Laws & Guidance ELEMENTARY & SECONDARY EDUCATION
Chapter A — State Flexibility Authority

SEC. 6141. STATE FLEXIBILITY.

    (a) FLEXIBILITY AUTHORITY- Except as otherwise provided in this chapter, the Secretary shall, on a competitive basis, grant flexibility authority to not more than seven eligible State educational agencies, under which the agencies may consolidate and use funds in accordance with section 6142.

    (b) DEFINITIONS- In this chapter:

      (1) ELIGIBLE STATE EDUCATIONAL AGENCY- The term eligible State educational agency' means a State educational agency that —

        (A) submits an approvable application under subsection (c); and

        (B) proposes performance agreements —

          (i) that shall be entered into with not fewer than 4, and not more than 10, local educational agencies;

          (ii) not fewer than half of which shall be entered into with high-poverty local educational agencies; and

          (iii) that require the local educational agencies described in clause (i) to align their use of consolidated funds under section 6152 with the State educational agency's use of consolidated funds under section 6142.

      (2) HIGH-POVERTY LOCAL EDUCATIONAL AGENCY- The term high-poverty local educational agency' means a local educational agency for which 20 percent or more of the children who are age 5 through 17, and served by the local educational agency, are from families with incomes below the poverty line.

    (c) STATE APPLICATIONS-

      (1) APPLICATIONS- To be eligible to receive flexibility authority under this chapter, a State educational agency shall submit an application to the Secretary at such time, in such manner, and containing such information as the Secretary may require, including —

        (A) information demonstrating, to the satisfaction of the Secretary, that the grant of authority offers substantial promise of —

          (i) assisting the State educational agency in making adequate yearly progress, as defined under section 1111(b)(2); and

          (ii) aligning State and local reforms and assisting the local educational agencies that enter into performance agreements with the State educational agency under paragraph (2) in making such adequate yearly progress;

        (B) the performance agreements that the State educational agency proposes to enter into with eligible local educational agencies under paragraph (2);

        (C) information demonstrating that the State educational agency has consulted with and involved parents, representatives of local educational agencies, and other educators in the development of the terms of the grant of authority;

        (D) a provision specifying that the grant of flexibility authority shall be for a term of not more than 5 years;

        (E) a list of the programs described in section 6142(b) that are included in the scope of the grant of authority;

        (F) a provision specifying that no requirements of any program described in section 6142(b) and included by a State educational agency in the scope of the grant of authority shall apply to that agency, except as otherwise provided in this chapter;

        (G) a 5-year plan describing how the State educational agency intends to consolidate and use the funds from programs included in the scope of the grant of authority, for any educational purpose authorized under this Act, in order to make adequate yearly progress and advance the education priorities of the State and the local educational agencies with which the State educational agency enters into performance agreements;

        (H) an assurance that the State educational agency will provide parents, teachers, and representatives of local educational agencies and schools with notice and an opportunity to comment on the proposed terms of the grant of authority;

        (I) an assurance that the State educational agency, and the local educational agencies with which the State educational agency enters into performance agreements, will use fiscal control and fund accounting procedures that will ensure proper disbursement of, and accounting for, Federal funds consolidated and used under the grant of authority;

        (J) an assurance that the State educational agency, and the local educational agencies with which the State educational agency enters into performance agreements, will meet the requirements of all applicable Federal civil rights laws in carrying out the grant of authority, including consolidating and using funds under the grant of authority;

        (K) an assurance that, in consolidating and using funds under the grant of authority —

          (i) the State educational agency, and the local educational agencies with which the State educational agency enters into performance agreements, will provide for the equitable participation of students and professional staff in private schools consistent with section 9501; and

          (ii) that sections 9502, 9503, and 9504 shall apply to all services and assistance provided with such funds in the same manner as such sections apply to services and assistance provided in accordance with section 9501;

        (L) an assurance that the State educational agency will, for the duration of the grant of authority, use funds consolidated under section 6142 only to supplement the amount of funds that would, in the absence of those Federal funds, be made available from non-Federal sources for the education of students participating in programs assisted with the consolidated funds, and not to supplant those funds; and

        (M) an assurance that the State educational agency shall, not later than 1 year after the date on which the Secretary makes the grant of authority, and annually thereafter during the term of the grant of authority, disseminate widely to parents and the general public, transmit to the Secretary, distribute to print and broadcast media, and post on the Internet, a report, which shall include a detailed description of how the State educational agency, and the local educational agencies with which the State educational agency enters into performance agreements, used the funds consolidated under the grant of authority to make adequate yearly progress and advance the education priorities of the State and local educational agencies in the State.

      (2) PROPOSED PERFORMANCE AGREEMENTS WITH LOCAL EDUCATIONAL AGENCIES-

        (A) IN GENERAL- A State educational agency that wishes to receive flexibility authority under this subpart shall propose performance agreements that meet the requirements of clauses (i) and (ii) of subsection (b)(1)(B) (subject to approval of the application or amendment involved under subsection (d) or (e)).

        (B) PERFORMANCE AGREEMENTS- Each proposed performance agreement with a local educational agency shall —

          (i) contain plans for the local educational agency to consolidate and use funds in accordance with section 6152, for activities that are aligned with the State educational agency's plan described in paragraph (1)(G);

          (ii) be subject to the requirements of chapter B relating to agreements between the Secretary and a local educational agency, except —

            (I) that, as appropriate, references in that chapter to the Secretary shall be deemed to be references to the State educational agency; and

            (II) as otherwise provided in this chapter; and

          (iii) contain an assurance that the local educational agency will, for the duration of the grant of authority, use funds consolidated under section 6152 only to supplement the amount of funds that would, in the absence of those Federal funds, be made available from non-Federal sources for the education of students participating in programs assisted with the consolidated funds, and not to supplant those funds.

    (d) APPROVAL AND SELECTION- The Secretary shall —

      (1) establish a peer review process to assist in the review of proposed State applications under this section; and

      (2) appoint individuals to participate in the peer review process who are —

        (A) representative of parents, teachers, State educational agencies, and local educational agencies; and

        (B) familiar with educational standards, assessments, accountability, curricula, instruction, and staff development, and other diverse educational needs of students.

    (e) AMENDMENT TO GRANT OF AUTHORITY-

      (1) IN GENERAL- Subject to paragraph (2), the Secretary shall amend the grant of flexibility authority made to a State educational agency under this chapter, in each of the following circumstances:

        (A) REDUCTION IN SCOPE OF THE GRANT OF AUTHORITY- Not later than 1 year after receiving a grant of flexibility authority, the State educational agency seeks to amend the grant of authority to remove from the scope of the grant of authority any program described in section 6142(b).

        (B) EXPANSION OF SCOPE OF THE GRANT OF AUTHORITY- Not later than 1 year after receiving a grant of flexibility authority, the State educational agency seeks to amend the grant of authority to include in the scope of the grant of authority any additional program described in section 6142(b) or any additional achievement indicators for which the State will be held accountable.

        (C) CHANGES WITH RESPECT TO NUMBER OF PERFORMANCE AGREEMENTS- The State educational agency seeks to amend the grant of authority to include or remove performance agreements that the State educational agency proposes to enter into with eligible local educational agencies, except that in no case may the State educational agency enter into performance agreements that do not meet the requirements of clauses (i) and (ii) of subsection (b)(1)(B).

      (2) APPROVAL AND DISAPPROVAL-

        (A) DEEMED APPROVAL- A proposed amendment to a grant of flexibility authority submitted by a State educational agency pursuant to paragraph (1) shall be deemed to be approved by the Secretary unless the Secretary makes a written determination, prior to the expiration of the 120-day period beginning on the date on which the Secretary received the proposed amendment, that the proposed amendment is not in compliance with this chapter.

        (B) DISAPPROVAL- The Secretary shall not finally disapprove the proposed amendment, except after giving the State educational agency notice and an opportunity for a hearing.

        (C) NOTIFICATION- If the Secretary finds that the proposed amendment is not in compliance, in whole or in part, with this chapter, the Secretary shall —

          (i) give the State educational agency notice and an opportunity for a hearing; and

          (ii) notify the State educational agency of the finding of noncompliance and, in such notification, shall —

            (I) cite the specific provisions in the proposed amendment that are not in compliance; and

            (II) request additional information, only as to the noncompliant provisions, needed to make the proposed amendment compliant.

        (D) RESPONSE- If the State educational agency responds to the Secretary's notification described in subparagraph (C)(ii) during the 45-day period beginning on the date on which the agency received the notification, and resubmits the proposed amendment with the requested information described in subparagraph (C)(ii)(II), the Secretary shall approve or disapprove such proposed amendment prior to the later of —

          (i) the expiration of the 45-day period beginning on the date on which the proposed amendment is resubmitted; or

          (ii) the expiration of the 120-day period described in subparagraph (A).

        (E) FAILURE TO RESPOND- If the State educational agency does not respond to the Secretary's notification described in subparagraph (C)(ii) during the 45-day period beginning on the date on which the agency received the notification, such proposed amendment shall be deemed to be disapproved.

      (3) TREATMENT OF PROGRAM FUNDS WITHDRAWN FROM GRANT OF AUTHORITY- Beginning on the effective date of an amendment executed under paragraph (1)(A), each program requirement of each program removed from the scope of a grant of authority shall apply to the use of funds made available under the program by the State educational agency and each local educational agency with which the State educational agency has a performance agreement.

SEC. 6142. CONSOLIDATION AND USE OF FUNDS.

    (a) IN GENERAL-

      (1) AUTHORITY- Under a grant of flexibility authority made under this chapter, a State educational agency may consolidate Federal funds described in subsection (b) and made available to the agency, and use such funds for any educational purpose authorized under this Act.

      (2) PROGRAM REQUIREMENTS- Except as otherwise provided in this chapter, a State educational agency may use funds under paragraph (1) notwithstanding the program requirements of the program under which the funds were made available to the State.

    (b) ELIGIBLE FUNDS AND PROGRAMS-

      (1) FUNDS- The funds described in this subsection are funds, for State-level activities and State administration, that are described in the following provisions:

        (A) Section 1004.

        (B) Paragraphs (4) and (5) of section 1202(d).

        (C) Section 2113(a)(3).

        (D) Section 2412(a)(1).

        (E) Subsections (a) (with the agreement of the Governor), (b)(2), and (c)(1) of section 4112.

        (F) Paragraphs (2) and (3) of section 4202(c).

        (G) Section 5112(b).

      (2) PROGRAMS- The programs described in this subsection are the programs authorized to be carried out with funds described in paragraph (1).

    (c) SPECIAL RULE- A State educational agency that receives a grant of flexibility authority under this chapter —

      (1) shall ensure that the funds described in section 5112(a) are allocated to local educational agencies in the State in accordance with section 5112(a); but

      (2) may specify how the local educational agencies shall use the allocated funds.

SEC. 6143. PERFORMANCE REVIEW AND PENALTIES.

    (a) MIDTERM REVIEW-

      (1) FAILURE TO MAKE ADEQUATE YEARLY PROGRESS- If, during the term of a grant of flexibility authority under this chapter, a State educational agency fails to make adequate yearly progress for 2 consecutive years, the Secretary shall, after providing notice and an opportunity for a hearing, terminate the grant of authority promptly.

      (2) NONCOMPLIANCE- The Secretary may, after providing notice and an opportunity for a hearing (including the opportunity to provide evidence as described in paragraph (3)), terminate a grant of flexibility authority for a State if there is evidence that the State educational agency involved has failed to comply with the terms of the grant of authority.

      (3) EVIDENCE- If a State educational agency believes that a determination of the Secretary under this subsection is in error for statistical or other substantive reasons, the State educational agency may provide supporting evidence to the Secretary, and the Secretary shall consider that evidence before making a final termination determination under this subsection.

    (b) FINAL REVIEW-

      (1) IN GENERAL- If, at the end of the 5-year term of a grant of flexibility authority made under this chapter, the State educational agency has not met the requirements described in section 6141(c), the Secretary may not renew the grant of flexibility authority under section 6144.

      (2) COMPLIANCE- Beginning on the date on which such term ends, the State educational agency, and the local educational agencies with which the State educational agency has entered into performance agreements, shall be required to comply with each of the program requirements in effect on such date for each program that was included in the grant of authority.

SEC. 6144. RENEWAL OF GRANT OF FLEXIBILITY AUTHORITY.

    (a) IN GENERAL- Except as provided in section 6143 and in accordance with this section, if a State educational agency has met, by the end of the original 5-year term of a grant of flexibility authority under this chapter, the requirements described in section 6141(c), the Secretary shall renew a grant of flexibility authority for one additional 5-year term.

    (b) RENEWAL- The Secretary may not renew a grant of flexibility authority under this chapter unless, not later than 6 months before the end of the original term of the grant of authority, the State educational agency seeking the renewal notifies the Secretary, and the local educational agencies with which the State educational agency has entered into performance agreements, of the agency's intention to renew the grant of authority.

    (c) EFFECTIVE DATE- A renewal under this section shall be effective on the later of —

      (1) the expiration of the original term of the grant of authority; or

      (2) the date on which the State educational agency seeking the renewal provides to the Secretary all data required for the application described in section 6141(c).


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Last Modified: 09/15/2004