Introduction to the Regulatory Process
Head Start managers and fiscal officers must be fully knowledgeable
of all applicable Federal requirements and skilled in applying these requirements
in the daily operation of their program, whether starting a new program or striving
to maintain a quality program.
Grantees will have access to a compilation
of the program requirements necessary for operating a Head Start program. All
information is organized, indexed and cross-linked. Tools are provided to quickly access information on the financial management and administrative
requirements within which programs must operate. Furthermore, there are
materials to help interpret fiscal requirements in areas where agencies experience
the most difficulty.
The information is retrieved from several different source documents, including the Head Start Act,
Head Start Regulations, and Head Start Policies, as well as various documents
issued by the Office of Management and Budget (OMB). OMB has issued guidance
to grant-making agencies in the Federal government to assure that grants are
managed in accordance with all applicable Federal laws and regulations. The
Fiscal community provides users with well-formatted printouts of entire
documents or selected sections of documents.
Some of the requirements are
general; that is, they apply to all programs funded by the U.S. Department of
Health and Human Services (HHS). Other requirements apply specifically to Head
Start. It is important for Head Start managers and fiscal officers to understand
these distinctions.
This Introduction to the Regulatory Process is provided
to help users better understand the process of Federal rulemaking and the relationship
of the Head Start requirements to the general rules issued by HHS.
Understanding Federal Rulemaking and the Regulatory
Process
Head Start Act
As with all programs of the Federal government, Head Start owes
its existence to a Public Law passed by Congress and signed by the President.
The Head Start Act, as it is commonly referred to, authorizes the appropriation
of funds at specific levels, and prescribes the methodologies for allotment
of funds to the various functions of the program and the methods used to distribute
the funds nationally and locally to Head Start agencies. The Act spells out
the intent of Congress in terms of the purpose of the program, the types of
services to be provided, the population to be served, reporting and evaluation
requirements, and a variety of administrative requirements.
It is important for Head Start managers and fiscal officers
to be familiar with sections of the Act that have relevance to day-to-day operations.
For example, the 20 percent matching requirements for non-Federal share, the
15 percent limitation on administrative costs, and the 10 percent of enrollment
slots to be reserved for services to children with disabilities are specifically
delineated in the Act. Throughout, the Act directs the Secretary of Health and
Human Services to develop regulations to guide the implementation of the program.
Once developed, these regulations become a part of the Code of Federal Regulations
(CFR). Since regulations have their basis in Public Law, they have the
force of law for programs funded by the issuing agency.
Regulatory Process
The regulation development process is designed to enable those
whose work or lives will be affected by the regulation to help shape it. First,
a Notice of Proposed Rulemaking (NPRM) is prepared by the agency that administers
the program. After clearing internal and departmental review, the NPRM is submitted
to OMB for review. As the review arm of the Executive Branch, OMB's role is
to ensure that the proposed regulation complies with the intent of the Public
Law under which it was prepared and that its implementation will not unfairly
burden the public. Once agreement is reached between the issuing agency and
OMB, the NPRM is published in the Federal Register, which is the official publication
of the Federal government for notifying the public of proposed and final regulations.
Following publication of the NPRM, interested parties may submit written comments
during a comment period, which typically is 90 days, on the merits of the regulation.
After consideration of the public comments, the NPRM is modified or changed
as deemed necessary by the agency and returned to OMB as Final Rule. Once approved
by OMB, the Final Rule is published in the Federal Register, and is incorporated
as part of the body of regulations contained in the Code of Federal Regulations
for the issuing agency.
Code of Federal Regulations
The Code of Federal Regulations is a systematic collection
of the rules published in the Federal Register by the executive departments
and agencies of the Federal government. The Code is divided into 50
Titles that represent broad areas of Federal regulation. A portion of these
is devoted to common regulations that apply across several different Departments
of the government, such as Title 5, Administrative Personnel; and Title
41, Public Contracts and Property Management. Other Titles contain only
the regulations of a single Department, such as Title 7, Agriculture; Title
29, Labor and Title 49, Transportation.
Some of the regulations pertaining to HHS are Title 21,
Food and Drug Administration; Title 42, Public Health Service; and for
Human Services, Title 45, Public Welfare. Title 45 is further divided
between Subtitle A, General Administration, and Subtitle B, Regulations Relating
to Public Welfare. Title 45 contains the regulations governing the Head Start
program.
45 CFR, Subtitle A
Several Parts under Subtitle A contain
the Department-wide regulations that apply to all grants and contracts funded by
HHS. Most important among these in terms of the day-to-day operation of a Head
Start program are Part 74
, Uniform
Administrative Requirements for Awards and Subawards to Institutions of Higher
Education, Hospitals, Other Non-Profit Organizations, and Commercial Organizations
and Part 92, Uniform Administrative Requirements for Grants and Cooperation
Agreements to State and Local Governments including Indian Tribal Governments.
Part 74 and Part 92 contain the procedures governing the administration
of grants and cooperative agreements issued by HHS. The Subparts cover topics
such as cash management, financial reports, allowable and unallowable costs,
and property management and procurement. The agency type (Part 74 for private
non-profit agencies and Part 92 for public agencies) is the determining factor
as to which regulation applies. It is important for every Head Start administrator
to be familiar with the appropriate regulation and its relationship to the Head
Start-specific regulations.
Office of Management and Budget (OMB) Circulars
On behalf of the executive branch, OMB leads the development
of government-wide policy to assure that grants are managed properly and that
Federal dollars are spent in accordance with applicable laws and regulations.
The outcome of this process is the issuance by OMB of instructions or information
to Federal grant-making agencies. These issuances are referred to as OMB Circulars.
Although OMB has issued many grants management Circulars, each Federal grant
award recipient is covered by only three of them, depending on the type of entity:
Non-profit organizations follow:
States, local governments, and Indian tribes follow:
- 2 CFR Part 225 for cost principles.
- A-102 for administrative requirements.
- A-133 for audit requirements.
Educational Institutions (even if part of a State or local government) follow:
The administrative requirements for non-profit organizations
and educational institutions are codified at 45 CFR Part 74 and those for States,
local governments, and Indian tribes are codified at 45 CFR Part 92.
45 CFR, Subtitle B
Subtitle B of Title 45 contains the regulations issued by the
agencies in HHS to govern the operations of their programs. In contrast to the
Department-wide Regulations contained in Subtitle A, these are the program-specific
regulations tailored to the unique activities of the different agencies and
programs. The regulations for the Head Start program are located in 45 CFR,
Subtitle B, Chapter XIII, Subchapter B, Parts 1301-1311.
Head Start Regulations
This section describes briefly the contents of each of the major
parts of the Head Start regulations and provides an update on recent major changes
in the structure and content of the regulations.
Part 1301, in addition to listing the applicable general
requirements (referred to above under Subtitle A), contains grants administration
requirements regarding insurance, bonding and audits.
Part 1302 describes the procedures for selection, initial
funding, and refunding of Head Start grantees, as well as the process for selecting
replacement grantees. For Head Start grantees, these regulations are for informative
purposes and have no applicability to day-to-day operations. They are published
here rather than in the Department-wide regulations because, as required in
the Act, they were developed specifically for the Head Start program.
Part 1303 contains the appeals procedures for grantees
and delegate agencies in cases of intended or actual termination or suspension
of funding. In the event of an adverse action by the Administration for Children
and Families (ACF) against a grantee, or by a grantee against a delegate agency,
these rules are designed to protect the rights of both parties, and have applicability
only to such situations.
Part 1304, commonly referred to as the Head Start Program
Performance Standards, defines the standards and minimum requirements for the
entire range of Early Head Start and Head Start services, including early childhood
development and health services, as well as family and community partnerships,
and program design and management.
Part 1305 contains the eligibility requirements and
limitations on enrollment in Head Start. It addresses the subjects of age, income,
and disabilities and their bearing on a child's eligibility. These regulations
are used in conjunction with the Family Income Guidelines (which are updated
annually) and the diagnostic criteria for reporting of children with disabilities
to establish the selection criteria for enrollment of children in Head Start
programs.
Part 1306, which became effective on January 7, 1993,
contains the staffing requirements for center-based classrooms and home visitors
and replaced Part 1304, Appendix A, Program Options for Project Head Start.
The regulation also supersedes several policies that govern such matters as
the length of full-year, full-day services.
Part 1308, which became effective on February 21, 1993,
establishes eligibility criteria for enrollment of children with disabilities
in the Head Start program, and, in an appendix to Part 1308, offers guidance
for the provision of services to children with disabilities and for services
to meet the special needs of their parents. Like the other new regulations discussed
above, this regulation supersedes a variety of policy memoranda previously issued.
Part 1309, which became effective in its amended form
on June 2, 2003, implements the statutory provision that authorizes Head Start
grantees to use grant funds to purchase and finance the construction and major
renovation of facilities where Head Start programs operate.
Part 1310, which became effective on January 18, 2001,
implements the statutory provision for establishing requirements for the safety
features and the safe operation of vehicles used by Head Start agencies to transport
children participating in Head Start programs.
Part 1311 contains the regulations implementing those
sections of the Act applicable to the administration of the Head Start Fellows
Program, including selection, placement, duration and status of the Head Start
Fellows.
Head Start Policies
The Act and the regulations represent the
first two levels of rulemaking. The third level of rulemaking is referred to
as policy. As regulations are developed to define a requirement in
the Act, policies are likewise developed to guide the implementation of the
regulation.
Generally, new policies are developed and existing policies
are updated in response to changes in the body of knowledge concerning "promising
practice," or because of consistent misinterpretation of the meaning of a regulatory
requirement. Policy issuances have the force of regulations since compliance
with the regulation cannot be achieved without adherence to the policy. The
policies that are contained in the Fiscal community cover such topics as the
allocation of costs, development and administrative cost limitation, and other
fiscal-related issues.
In some components of Head Start, for example Education and
Social Services, no policies have been issued. As stated above, policies are
developed only when the regulations are insufficient in detail or clarity to
achieve the intended purpose. In the case of the Education and Social Services
components, the language in the regulations has adequately communicated the
goals of these components so that it has only been necessary to provide additional
information in the form of guidance as opposed to policy.
It is important for Head Start managers and fiscal officers to distinguish between
material that is issued as guidance, and is therefore optional, and
requirements, which are issued as regulation or policy.
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