Idaho State Department of Education; Notice of written findings andcompliance agreement [OESE]

FR Doc 03-4076
[Federal Register: February 20, 2003 (Volume 68, Number 34)]
[Notices]
[Page 8261-8285]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20fe03-42]

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DEPARTMENT OF EDUCATION

Idaho State Department of Education; Written Findings and
Compliance Agreement

AGENCY: Office of Elementary and Secondary Education, Department of
Education.

ACTION: Notice of written findings and compliance agreement.

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SUMMARY: Section 457 of the General Education Provisions Act (GEPA)
authorizes the U.S. Department of Education to enter into a compliance
agreement with a recipient that is failing to comply substantially with
Federal program requirements. In order to enter into a compliance
agreement, the Department must determine, in written findings, that the
recipient cannot comply until a future date with the applicable program
requirements and that a compliance agreement is a viable means of
bringing about such compliance. On March 29, 2002, the Assistant
Secretary for Elementary and Secondary Education Dr. Susan B. Neuman
entered into a compliance agreement with the Idaho State Department of
Education (ISDE). Under section 457(b)(2) of GEPA, the written findings
and compliance agreement must be published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Dr. Zollie Stevenson, Jr., U.S.
Department of Education, Office of Elementary and Secondary Education,
400 Maryland Avenue, SW., room 3W200, Washington, DC 20202. Telephone:
(202) 260-1824.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternate format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: Under Title I, Part A of the Elementary and
Secondary Education Act of 1965 (Title I), each State, including the
District of Columbia and Puerto Rico, was required to develop or adopt,
by the 1997-98 school year, challenging content standards in at least
reading/language arts and mathematics that describe what the State
expects all students to know and be able to do. Each State also was
required to develop or adopt performance standards, aligned with its
content standards, which describe three levels of proficiency to
determine how well students are mastering the content standards.
Finally, by the 2000-2001 school year, each State was required to
develop or adopt a set of student assessments in at least reading/
language arts and mathematics that would be used to determine the
yearly performance of schools in enabling students to meet the State's
performance standards.
ISDE submitted, and the Department approved, evidence that it has
content standards in at least reading/language arts and mathematics. In
October 2000, ISDE submitted evidence of its final assessment system.
The Department submitted that evidence to a panel of three assessment
experts for peer review. Following that review, the Acting Deputy
Assistant Secretary for Elementary and Secondary Education Tom Corwin
concluded that ISDE's proposed final 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) Obtain 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)(1) through (a)(4).
In a letter dated October 16, 2001 to Dr. Marilyn L. Howard, State
Superintendent of Public Instruction for Idaho, the Assistant Secretary
Dr. Susan B. Neuman notified the ISDE that, in order to remain eligible
to receive Title I funds, it must 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, and that a
compliance agreement is a viable means for bringing about such
compliance.
On March 29, 2002, the Assistant Secretary issued written findings,
holding that compliance by ISDE with the Title I standards and
assessment requirements is genuinely not feasible until a future date.
Having submitted its assessment system for peer review in October 2000,
ISDE was not able to make the significant changes to its system that
the Department's review required in time to meet the spring 2001
statutory deadline to have approved assessments in place. As a result,
ISDE administered its unapproved assessment system in 2001. The
Assistant Secretary also determined that a compliance agreement
represents a viable means of bringing about compliance because of the
steps the ISDE has already taken to comply, its commitment of
resources, and the plan it has developed for further action. The
agreement sets out the action plan that ISDE must meet to come into
compliance with the Title I requirements. This plan, coupled with
specific reporting requirements, will allow the Assistant Secretary to
monitor closely the ISDE's progress in meeting the terms of the
compliance agreement. The Idaho State Superintendent of Public
Instruction, Dr. Marilyn L. Howard, signed the agreement on March 22,
2002 and the Assistant Secretary signed it on March 29, 2002.
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:
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To use PDF, you must have Adobe Acrobat Reader, which is available
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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 is available on GPO access
at: http://www.access.gpo.gov/nara/index.html.

(Authority: 20 U.S.C. 1234c, 1234f, 6311)

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Dated: February 13, 2003.
Eugene W. Hickok,
Under Secretary of Education.

Appendix A--Text of the Written Findings of the Assistant Secretary for
Elementary and Secondary 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 Idaho
State Department of Education (ISDE) has failed to comply substantially
with certain requirements of Title I, Part A of the Elementary and
Secondary Education Act of 1965 (Title I), 20 U.S.C. 6301 et seq., and
that it is not feasible for the ISDE to achieve full compliance
immediately. Specifically, the Assistant Secretary has determined that
ISDE failed to meet a number of the Title I requirements concerning the
development of performance standards and an aligned assessment system
within the statutory timeframe.
For the following reasons, the Assistant Secretary has concluded
that it would be appropriate to enter into a compliance agreement with
the ISDE to bring it into full compliance as soon as feasible. During
the effective period of the compliance agreement, which ends three
years from the date of these findings, the ISDE 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, Part
A 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

Title I, Part A of the Elementary and Secondary Education Act of
1965 (Title I), 20 U.S.C. 6301 et seq., 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 performance standards.
Under Title I, each State, including the District of Columbia and
Puerto Rico, was required to develop or adopt, by the 1997-98 school
year, challenging content standards in at least reading/language arts
and mathematics that describe what the State expects all students to
know and be able to do and performance standards, aligned with those
content standards, that describe three levels of proficiency to
determine how well students are mastering the content standards.
By the 2000-2001 school year, Title I required each State to
develop or adopt a set of student assessments in at least reading/
language arts and mathematics that would be used to determine the
yearly performance of schools and school districts in enabling students
to meet the State's performance standards. These assessments must meet
the following requirements:
[sbull] The assessments must be aligned to a State's content and
performance standards.
[sbull] They must be administered annually to students in at least
one grade in each of three grade ranges: Grades 3 through 5, grades 6
through 9, and grades 10 through 12.
[sbull] They must be valid and reliable for the purpose for which
they are used and of high technical quality.
[sbull] They must involve multiple measures, including measures
that assess higher-order thinking skills.
[sbull] They must provide for the inclusion of all students in the
grades assessed, including students with disabilities and limited
English proficient students.
[sbull] They must provide individual reports.
[sbull] Results from the assessments must be disaggregated and
reported by major racial and ethnic groups and other categories.

20 U.S.C. 6311(b)(3).\1\
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\1\ On January 8, 2002, title I of the Elementary and Secondary
Education Act was reauthorized by the No Child Left Behind Act of
2001 (NCLB) (Pub. L. 107-110). The NCLB made several significant
changes to the Title I standards and assessment requirements. First,
it requires that each State develop academic content and student
achievement standards in science by the 2005-06 school year. Second,
by the 2005-06 school year, it requires a system of aligned
assessments in each of grades 3 through 8 and once during grades 10
through 12. Third, it requires science assessments in at least three
grade spans by the 2007-08 school year. Fourth, the NCLB
significantly changes the definition of adequate yearly progress
each State must establish to hold schools and school districts
accountable, based on data from the 2001-02 test administration.
Finally, by the 2002-03 school year, the NCLB requires State and
school district report cards that include, among other things,
assessment results disaggregated by various subgroups, two-year
trend data, and percent of students tested.
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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
case, the Assistant Secretary is authorized to--
(1) Withhold funds;
(2) Obtain 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)(1)
through (a)(4).
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 the 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 the
applicable requirements of law is not feasible until a future date and
that a compliance agreement is a viable means for bringing about such
compliance. 20 U.S.C. 1234f(b)(1). If, on the basis of all the
available evidence, the Assistant Secretary determines that compliance
until a future date is genuinely not feasible and that a compliance
agreement is a viable means for bringing about such compliance, the
Assistant Secretary must make written findings to that effect and
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 from the date of these 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 no longer in effect and may take any of the compliance
actions described previously. 20 U.S.C. 1234f(d).

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III. Analysis

A. Overview of Issues To Be Resolved in Determining Whether a
Compliance Agreement Is Appropriate

In deciding whether a compliance agreement between the Assistant
Secretary and the ISDE is appropriate, the Assistant Secretary must
first determine whether compliance by the ISDE with the Title I
standards and assessment requirements is genuinely not feasible until a
future date. 20 U.S.C. 1234f(b). The second issue that the Assistant
Secretary must resolve is whether the ISDE will be able, within a
period of up to three years, to come into compliance with the Title I
requirements. Not only must the ISDE come into full compliance by the
end of the effective period of the compliance agreement, it must also
make steady and measurable progress toward that objective while the
compliance agreement is in effect. If such an outcome is not possible,
then a compliance agreement between the Assistant Secretary and the
ISED would not be appropriate.

B. The ISDE Has Failed To Comply Substantially With Title I Standards
and Assessment Requirements

In October 2000, the ISDE submitted evidence of its final
assessment system. The Assistant Secretary submitted that evidence to a
panel of three assessment experts for peer review. Following that
review, the Acting Deputy Assistant Secretary for Elementary and
Secondary Education Thomas Corwin concluded that ISDE's proposed final
assessment system did not meet a number of the Title I requirements.
Specifically, the Acting Deputy Assistant Secretary determined that the
ISDE must do the following:
[sbull] Provide information on Idaho's proposed standards based
assessment system.
[sbull] Provide evidence that its accountability system will allow
the results of the Idaho final assessment system, including local
assessments where applicable, to be the primary indicators of adequate
yearly progress.
[sbull] Provide evidence that performance standards have been
developed and implemented and that they are aligned with Idaho's
content standards and the Idaho assessment system that is being
developed.
[sbull] Provide clear and concise information on the enrollment of
limited English proficient students and students with disabilities in
the State at the assessed grade levels and provide information on the
number of limited English proficient students and students with
disabilities who take the standard form of the Idaho assessments and
the Idaho assessments with accommodations, and the number of those
students exempted or excluded from the Idaho assessment program.
[sbull] Provide a copy of its inclusion policy for limited English
proficient students and provide documentation that the State Board of
Education has approved it. Included in that policy should be
information on accommodations for limited English proficient students.
A plan for implementing the new inclusion policies and for monitoring
LEA compliance with the new inclusion policies when they are approved
should also be provided.
[sbull] Submit information on the technical quality of the Idaho
alternate assessment for students with disabilities as well as
information that indicates the extent to which accommodations
associated with the norm-referenced tests and State-developed
assessments yield valid results for students with disabilities, as well
as information regarding any accommodations that are planned for the
Direct Mathematics and Writing assessments and the technical quality of
those accommodated assessments.
[sbull] Document how it will incorporate performance data for all
Idaho students into its reporting of results for assessment and
accountability purposes.
[sbull] Provide evidence regarding the extent to which the
components of the Idaho Assessment Program are aligned with Idaho
standards.
[sbull] Provide technical information on each of the components of
the Idaho Assessment Program and information on how Idaho ensures the
fairness of its assessments for all students.
[sbull] Provide evidence on how the multiple measures that have
been incorporated in the Idaho Assessment Program affect the validity,
reliability, and fairness of those assessments.
[sbull] Disaggregate student performance by gender, race/ethnicity,
migrant status, disability (versus non-disability), economic
disadvantage (versus non-disadvantaged), and limited English
proficiency status at the LEA and school levels. In addition, Idaho
must add economic disadvantage to the categories that are currently
being disaggregated at the State level.
[sbull] Define for LEAs which students are to be included in
determining adequate yearly progress (AYP) for schools and LEAs.
[sbull] Provide a plan for evaluating the AYP of its small schools
and K-3 schools.

C. The ISDE Cannot Correct Immediately Its Noncompliance With the Title
I Standards and Assessment Requirements

Under the Title I statute, ISDE was required to implement its final
assessment system no later than the 2000-2001 school year. 20 U.S.C.
6311(b)(6). ISDE submitted evidence of its assessment system in October
2000, but the Acting Deputy Assistant Secretary determined, on the
basis of that evidence, that ISDE's system did not fully meet the Title
I requirements. Due to the enormity and complexity of developing a new
assessment system that addressed the Acting Deputy Assistant
Secretary's concerns, the ISDE was not able to complete that task
between the time it submitted its system for review and the Idaho 2001
assessment window. Thus, in 2001, the ISDE administered assessments
that the Acting Deputy Assistant Secretary had determined did not meet
the Title I requirements. As a result, the Assistant Secretary finds
that it is not genuinely feasible for ISDE to come into compliance
until a future date.

D. The ISDE Can Meet the Terms and Conditions of a Compliance Agreement
and Come Into Full Compliance With the Requirements of Title I Within
Three Years

At the public hearing, the ISDE presented evidence of its
commitment and capability to come into compliance with the Title I
standards and assessment requirements within three years. For example,
Idaho entered into a contract to develop reading and mathematics
assessments within one year at grades 4, 8 and 10. Idaho has
established a process for developing performance descriptors and to
define performance levels for its assessment system with broad based
involvement of Idaho citizens and has established a timeline for
approving the performance descriptors and performance levels. Idaho has
also received approval from the Department for its academic content
standards.
Finally, the ISDE has developed a comprehensive action plan,
incorporated into the compliance agreement, that sets out a very
specific schedule that the ISDE has agreed to meet during the next
three years for attaining compliance with the Title I standards and
assessment requirements. As a result, the ISDE is committed not only to
coming into full compliance within three years, but to meeting a
stringent, but reasonable, schedule for doing so. The action plan also
demonstrates that the ISDE will be well

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on its way to meeting the new standards and assessment requirements of
the No Child Left Behind Act of 2001. The compliance agreement also
sets out documentation and reporting procedures that the ISDE must
follow. These provisions will allow the Assistant Secretary to
ascertain promptly whether the ISDE is meeting each of its commitments
under the compliance agreement and is on schedule to achieve full
compliance within the effective period of the agreement.
The task of developing an assessment system that meets the Title I
requirements is not a quick or easy one. However, the Assistant
Secretary has determined that, given the commitment of the ISDE to
comply with the terms and conditions of the compliance agreement, it is
possible for the ISDE to come into full compliance with the Title I
standards and assessment requirements within three years.

IV. Conclusion

For the foregoing reasons, the Assistant Secretary finds the
following: (1) That full compliance by the ISDE with the standards and
assessment requirements of Title I is not feasible until a future date;
and (2) that the ISDE can meet the terms and conditions of the attached
compliance agreement and come into full compliance with the Title I
standards and assessment requirements within three years of the date of
these findings. Therefore, the Assistant Secretary has determined that
it is appropriate to enter into a compliance agreement with the ISDE.
Under the terms of 20 U.S.C. 1234f, that compliance agreement becomes
effective on the date of these findings.

Dated: March 29, 2002.
Susan B. Neuman,
Assistant Secretary for Elementary and Secondary Education.

Compliance Agreement Under Title I of the Elementary and Secondary
Education Act Between the United States Department of Education and the
Idaho State Department of Education

Introduction

Title I of the Elementary and Secondary Education Act of 1965
(Title I) required each State, along with the District of Columbia and
Puerto Rico, to develop or adopt, by the 1997-98 school year,
challenging content standards in at least reading/language arts and
mathematics that describe what the State expects all students to know
and be able to do. Title I also required each State to develop or adopt
performance standards, aligned with its content standards, that
describe three levels of proficiency to determine how well students are
mastering the content standards. Finally, by the 2000-2001 school year,
Title I required each State to develop or adopt a set of student
assessments in at least reading/language arts and mathematics that
would be used to determine the yearly performance of schools in
enabling students to meet the State's performance standards.
The Idaho State Department of Education (SDE) was not able to meet
these requirements by the statutory deadlines. In order to be eligible
to continue to receive Title I funds while working to comply with the
statutory requirements, Dr. Marilyn Howard, Idaho's Superintendent of
Public Instruction, indicated the Idaho SDE's interest in entering into
a compliance agreement with the Office of Elementary and Secondary
Education (OESE) of the United States Department of Education. On
December 13, 2001, OESE conducted a public hearing regarding Idaho
SDE's ability to come into compliance with the Title I standards and
assessment requirements within three years. Based on testimony at that
hearing, the Assistant Secretary for Elementary and Secondary Education
(Assistant Secretary) determined that compliance by Idaho SDE with the
Title I standards and assessment requirements was genuinely not
feasible until a future date because of the ``magnitude and complexity
of meeting those requirements.'' The Assistant Secretary also
determined that a compliance agreement represents a viable means of
bringing about compliance because of the steps Idaho SDE has already
taken to address its noncompliance, its commitment of resources, and
the plans it has developed for further action. These plans are
summarized in the Commitments and Timetable below.
Pursuant to this Compliance Agreement under 20 V.S.C. sec. 1234f,
Idaho SDE must be in full compliance with the 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. Specifically, Idaho SDE must ensure and
document that it will have met the following requirements:
1. Provide information on Idaho's proposed standards based
assessment system. Provide a copy of the development contract for the
new assessment system.
2. Provide evidence that performance standards have been developed
and implemented and that they are aligned with Idaho's content
standards.
3. Provide a copy of the Limited English Proficient student (LEP)
inclusion policy and documentation of State approval. Include in the
LEP policy information on accommodations for LEP students. Provide a
plan for implementing the new LEP inclusion policies and for monitoring
LEA compliance with the new inclusion policies when they are approved.
Provide clear and concise information on the enrollment of LEP students
and students with disabilities (SWD) in the state at the assessed grade
levels and provide information on the number of LEP students and SWDs
who take the standard form of the Idaho assessments and the Idaho
assessments with accommodations, and the number of those students
excluded from the Idaho assessment program.
4. Provide evidence that the components of the Idaho Assessment
Program are aligned with Idaho standards. Provide evidence that Idaho
assessments are cognitively complex. Identify gaps and weaknesses of
the assessment system. Provide evidence on how the multiple measures
incorporated in the Idaho Assessment Program affect the validity,
reliability, and fairness of those assessments.
5. Provide technical information on each of the components of the
Idaho Assessment Program. Provide information on how Idaho will ensure
the fairness of its assessments for all students. Submit information on
the technical quality of the Idaho alternate assessment for SWD as well
as information that indicates the extent to which accommodations yield
valid results for SWD.
6. Provide evidence that student performance will be disaggregated
by gender, race/ethnicity, migrant status, disability (versus non-
disability), economic disadvantage (versus non-disadvantaged), and
limited English proficiency status at the school, district, and state
levels.
7. Demonstrate that the Idaho SDE has developed or adopted a set of
high-quality, yearly student assessments that will be used as the
primary means of determining the yearly performance of each local
educational agency and school served under Title I, Part A. Provide
evidence that the accountability system will allow the results of the
Idaho final assessment system to be the primary indicators of adequate
yearly progress. Document the incorporation of performance data for SWD
and LEP students into the reporting of results for assessment and
accountability purposes.
8. Provide a plan for evaluating the adequate yearly progress of
small schools and K-2 schools.

[[Page 8265]]

9. Describe plans to comply with the No Child Left Behind Act of
200 I assessment and accountability requirements.
During the period that this Compliance Agreement is in effect,
Idaho SDE 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. Specifically, the Compliance Agreement
sets forth below action steps Idaho SDE must meet to come into
compliance with its Title I obligations.

Compliance Agreement, April 2002

U.S. Dept. of Education/ldaho State Dept. of Education

The action steps incorporated into this Compliance Agreement may be
amended by joint agreement of the parties, provided full compliance can
still be accomplished by the expiration date of the Agreement.
In addition to all of the terms and conditions set forth above,
Idaho agrees that its continued eligibility to receive Title I, Part A
funds is predicated upon compliance with statutory and regulatory
requirements of that program that have not been addressed by this
Agreement, including the requirements of the No Child Left Behind Act
of 2001.
If the Idaho SDE fails to comply with any of the terms and
conditions of this Compliance Agreement, including the action steps
below, the U.S. Department of Education 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.

For Idaho's State Department of Education:
Dated: March 22, 2002.
Dr. Marilyn Howard,
Superintendent.

For the United States Department of Education:
Dated: March 22, 2002.
Susan B. Neuman,
Assistant Secretary, Office of Elementary and Secondary Education.

Date this Compliance Agreement becomes effective (Date of
Assistant Secretary's Written Decision and Findings): March .21-,
2002.
Expiration Date of this Agreement: March -.29--, 2005.

Compliance Agreement, April 2002

U.S. Dept. of Education/Idaho State Dept. of Education

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[FR Doc. 03-4076 Filed 2-19-03; 8:45 am]

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