000 square miles. MEP Regulations Teleconferences

  29. Further Explanation of New Regulatory Definitions Summary of Issues Discussed in Preamble MEP Regulations Teleconferences

  30. Migratory Child§ 200.81(e), Preamble pp. 44106 - 44107 • Tries to restructure the statutory definition to be clearer and linked to the additional regulatory definitions of the underlying terms in the basic migratory child definition. • Clarifies that an emancipated youth – a worker in his or her own right --moving on his or her own may qualify. • Does not define in regulation a time limit on “to join” moves. • Does not define specific fact situations such as when a child moves ahead of a parent. MEP Regulations Teleconferences

  31. Migratory Agricultural Worker§ 200.81(d), Preamble p. 44106 • Based on comments, included a reference to “dairy work.” • Deleted the phrase “principal means of livelihood” from the definition. MEP Regulations Teleconferences

  32. Migratory Fisher§ 200.81(f), Preamble p. 44107 • Does not address specific fact patterns raised by commenters during public comment – better handled in guidance. • Deleted the phrase “principal means of livelihood” from the definition. MEP Regulations Teleconferences

  33. Move or Moved§ 200.81(g), Preamble pp. 44107 – 44108 • Eliminates the apparent contradiction from NPRM in definitions of “move or moved” and “in order to obtain." • Clarifies that a move not made due to economic necessity is not a “move” for purposes of MEP eligibility. • Addresses concern about the meaning of the terms “vacation” and “holiday” and the phrase “during or after” a vacation or holiday as used in the NPRM version of the definition. MEP Regulations Teleconferences

  34. Move or Moved (cont.) § 200.81(g), Preamble pp. 44107 – 44108 • Eliminates need to address in regulation moves that are unrelated to the family’s economic need. • “Residence” and “economic necessity” will be clarified in program guidance. MEP Regulations Teleconferences

  35. In Order To Obtain200.81(c), Preamble pp. 44105 – 44106 • One of the purposes of the move was… • Scenario 1: …to obtain qualifying work and the worker obtained qualifying work; • Scenario 2: …to obtain any employment, and the worker obtained qualifying work soon after the move; • Scenario 3: …affirmed to be specifically to seek qualifying work, but the worker did not obtain the work. • Prior history of moves to obtain qualifying work, or • Other credible evidence MEP Regulations Teleconferences

  36. In Order To Obtain200.81(c), Preamble pp. 44105 – 44106 • Specific intent to obtain non-qualifying employment would not qualify. • Scenario 2 - Recruiters should be attentive to situations whereby the worker expresses specific intent to obtain only non-qualifying work. MEP Regulations Teleconferences

  37. Seasonal Employment200.81(j), Preamble, p. 44109 • Standardized the definition which had only previously been in non-binding guidance. • Revised definition based on comments in order to not be too limited. • The Secretary considered many of the examples provided by commenters to be “temporary” rather than “seasonal” employment. MEP Regulations Teleconferences

  38. Temporary Employment200.81(k), Preamble, pp. 44109 – 44112 • Standardized the definition which had only previously been in non-binding guidance. • Employment that lasts for more than 12 months should not be considered temporary regardless of high turnover rates within a period longer than 12 months. • Temporary employment can be determined by the worker, the employer, or the SEA. • SEA determination is generally for those jobs that are constant and year-round. MEP Regulations Teleconferences

  39. Temporary Employment (cont.) 200.81(k), Preamble, pp. 44109 – 44112 • For jobs that are constant and year-round • SEAs must come up with a “reasonable” basis for initially determining which job categories can be considered temporary. • Working from these categories, SEAs have 18 months to document that virtually no workers in these specific categories remain at the plant after one year. • Final regulations give greater flexibility as to how the SEA must document that virtually no workers remain employed after one year (questioning workers at the time of the annual update remains one option). MEP Regulations Teleconferences

  40. Temporary Employment (cont.)200.81(k), Preamble, pp. 44109 – 44112 • For jobs that are constant and year-round (cont.) • Phrases “virtually all” and “a few months” allow SEAs to use discretion for those situations whereby a few workers remain employed. • Final regulations change the requirement from annually determining temporary to once every 3 years (after the initial 18 mths). MEP Regulations Teleconferences

  41. Temporary Employment (cont.) 200.81(k), Preamble, pp. 44109 – 44112 • For jobs that are constant and year-round (cont.) • Secretary has recognized that the industrial surveys/turnover rates suggested in prior guidance are flawed. • Department will provide guidance on how SEAs can document that work that appears to be constant and year round can be deemed temporary. • Validations should be conducted at each plant because of the variations from plant to plant. MEP Regulations Teleconferences

  42. Agricultural Work200.81(a), Preamble, pp. 44104 – 44105 • Definition conforms to terms used in statutory definition of migratory child. • Must be performed for wages or personal subsistence. • Based on comments, deleted the language “generally” and “in rare cases.” • Eliminated – as confusing -- the phrases “directly related to” and “for initial commercial sale.” MEP Regulations Teleconferences

  43. Agricultural Work (cont.)200.81(a), Preamble, pp. 44104 – 44105 • Chose not to define “initial processing” in regulations – this will allow SEAs flexibility to consider different situations in different industries. • Secretary believes – as a point of guidance –that the phrase “initial processing” only involves working with raw products. • Secretary believes that working with a refined product is beyond “initial processing.” MEP Regulations Teleconferences

  44. Fishing Work200.81(b), Preamble, pp. 44104 – 44105 • Same changes as to Agricultural Work with limited exceptions. • Hunting or harvesting of whales, walruses, or seals is not included in definition of fishing work. • Moved fish farms from agricultural work to fishing work. MEP Regulations Teleconferences

  45. Personal Subsistence200.81(h), Preamble, p. 44108 • New regulatory definition; revised from NPRM version based on public comment. MEP Regulations Teleconferences

  46. Principal Means of Livelihood. • Eliminated from new regulations. • Covered by new definition of move or moved – which must be for economic necessity. MEP Regulations Teleconferences

  47. Qualifying Work§200.81(i), Preamble, pp. 44108 – 44109 • Was not included in NPRM. • Means “temporary employment or seasonal employment in agricultural work or fishing work.” • Created as a matter of technical convenience in drafting the other regulatory definitions. MEP Regulations Teleconferences

  48. Further Explanation of OtherNew Regulatory Sections • The service delivery plan -- 200.83 • FY 2006 and subsequent years allocation adjustments –-- 200.89(a) • Retrospective and Prospective Re-interviewing – 200.89(b) • Standard National COE – 200.89(c) • Other quality control procedures – 200.89(d) MEP Regulations Teleconferences

  49. Responsibilities Implementing Projects through a CNA and SDP§ 200.83, Preamble, pp. 44112 - 44113 • Requires States to include measurable program outcomes in their MEP comprehensive plans. • Corrects a prior drafting error by conforming the regulatory language with the language in section 1306(a)(1)(D) of the statute. • Eliminates any ambiguity from the drafting error about whether the outcomes are required in the plan. MEP Regulations Teleconferences

  50. MEP Allocations for FY 2006 and future years 200.89(a)(1), Preamble, pp. 44113 - 44114 • Provides authority to adjust base-year allocations, for making FY 2006 and subsequent year awards, by applying each State’s defect rate to its 2000-01 base year child counts. • Intended to result in a better distribution of MEP funds (more in line with the intent of the statute). MEP Regulations Teleconferences

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