Department of Health and Human Services, Administration for Children and Families: Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs

B-333809

December 13, 2021

The Honorable Patty Murray
President
The Honorable Richard Burr
Ranking Member
Committee on Health, Education, Work and Pensions
United States Senate

The Honorable Robert C. “Bobby” Scott
President
The Honorable Virginie Foxx
Ranking Member
Education and Labor Commission
House of Representatives

Topic: Department of Health and Human Services, Administration for Children and Families: Vaccine and Mask Requirements to Mitigate the Spread of COVID-19 in Head Start Programs

Pursuant to Section 801 (a) (2) (A) of Title 5, United States Code, this is our report on a major rule promulgated by the Department of Health and Human Services, Administration for Children and Families (ACF) entitled ” Vaccine and mask requirements to mitigate the spread of COVID-19 in Head Start programs ”(RIN: 0970-AC90). We received the rule on December 1, 2021. It was published in the Federal Register as an Interim Final Rule with Comment Period (IFC) on November 30, 2021. 86 Fed. Reg. 68052. The effective date is November 30, 2021.

According to ACF, this IFC adds new provisions to the Head Start program performance standards to mitigate the spread of coronavirus disease 2019 (COVID-19) in Head Start programs. See in general 45 CFR 1301-1305 (Head Start Program Performance Standards Regulations). ACF has stated that this IFC, effective upon publication, requires universal masking for all persons two years of age and over, with a few exceptions, and all Head Start staff, entrepreneurs whose activities involve contact or providing direct services to children and families, and volunteers working in classrooms or directly with children to be vaccinated against COVID-19 by January 31, 2022.

The Congressional Review Act (CRA) requires 60 days for the effective date of a major rule from the date of publication in the Federal Register or receipt of the rule by Congress, whichever is later. 5 USC § 801 (a) (3) (A). The 60-day delay in the effective date may be waived, however, if the agency believes for good reason that the delay is impracticable, unnecessary or contrary to the public interest, and the agency incorporates a statement of the findings and its grounds in the rule Posted. 5 USC §§ 553 (b) (3) (B), 808 (2). Here, ACF said it had found a good reason to forgo notification and comment procedures and the delay in requiring the effective date. ACF claims that a combination of factors including, but not limited to, the inability to achieve sufficiently high immunization levels based on voluntary efforts and quilting demands, the potential harm to children from staff unvaccinated, continued pressure on the health care system and the known efficacy and safety of available vaccines, have persuaded ACF that a vaccine requirement for Head Start staff, some contractors and volunteers is a critical part of the response. Country’s COVID-19. ACF further stated that it would endanger the health and safety of staff, children and families, and would be against the public interest to delay the imposition of the vaccination mandate. Thus, according to the ACF, it would be impractical and contrary to the public interest to delay the date of entry into force of the IFC.

Attached is our assessment of ACF’s compliance with the procedural steps required by Section 801 (a) (1) (B) (i) to (iv) of Title 5 in relation to the rule. If you have any questions about this report, or would like to contact GAO officials responsible for the assessment work regarding the purpose of the rule, please contact Shari Brewster, Deputy General Counsel, at (202) 512-6398.

Shirley A. Jones
Associate Legal Director

Pregnant

cc: Vanessa Jones
Rules Coordinator

PREGNANT

REPORT UNDER 5 USC § 801 (a) (2) (A) ON A MAJOR RULE
ISSUED BY THE
HEALTH AND HUMAN SERVICES DEPARTMENT,
ADMINISTRATION FOR CHILDREN AND FAMILIES
ENTITLED
“VACCINE AND MASK REQUIREMENTS TO MITIGATE
THE SPREAD OF COVID-19 IN HEAD START PROGRAMS ”
(RIN: 0970-AC90)

(i) Cost-benefit analysis

The Department of Health and Human Services Administration for Children and Families (ACF) has prepared a summary of the expected costs and benefits of this Interim Final Rule with Comment Period (IFC). ACF said it estimates a range of total monetized profits between $ 200 million and $ 296 million with a discount rate of 7 percent, and a range between $ 196 million and $ 288 million with a rate discount of 3 percent. ACF also said that these monetized benefits cover a period between November 30, 2021 and March 1, 2022. According to ACF, the estimated range of costs is between $ 16 million and $ 83 million, which covers a period between between November 30, 2021 and March 1, 2022. ACF further stated that these cost estimates do not vary with the discount rate. Finally, ACF’s analysis included several qualitative costs and benefits that may result from this IFC.

(ii) Agency actions relating to the Regulatory Flexibility Act (RFA), 5 USC §§ 603-605, 607 and 609

ACF has certified that this IFC will not have a significant economic impact on a significant number of small entities. ACF has prepared an initial analysis of regulatory flexibility for IFC. According to ACF, IFC will impact small entities in North American Industry Classification System (NAICS) Category 624410, Child Care Services, which has a standard size of $ 8 million . ACF said it assumes the 20,717 Head Start centers are below this threshold and are considered small entities. ACF estimates that the mandates imposed by this rule would cost a total of $ 17.5 million, or about $ 847 per small entity, or $ 864 per small entity excluding closed Head Start centers. ACF said it provides approximately $ 10 billion in grants to Head Start programs, including Early Head Start-Child Care partnerships. ACF also said that in 20,717 centers, this averages out at $ 466,192, which is well above the 3% impact on the income threshold, which is $ 113,000. Thus, ACF concluded that the IFC is not likely to have a significant impact on a substantial number of small entities.

(iii) Agency Actions Regarding Sections 202-205 of the Unfunded Mandates Reform Act 1995, 2 USC §§ 1532-1535

ACF did not discuss the Law in this IFC.

(iv) Other relevant information or requirements under laws and decrees

Administrative Procedure Act (APA), 5 USC §§ 551 et seq.

ACF said it found a good reason to forgo notice and comment procedures. ACF claims that a combination of factors including, but not limited to, inability to achieve sufficiently high immunization levels based on voluntary effort, quilting demands, potential harm to children due to unvaccinated staff, continued pressure on the health system, and known efficacy and safety of available vaccines, have persuaded ACF that a vaccine requirement for Head Start staff, some contractors and volunteers is a critical part of the COVID response -19 of the country. ACF further stated that it would endanger the health and safety of staff, children and families, and would be against the public interest to delay the imposition of the vaccination mandate. Thus, according to ACF, it would be impractical and contrary to the public interest to initiate notification and comment procedures.

Red Tape Reduction Act (PRA), 44 USC §§ 3501-3520

ACF has determined that this IFC contains Information Collection Requirements (ICR) as part of ARP. ACF said this IFC is establishing new record keeping requirements under the PRA regarding staff immunization rates and a written testing protocol. ACF also said it would submit a request to the Office of Management and Budget (OMB) for approval of these record keeping requirements. ACF further stated that the record keeping activity of maintaining program policies and procedures, including the burden associated with updating them annually, is already approved as part of an existing information gathering of OMB (OMB control number 0970-0148).

Legal authorization of the rule

ACF promulgated this IFC in accordance with article 9801 and following. of Title 42, United States Code.

Executive Decree No. 12866 (Planning and Revision of Regulations)

ACF said that the OMB’s Office of Information and Regulatory Affairs has determined that this IFC is an economically important regulatory measure as defined by the ordinance, and that the IFC has been reviewed by the OMB.

Executive Decree No. 13132 (Federalism)

ACF said this IFC would prevail over certain state laws that prohibit employers from requiring their employees to be vaccinated against COVID-19. The ACF has also stated that the IFC prevails over any state or local laws that provide for exemptions to the extent that those laws provide grounds for exemptions broader than those provided by federal law and are inconsistent with the IFC. ACF further stated that it had considered other alternatives (for example, relying entirely on measures such as voluntary vaccination, source control only and physical distancing) and concluded that the mandates established by this IFCs constitute the minimum regulatory action required.

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