Compliance Agreement, 4383-4402 [E9-1552]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 74, Number 15 (Monday, January 26, 2009)]
[Notices]
[Pages 4383-4402]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-1552]


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DEPARTMENT OF EDUCATION


Compliance Agreement

AGENCY: Department of Education.

ACTION: Notice of written findings and compliance agreement with the 
Nevada Department of Education.

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SUMMARY: This notice is being published in the Federal Register 
consistent with section 457(b)(2) of the General Education Provisions 
Act (GEPA). Section 457 of GEPA authorizes the U.S. Department of 
Education (the Department) to enter into a compliance agreement with a 
recipient that is failing to comply substantially with Federal program 
requirements. In order to enter

[[Page 4384]]

into a compliance agreement, the Department must determine, in written 
findings, that the recipient cannot comply with the applicable program 
requirements until a future date.
    On December 4, 2008, the Department entered into a compliance 
agreement with the Nevada Department of Education (NDE). Section 
457(b)(2) of GEPA requires the Department to publish written findings 
leading to a compliance agreement, with a copy of the compliance 
agreement, in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Sharon Hall, U.S. Department of 
Education, Office of Elementary and Secondary Education, 400 Maryland 
Avenue, SW., room 3W214, Washington, DC 20202-6132. Telephone: (202) 
260-0998.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
accessible format (e.g., braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION: Title I of the Elementary and Secondary 
Education Act of 1965 (Title I), as amended by the No Child Left Behind 
Act of 2001, requires each State receiving Title I funds to satisfy 
certain requirements.
    Under Title I, each State is required to adopt academic content and 
student academic achievement standards in at least mathematics, reading 
or language arts, and science. These standards must include the same 
knowledge and levels of achievement expected of all public school 
students in the State. Content standards must specify what all students 
are expected to know and be able to do; contain coherent and rigorous 
content; and encourage the teaching of advanced skills. Achievement 
standards must be aligned with the State's academic content standards 
and must describe at least three levels of proficiency to determine how 
well students in each grade are mastering the content standards. A 
State must provide descriptions of the competencies associated with 
each student's academic achievement level and must determine the 
assessment scores (``cut scores'') that differentiate among the 
achievement levels.
    Title I also requires each State to implement a student assessment 
system to evaluate whether students are mastering the subject material 
reflected in the State's academic content standards. By the 2005-2006 
school year, States were required to administer mathematics and reading 
or language arts assessments yearly during grades 3-8 and once during 
grades 10-12. Further, beginning with the 2007-2008 school year, each 
State was required to administer a science assessment in at least one 
grade in each of the following grade spans: 3-5, 6-9, and 10-12.
    In addition to a general assessment, Title I requires States to 
develop and administer at least one alternate assessment for students 
with disabilities who cannot participate in the general assessment, 
with or without accommodations. An alternate assessment may be based on 
grade-level academic achievement standards, alternate academic 
achievement standards, or modified academic achievement standards. Like 
the general assessment, any alternate assessment must satisfy the 
requirements for high technical quality, including validity, 
reliability, accessibility, objectivity, and consistency with 
nationally recognized professional and technical standards.
    In June 2007, NDE submitted evidence of its standards and 
assessment system. The Assistant Secretary for Elementary and Secondary 
Education (Assistant Secretary) submitted that evidence to a panel of 
experts for peer review. Following that review, the Assistant Secretary 
concluded that NDE's standards and assessment system did not meet a 
number of the Title I requirements.
    Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies 
available to the Department when it determines that a recipient ``is 
failing to comply substantially with any requirement of law'' 
applicable to Federal program funds the Department administers. 
Specifically, the Department is authorized to--
    (1) Withhold funds;
    (2) Compel compliance through a cease and desist order;
    (3) Enter into a compliance agreement with the recipient; or
    (4) Take any other action authorized by law. 20 U.S.C. 1234c(a).
    In a letter dated September 21, 2007, to Keith W. Rheault, Nevada's 
Superintendent of Public Instruction, the Assistant Secretary notified 
NDE that, in order to remain eligible to receive Title I funds, it 
would have to enter into a compliance agreement with the Department. 
The purpose of a compliance agreement is ``to bring the recipient into 
full compliance with the applicable requirements of law as soon as 
feasible and not to excuse or remedy past violations of such 
requirements.'' 20 U.S.C. 1234f (a). In order to enter into a 
compliance agreement with a recipient, the Department must determine, 
in written findings, that the recipient cannot comply until a future 
date with the applicable program requirements.
    In accordance with the requirements of section 457(b) of GEPA, 20 
U.S.C 1234f (b), on June 23, 2008, Department officials conducted a 
public hearing in Nevada to assess whether a compliance agreement with 
NDE might be appropriate. Keith W. Rheault, Nevada's Superintendent of 
Public Instruction, testified at this hearing on behalf of NDE. The 
Department considered the testimony provided at the June 2008 public 
hearing and all other relevant information and materials and concluded 
that NDE would not be able to correct its non-compliance with Title I 
standards and assessment requirements immediately.
    On January 12, 2009, the Assistant Secretary issued written 
findings holding that compliance by NDE with the Title I standards and 
assessment requirements is genuinely not feasible until a future date. 
Under Title I, NDE was required to implement its final assessment 
system no later than the 2005-2006 school year. The evidence that NDE 
submitted in June 2007 indicated that, well after the statutory 
deadline had passed, its standards and assessment system still did not 
fully meet Title I requirements. In addition, the compliance agreement 
sets out the action plan that NDE must implement to come into 
compliance with Title I requirements. Due to the enormity and 
complexity of the work that is needed to bring NDE's standards and 
assessment system into full compliance, NDE cannot immediately comply 
with all of the Title I requirements.
    Nevada's Superintendent of Public Instruction, Keith W. Rheault, 
signed the compliance agreement on December 1, 2008, and the Assistant 
Secretary signed the compliance agreement on December 4, 2008.
    As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f (b)(2), 
the text of the Assistant Secretary's written findings is set forth as 
Appendix A and the compliance agreement is set forth as Appendix B of 
this notice.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
https://www.ed.gov/news/fedregister.

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    Note: The official version of this document is the document 
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nara/.


    Authority: 20 U.S.C. 1234c, 1234f.

    Dated: January 16, 2009.
Kerri L. Briggs,
Assistant Secretary for Elementary and Secondary Education.

Appendix A

Written Findings of the Assistant Secretary for Elementary and 
Secondary Education Regarding the Compliance Agreement Between the 
United States Department of Education and the Nevada Department of 
Education

I. Introduction

    The Assistant Secretary for Elementary and Secondary Education 
(Assistant Secretary) of the U.S. Department of Education 
(Department) has determined, pursuant to 20 U.S.C. 1234c and 1234f, 
that the Nevada Department of Education (NVDOE) has failed to comply 
substantially with certain requirements of Title I, Part A of the 
Elementary and Secondary Education Act of 1965 (Title I), as amended 
by the No Child Left Behind Act of 2001, 20 U.S.C. 6301 et seq., and 
that it is not feasible for NVDOE to achieve full compliance 
immediately. Specifically, the Assistant Secretary has determined 
that NVDOE did not meet, within the statutory timeframe, a number of 
the Title I requirements concerning the alignment of Nevada's High 
School Proficiency Examination (HSPE) to grade-level content 
standards as well as requirements concerning the academic 
achievement standards and alignment of the Nevada Alternate Scales 
of Academic Achievement (NASAA), Nevada's alternate assessment based 
on alternate academic achievement standards for students with the 
most significant cognitive disabilities.
    For the following reasons, the Assistant Secretary has concluded 
that it would be appropriate to enter into a compliance agreement 
with NVDOE to bring it into full compliance as soon as feasible. 
During the effective period of the compliance agreement, which ends 
December 4, 2011, NVDOE will be eligible to receive Title I funds as 
long as it complies with the terms and conditions of the agreement 
as well as the provisions of Title I and other applicable Federal 
statutory and regulatory requirements.

II. Relevant Statutory and Regulatory Provisions

A. Title I, Part A of the Elementary and Secondary Education Act of 
1965, as Amended by the No Child Left Behind Act of 2001

    Title I provides financial assistance, through State educational 
agencies, to local educational agencies to provide services in high-
poverty schools to students who are failing or at risk of failing to 
meet the State's student academic achievement standards. Under Title 
I, each State, including the District of Columbia and Puerto Rico, 
was required to adopt academic content and student academic 
achievement standards in at least mathematics, reading or language 
arts, and science. These standards must include the same knowledge 
and levels of achievement expected of all public school students in 
the State. Content standards must specify what all students are 
expected to know and be able to do; contain coherent and rigorous 
content; and encourage the teaching of advanced skills. Achievement 
standards must be aligned with the State's academic content 
standards and must describe at least three levels of proficiency to 
determine how well students in each grade are mastering the content 
standards. A State must provide descriptions of the competencies 
associated with each student's academic achievement level and must 
determine the assessment scores (``cut scores'') that differentiate 
among the achievement levels.
    Each State was also required to implement a student assessment 
system used to evaluate whether students are mastering the subject 
material reflected in the State's academic content standards. By the 
2005-2006 school year, States were required to administer 
mathematics and reading or language arts assessments yearly during 
grades 3-8 and once during grades 10-12. Further, beginning with the 
2007-2008 school year, each State was required to administer a 
science assessment in at least one grade in each of the following 
grade spans: 3-5, 6-9, and 10-12. A State's assessment system must:
     Be the same assessment system used to measure the 
achievement of all public school students in the State;
     Be designed to provide coherent information about 
student attainment of State academic content standards across grades 
and subjects;
     Provide for the inclusion of all students in the grades 
assessed, including students with disabilities and limited English 
proficient (LEP) students;
     Be aligned with the State's academic content and 
student academic achievement standards;
     Express student results in terms of the State's student 
academic achievement standards;
     Be valid, reliable, and of adequate technical quality 
for the purposes for which they are used and be consistent with 
nationally recognized professional and technical standards;
     Involve multiple measures of student academic 
achievement, including measures that assess higher order thinking 
skills and understanding of challenging content;
     Objectively measure academic achievement, knowledge, 
and skills without evaluating or assessing personal family beliefs 
and attitudes;
     Enable results to be disaggregated by gender, each 
major racial and ethnic group, migrant status, students with 
disabilities, English proficiency status, and economically 
disadvantaged students;
     Provide individual student reports; and
     Enable itemized score analyses.
    20 U.S.C. 6311(b)(3); 34 CFR 200.2.
    In addition to a general assessment, States were required to 
develop and administer at least one alternate assessment for 
students with disabilities who cannot participate in the general 
assessment, with or without accommodations. 34 CFR 200.6(a)(2). An 
alternate assessment may be based on grade-level academic 
achievement standards, alternate academic achievement standards, or 
modified academic achievement standards. Like the general 
assessment, any alternate assessment must satisfy the requirements 
for high technical quality, including validity, reliability, 
accessibility, objectivity, and consistency with nationally 
recognized professional and technical standards.

B. The General Education Provisions Act

    The General Education Provisions Act (GEPA) provides a number of 
options when the Assistant Secretary determines a recipient of 
Department funds is ``failing to comply substantially with any 
requirement of law applicable to such funds.'' 20 U.S.C. 1234c. In 
such a case, the Assistant Secretary is authorized to:
    (1) Withhold funds;
    (2) Compel compliance through a cease and desist order;
    (3) Enter into a compliance agreement with the recipient; or
    (4) Take any other action authorized by law.
    20 U.S.C. 1234c(a).
    Under section 457 of GEPA, the Assistant Secretary may enter 
into a compliance agreement with a recipient that is failing to 
comply substantially with specific program requirements. 20 U.S.C. 
1234f. The purpose of a compliance agreement is ``to bring the 
recipient into full compliance with the applicable requirements of 
law as soon as feasible and not to excuse or remedy past violations 
of such requirements.'' 20 U.S.C. 1234f(a). Before entering into a 
compliance agreement with a recipient, the Assistant Secretary must 
hold a hearing at which the recipient, affected students and parents 
or their representatives, and other interested parties are invited 
to participate. At that hearing, the recipient has the burden of 
persuading the Assistant Secretary that full compliance with 
applicable requirements of law is not feasible until a future date. 
20 U.S.C. 1234f(b)(1). If, on the basis of all the evidence 
presented, the Assistant Secretary determines that full compliance 
is genuinely not feasible until a future date, the Assistant 
Secretary must make written findings to that effect and must publish 
those findings, together with the substance of any compliance 
agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).
    A compliance agreement must set forth an expiration date, not 
later than three years

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from the date of the written findings, by which time the recipient 
must be in full compliance with all program requirements. 20 U.S.C. 
1234f(c)(1). In addition, a compliance agreement must contain the 
terms and conditions with which the recipient must comply during the 
period that agreement is in effect. 20 U.S.C. 1234f(c)(2). If the 
recipient fails to comply with any of the terms and conditions of 
the compliance agreement, the Assistant Secretary may consider the 
agreement to be no longer in effect, and may take any of the 
compliance actions set forth above. 20 U.S.C. 1234f(d).

III. Analysis

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

A. NVDOE Has Failed To Comply Substantially With Title I Standards 
and Assessment Requirements

    In June 2007, NVDOE submitted evidence of its standards and 
assessment system. The Assistant Secretary submitted that evidence 
to a panel of experts for peer review. Following that review, the 
Assistant Secretary concluded that NVDOE's standards and assessment 
system did not meet a number of the Title I requirements. 
Specifically, the Assistant Secretary determined that, to 
demonstrate its compliance, NVDOE had to submit the following 
evidence regarding its alternate assessment based on alternate 
academic achievement standards:

Academic Achievement Standards

    1. A clear and complete description of the process and decisions 
made in the development of the Nevada Alternate Scales of Academic 
Achievement (NASAA) standards for reading and mathematics, including 
the qualifications of participants in the standards-setting 
activity.
    2. Documentation confirming Board approval of the revised cut 
scores that were applied to the 2007 results of the NASAA.

Technical Quality

    1. Data that supports the current policy that accommodations 
yield valid scores and modifications do not.

Alignment

    1. A detailed explanation of the actions that will be taken to 
ensure improved alignment between assessments and revised content 
standards as the basis for test validity.
    2. Evidence of alignment of the High School Proficiency 
Examination (HSPE) with Nevada's academic content standards.
    3. A plan for using alignment study results to guide future 
development activities to improve alignment of the tests to 
standards.
    4. Documentation of alignment between the NASAA tasks 
administered by teachers and grade-level content standards.

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

    Under Title I, NVDOE was required to implement its final 
assessment system no later than the 2005-2006 school year. 20 U.S.C. 
6311(b)(3). The evidence that NVDOE submitted in June 2007 indicated 
that, well after the statutory deadline had passed, its standards 
and assessment system still did not fully meet Title I requirements. 
In addition, substantial work is required to bring NVDOE into 
compliance with the Title I requirements.
    At the public hearing, which was held on June 23, 2008, NVDOE 
presented evidence that compliance is not feasible until a future 
date, particularly in light of the work necessary to come into full 
compliance with the Title I standards and assessment requirements. 
In particular, Dr. Keith W. Rheault, Nevada's Superintendent of 
Public Instruction, testified that NVDOE is committed to resolving 
all outstanding issues related to the State's high school 
proficiency assessment (HSPE) and its alternate assessment based on 
alternate academic achievement standards (NASAA) within three years, 
but that it would not be possible for Nevada to come into compliance 
with all applicable requirements sooner than the 2010-11 school 
year. Dr. Rheault stated that, during the period the compliance 
agreement is in effect, NVDOE plans to align the HSPE to the State's 
new reading and mathematics content standards and to field test both 
the reading and mathematics assessments. Dr. Rheault also testified 
that NVDOE remains committed to assessing student performance on the 
NASAA through a portfolio of student work, but that NVDOE needs time 
to ensure that districts and teachers receive all training necessary 
to implement the changes being made to the NASAA. Dr. Rheault's 
testimony is consistent with the comprehensive action plan that 
NVDOE developed and that is incorporated into the compliance 
agreement. That action plan sets out a very specific schedule that 
NVDOE has agreed to meet during the next three years for completing 
all of the work necessary to attain compliance with the Title I 
standards and assessment requirements.
    Due to the enormity and complexity of the work that is needed to 
bring NVDOE's standards and assessment system into full compliance, 
NVDOE cannot immediately comply with all of the Title I 
requirements. As a result, the Assistant Secretary finds that it is 
not genuinely feasible for NVDOE to come into compliance until a 
future date.

IV. Conclusion

    For the foregoing reasons, the Assistant Secretary finds that 
full compliance by NVDOE with the standards and assessment 
requirements of Title I is genuinely not feasible until a future 
date. Therefore, the Assistant Secretary has determined that it is 
appropriate to enter into a compliance agreement with NVDOE.

    Dated: Jan. 12, 2009.

/s/--------------------------------------------------------------------

Kerri L. Briggs, Ph.D.,

Assistant Secretary for Elementary and Secondary Education.

Appendix B

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

    Title I of the Elementary and Secondary Education Act of 1965 
(Title I), as amended by the No Child Left Behind Act of 2001, 
requires each State receiving Title I funds to satisfy certain 
requirements.
    Each State was required to adopt academic content and 
achievement standards in at least mathematics, reading/language 
arts, and, beginning in the 2005-2006 school year, science. These 
standards must include the same knowledge and levels of achievement 
expected of all public school students in the State. Content 
standards must specify what all students are expected to know and be 
able to do; contain coherent and rigorous content; and encourage the 
teaching of advanced skills. Achievement standards must be aligned 
with the State's content standards and must describe at least three 
levels of proficiency to determine how well students in each grade 
are mastering the content standards. A State must provide 
descriptions of the competencies associated with each achievement 
level and must determine the assessment scores (``cut scores'') that 
differentiate among the achievement levels.
    Each State was also required to implement a student assessment 
system used to evaluate whether students are mastering the subject 
material reflected in the State's academic standards. By the 2005-
2006 school year, States were required to administer mathematics and 
reading/language arts assessments yearly during grades 3-8 and once 
during grades 10-12. Further, beginning with the 2007-2008 school 
year, each State was required to administer a science assessment in 
at least one grade in each of the following grade spans: 3-5, 6-9, 
and 10-12. A State's assessment system must:
     Be the same assessment system used to measure the 
achievement of all public school students in the State;
     Be designed to provide coherent information about 
student attainment of State standards across grades and subjects;
     Provide for the inclusion of all students in the grades 
assessed, including students with disabilities and limited-English-
proficient students;
     Be aligned with the State's content and achievement 
standards;
     Express student results in terms of the State's student 
achievement standards;
     Be valid, reliable, and of adequate technical quality 
for the purpose for which they are used and be consistent with 
nationally recognized professional and technical standards;
     Involve multiple measures of student academic 
achievement, including measures that assess higher order thinking 
skills and understanding of challenging content;
     Objectively measure academic achievement, knowledge, 
and skills without evaluating or assessing personal family beliefs 
and attitudes;
     Enable results to be disaggregated by gender, each 
major racial and ethnic group,

[[Page 4387]]

migrant status, students with disabilities, LEP students, and 
economically disadvantaged students;
     Provide individual student reports; and
     Enable itemized score analyses.
    In addition to a general assessment, States were required to 
develop at least one alternate assessment for students with 
disabilities who cannot participate in the general assessment, with 
or without accommodations. An alternate assessment may be based on 
grade-level achievement standards, alternate achievement standards, 
or modified achievement standards. Like the general assessment, any 
alternate assessment must satisfy the requirements for high 
technical quality, including validity, reliability, accessibility, 
objectivity, and consistency with nationally recognized professional 
and technical standards.
    The Nevada Department of Education (NVDOE) failed to timely meet 
certain of the statutory and regulatory requirements for its 
standards and assessment system. In order to be eligible to continue 
to receive Title I funds while working to comply with the 
requirements, Keith Rheault, Superintendent of Education, indicated 
NVDOE's interest in entering into a compliance agreement with the 
United States Department of Education (Department). On June 23, 
2008, the Department conducted a public hearing regarding: (1) 
whether NVDOE's full compliance with Title I is not feasible until a 
future date; and (2) whether NVDOE is able to come into compliance 
with the Title I standards and assessment requirements within three 
years.
    Pursuant to this Compliance Agreement under 20 U.S.C. Section 
1234f, NVDOE must be in full compliance with the outstanding 
requirements of Title I no later than three years from the date of 
the Assistant Secretary's written findings, a copy of which is 
attached to, and incorporated by reference into, this Agreement. To 
achieve compliance with the standards and assessment requirements, 
NVDOE must submit the following evidence:

2.0--Academic Achievement Standards

    1. A clear and complete description of the process and decisions 
made in the development of the Nevada Alternate Scales of Academic 
Achievement (NASAA) standards for reading and mathematics, including 
the qualifications of participants in the standards-setting 
activity.
    2. Documentation confirming Board approval of the revised cut 
scores that were applied to the 2007 results of the NASAA.

4.0--Technical Quality

    1. Data that supports the current policy that accommodations 
yield valid scores and modifications do not.

5.0--Alignment

    2. A detailed explanation of the actions that will be taken to 
ensure improved alignment between assessments and revised content 
standards as the basis for test validity.
    3. Evidence of alignment of the High School Proficiency 
Examination (HSPE) with Nevada's academic content standards.
    4. A plan for using alignment study results to guide future 
development activities to improve alignment of the tests to 
standards.
    5. Documentation of alignment between the NASAA tasks 
administered by teachers and grade-level content standards.
During the period that this Compliance Agreement is in effect, NVDOE 
is eligible to receive Title I, Part A funds if it complies with the 
terms and conditions of this Agreement, as well as the provisions of 
Title I, Part A and other applicable Federal statutory and 
regulatory requirements that are not specifically addressed by this 
Agreement. The attached action steps constitute a detailed plan and 
specific timeline for how NVDOE will come into compliance with the 
Title I standards and assessment requirements. The action steps are 
incorporated by reference into this Compliance Agreement as though 
fully set forth herein and may be amended by joint agreement of the 
parties, provided full compliance is still feasible by the 
expiration of the Agreement.
    In addition to all of the terms and conditions set forth above, 
NVDOE agrees that its continued eligibility to receive Title I, Part 
A funds is predicated upon its compliance with all statutory and 
regulatory requirements of that program, including those that are 
not specifically addressed by this Agreement, including any 
amendments to the No Child Left Behind Act of 2001.
    If NVDOE fails to comply with any of the terms and conditions of 
this Compliance Agreement, including the action steps attached 
hereto, the Department may consider the Agreement no longer in 
effect and may take any action authorized by law, including the 
withholding of funds or the issuance of a cease and desist order. 20 
U.S.C. 1234f(d).
    It is so agreed.

    For the Nevada Department of Education:
/s/--------------------------------------------------------------------

Keith Rheault,

Superintendent of Education.

    Date: Dec. 1, 2008.

    For the United States Department of Education:
/s/--------------------------------------------------------------------

Kerri L. Briggs, Ph.D.,

Assistant Secretary, Office of Elementary and Secondary Education.

    Date: Dec. 4, 2008.

    Date this Compliance Agreement becomes effective: Dec. 4, 2008.
    Expiration Date of this Agreement: Dec. 4, 2011.
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[FR Doc. E9-1552 Filed 1-23-09; 8:45 am]
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