Compliance Agreement, 4403-4416 [E9-1548]

Download as PDF Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices DEPARTMENT OF EDUCATION Compliance Agreement Department of Education. Notice of written findings and compliance agreement with the Vermont Department of Education. AGENCY: ACTION: 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 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 January 6, 2009, the Department entered into a compliance agreement with the Vermont Department of Education (VTDOE). 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 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 VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 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 May 2007, VTDOE 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 VTDOE’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; PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 4403 (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 December 19, 2007, to Richard H. Cate, Vermont’s former Commissioner of Education, the Assistant Secretary notified VTDOE that, 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 5, 2008, Department officials conducted a public hearing in Vermont to assess whether a compliance agreement with VTDOE might be appropriate. Dr. Michael Hock testified at this hearing on behalf of VTDOE. The Department considered the testimony provided at the June 2008 public hearing and all other relevant information and materials and concluded that VTDOE 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 VTDOE with the Title I standards and assessment requirements is genuinely not feasible until a future date. Under Title I, VTDOE was required to implement its final assessment system no later than the 2005–2006 school year. The evidence that VTDOE submitted in May 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 VTDOE must implement to come into compliance with Title I requirements. Due to the enormity and complexity of the work that is needed to bring VTDOE’s standards and assessment system into full compliance, VTDOE cannot immediately comply with all of the Title I requirements. E:\FR\FM\26JAN1.SGM 26JAN1 4404 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices Vermont’s Acting Commissioner of Education, Bill Talbott, and the Assistant Secretary signed the compliance agreement on January 6, 2009. 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. For the following reasons, the Assistant Secretary has concluded that it would be appropriate to enter into a compliance agreement with VTDOE to bring it into full compliance as soon as feasible. During the effective period of the compliance agreement, which ends January 6, 2011, VTDOE 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. 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. 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. 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. Academic 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. Note: The official version of a 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 U.S. Department of Education and the Vermont 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 Vermont Department of Education (VTDOE) 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 VTDOE to achieve full compliance immediately. Specifically, the Assistant Secretary has determined that VTDOE did not meet, within the statutory timeframe, a number of the Title I requirements concerning the academic achievement standards, technical quality, alignment, and reporting of results for Vermont’s alternate assessment based on alternate academic achievement standards for students with the most significant cognitive disabilities. VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 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 PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 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 E:\FR\FM\26JAN1.SGM 26JAN1 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 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 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 VTDOE is appropriate, the Assistant Secretary must determine whether compliance by VTDOE with the Title I standards and assessment requirements is genuinely not feasible until a future date. 20 U.S.C. 1234f(b)(2). A. VTDOE Has Failed to Comply Substantially With Title I Standards and Assessment Requirements In May 2007, VTDOE 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 VTDOE’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, VTDOE had to submit the following evidence: Academic Achievement Standards 1. Evidence of approved/adopted alternate academic achievement standards for students with the most significant cognitive disabilities in reading/language arts and mathematics for each of grades 3 through 8 and at least one grade in the 10–12 grade span. 2. Documentation of the development of academic achievement descriptors for the alternate assessment in the content area of science. VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 3. Evidence that the alternate academic achievement standards include for each content area: a. At least three levels of achievement, including two levels of high achievement (e.g., proficient and advanced) that determine how well students are mastering a State’s academic content standards, and a third level of achievement (e.g., basic) to provide information about the progress of lowerachieving students toward mastering the proficient and advanced levels of achievement; b. Descriptions of the competencies associated with each achievement level; and c. Assessment scores (‘‘cut scores’’) that differentiate among the achievement levels. 4. Evidence that the Board or other authority has adopted all alternate achievement standards. 5. Documentation that the State has reported separately the number and percent of those students with disabilities assessed on the alternate assessment based on alternate achievement standards, those assessed on an alternate assessment based on grade-level standards, and those included in the regular assessment (including those administered that assessment with appropriate accommodations). 6. Evidence that the State has documented the involvement of diverse stakeholders in the development of its alternate academic achievement standards. Technical Quality 1. Evidence that the State has documented validity (in addition to the alignment of the alternate assessment with the content standards), as described in the Standards for Educational and Psychological Testing (AERA/APA/NCME, 1999). 2. For the alternate assessment, evidence that the State has provided documentation of the standard setting process, including a description the selection of judges, methodology employed, and final results. 3. For the alternate assessment(s), evidence that the State has considered the issue of reliability, as described in the Standards for Educational and Psychological Testing (AERA/APA/NCME, 1999). 4. Evidence that the State has established: a. Clear criteria for the administration, scoring, analysis, and reporting components of its alternate assessment; and b. A system for monitoring and improving the ongoing quality of its alternate assessment. Alignment 1. Evidence that the Alternate Grade-Level Expectations (AGEs) and all associated tasks across grade spans submitted for the Portfolio Assessment of Alternate Grade Expectations are aligned with State academic content standards in reading and mathematics. 2. Evidence that the State has developed ongoing procedures to maintain and improve alignment between the alternate assessment and standards over time, particularly if gaps have been noted. Reports 1. Evidence that the State will produce individual student alternate assessment reports in terms of the State’s revised PO 00000 Frm 00038 Fmt 4703 Sfmt 4703 4405 alternate achievement standards. With respect to such individual student reports: a. Evidence that these individual student reports provide information for parents, teachers, and principals to help them understand and address a student’s specific academic needs. This information must be displayed in a format and language that is understandable to parents, teachers, and principals, for example, through the use of descriptors that describe what students know and can do at different performance levels. The reports must be accompanied by interpretive guidance for these audiences; and b. Evidence that the State ensures that these individual student reports will be delivered to parents, teachers, and principals as soon as possible after the alternate assessment is administered. B. VTDOE Cannot Correct Immediately Its Noncompliance With the Title I Standards and Assessment Requirements Under Title I, VTDOE 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 VTDOE submitted in May 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 VTDOE into compliance with the Title I requirements. At the public hearing, which was held on June 5, 2008, VTDOE 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. Michael Hock, Vermont’s Director of Educational Assessment, testified that, to bring Vermont’s standards and assessment system into compliance, Vermont must document the successful completion of a number of tasks, including: Revising the State’s alternate academic achievement standards for reading and mathematics to reflect an increased emphasis on academic content; using a validated standard-setting process that includes direct input from teachers or other individuals with specific expertise in the academic content areas; revising the guidelines for the collection, scoring, and reporting of student performance relative to the alternate academic achievement standards; and revising the scoring materials and procedures for the alternate assessment based on alternate academic achievement standards. Dr. Hock further testified that VTDOE intended to hold extensive training sessions for teachers on the revised frameworks for the alternate academic achievement standards. Dr. Hock stated that VTDOE needs the time afforded by a compliance agreement to bring its standards and assessment system into compliance to ensure that its alternate assessment remains an appropriate assessment for students with disabilities and that teachers are knowledgeable about the changes in the types of skills assessed as well as the types of evidence to be submitted for the portfolio assessment. Dr. Hock’s testimony is consistent with the comprehensive action plan that VTDOE has E:\FR\FM\26JAN1.SGM 26JAN1 4406 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices developed and that is incorporated into the compliance agreement. That action plan sets out a very specific schedule that VTDOE has agreed to meet during the next two 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 VTDOE’s standards and assessment system into full compliance, VTDOE cannot immediately comply with all of the Title I requirements. As a result, the Assistant Secretary finds that it is not genuinely feasible for VTDOE to come into compliance until a future date. IV. Conclusion For the foregoing reasons, the Assistant Secretary finds that full compliance by VTDOE 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 VTDOE. Dated: Jan. 12, 2009. lll /s/ lll Kerri L. Briggs, PhD 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 Vermont 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 VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 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-Englishproficient 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, 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 Vermont Department of Education (VTDOE) 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, Richard Cate, Commissioner of Education, indicated VTDOE’s interest in entering into a compliance agreement with the United States Department of Education (Department). On June 5, 2008, the Department conducted a public hearing regarding: (1) Whether VTDOE’s full compliance with Title I is not feasible until a future date; and (2) whether VTDOE 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, VTDOE 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 PO 00000 Frm 00039 Fmt 4703 Sfmt 4703 into, this Agreement. To achieve compliance with the standards and assessment requirements, VTDOE must submit the following evidence: Academic Achievement Standards 1. Evidence of approved/adopted alternate academic achievement standards for students with the most significant cognitive disabilities in reading/language arts and mathematics for each of grades 3 through 8 and at least one grade in the 10–12 grade span. 2. Documentation of the development of academic achievement descriptors for the alternate assessment in the content area of science. 3. Evidence that the alternate academic achievement standards include for each content area: a. At least three levels of achievement, including two levels of high achievement (e.g., proficient and advanced) that determine how well students are mastering a State’s academic content standards, and a third level of achievement (e.g., basic) to provide information about the progress of lowerachieving students toward mastering the proficient and advanced levels of achievement; b. Descriptions of the competencies associated with each achievement level; and c. Assessment scores (‘‘cut scores’’) that differentiate among the achievement levels. 4. Evidence that the Board or other authority has adopted all alternate achievement standards. 5. Documentation that the State has reported separately the number and percent of those students with disabilities assessed on the alternate assessment based on alternate achievement standards, those assessed on an alternate assessment based on grade-level standards, and those included in the regular assessment (including those administered that assessment with appropriate accommodations). 6. Evidence that the State has documented the involvement of diverse stakeholders in the development of its alternate academic achievement standards. Technical Quality 1. Evidence that the State has documented validity (in addition to the alignment of the alternate assessment with the content standards), as described in the Standards for Educational and Psychological Testing (AERA/APA/NCME, 1999). 2. For the alternate assessment, evidence that the State has provided documentation of the standard setting process, including a description of the selection of judges, methodology employed, and final results. 3. For the alternate assessment(s), evidence that the State has considered the issue of reliability, as described in the Standards for Educational and Psychological Testing (AERA/APA/NCME, 1999). 4. Evidence that the State has established: a. Clear criteria for the administration, scoring, analysis, and reporting components of its alternate assessment; and b. A system for monitoring and improving the ongoing quality of its alternate assessment. E:\FR\FM\26JAN1.SGM 26JAN1 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices Alignment 1. Evidence that the Alternate Grade-Level Expectations (AGEs) and all associated tasks across grade spans submitted for the Portfolio Assessment of Alternate Grade Expectations are aligned with State academic content standards in reading and mathematics. 2. Evidence that the State has developed ongoing procedures to maintain and improve alignment between the alternate assessment and standards over time, particularly if gaps have been noted. Reports 1. Evidence that the State will produce individual student alternate assessment reports in terms of the State’s revised alternate achievement standards. With respect to such individual student reports: a. Evidence that these individual student reports provide information for parents, teachers, and principals to help them understand and address a student’s specific academic needs. This information must be displayed in a format and language that is understandable to parents, teachers, and principals, for example, through the use of descriptors that describe what students know and can do at different performance levels. The reports must be accompanied by interpretive guidance for these audiences; and VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 b. Evidence that the State ensures that these individual student reports will be delivered to parents, teachers, and principals as soon as possible after the alternate assessment is administered. During the period that this Compliance Agreement is in effect, VTDOE 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 VTDOE 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, VTDOE 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 PO 00000 Frm 00040 Fmt 4703 Sfmt 4703 4407 this Agreement, including any amendments to the No Child Left Behind Act of 2001. If VTDOE 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 Vermont Department of Education. ll/s/lll Bill Talbott, Acting Commissioner of Education. Date: Jan. 6, 2009. For the United States Department of Education. ll/s/lll Kerri L. Briggs, PhD, Assistant Secretary, Office of Elementary and Secondary Education. Date: Jan. 6, 2009. Date this Compliance Agreement becomes effective: Jan. 6, 2009. Expiration Date of this Agreement: Jan. 6, 2011. BILLING CODE 4000–01–P E:\FR\FM\26JAN1.SGM 26JAN1 VerDate Nov<24>2008 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 17:20 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00041 Fmt 4703 Sfmt 4725 E:\FR\FM\26JAN1.SGM 26JAN1 EN26JA09.020</GPH> 4408 VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00042 Fmt 4703 Sfmt 4725 E:\FR\FM\26JAN1.SGM 26JAN1 4409 EN26JA09.021</GPH> Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices VerDate Nov<24>2008 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 17:20 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00043 Fmt 4703 Sfmt 4725 E:\FR\FM\26JAN1.SGM 26JAN1 EN26JA09.022</GPH> 4410 VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00044 Fmt 4703 Sfmt 4725 E:\FR\FM\26JAN1.SGM 26JAN1 4411 EN26JA09.023</GPH> Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices VerDate Nov<24>2008 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 17:20 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00045 Fmt 4703 Sfmt 4725 E:\FR\FM\26JAN1.SGM 26JAN1 EN26JA09.024</GPH> 4412 VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00046 Fmt 4703 Sfmt 4725 E:\FR\FM\26JAN1.SGM 26JAN1 4413 EN26JA09.025</GPH> Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices VerDate Nov<24>2008 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 17:20 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00047 Fmt 4703 Sfmt 4725 E:\FR\FM\26JAN1.SGM 26JAN1 EN26JA09.026</GPH> 4414 VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00048 Fmt 4703 Sfmt 4725 E:\FR\FM\26JAN1.SGM 26JAN1 4415 EN26JA09.027</GPH> Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices 4416 Federal Register / Vol. 74, No. 15 / Monday, January 26, 2009 / Notices [FR Doc. E9–1548 Filed 1–23–09; 8:45 am] VerDate Nov<24>2008 17:20 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00049 Fmt 4703 Sfmt 4703 E:\FR\FM\26JAN1.SGM 26JAN1 EN26JA09.028</GPH> BILLING CODE 4000–01–C

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[Federal Register Volume 74, Number 15 (Monday, January 26, 2009)]
[Notices]
[Pages 4403-4416]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1548]



[[Page 4403]]

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DEPARTMENT OF EDUCATION


Compliance Agreement

AGENCY: Department of Education.

ACTION: Notice of written findings and compliance agreement with the 
Vermont 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 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 January 6, 2009, the Department entered into a compliance 
agreement with the Vermont Department of Education (VTDOE). 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 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.
    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 May 2007, VTDOE 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 VTDOE'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 December 19, 2007, to Richard H. Cate, Vermont's 
former Commissioner of Education, the Assistant Secretary notified 
VTDOE that, 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 5, 2008, Department officials conducted a 
public hearing in Vermont to assess whether a compliance agreement with 
VTDOE might be appropriate. Dr. Michael Hock testified at this hearing 
on behalf of VTDOE. The Department considered the testimony provided at 
the June 2008 public hearing and all other relevant information and 
materials and concluded that VTDOE 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 VTDOE with the Title I standards 
and assessment requirements is genuinely not feasible until a future 
date. Under Title I, VTDOE was required to implement its final 
assessment system no later than the 2005-2006 school year. The evidence 
that VTDOE submitted in May 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 VTDOE must implement 
to come into compliance with Title I requirements. Due to the enormity 
and complexity of the work that is needed to bring VTDOE's standards 
and assessment system into full compliance, VTDOE cannot immediately 
comply with all of the Title I requirements.

[[Page 4404]]

    Vermont's Acting Commissioner of Education, Bill Talbott, and the 
Assistant Secretary signed the compliance agreement on January 6, 2009.
    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.
    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 a 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 U.S. 
Department of Education and the Vermont 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 Vermont Department of Education (VTDOE) 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 VTDOE to achieve full 
compliance immediately. Specifically, the Assistant Secretary has 
determined that VTDOE did not meet, within the statutory timeframe, 
a number of the Title I requirements concerning the academic 
achievement standards, technical quality, alignment, and reporting 
of results for Vermont'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 VTDOE to bring it into full compliance as soon as feasible. 
During the effective period of the compliance agreement, which ends 
January 6, 2011, VTDOE 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. Academic 
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

[[Page 4405]]

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 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 VTDOE is appropriate, the Assistant Secretary must 
determine whether compliance by VTDOE with the Title I standards and 
assessment requirements is genuinely not feasible until a future 
date. 20 U.S.C. 1234f(b)(2).

A. VTDOE Has Failed to Comply Substantially With Title I Standards and 
Assessment Requirements

    In May 2007, VTDOE 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 VTDOE'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, VTDOE had to submit the following 
evidence:

Academic Achievement Standards

    1. Evidence of approved/adopted alternate academic achievement 
standards for students with the most significant cognitive 
disabilities in reading/language arts and mathematics for each of 
grades 3 through 8 and at least one grade in the 10-12 grade span.
    2. Documentation of the development of academic achievement 
descriptors for the alternate assessment in the content area of 
science.
    3. Evidence that the alternate academic achievement standards 
include for each content area:
    a. At least three levels of achievement, including two levels of 
high achievement (e.g., proficient and advanced) that determine how 
well students are mastering a State's academic content standards, 
and a third level of achievement (e.g., basic) to provide 
information about the progress of lower-achieving students toward 
mastering the proficient and advanced levels of achievement;
    b. Descriptions of the competencies associated with each 
achievement level; and
    c. Assessment scores (``cut scores'') that differentiate among 
the achievement levels.
    4. Evidence that the Board or other authority has adopted all 
alternate achievement standards.
    5. Documentation that the State has reported separately the 
number and percent of those students with disabilities assessed on 
the alternate assessment based on alternate achievement standards, 
those assessed on an alternate assessment based on grade-level 
standards, and those included in the regular assessment (including 
those administered that assessment with appropriate accommodations).
    6. Evidence that the State has documented the involvement of 
diverse stakeholders in the development of its alternate academic 
achievement standards.

Technical Quality

    1. Evidence that the State has documented validity (in addition 
to the alignment of the alternate assessment with the content 
standards), as described in the Standards for Educational and 
Psychological Testing (AERA/APA/NCME, 1999).
    2. For the alternate assessment, evidence that the State has 
provided documentation of the standard setting process, including a 
description the selection of judges, methodology employed, and final 
results.
    3. For the alternate assessment(s), evidence that the State has 
considered the issue of reliability, as described in the Standards 
for Educational and Psychological Testing (AERA/APA/NCME, 1999).
    4. Evidence that the State has established:
    a. Clear criteria for the administration, scoring, analysis, and 
reporting components of its alternate assessment; and
    b. A system for monitoring and improving the ongoing quality of 
its alternate assessment.

Alignment

    1. Evidence that the Alternate Grade-Level Expectations (AGEs) 
and all associated tasks across grade spans submitted for the 
Portfolio Assessment of Alternate Grade Expectations are aligned 
with State academic content standards in reading and mathematics.
    2. Evidence that the State has developed ongoing procedures to 
maintain and improve alignment between the alternate assessment and 
standards over time, particularly if gaps have been noted.

Reports

    1. Evidence that the State will produce individual student 
alternate assessment reports in terms of the State's revised 
alternate achievement standards. With respect to such individual 
student reports:
    a. Evidence that these individual student reports provide 
information for parents, teachers, and principals to help them 
understand and address a student's specific academic needs. This 
information must be displayed in a format and language that is 
understandable to parents, teachers, and principals, for example, 
through the use of descriptors that describe what students know and 
can do at different performance levels. The reports must be 
accompanied by interpretive guidance for these audiences; and
    b. Evidence that the State ensures that these individual student 
reports will be delivered to parents, teachers, and principals as 
soon as possible after the alternate assessment is administered.

 B. VTDOE Cannot Correct Immediately Its Noncompliance With the Title I 
Standards and Assessment Requirements

    Under Title I, VTDOE 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 VTDOE submitted in May 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 VTDOE into 
compliance with the Title I requirements.
    At the public hearing, which was held on June 5, 2008, VTDOE 
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. Michael Hock, Vermont's Director of Educational 
Assessment, testified that, to bring Vermont's standards and 
assessment system into compliance, Vermont must document the 
successful completion of a number of tasks, including: Revising the 
State's alternate academic achievement standards for reading and 
mathematics to reflect an increased emphasis on academic content; 
using a validated standard-setting process that includes direct 
input from teachers or other individuals with specific expertise in 
the academic content areas; revising the guidelines for the 
collection, scoring, and reporting of student performance relative 
to the alternate academic achievement standards; and revising the 
scoring materials and procedures for the alternate assessment based 
on alternate academic achievement standards. Dr. Hock further 
testified that VTDOE intended to hold extensive training sessions 
for teachers on the revised frameworks for the alternate academic 
achievement standards. Dr. Hock stated that VTDOE needs the time 
afforded by a compliance agreement to bring its standards and 
assessment system into compliance to ensure that its alternate 
assessment remains an appropriate assessment for students with 
disabilities and that teachers are knowledgeable about the changes 
in the types of skills assessed as well as the types of evidence to 
be submitted for the portfolio assessment. Dr. Hock's testimony is 
consistent with the comprehensive action plan that VTDOE has

[[Page 4406]]

developed and that is incorporated into the compliance agreement. 
That action plan sets out a very specific schedule that VTDOE has 
agreed to meet during the next two 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 VTDOE's standards and assessment system into full compliance, 
VTDOE cannot immediately comply with all of the Title I 
requirements. As a result, the Assistant Secretary finds that it is 
not genuinely feasible for VTDOE to come into compliance until a 
future date.

 IV. Conclusion

    For the foregoing reasons, the Assistant Secretary finds that 
full compliance by VTDOE 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 VTDOE.

Dated: Jan. 12, 2009.

------ /s/ ------
Kerri L. Briggs, PhD
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 
Vermont 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, 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 Vermont Department of Education (VTDOE) 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, Richard Cate, Commissioner of Education, indicated 
VTDOE's interest in entering into a compliance agreement with the 
United States Department of Education (Department). On June 5, 2008, 
the Department conducted a public hearing regarding: (1) Whether 
VTDOE's full compliance with Title I is not feasible until a future 
date; and (2) whether VTDOE 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, VTDOE 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, 
VTDOE must submit the following evidence:

Academic Achievement Standards

    1. Evidence of approved/adopted alternate academic achievement 
standards for students with the most significant cognitive 
disabilities in reading/language arts and mathematics for each of 
grades 3 through 8 and at least one grade in the 10-12 grade span.
    2. Documentation of the development of academic achievement 
descriptors for the alternate assessment in the content area of 
science.
    3. Evidence that the alternate academic achievement standards 
include for each content area:
    a. At least three levels of achievement, including two levels of 
high achievement (e.g., proficient and advanced) that determine how 
well students are mastering a State's academic content standards, 
and a third level of achievement (e.g., basic) to provide 
information about the progress of lower-achieving students toward 
mastering the proficient and advanced levels of achievement;
    b. Descriptions of the competencies associated with each 
achievement level; and
    c. Assessment scores (``cut scores'') that differentiate among 
the achievement levels.
    4. Evidence that the Board or other authority has adopted all 
alternate achievement standards.
    5. Documentation that the State has reported separately the 
number and percent of those students with disabilities assessed on 
the alternate assessment based on alternate achievement standards, 
those assessed on an alternate assessment based on grade-level 
standards, and those included in the regular assessment (including 
those administered that assessment with appropriate accommodations).
    6. Evidence that the State has documented the involvement of 
diverse stakeholders in the development of its alternate academic 
achievement standards.

Technical Quality

    1. Evidence that the State has documented validity (in addition 
to the alignment of the alternate assessment with the content 
standards), as described in the Standards for Educational and 
Psychological Testing (AERA/APA/NCME, 1999).
    2. For the alternate assessment, evidence that the State has 
provided documentation of the standard setting process, including a 
description of the selection of judges, methodology employed, and 
final results.
    3. For the alternate assessment(s), evidence that the State has 
considered the issue of reliability, as described in the Standards 
for Educational and Psychological Testing (AERA/APA/NCME, 1999).
    4. Evidence that the State has established:
    a. Clear criteria for the administration, scoring, analysis, and 
reporting components of its alternate assessment; and
    b. A system for monitoring and improving the ongoing quality of 
its alternate assessment.

[[Page 4407]]

Alignment

    1. Evidence that the Alternate Grade-Level Expectations (AGEs) 
and all associated tasks across grade spans submitted for the 
Portfolio Assessment of Alternate Grade Expectations are aligned 
with State academic content standards in reading and mathematics.
    2. Evidence that the State has developed ongoing procedures to 
maintain and improve alignment between the alternate assessment and 
standards over time, particularly if gaps have been noted.

Reports

    1. Evidence that the State will produce individual student 
alternate assessment reports in terms of the State's revised 
alternate achievement standards. With respect to such individual 
student reports:
    a. Evidence that these individual student reports provide 
information for parents, teachers, and principals to help them 
understand and address a student's specific academic needs. This 
information must be displayed in a format and language that is 
understandable to parents, teachers, and principals, for example, 
through the use of descriptors that describe what students know and 
can do at different performance levels. The reports must be 
accompanied by interpretive guidance for these audiences; and
    b. Evidence that the State ensures that these individual student 
reports will be delivered to parents, teachers, and principals as 
soon as possible after the alternate assessment is administered.

During the period that this Compliance Agreement is in effect, VTDOE 
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 VTDOE 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, 
VTDOE 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 VTDOE 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 Vermont Department of Education.
----/s/------
Bill Talbott,
Acting Commissioner of Education.

Date: Jan. 6, 2009.

    For the United States Department of Education.
----/s/------
Kerri L. Briggs, PhD,
Assistant Secretary, Office of Elementary and Secondary Education.

Date: Jan. 6, 2009.
Date this Compliance Agreement becomes effective: Jan. 6, 2009.
Expiration Date of this Agreement: Jan. 6, 2011.

BILLING CODE 4000-01-P

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[FR Doc. E9-1548 Filed 1-23-09; 8:45 am]
BILLING CODE 4000-01-C?>