FR Doc E9-1552[Federal Register: January 26, 2009 (Volume 74, Number 15)]
[Notices]
[Page 4383-4402]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26ja09-29]
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DEPARTMENT OF EDUCATION
Compliance Agreement
AGENCY: Department of Education.
ACTION: Notice of written findings and compliance agreement with the
Nevada Department of Education.
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SUMMARY: This notice is being published in the Federal Register
consistent with section 457(b)(2) of the General Education Provisions
Act (GEPA). Section 457 of GEPA authorizes the U.S. Department of
Education (the Department) to enter into a compliance agreement with a
recipient that is failing to comply substantially with Federal program
requirements. In order to enter
[[Page 4384]]
into a compliance agreement, the Department must determine, in written
findings, that the recipient cannot comply with the applicable program
requirements until a future date.
On December 4, 2008, the Department entered into a compliance
agreement with the Nevada Department of Education (NDE). Section
457(b)(2) of GEPA requires the Department to publish written findings
leading to a compliance agreement, with a copy of the compliance
agreement, in the Federal Register.
FOR FURTHER INFORMATION CONTACT: Sharon Hall, U.S. Department of
Education, Office of Elementary and Secondary Education, 400 Maryland
Avenue, SW., room 3W214, Washington, DC 20202-6132. Telephone: (202)
260-0998.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
accessible format (e.g., braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: Title I of the Elementary and Secondary
Education Act of 1965 (Title I), as amended by the No Child Left Behind
Act of 2001, requires each State receiving Title I funds to satisfy
certain requirements.
Under Title I, each State is required to adopt academic content and
student academic achievement standards in at least mathematics, reading
or language arts, and science. These standards must include the same
knowledge and levels of achievement expected of all public school
students in the State. Content standards must specify what all students
are expected to know and be able to do; contain coherent and rigorous
content; and encourage the teaching of advanced skills. Achievement
standards must be aligned with the State's academic content standards
and must describe at least three levels of proficiency to determine how
well students in each grade are mastering the content standards. A
State must provide descriptions of the competencies associated with
each student's academic achievement level and must determine the
assessment scores (``cut scores'') that differentiate among the
achievement levels.
Title I also requires each State to implement a student assessment
system to evaluate whether students are mastering the subject material
reflected in the State's academic content standards. By the 2005-2006
school year, States were required to administer mathematics and reading
or language arts assessments yearly during grades 3-8 and once during
grades 10-12. Further, beginning with the 2007-2008 school year, each
State was required to administer a science assessment in at least one
grade in each of the following grade spans: 3-5, 6-9, and 10-12.
In addition to a general assessment, Title I requires States to
develop and administer at least one alternate assessment for students
with disabilities who cannot participate in the general assessment,
with or without accommodations. An alternate assessment may be based on
grade-level academic achievement standards, alternate academic
achievement standards, or modified academic achievement standards. Like
the general assessment, any alternate assessment must satisfy the
requirements for high technical quality, including validity,
reliability, accessibility, objectivity, and consistency with
nationally recognized professional and technical standards.
In June 2007, NDE submitted evidence of its standards and
assessment system. The Assistant Secretary for Elementary and Secondary
Education (Assistant Secretary) submitted that evidence to a panel of
experts for peer review. Following that review, the Assistant Secretary
concluded that NDE's standards and assessment system did not meet a
number of the Title I requirements.
Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies
available to the Department when it determines that a recipient ``is
failing to comply substantially with any requirement of law''
applicable to Federal program funds the Department administers.
Specifically, the Department is authorized to--
(1) Withhold funds;
(2) Compel compliance through a cease and desist order;
(3) Enter into a compliance agreement with the recipient; or
(4) Take any other action authorized by law. 20 U.S.C. 1234c(a).
In a letter dated September 21, 2007, to Keith W. Rheault, Nevada's
Superintendent of Public Instruction, the Assistant Secretary notified
NDE that, in order to remain eligible to receive Title I funds, it
would have to enter into a compliance agreement with the Department.
The purpose of a compliance agreement is ``to bring the recipient into
full compliance with the applicable requirements of law as soon as
feasible and not to excuse or remedy past violations of such
requirements.'' 20 U.S.C. 1234f (a). In order to enter into a
compliance agreement with a recipient, the Department must determine,
in written findings, that the recipient cannot comply until a future
date with the applicable program requirements.
In accordance with the requirements of section 457(b) of GEPA, 20
U.S.C 1234f (b), on June 23, 2008, Department officials conducted a
public hearing in Nevada to assess whether a compliance agreement with
NDE might be appropriate. Keith W. Rheault, Nevada's Superintendent of
Public Instruction, testified at this hearing on behalf of NDE. The
Department considered the testimony provided at the June 2008 public
hearing and all other relevant information and materials and concluded
that NDE would not be able to correct its non-compliance with Title I
standards and assessment requirements immediately.
On January 12, 2009, the Assistant Secretary issued written
findings holding that compliance by NDE with the Title I standards and
assessment requirements is genuinely not feasible until a future date.
Under Title I, NDE was required to implement its final assessment
system no later than the 2005-2006 school year. The evidence that NDE
submitted in June 2007 indicated that, well after the statutory
deadline had passed, its standards and assessment system still did not
fully meet Title I requirements. In addition, the compliance agreement
sets out the action plan that NDE must implement to come into
compliance with Title I requirements. Due to the enormity and
complexity of the work that is needed to bring NDE's standards and
assessment system into full compliance, NDE cannot immediately comply
with all of the Title I requirements.
Nevada's Superintendent of Public Instruction, Keith W. Rheault,
signed the compliance agreement on December 1, 2008, and the Assistant
Secretary signed the compliance agreement on December 4, 2008.
As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f (b)(2),
the text of the Assistant Secretary's written findings is set forth as
Appendix A and the compliance agreement is set forth as Appendix B of
this notice.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
[[Page 4385]]
To use PDF, you must have the Adobe Acrobat Reader, which is
available free at this site. If you have questions about using PDF,
call the U.S. Government Printing Office (GPO), toll free, at 1-888-
293-6498; or in the Washington, DC area at (202) 512-1530.
Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at:
http://www.gpoaccess.gov/nara/index.html.
Authority: 20 U.S.C. 1234c, 1234f.
Dated: January 16, 2009.
Kerri L. Briggs,
Assistant Secretary for Elementary and Secondary Education.
Appendix A
Written Findings of the Assistant Secretary for Elementary and
Secondary Education Regarding the Compliance Agreement Between the
United States Department of Education and the Nevada Department of
Education
I. Introduction
The Assistant Secretary for Elementary and Secondary Education
(Assistant Secretary) of the U.S. Department of Education
(Department) has determined, pursuant to 20 U.S.C. 1234c and 1234f,
that the Nevada Department of Education (NVDOE) has failed to comply
substantially with certain requirements of Title I, Part A of the
Elementary and Secondary Education Act of 1965 (Title I), as amended
by the No Child Left Behind Act of 2001, 20 U.S.C. 6301 et seq., and
that it is not feasible for NVDOE to achieve full compliance
immediately. Specifically, the Assistant Secretary has determined
that NVDOE did not meet, within the statutory timeframe, a number of
the Title I requirements concerning the alignment of Nevada's High
School Proficiency Examination (HSPE) to grade-level content
standards as well as requirements concerning the academic
achievement standards and alignment of the Nevada Alternate Scales
of Academic Achievement (NASAA), Nevada's alternate assessment based
on alternate academic achievement standards for students with the
most significant cognitive disabilities.
For the following reasons, the Assistant Secretary has concluded
that it would be appropriate to enter into a compliance agreement
with NVDOE to bring it into full compliance as soon as feasible.
During the effective period of the compliance agreement, which ends
December 4, 2011, NVDOE will be eligible to receive Title I funds as
long as it complies with the terms and conditions of the agreement
as well as the provisions of Title I and other applicable Federal
statutory and regulatory requirements.
II. Relevant Statutory and Regulatory Provisions
A. Title I, Part A of the Elementary and Secondary Education Act of
1965, as Amended by the No Child Left Behind Act of 2001
Title I provides financial assistance, through State educational
agencies, to local educational agencies to provide services in high-
poverty schools to students who are failing or at risk of failing to
meet the State's student academic achievement standards. Under Title
I, each State, including the District of Columbia and Puerto Rico,
was required to adopt academic content and student academic
achievement standards in at least mathematics, reading or language
arts, and science. These standards must include the same knowledge
and levels of achievement expected of all public school students in
the State. Content standards must specify what all students are
expected to know and be able to do; contain coherent and rigorous
content; and encourage the teaching of advanced skills. Achievement
standards must be aligned with the State's academic content
standards and must describe at least three levels of proficiency to
determine how well students in each grade are mastering the content
standards. A State must provide descriptions of the competencies
associated with each student's academic achievement level and must
determine the assessment scores (``cut scores'') that differentiate
among the achievement levels.
Each State was also required to implement a student assessment
system used to evaluate whether students are mastering the subject
material reflected in the State's academic content standards. By the
2005-2006 school year, States were required to administer
mathematics and reading or language arts assessments yearly during
grades 3-8 and once during grades 10-12. Further, beginning with the
2007-2008 school year, each State was required to administer a
science assessment in at least one grade in each of the following
grade spans: 3-5, 6-9, and 10-12. A State's assessment system must:
Be the same assessment system used to measure the
achievement of all public school students in the State;
Be designed to provide coherent information about
student attainment of State academic content standards across grades
and subjects;
Provide for the inclusion of all students in the grades
assessed, including students with disabilities and limited English
proficient (LEP) students;
Be aligned with the State's academic content and
student academic achievement standards;
Express student results in terms of the State's student
academic achievement standards;
Be valid, reliable, and of adequate technical quality
for the purposes for which they are used and be consistent with
nationally recognized professional and technical standards;
Involve multiple measures of student academic
achievement, including measures that assess higher order thinking
skills and understanding of challenging content;
Objectively measure academic achievement, knowledge,
and skills without evaluating or assessing personal family beliefs
and attitudes;
Enable results to be disaggregated by gender, each
major racial and ethnic group, migrant status, students with
disabilities, English proficiency status, and economically
disadvantaged students;
Provide individual student reports; and
Enable itemized score analyses.
20 U.S.C. 6311(b)(3); 34 CFR 200.2.
In addition to a general assessment, States were required to
develop and administer at least one alternate assessment for
students with disabilities who cannot participate in the general
assessment, with or without accommodations. 34 CFR 200.6(a)(2). An
alternate assessment may be based on grade-level academic
achievement standards, alternate academic achievement standards, or
modified academic achievement standards. Like the general
assessment, any alternate assessment must satisfy the requirements
for high technical quality, including validity, reliability,
accessibility, objectivity, and consistency with nationally
recognized professional and technical standards.
B. The General Education Provisions Act
The General Education Provisions Act (GEPA) provides a number of
options when the Assistant Secretary determines a recipient of
Department funds is ``failing to comply substantially with any
requirement of law applicable to such funds.'' 20 U.S.C. 1234c. In
such a case, the Assistant Secretary is authorized to:
(1) Withhold funds;
(2) Compel compliance through a cease and desist order;
(3) Enter into a compliance agreement with the recipient; or
(4) Take any other action authorized by law.
20 U.S.C. 1234c(a).
Under section 457 of GEPA, the Assistant Secretary may enter
into a compliance agreement with a recipient that is failing to
comply substantially with specific program requirements. 20 U.S.C.
1234f. The purpose of a compliance agreement is ``to bring the
recipient into full compliance with the applicable requirements of
law as soon as feasible and not to excuse or remedy past violations
of such requirements.'' 20 U.S.C. 1234f(a). Before entering into a
compliance agreement with a recipient, the Assistant Secretary must
hold a hearing at which the recipient, affected students and parents
or their representatives, and other interested parties are invited
to participate. At that hearing, the recipient has the burden of
persuading the Assistant Secretary that full compliance with
applicable requirements of law is not feasible until a future date.
20 U.S.C. 1234f(b)(1). If, on the basis of all the evidence
presented, the Assistant Secretary determines that full compliance
is genuinely not feasible until a future date, the Assistant
Secretary must make written findings to that effect and must publish
those findings, together with the substance of any compliance
agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).
A compliance agreement must set forth an expiration date, not
later than three years
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from the date of the written findings, by which time the recipient
must be in full compliance with all program requirements. 20 U.S.C.
1234f(c)(1). In addition, a compliance agreement must contain the
terms and conditions with which the recipient must comply during the
period that agreement is in effect. 20 U.S.C. 1234f(c)(2). If the
recipient fails to comply with any of the terms and conditions of
the compliance agreement, the Assistant Secretary may consider the
agreement to be no longer in effect, and may take any of the
compliance actions set forth above. 20 U.S.C. 1234f(d).
III. Analysis
In deciding whether a compliance agreement between the Assistant
Secretary and NVDOE is appropriate, the Assistant Secretary must
determine whether compliance by NVDOE with the Title I standards and
assessment requirements is genuinely not feasible until a future
date. 20 U.S.C. 1234f(b)(2).
A. NVDOE Has Failed To Comply Substantially With Title I Standards
and Assessment Requirements
In June 2007, NVDOE submitted evidence of its standards and
assessment system. The Assistant Secretary submitted that evidence
to a panel of experts for peer review. Following that review, the
Assistant Secretary concluded that NVDOE's standards and assessment
system did not meet a number of the Title I requirements.
Specifically, the Assistant Secretary determined that, to
demonstrate its compliance, NVDOE had to submit the following
evidence regarding its alternate assessment based on alternate
academic achievement standards:
Academic Achievement Standards
1. A clear and complete description of the process and decisions
made in the development of the Nevada Alternate Scales of Academic
Achievement (NASAA) standards for reading and mathematics, including
the qualifications of participants in the standards-setting
activity.
2. Documentation confirming Board approval of the revised cut
scores that were applied to the 2007 results of the NASAA.
Technical Quality
1. Data that supports the current policy that accommodations
yield valid scores and modifications do not.
Alignment
1. A detailed explanation of the actions that will be taken to
ensure improved alignment between assessments and revised content
standards as the basis for test validity.
2. Evidence of alignment of the High School Proficiency
Examination (HSPE) with Nevada's academic content standards.
3. A plan for using alignment study results to guide future
development activities to improve alignment of the tests to
standards.
4. Documentation of alignment between the NASAA tasks
administered by teachers and grade-level content standards.
B. NVDOE Cannot Correct Immediately Its Noncompliance With the
Title I Standards and Assessment Requirements
Under Title I, NVDOE was required to implement its final
assessment system no later than the 2005-2006 school year. 20 U.S.C.
6311(b)(3). The evidence that NVDOE submitted in June 2007 indicated
that, well after the statutory deadline had passed, its standards
and assessment system still did not fully meet Title I requirements.
In addition, substantial work is required to bring NVDOE into
compliance with the Title I requirements.
At the public hearing, which was held on June 23, 2008, NVDOE
presented evidence that compliance is not feasible until a future
date, particularly in light of the work necessary to come into full
compliance with the Title I standards and assessment requirements.
In particular, Dr. Keith W. Rheault, Nevada's Superintendent of
Public Instruction, testified that NVDOE is committed to resolving
all outstanding issues related to the State's high school
proficiency assessment (HSPE) and its alternate assessment based on
alternate academic achievement standards (NASAA) within three years,
but that it would not be possible for Nevada to come into compliance
with all applicable requirements sooner than the 2010-11 school
year. Dr. Rheault stated that, during the period the compliance
agreement is in effect, NVDOE plans to align the HSPE to the State's
new reading and mathematics content standards and to field test both
the reading and mathematics assessments. Dr. Rheault also testified
that NVDOE remains committed to assessing student performance on the
NASAA through a portfolio of student work, but that NVDOE needs time
to ensure that districts and teachers receive all training necessary
to implement the changes being made to the NASAA. Dr. Rheault's
testimony is consistent with the comprehensive action plan that
NVDOE developed and that is incorporated into the compliance
agreement. That action plan sets out a very specific schedule that
NVDOE has agreed to meet during the next three years for completing
all of the work necessary to attain compliance with the Title I
standards and assessment requirements.
Due to the enormity and complexity of the work that is needed to
bring NVDOE's standards and assessment system into full compliance,
NVDOE cannot immediately comply with all of the Title I
requirements. As a result, the Assistant Secretary finds that it is
not genuinely feasible for NVDOE to come into compliance until a
future date.
IV. Conclusion
For the foregoing reasons, the Assistant Secretary finds that
full compliance by NVDOE with the standards and assessment
requirements of Title I is genuinely not feasible until a future
date. Therefore, the Assistant Secretary has determined that it is
appropriate to enter into a compliance agreement with NVDOE.
Dated: Jan. 12, 2009.
/s/--------------------------------------------------------------------
Kerri L. Briggs, Ph.D.,
Assistant Secretary for Elementary and Secondary Education.
Appendix B
Compliance Agreement Under Title I of the Elementary and Secondary
Education Act Between the United States Department of Education and the
Nevada Department of Education
Title I of the Elementary and Secondary Education Act of 1965
(Title I), as amended by the No Child Left Behind Act of 2001,
requires each State receiving Title I funds to satisfy certain
requirements.
Each State was required to adopt academic content and
achievement standards in at least mathematics, reading/language
arts, and, beginning in the 2005-2006 school year, science. These
standards must include the same knowledge and levels of achievement
expected of all public school students in the State. Content
standards must specify what all students are expected to know and be
able to do; contain coherent and rigorous content; and encourage the
teaching of advanced skills. Achievement standards must be aligned
with the State's content standards and must describe at least three
levels of proficiency to determine how well students in each grade
are mastering the content standards. A State must provide
descriptions of the competencies associated with each achievement
level and must determine the assessment scores (``cut scores'') that
differentiate among the achievement levels.
Each State was also required to implement a student assessment
system used to evaluate whether students are mastering the subject
material reflected in the State's academic standards. By the 2005-
2006 school year, States were required to administer mathematics and
reading/language arts assessments yearly during grades 3-8 and once
during grades 10-12. Further, beginning with the 2007-2008 school
year, each State was required to administer a science assessment in
at least one grade in each of the following grade spans: 3-5, 6-9,
and 10-12. A State's assessment system must:
Be the same assessment system used to measure the
achievement of all public school students in the State;
Be designed to provide coherent information about
student attainment of State standards across grades and subjects;
Provide for the inclusion of all students in the grades
assessed, including students with disabilities and limited-English-
proficient students;
Be aligned with the State's content and achievement
standards;
Express student results in terms of the State's student
achievement standards;
Be valid, reliable, and of adequate technical quality
for the purpose for which they are used and be consistent with
nationally recognized professional and technical standards;
Involve multiple measures of student academic
achievement, including measures that assess higher order thinking
skills and understanding of challenging content;
Objectively measure academic achievement, knowledge,
and skills without evaluating or assessing personal family beliefs
and attitudes;
Enable results to be disaggregated by gender, each
major racial and ethnic group,
[[Page 4387]]
migrant status, students with disabilities, LEP students, and
economically disadvantaged students;
Provide individual student reports; and
Enable itemized score analyses.
In addition to a general assessment, States were required to
develop at least one alternate assessment for students with
disabilities who cannot participate in the general assessment, with
or without accommodations. An alternate assessment may be based on
grade-level achievement standards, alternate achievement standards,
or modified achievement standards. Like the general assessment, any
alternate assessment must satisfy the requirements for high
technical quality, including validity, reliability, accessibility,
objectivity, and consistency with nationally recognized professional
and technical standards.
The Nevada Department of Education (NVDOE) failed to timely meet
certain of the statutory and regulatory requirements for its
standards and assessment system. In order to be eligible to continue
to receive Title I funds while working to comply with the
requirements, Keith Rheault, Superintendent of Education, indicated
NVDOE's interest in entering into a compliance agreement with the
United States Department of Education (Department). On June 23,
2008, the Department conducted a public hearing regarding: (1)
whether NVDOE's full compliance with Title I is not feasible until a
future date; and (2) whether NVDOE is able to come into compliance
with the Title I standards and assessment requirements within three
years.
Pursuant to this Compliance Agreement under 20 U.S.C. Section
1234f, NVDOE must be in full compliance with the outstanding
requirements of Title I no later than three years from the date of
the Assistant Secretary's written findings, a copy of which is
attached to, and incorporated by reference into, this Agreement. To
achieve compliance with the standards and assessment requirements,
NVDOE must submit the following evidence:
2.0--Academic Achievement Standards
1. A clear and complete description of the process and decisions
made in the development of the Nevada Alternate Scales of Academic
Achievement (NASAA) standards for reading and mathematics, including
the qualifications of participants in the standards-setting
activity.
2. Documentation confirming Board approval of the revised cut
scores that were applied to the 2007 results of the NASAA.
4.0--Technical Quality
1. Data that supports the current policy that accommodations
yield valid scores and modifications do not.
5.0--Alignment
2. A detailed explanation of the actions that will be taken to
ensure improved alignment between assessments and revised content
standards as the basis for test validity.
3. Evidence of alignment of the High School Proficiency
Examination (HSPE) with Nevada's academic content standards.
4. A plan for using alignment study results to guide future
development activities to improve alignment of the tests to
standards.
5. Documentation of alignment between the NASAA tasks
administered by teachers and grade-level content standards.
During the period that this Compliance Agreement is in effect, NVDOE
is eligible to receive Title I, Part A funds if it complies with the
terms and conditions of this Agreement, as well as the provisions of
Title I, Part A and other applicable Federal statutory and
regulatory requirements that are not specifically addressed by this
Agreement. The attached action steps constitute a detailed plan and
specific timeline for how NVDOE will come into compliance with the
Title I standards and assessment requirements. The action steps are
incorporated by reference into this Compliance Agreement as though
fully set forth herein and may be amended by joint agreement of the
parties, provided full compliance is still feasible by the
expiration of the Agreement.
In addition to all of the terms and conditions set forth above,
NVDOE agrees that its continued eligibility to receive Title I, Part
A funds is predicated upon its compliance with all statutory and
regulatory requirements of that program, including those that are
not specifically addressed by this Agreement, including any
amendments to the No Child Left Behind Act of 2001.
If NVDOE fails to comply with any of the terms and conditions of
this Compliance Agreement, including the action steps attached
hereto, the Department may consider the Agreement no longer in
effect and may take any action authorized by law, including the
withholding of funds or the issuance of a cease and desist order. 20
U.S.C. 1234f(d).
It is so agreed.
For the Nevada Department of Education:
/s/--------------------------------------------------------------------
Keith Rheault,
Superintendent of Education.
Date: Dec. 1, 2008.
For the United States Department of Education:
/s/--------------------------------------------------------------------
Kerri L. Briggs, Ph.D.,
Assistant Secretary, Office of Elementary and Secondary Education.
Date: Dec. 4, 2008.
Date this Compliance Agreement becomes effective: Dec. 4, 2008.
Expiration Date of this Agreement: Dec. 4, 2011.
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[FR Doc. E9-1552 Filed 1-23-09; 8:45 am]
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