03-6949. Notice of Written Findings and Compliance Agreement

AGENCY:

Office of Elementary and Secondary Education, Department of Education.

ACTION:

Notice of written findings and compliance agreement.

SUMMARY:

Section 457 of the General Education Provisions Act (GEPA) authorizes the U.S. Department of Education to enter into a compliance agreement with a recipient that is failing to comply substantially with Federal program requirements. In order to enter into a compliance agreement, the Department must determine, in written findings, that the recipient cannot comply until a future date with the applicable program requirements, and that a compliance agreement is a viable means of bringing about such compliance. On April 4, 2002, the Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) entered into a compliance agreement with the Montana Office of Public Instruction (OPI). Under section 457(b)(2) of GEPA, the written findings and compliance agreement must be published in the Federal Register.

FOR FURTHER INFORMATION CONTACT:

Carlos Martínez, U.S. Department of Education, Office of Elementary and Secondary Education, 400 Maryland Avenue, SW., Room 3W212, Washington, DC 20202-6132. Telephone: [phone].

If you use a telecommunications device for the deaf (TDD), you may call the Federal Information Relay Service (FIRS) at 1-800-877-8339.

Individuals with disabilities may obtain this document in an alternative format (e.g., Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Under Title I, Part A of the Elementary and Secondary Education Act of 1965 (Title I), each State, including the District of Columbia and Puerto Rico, was required to develop or adopt, by the 1997-98 school year, challenging content standards in at least reading/language arts and mathematics that describe what the State expects all students to know and be able to do. Each State also was required to develop or adopt performance standards aligned with its content standards that describe three levels of proficiency to determine how well students are mastering the content standards. Finally, by the 2000-2001 school year, each State was required to develop or adopt a set of student assessments in at least reading/language arts and mathematics that would be used to determine the yearly performance of schools in enabling students to meet the State's performance standards.

OPI submitted, and the Department approved, evidence that it has content standards in at least reading/language arts and mathematics. In November 2000, OPI submitted evidence of its final assessment system. The Department submitted that evidence to a panel of three assessment experts for peer review. Following that review, the Acting Deputy Assistant Secretary for Elementary and Secondary Education (Acting Deputy Assistant Secretary) concluded that OPI's proposed final assessment system did not meet a number of the Title I requirements.

Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies available to the Department when it determines that a recipient “is failing to comply substantially with any requirement of law” applicable to Federal program funds the Department administers. Specifically, the Department is authorized to—

(1) Withhold funds;

(2) Obtain compliance through a cease and desist order;

(3) Enter into a compliance agreement with the recipient; or

(4) Take any other action authorized by law.

20 U.S.C. 1234c(a)(1) through (a)(4).

In a letter dated July 6, 2001 to Linda H. McCulloch, Superintendent of Public Instruction for Montana, the Acting Deputy Assistant Secretary notified OPI that, in order to remain eligible to receive Title I funds, it must enter into a compliance agreement with the Department. The purpose of a compliance agreement is “to bring the recipient into full compliance with the applicable requirements of law as soon as feasible and not to excuse or remedy past violations of such requirements.” 20 U.S.C. 1234f(a). In order to enter into a compliance agreement with a recipient, the Department must determine, in written findings, that the recipient cannot comply until a future date with the applicable program requirements, and that a compliance agreement is a viable means for bringing about such compliance.

On April 4, 2002, the Assistant Secretary issued written findings, holding that compliance by OPI with the Title I standards and assessment requirements is genuinely not feasible until a future date. Having submitted its assessment system for peer review in November 2000, OPI was not able to make the significant changes to its system that the Department's review required in time to meet the spring 2001 statutory deadline to have approved assessments in place. As a result, OPI administered its unapproved assessment system in 2001. The Assistant Secretary also determined that a compliance agreement represents a viable means of bringing about compliance because of the steps OPI has already taken to comply and the plan it has developed for further action. The agreement sets out the action plan that OPI must meet to come into compliance with the Title I requirements. This plan, coupled with specific reporting requirements, will allow the Assistant Secretary to monitor closely OPI's progress in meeting the terms of the compliance agreement. The Superintendent of Public Instruction for Montana, Linda H. McCulloch, signed the agreement on April 1, 2002 and the Assistant Secretary signed the compliance agreement on April 4, 2002.

As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), the text of the Assistant Secretary's written findings is set forth as appendix A and the compliance agreement is set forth as appendix B of this notice.

Electronic Access to This Document

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

To use PDF, you must have 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 [phone].

Note:

The official version of this document is the document published in the Federal Register. Free Internet access to the official edition of the Federal Register is available on GPO access at: http://www.access.gpo.gov/​nara/​index.html

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

Dated: March 12, 2003.

Eugene W. Hickok,

Under Secretary of Education.

Appendix A—Text of the Written Findings of the Assistant Secretary for Elementary and Secondary Education

I. Introduction

The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) of the U.S. Department of Education (Department) has determined, pursuant to 20 U.S.C. 1234c and 1234f, that the Montana Office of Public Instruction (OPI) has failed to comply substantially with certain requirements of Title I, Part A of the Elementary and Secondary Education Act of 1965 (Title I), 20 U.S.C. 6301 et seq., and that it is not feasible for OPI to achieve full compliance immediately. Specifically, the Assistant Secretary has determined that OPI failed to meet a number of the Title I requirements concerning the development of performance standards and an aligned assessment system within the statutory timeframe.

For the following reasons, the Assistant Secretary has concluded that it would be appropriate to enter into a compliance agreement with OPI to bring it into full compliance as soon as feasible. During the effective period of the compliance agreement, which ends three years from the date of these findings, OPI will be eligible to receive Title I funds as long as it complies with the terms and conditions of the agreement as well as the provisions of Title I, Part A and other applicable Federal statutory and regulatory requirements.

II. Relevant Statutory and Regulatory Provisions

A. Title I, Part A of the Elementary and Secondary Education Act of 1965

Title I, Part A of the Elementary and Secondary Education Act of 1965 (Title I), 20 U.S.C. 6301 et seq., provides financial assistance, through State educational agencies, to local educational agencies to provide services in high-poverty schools to students who are failing or at risk of failing to meet the State's student performance standards. Under Title I, each State, including the District of Columbia and Puerto Rico, was required to develop or adopt, by the 1997-98 school year, challenging content standards in at least reading/language arts and mathematics that describe what the State expects all students to know and be able to do and performance standards, aligned with those content standards, that describe three levels of proficiency to determine how well students are mastering the content standards.

By the 2000-2001 school year, Title I required each State to develop or adopt a set of student assessments in at least reading/language arts and mathematics that would be used to determine the yearly performance of schools and school districts in enabling students to meet the State's performance standards. These assessments must meet the following requirements:

• The assessments must be aligned to a State's content and performance standards.
• They must be administered annually to students in at least one grade in each of three grade ranges: grades 3 through 5, grades 6 through 9, and grades 10 through 12.
• They must be valid and reliable for the purpose for which they are used and of high technical quality.
• They must involve multiple measures, including measures that assess higher-order thinking skills.
• They must provide for the inclusion of all students in the grades assessed, including students with disabilities and limited English proficient students.
• They must provide individual reports.
• Results from the assessments must be disaggregated and reported by major racial and ethnic groups and other categories.

20 U.S.C. 6311(b)(3).^[1]

B. The General Education Provisions Act

The General Education Provisions Act (GEPA) provides a number of options when the Assistant Secretary determines a recipient of Department funds is “failing to comply substantially with any requirement of law applicable to such funds.” 20 U.S.C. 1234c. In such case, the Assistant Secretary is authorized to—

(1) Withhold funds;

(2) Obtain compliance through a cease and desist order;

(3) Enter into a compliance agreement with the recipient; or

(4) Take any other action authorized by law. 20 U.S.C. 1234c(a)(1) through (a)(4).

Under section 457 of GEPA, the Assistant Secretary may enter into a compliance agreement with a recipient that is failing to comply substantially with specific program requirements. 20 U.S.C. 1234f. The purpose of a compliance agreement is “to bring the recipient into full compliance with the applicable requirements of the law as soon as feasible and not to excuse or remedy past violations of such requirements.” 20 U.S.C. 1234f(a). Before entering into a compliance agreement with a recipient, the Assistant Secretary must hold a hearing at which the recipient, affected students and parents or their representatives, and other interested parties are invited to participate. At that hearing, the recipient has the burden of persuading the Assistant Secretary that full compliance with the applicable requirements of law is not feasible until a future date and that a compliance agreement is a viable means for bringing about such compliance. 20 U.S.C. 1234f(b)(1). If, on the basis of all the available evidence, the Assistant Secretary determines that compliance until a future date is genuinely not feasible and that a compliance agreement is a viable means for bringing about such compliance, the Assistant Secretary must make written findings to that effect and publish those findings, together with the substance of any compliance agreement, in the Federal Register. 20 U.S.C. 1234f(b)(2).

A compliance agreement must set forth an expiration date, not later than three years from the date of these written findings, by which time the recipient must be in full compliance with all program requirements. 20 U.S.C. 1234f(c)(1). In addition, a compliance agreement must contain the terms and conditions with which the recipient must comply during the period that agreement is in effect. 20 U.S.C. 1234f(c)(2). If the recipient fails to comply with any of the terms and conditions of the compliance agreement, the Assistant Secretary may consider the agreement no longer in effect and may take any of the compliance actions described previously. 20 U.S.C. 1234f(d).

III. Analysis

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

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

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

In November 2000, OPI submitted evidence of its final assessment system. The Assistant Secretary submitted that evidence to a panel of three assessment experts for peer review. Following that review, the Acting Deputy Assistant Secretary for Elementary and Secondary Education (Acting Deputy Assistant Secretary) concluded that OPI's proposed final assessment system did not meet a number of the Title I requirements. Specifically, the Acting Deputy Assistant Secretary determined that OPI must do the following:

• Provide evidence that Montana's performance standards are aligned with your State content standards, and that a broad base of stakeholders was involved in the development of the performance standards.
• Complete the development of the second phase of the Montana assessment system addressing multiple measures that assess higher order thinking skills and the portions of the State standards that are not currently being assessed. Montana must describe the design of this phase of the assessment system, including the content to be assessed, the processes by which the system is to be created, the nature of the scores to be produced, and how the scores will be aggregated for decision making at the school, district, and State levels.
• Provide evidence of further objective alignment studies completed by teachers and other experts knowledgeable about Montana's content standards and submit the results for peer review. Montana previously submitted for peer review evidence of a study done by the contractor of the alignment between the ITBS and ITED and Montana's content standards.
• For the Alternate Assessment Scale, Montana must provide evidence of technical quality, the timeline for implementation, and the role of the Scale in the State's accountability system.
• Provide complete participation data for students with disabilities and limited English proficient students so that Montana's inclusion practices relating to assessment, reporting, and accountability can be evaluated.
• Provide data showing that all assessments used in Montana for Title I accountability meet commonly accepted professional standards for technical quality consistent with the uses made of the results.
• Develop and disseminate annual school reports that display assessment results for all students, disaggregated by gender, major racial/ethnic groups, limited English proficient status, migrant status, students with disabilities as compared to non-disabled students, and economically disadvantaged students compared to non-disadvantaged students.
• Upon completion of the development of performance standards, individual student interpretive and descriptive reports must be generated and disseminated to parents to inform them how well their students are meeting those performance standards.
• Provide the Department with the State's definition of “full academic year” for including students in determining adequate yearly progress.

C. OPI Cannot Correct Immediately its Noncompliance With the Title I Standards and Assessment Requirements

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

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

At the public hearing, OPI presented evidence of its commitment and capability to come into compliance with the Title I standards and assessment requirements within three years. For example, OPI developed, for grades 4, 8 and 12, a set of approved content standards in reading and mathematics as well as standards in a number of other areas such as science and social studies. OPI also developed performance descriptors in reading and mathematics. OPI has also developed and administered an Alternate Assessment Scale for students with disabilities. It must modify the Alternate Assessment Scale, however, to ensure full alignment and inclusion of all students. Moreover, OPI has committed resources and personnel to continue the work of developing, aligning, implementing, and evaluating its assessment system.

Finally, OPI has developed a comprehensive action plan, incorporated into the compliance agreement, that sets out a very specific schedule that OPI has agreed to meet during the next three years for attaining compliance with the Title I standards and assessment requirements. As a result, OPI is committed not only to coming into full compliance within three years, but to meeting a stringent, but reasonable, schedule for doing so. The action plan also demonstrates that OPI will be well on its way to meeting the new standards and assessment requirements of the No Child Left Behind Act of 2001. The compliance agreement also sets out documentation and reporting procedures that OPI must follow. These provisions will allow the Assistant Secretary to ascertain promptly whether OPI is meeting each of its commitments under the compliance agreement and is on schedule to achieve full compliance within the effective period of the agreement.

The task of developing an assessment system that meets the Title I requirements is not a quick or easy one. However, the Assistant Secretary has determined that, given the commitment of OPI to comply with the terms and conditions of the compliance agreement, it is possible for OPI to come into full compliance with the Title I standards and assessment requirements within three years.

IV. Conclusion

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

Dated: April 4, 2002.

Susan B. Neuman,

Assistant Secretary for Elementary and Secondary Education.

Appendix B—Text of the Compliance Agreement

Compliance Agreement Under Title I of the Elementary and Secondary Education Act Between the United States Department of Education and the Montana Office of Public Instruction

Introduction

Title I of the Elementary and Secondary Education Act of 1965 (Title I) required each State, including the District of Columbia and Puerto Rico, to develop or adopt, by the 1997-98 school year, challenging content standards in at least reading/language arts and mathematics that describe what the State expects all students to know and be able to do and performance standards, aligned with those content standards, that describe three levels of proficiency to determine how well students are mastering the content standards. By the 2000-2001 school year, Title I required each State to develop or adopt a set of student assessments in at least reading/language arts and mathematics that would be used to determine the yearly performance of schools and school districts in enabling students to meet the State's performance standards.

The Montana Office of Public Instruction (OPI) was not able to meet these requirements by the statutory deadlines. In order to be eligible to continue to receive Title I funds while working to comply with the statutory requirements, the Superintendent of Public Instruction indicated OPI's interest in entering into a compliance agreement with the Office of Elementary and Secondary Education (OESE) of the United States Department of Education. On December 10, 2001, OESE conducted a public hearing regarding OPI's ability to come into compliance with the Title I standards and assessment requirements within three years. Based on testimony at that hearing, the Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) determined that compliance by OPI with the Title I standards and assessment requirements was genuinely not feasible until a future date. The Assistant Secretary also determined that a compliance agreement represents a viable means of bringing about compliance because of steps OPI has already taken to address its noncompliance, its commitment of resources and the action plan it has developed. The Assistant Secretary's written findings are incorporated into this agreement.

Pursuant to this compliance agreement under 20 U.S.C. 1234f, OPI must be in full compliance with the requirements of Title I no later than three years from the effective date of this agreement. Specifically, OPI must meet, and document that it has met, the following requirements:

1. Complete development of performance standards by aligning performance descriptors to Montana's content standards and set cut scores on the assessments that define levels of performance.

2. Develop or select an academic assessment system that represents the full range of Montana's content standards and performance standards in at least reading/language arts and mathematics consistent with the Title I requirements for use of multiple measures of student achievement, including measures that assess higher-order thinking and understanding. Document the alignment of the assessment system with Montana's content and student performance standards.

3. Document that all students are included in the assessment system, particularly limited English proficient students and students with disabilities. Include test results for all students in school accountability measures. Monitor school-level decisions regarding inclusion of all students in the assessment system.

4. All assessments used in the State for Title I accountability must meet commonly accepted professional standards for technical quality consistent with the uses made of the results. For the Alternate Assessment Scale, Montana must provide evidence of technical quality.

5. Develop and disseminate individual student interpretive and descriptive reports. Report assessment results for the state, each district, and school that are disaggregated by all required categories.

6. Meet requirements under the No Child Left Behind Act of 2001 related to assessments and accountability.

During the period that this compliance agreement is in effect, OPI is eligible to receive Title I, Part A funds if it complies with the terms and conditions of this agreement, as well as the provisions of Title I, Part A and other applicable Federal statutory and regulatory requirements. Specifically, the compliance agreement sets forth action steps OPI must meet to come into compliance with the Title I standards and assessment requirements. OPI must submit documentation concerning its compliance with these action steps.

The action steps incorporated into this compliance agreement may be amended by joint agreement of the parties, provided full compliance can still be accomplished by the expiration date of the agreement.

If OPI fails to comply with any of the terms and conditions of this compliance agreement, including the action steps below, 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).

For the Montana Office of Public Instruction:

Linda H. McCulloch,

Superintendent of Public Instruction.

April 1, 2002

For the United States Department of Education:

Susan B. Neuman,

Assistant Secretary, Office of Elementary and Secondary Education.

April 4, 2002.

Date this compliance agreement becomes effective: April 5, 2002

Expiration date of this agreement: April 5, 2005.

Footnotes

1.  On January 8, 2002, Title I of the Elementary and Secondary Education Act was reauthorized by the No Child Left Behind Act of 2001 (NCLB) (Pub. L. 107-110). The NCLB made several significant changes to the Title I standards and assessment requirements. First, it requires that each State develop academic content and student achievement standards in science by the 2005-06 school year. Second, by the 2005-06 school year, it requires a system of aligned assessments in each of grades 3 through 8 and once during grades 10 through 12. Third, it requires science assessments in at least three grade spans by the 2007-08 school year. Fourth, the NCLB significantly changes the definition of adequate yearly progress each State must establish to hold schools and school districts accountable, based on data from the 2001-02 test administration. Finally, by the 2002-03 school year, the NCLB requires State and school district report cards that include, among other things, assessment results disaggregated by various subgroups, two-year trend data, and percent of students tested.