[Federal Register: October 11, 2002 (Volume 67, Number 198)]
[Notices]
[Page 63390-63394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11oc02-54]
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DEPARTMENT OF EDUCATION
State Flexibility Program
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Notice of final application requirements, selection criteria,
and competition schedule.
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SUMMARY: The Secretary announces final application requirements,
selection criteria, and the competition schedule for the State
Flexibility (State-Flex) program.
EFFECTIVE DATE: November 12, 2002.
FOR FURTHER INFORMATION CONTACT: Ms. Milagros Lanauze. Telephone: (202)
401-0039 or via Internet: StateFlex@ed.gov.
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 notice in an alternative
format (e.g., Braille, large print, audiotape, or computer diskette) on
request to the contact person listed above.
SUPPLEMENTARY INFORMATION: On April 22, 2002, we published in the
Federal Register (67 FR 19626-19629) a notice of proposed application
requirements, selection criteria, and competition schedule for the
State-Flex program, which is authorized under sections 6141 through
6144 of the Elementary and Secondary Education Act (ESEA), as amended
by the No Child Left Behind Act of 2001 (Pub. L. 107-110). This notice
announces final application requirements, selection criteria, and the
competition schedule for the program.
Note: This notice does not solicit applications. A notice
inviting applications under the State-Flex competition is published
separately in this issue of the Federal Register.
Analysis of Comments and Changes
Four parties submitted various comments in response to the notice
of proposed application requirements,
[[Page 63391]]
selection criteria, and competition schedule.
Comment: Two commenters expressed concern about the competition
schedule and suggested that the second State-Flex competition be held
after the date by which States must submit their definitions of
adequate yearly progress (AYP) to the Department. The commenters
indicated that a later schedule would also give States sufficient time
to prepare their State-Flex applications.
Response: We recognize that some States may need additional time to
develop their State-Flex proposals.
Changes: We are revising the competition schedule and will hold the
second State-Flex competition no earlier than Spring 2003.
Comment: One commenter recommended that States not be required to
submit their State definition of AYP in order to be considered eligible
for State-Flex. Instead, the commenter suggested that in applying for
State-Flex in the initial round of competition, States be permitted to
submit an assurance that they will submit their AYP definition by
January 2003.
Response: Implementation of the AYP requirements is fundamental to
the State-Flex program. One of the primary purposes of the State-Flex
program is to assist States and districts in meeting AYP. Given that
the Department has not yet published final Title I AYP regulations, the
Department will not require an SEA to submit its State AYP definition
at the time it applies for State-Flex authority.
If the Department has not approved a State's AYP definition by the
time it applies for State-Flex authority, an SEA may only be granted
conditional State-Flex authority. The Department will not grant final
approval of an SEA's State-Flex application unless the State submits
its AYP definition by the AYP deadline established by the Department
and the Department approves that definition.
Changes: The Department has revised the State-Flex application
requirements. An SEA will not be required to submit its State AYP
definition prior to or as part of its State-Flex application. Instead,
in its application, an SEA will be required to provide an assurance
that it will submit the definition by the AYP deadline established by
the Department.
In conducting this competition, the Department will review the
quality of State-Flex plans, including the quality of the local
performance agreements that are submitted as part of those plans. Based
on that review, the Department will grant State-Flex authority to up to
four SEAs. If an SEA selected for State-Flex authority has not yet had
its AYP definition approved by the Department, that SEA will receive
conditional State-Flex authority. An SEA with conditional State-Flex
authority will not be able to exercise its State-Flex authority or
implement any portion of its State-Flex plan (including the local
performance agreements) unless the Department approves the SEA's AYP
definition by March 31, 2003.
Comment: One commenter recommended that a State not be required to
include in its State-Flex application the five-year performance
agreements that the State proposes to enter into with its LEAs.
Instead, the commenter suggested that the State be allowed to submit
the format for the performance agreements along with LEA demographics
and a signed assurance from participating LEAs that they will
participate in the program and comply with its requirements.
Response: Section 6141 of ESEA specifically requires a State to
submit, as part of its State-Flex application, the performance
agreements that the State proposes to enter into with eligible LEAs.
Changes: None.
Comment: One commenter suggested that applicants be required to
submit the following information to enable the Secretary to evaluate
whether they are focusing on serving the needs of students most at risk
of educational failure: (1) Data indicating the gap between low- and
high-achieving students in the districts for which local performance
agreements are proposed, as well as data indicating the achievement gap
statewide; (2) The number and percentage of schools in each district
that qualify for Title I schoolwide programs; (3) The amount of local
education funds spent per pupil at Title I schools compared to the per-
pupil spending at non-Title I schools; and (4) Any formula the State
and districts would use to target consolidated Federal funds to
students most at risk of education failure, as well as strategies to
target State-level activities to address the achievement gap.
Response: We agree that there is a need for applicants to provide
statewide and LEA student achievement data to enable the Department to
assess whether State-Flex authority will be used to address the needs
of students most at risk of educational failure. However, we do not
believe that the additional information suggested by the commenter is
necessary for us to evaluate adequately a State-Flex proposal. On the
basis of the selection criteria and the revised application
requirements for this competition, we will be able to focus State-Flex
agreements on SEAs serving the needs of students most at risk of
educational failure.
Changes: We will require applicants to submit statewide baseline
academic data, as well as LEA student achievement profiles. We have
clarified in the application requirements section of this notice the
contents of local performance agreements, which include baseline
academic data for those LEAs.
Comment: One commenter expressed concern that States may use the
State-Flex program in a manner that undermines the parent involvement
provisions contained in ESEA. The commenter suggested that the
Secretary evaluate State-Flex applications based on the degree to which
parent involvement requirements contained in ESEA are maintained, and
also recommended that the Secretary require an assurance that States
will provide parents and other stakeholders with notice and opportunity
to comment on the State-Flex application.
Response: In the April 22, 2002 Federal Register notice, we did not
include all of the statutory application requirements. We did not
believe that it was necessary to seek public comments on some of the
more explicit requirements included in the legislation. However, all of
the statutory application requirements, including required assurances,
are discussed in the application package.
In addition, we agree that the Department should evaluate
applications, in part, based on the degree to which the SEA and LEAs
with proposed performance agreements have included parents in the
development of their proposals.
Changes: We have revised the selection criteria to include a factor
relating to parental involvement in the development of the proposals.
Comment: One commenter argued that the Department incorrectly
stated that the five-year period of State-Flex authority may be
shortened or extended contingent on a State's compliance with the
State-Flex requirements, and should delete this statement. The
commenter suggested, instead, that the overall application process
outline a process for reviewing and deciding issues of continued
participation in State-Flex or renewal of State-Flex authority.
Response: The legislation states that the Secretary must, after
providing notice and an opportunity for a hearing, promptly terminate a
State-Flex agreement if an SEA fails to make adequate yearly progress
for two
[[Page 63392]]
consecutive years. The legislation also provides that, after providing
notice and an opportunity for a hearing, the Secretary may terminate a
State-Flex agreement if there is evidence that an SEA has failed to
comply with the terms of the agreement. In addition, the legislation
provides that the Secretary must renew a State's State-Flex authority
if the State has met all the terms and requirements of the State-Flex
program.
The Secretary does not believe that it is necessary to issue, at
this time, additional guidance on the termination or renewal of a
State-Flex agreement.
Changes: None.
Comment: One commenter suggested that the Secretary evaluate
applications for State-Flex based on the degree to which States decline
to direct how their LEAs use Title V, Part A funds, as the purpose of
Title V, Part A is to support local reform efforts.
Response: The statute allows SEAs that are granted State-Flex
authority to specify how all LEAs in the State will use their Title V,
Part A funds. This is one of the benefits an SEA receives under its
grant of State-Flex authority; discouraging State-Flex participants
from taking full advantage of the flexibility afforded to them under
the program would be inconsistent with the intent of the legislation.
Changes: None.
Comment: One commenter suggested that an SEA be required to include
in its State-Flex proposal a description of how each proposed local
performance agreement will meet the general purposes of the programs
that the applicable LEAs would consolidate under their agreements.
Response: Although we did not intend to seek public comments on
some of the more explicit requirements included in the legislation, we
agree that this description should be part of the applications.
Changes: We have modified the application requirements to state
expressly that each local performance agreement must, as part of its
five-year proposal, include a description of how the LEA will meet the
general purposes of the programs that are consolidated.
Comment: One commenter urged us to require each applicant to
explain how it will continue to comply with all applicable civil rights
requirements, and to include in its application a description of the
accounting procedures and safeguards that it would employ to ensure
proper disbursement of, and accounting for, Federal funds.
Response: In the April 22, 2002 Federal Register notice of proposed
application requirements, selection criteria, and competition schedule
(67 FR 19626-19629), we did not include all of the statutory
application requirements. We did not believe that it was necessary to
seek public comments on some of the more explicit requirements included
in the legislation. However, all of the statutory application
requirements, including those addressed in this notice, are discussed
in the application package.
With respect to the comment on civil rights compliance, all
applicants, as mandated by the legislation, will be required to submit
an assurance that they are complying and will continue to comply with
all applicable civil rights requirements. We will also require
applicants to submit an assurance regarding fiscal control and fund
accountability.
Changes: None.
I. Application Requirements
Each State-Flex applicant must submit--
(a) An assurance that it will submit its State AYP definition
required under section 1111(b)(2) of the ESEA by the AYP deadline
established by the Department. Each SEA seeking a grant of State-Flex
authority from the Secretary must provide, as part of its application,
an assurance that it will submit to the Department its State AYP
definition by the AYP deadline established by the Department.
Note: If an SEA selected for State-Flex authority has not yet
had its AYP definition approved by the Department, that SEA will
receive conditional State-Flex authority. An SEA with conditional
State-Flex authority will not be able to exercise its State-Flex
authority or implement any portion of its State-Flex plan (including
the local performance agreements) unless the Department approves the
SEA's AYP definition by March 31, 2003.
(b) Statewide baseline academic data and LEA achievement profiles.
Each SEA seeking to enter into a State-Flex agreement with the
Secretary must provide, as part of its proposed agreement, statewide
student achievement data for the most recent available school year,
including data from assessments consistent with section 1111(b)(3) of
the predecessor ESEA, as well as descriptions of achievement trends. To
the extent possible, an SEA must provide data for both mathematics and
reading or language arts, and the SEA must disaggregate the results by
each major racial and ethnic group, by English proficiency status, by
disability status, and by status as economically disadvantaged. (These
are the categories, among others, by which an LEA will disaggregate
data for determining AYP under section 1111(b)(2) of the reauthorized
ESEA. Furthermore, these are the categories, among others, by which an
LEA had to disaggregate data for reporting assessment results under
section 1111(b)(3) of the predecessor ESEA.)
In addition to submitting baseline achievement data that are
disaggregated, to the extent possible, by the categories noted above,
SEAs may also submit baseline achievement data that are further
disaggregated by gender and by migrant status, and baseline data on
other academic indicators, such as grade-to-grade retention rates,
student dropout rates, and percentages of students completing gifted
and talented, advanced placement, and college preparatory courses. To
the extent possible, the baseline data on other academic indicators
should also be disaggregated.
The SEA must also provide a profile of student achievement trends
in LEAs across the State, and indicate why it proposes to enter into
agreements with particular LEAs rather than others.
(c) The SEA's strategies for consolidating funds, making AYP,
narrowing achievement gaps, and advancing the education priorities of
the State. Each SEA seeking State-Flex authority must submit a five-
year plan that describes--
(i) How the SEA would consolidate and use State-level Federal funds
from programs included in the scope of the State-Flex authority to
assist the SEA in making AYP, narrowing achievement gaps, and advancing
the education priorities of the State and the LEAs within the State;
(ii) How the strategies and goals in the LEA agreements support the
State's strategies described in this proposal and will assist the State
in making AYP and narrowing achievement gaps; and
(iii) The specific limitations, if any, that it would impose on the
use of funds provided to LEAs in the State under section 5112(a) of the
ESEA, and how these limitations would assist all LEAs in the State in
making AYP and narrowing achievement gaps.
(d) Proposed performance agreements with LEAs. Each SEA seeking
State-Flex authority must submit, as part of its application, five-year
performance agreements that the SEA proposes to enter into with not
fewer than four, and not more than ten, LEAs (at least half of which
must be high-poverty LEAs). The SEA should indicate why it proposes to
enter into agreements with these LEAs, rather than with other LEAs in
the State.
Each proposed LEA agreement must include:
[[Page 63393]]
(i) Baseline academic data. For each LEA with which it proposes to
enter into a local performance agreement, the SEA must provide, on
behalf of that LEA, student achievement data for the most recent
available school year, including data from assessments under section
1111(b)(3) of the predecessor ESEA, as well as descriptions of
achievement trends. To the extent possible, the SEA must provide data
for that LEA for both mathematics and reading or language arts, and
must disaggregate the results by each major racial and ethnic group, by
English proficiency status, by disability status, and by status as
economically disadvantaged. (These are the categories by which an LEA
will disaggregate data for determining AYP under section 1111(b)(2) of
the reauthorized ESEA. Furthermore, these are the categories, among
others, by which an LEA had to disaggregate data for reporting
assessment results under section 1111(b)(3) of the predecessor ESEA.)
In addition to submitting baseline achievement data that are
disaggregated, to the extent possible, by the categories noted above,
the SEA may also submit baseline achievement data on behalf of that LEA
that are further disaggregated by gender and by migrant status, and
baseline data on other academic indicators, such as grade-to-grade
retention rates, student dropout rates, and percentages of students
completing gifted and talented, advanced placement, and college
preparatory courses. To the extent possible, the baseline data on other
academic indicators should also be disaggregated.
(ii) Specific, measurable education goals. For each proposed local
performance agreement, the SEA must submit, on behalf of that LEA, a
five-year local performance agreement plan that contains specific,
measurable educational goals, with annual objectives, that the LEA
seeks to achieve by consolidating and using funds in accordance with
the terms of its proposed agreement. The goals must relate to meeting
AYP, raising student achievement, and narrowing achievement gaps
relative to the baseline achievement data and other baseline data that
are submitted.
(iii) Strategies for meeting its goals and the general purposes of
the consolidated programs. For each proposed local performance
agreement, the SEA must submit, on behalf of that LEA, a five-year plan
that contains specific strategies for reaching its stated goals. In
particular, the plan must describe how the LEA will consolidate and use
funds received under Subpart 2 of Part A of Title II (Teacher and
Principal Training and Recruitment); Subpart 1 of Part D of Title II
(Enhancing Education Through Technology); Subpart 1 of Part A of Title
IV (Safe and Drug-Free Schools and Communities); and Subpart 1 of Part
A of Title V (Innovative Programs).
As part of each five-year plan, the SEA must also describe how the
LEA will meet the general purposes of the programs that are
consolidated under the local performance agreement. In particular, an
SEA must describe how each proposed plan would--
(A) Improve teacher and principal quality and increase the number
of highly qualified teachers in classrooms (Title II, Part A);
(B) Improve teaching and student academic achievement through the
use of technology in schools (Title II, Part D);
(C) Support programs that prevent violence in and around schools
and that prevent the illegal use of alcohol, tobacco, and drugs (Title
IV, Part A); and
(D) Support local education reform efforts that are consistent with
and support statewide education reform efforts (Title V, Part A).
II. Selection Criteria
The Secretary will use the following criteria to select the SEAs
with which he will enter into State-Flex agreements:
(a) Identification of the Need for the State-Flex Authority and the
Proposed Performance Agreements. (25 points) The Secretary considers
the SEA's need for State-Flex authority, including the need for the
performance agreements that the SEA proposes in its State-Flex
application. In determining need, the Secretary considers the extent to
which--
(i) The SEA's proposal identifies achievement gaps among different
groups of students, particularly in each of the LEAs with which the SEA
proposes to enter into a performance agreement.
(ii) The State-Flex authority and proposed performance agreements
will address the needs of students most at risk of educational failure.
(iii) The LEAs that would enter into performance agreements with
the SEA serve a substantial portion of the students in the State who
are most at risk of educational failure.
(iv) Requirements in the Federal programs that the SEA and LEAs
with performance agreements plan to consolidate create barriers to
implementing specific State and local education reform strategies.
(b) Quality of SEA and LEA Strategies for Making Adequate Yearly
Progress (AYP), Narrowing Achievement Gaps, and Enhancing Education
Priorities. (30 points) The Secretary considers the quality of the
strategies that the SEA will implement under its grant of State-Flex
authority, including the quality of the strategies in each of the
proposed performance agreements, for making AYP, narrowing achievement
gaps, and for enhancing State and local education priorities. In
determining the quality of these strategies, the Secretary considers
the extent to which--
(i) The strategies that the SEA proposes for consolidating and
using funds under the scope of the State-Flex authority and for
directing how LEAs in the State will use funds under section 5112(a) of
the ESEA will likely assist the State in meeting its definition of AYP,
narrowing achievement gaps, and advancing its education priorities.
(ii) The performance agreements that the SEA proposes to enter into
with LEAs in the State will likely assist the State in meeting its
definition of AYP, narrowing achievement gaps, and advancing its
education priorities.
(iii) The strategies in each of the proposed performance
agreements, especially the strategies for consolidating and using funds
under the scope of the agreements, will likely assist each affected LEA
in meeting the State's definition of AYP and specific, measurable goals
for improving student achievement and narrowing achievement gaps.
(iv) The extent to which the SEA and LEAs with proposed performance
agreements included parents, especially parents of children most at
risk of educational failure, in the development of the State-Flex
proposal and proposed local performance agreements.
(v) The State-Flex proposal and each of the proposed performance
agreements represent a coherent, sustained approach for meeting the
purposes of the State-Flex program.
(vi) The timelines for implementing the strategies in the State-
Flex proposal, including timelines in the proposed performance
agreements, are reasonable.
(c) Quality of the Management Plans. (30 points) The Secretary
considers the quality of the management plans that the SEA and affected
LEAs would follow in implementing State-Flex activities. In reviewing
the quality of the management plans, the Secretary considers the extent
to which--
(i) The SEA will provide effective technical assistance and support
to LEAs with performance agreements.
(ii) The SEA and each LEA with a performance agreement will use
disaggregated student achievement data and data on other academic
indicators
[[Page 63394]]
to manage their proposed activities, to monitor their own progress on
an ongoing basis, and to make appropriate adjustments to their
implementation strategies.
(iii) The SEA will monitor LEA activities under each of the
performance agreements, evaluate the effectiveness of each agreement,
and propose modifications to LEA activities or to the agreements, as
appropriate.
(d) Adequacy of the Resources. (15 points) The Secretary considers
the adequacy of the resources for the grant of State-Flex authority and
the proposed performance agreements. In considering the adequacy of the
resources, the Secretary considers the extent to which--
(i) The funds that the SEA proposes to consolidate under the grant
of State-Flex authority are adequate to support the strategies that it
seeks to implement with these funds.
(ii) The funds that each LEA plans to consolidate under its
respective performance agreement are adequate to support the strategies
in its agreement.
(iii) The SEA will coordinate the activities supported with funds
consolidated under its grant of State-Flex authority with activities
funded with other resources to meet the purposes of the State-Flex
initiative.
(iv) Each LEA with a performance agreement will coordinate the
activities supported with funds consolidated under its agreement with
activities funded with other resources to meet the purposes of the
agreement.
(v) The costs that the SEA and affected LEAs will incur under the
grant of State-Flex authority and the proposed performance agreements
are reasonable in relationship to the goals that will be achieved.
III. Application Process
The Secretary will conduct two separate State-Flex competitions. A
notice inviting applications for the initial group of State-Flex SEAs
is published elsewhere in this issue of the Federal Register. Depending
on the number and quality of the applications submitted, the Secretary
intends to select up to four SEAs to receive State-Flex authority
during the initial competition.
In conducting this competition, the Department will review the
quality of State-Flex plans, including the quality of the local
performance agreements that are submitted as part of those plans. Based
on that review, the Department will grant State-Flex authority to up to
four SEAs. If an SEA selected for State-Flex authority has not yet had
its AYP definition approved by the Department, that SEA will receive
conditional State-Flex authority. An SEA with conditional State-Flex
authority will not be able to exercise its State-Flex authority or
implement any portion of its State-Flex plan (including the local
performance agreements) unless the Department approves the SEA's AYP
definition by March 31, 2003.
The remaining State-Flex slots will be awarded during a second
State-Flex competition to be held no earlier than Spring 2003.
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Note: The official version of this document is the document
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Regulations is available on GPO access at: www.access.gpo.gov/nara/
index.html.
Program Authority: Sections 6141 through 6144 of the ESEA, as
amended by the No Child Left Behind Act of 2001 (Pub.L. 107-110).
Dated: October 8, 2002.
Susan B. Neuman,
Assistant Secretary for Elementary and Secondary Education.
[FR Doc. 02-26003 Filed 10-10-02; 8:45 am]
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