The Honorable Rafael Román Meléndez
Secretary of Education
Department of Education
P.O. Box 190759
San Juan, PR 00919
Dear Secretary Román Meléndez:
Congratulations on receiving approval of Puerto Rico’s request for ESEA flexibility. Submitting a request that meets the four ESEA flexibility principles is a significant accomplishment; you and your staff should be proud of the work you have done and that you plan to do to improve educational outcomes for all students, close achievement gaps, increase equity, and improve the quality of instruction in Puerto Rico. Full and effective implementation of your request for ESEA flexibility will be critically important to accomplishing these goals. The U.S. Department of Education (ED) is committed to working with Puerto Rico to ensure full and effective implementation, to include providing technical assistance and monitoring the progress of implementation toward the goals set for your schools and students.
The purpose of this letter is to provide some additional information about how to implement your approved request and how to meet certain obligations related to the approval of your request.
Conditions on Approval
Puerto Rico’s ESEA flexibility request was approved subject to four conditions. To request approval to implement these waivers beyond the 2013–2014 school year, Puerto Rico must meet the following conditions:
- resolve all outstanding compliance findings for the School Improvement Grants (SIG) program and Title III of the ESEA by June 1, 2014
- submit a high-quality plan (as defined in ESEA Flexibility Guidance for Renewal Process), which must be approved by ED, for resolving all monitoring and audit findings of all other ED programs for which Puerto Rico currently has outstanding monitoring or audit findings , and include in the plan interim goals for the 2013–2014 school year by December 31, 2013
- submit to ED for review and approval an amended request incorporating final guidelines for teacher and principal evaluation and support systems that meet the requirements of ESEA flexibility by December 31, 2013
- Puerto Rico must also confer with ED on a quarterly basis (every three months from date of approval) regarding its implementation of ESEA flexibility and progress toward the above conditions.
In addition, for Puerto Rico to satisfy the second condition, the plan it submits must include a reasonable timeline for resolution of all outstanding findings, which must be approved by ED. If Puerto Rico fails to meet any of these conditions, or if ED determines that Puerto Rico has not implemented its approved ESEA flexibility request with fidelity, the waivers being granted to Puerto Rico will expire at the end of the 2013–2014 school year, and Puerto Rico will be required to immediately resume complying with all waived ESEA requirements. Please note, that if ED determines after notice and an opportunity for a hearing, that Puerto Rico’s performance under the waivers has been inadequate to justify a continuance of the waivers, including if ED determines that any one or more of the conditions are not met, ED may terminate the waivers prior to the end of the 2013–2014 school year and require Puerto Rico to resume complying with all waived ESEA requirements at that time. ED may also designate Puerto Rico as a “high-risk grantee” or take other enforcement action that, among other things, may potentially hamper its ability to receive federal discretionary funds for which Puerto Rico would have been otherwise able to apply in the future.
Waivers in ESEA Flexibility
The waivers that comprise ESEA flexibility have been granted pursuant to the Secretary’s authority under section 9401 of the Elementary and Secondary Education Act of 1965, as amended (ESEA). Consistent with that authority, only the statutory requirements listed in the table enclosed with Secretary Duncan’s letter approving your request, and their implementing regulations, have been waived through ESEA flexibility. Puerto Rico, in its capacity as a State educational agency (SEA) and a local educational agency, remains obligated to comply with all other requirements of the ESEA, including, for example, the fiscal requirements in ESEA section 1120A, the report card requirements, the regulatory requirements for calculating graduation rates, the caps on the number of proficient and advanced scores of students with disabilities who take an alternate assessment based on alternate or modified academic achievement standards that may be included in accountability determinations, and the requirements related to equitable services.
In addition, the waivers that are included in the table enclosed with Secretary Duncan’s letter include waivers that permit Puerto Rico to: operate a schoolwide program in a priority or focus school that does not meet the 40 percent poverty threshold, provide funds reserved under ESEA section 1003(a) to any priority or focus school, provide funds reserved under ESEA section 1117(c)(2)(A) to any reward school, and provide funds under ESEA section 1003(g) to any priority school that will implement one of the four SIG school intervention models. Please note that these waivers apply only to schools that meet the ESEA flexibility definitions of priority, focus, and reward schools, as applicable. To clarify, if Puerto Rico identifies other schools as reward, priority, or focus schools that do not meet those definitions, these waivers would not be relevant to those additional schools. The approval of your request for ESEA flexibility does not waive any other requirements related to schoolwide programs, the reservation under ESEA section 1003(a), the provision of funds under ESEA section 1117(c)(2)(A), or the allocation of SIG funds, respectively; they merely modify the universe of schools to which those respective provisions apply.
Waivers of Requirements to Provide Supplemental Educational Services (SES) and Transportation for Public School Choice
Under ESEA flexibility, Puerto Rico will no longer be required by Federal law to offer SES or public school choice. Accordingly, Puerto Rico should ensure that it provides parents with information to explain why SES and transportation for public school choice will no longer be offered beginning in the 2013–2014 school year, while explaining the interventions, incentives, and supports that will replace those options, and provide other relevant details regarding the termination of the existing services. This information should be provided as early as feasible so that parents may plan accordingly, and should be provided in a language and format that is understandable to parents. Puerto Rico should also provide similar information about the status of SES to all SES providers on the island.
Please note that, although Puerto Rico will no longer be obligated by Federal law to provide transportation for public school choice, a student who is already taking advantage of public school choice must be permitted to remain at his or her school of choice until he or she has completed the highest grade in that school because ESEA flexibility does not waive ESEA section 1116(b)(13). This right should be clearly explained to parents in the information that is provided regarding the changes being made with respect to the provision of SES and public school choice. To enable parents to exercise this right, ED encourages Puerto Rico to consider providing transportation to these schools of choice beyond the end of the 2012–2013 school year.
ED recognizes that, in light of Puerto Rico’s approved ESEA flexibility request, some elements of Puerto Rico’s Accountability Workbook do not reflect Puerto Rico’s new system of differentiated recognition, accountability, and support. The Accountability Workbook will be replaced by an Accountability Addendum that will be posted with Puerto Rico’s approved ESEA flexibility request. Details regarding the preparation of the Accountability Addendum are available on the “Support for States” section of ED’s ESEA flexibility webpage.
Amendments to Puerto Rico’s ESEA Flexibility Request
ED encourages Puerto Rico to continuously evaluate the effectiveness of the plans and other elements of its ESEA flexibility request as it proceeds with implementation, and to make necessary changes to address any challenges that it identifies. As a result of this process of continuous improvement, ED anticipates that Puerto Rico might want or need to make changes to its ESEA flexibility request.
If Puerto Rico wishes to make changes to its ESEA flexibility request, Puerto Rico must submit those changes to ED as early as feasible for review and approval. Upon receipt of the proposed changes, ED will determine whether the changes require additional peer review. Puerto Rico may not implement any changes to its approved request until those changes have been approved by ED. Additional information regarding the format and process for an SEA to submit a request to amend its ESEA flexibility request is available on the “Support for States” section of ED’s ESEA flexibility webpage at: http://www.ed.gov/esea/flexibility/support-for-states Please note that ED does not anticipate approving any amendment that would result in Puerto Rico’s no longer meeting the required timelines for implementation of ESEA flexibility.
Meaningfully engaging and soliciting input from teachers and their representatives, and other diverse stakeholders, was an important part of developing Puerto Rico’s ESEA flexibility request. Such consultation will be equally important as you proceed with implementing your ESEA flexibility request.
Submission of Reports, Data, and Evidence
ESEA section 9401(e)(2) requires an SEA receiving a waiver under section 9401 to report such information as the Secretary may require. In accordance with that provision and as it assured in its request, Puerto Rico must provide ED certain reports, data, and evidence regarding its progress in implementing the plans and other elements of its approved request. ED anticipates that an SEA will be able to meet this requirement primarily by providing information to ED through EDFacts/Consolidated State Performance Report (much of which is part of current collections), and by providing information required for ED’s monitoring of Puerto Rico’s ESEA flexibility implementation.
ED is monitoring SEAs to ensure full and effective implementation of approved ESEA flexibility requests. ED will track Puerto Rico’s progress and success in implementing the plans and other elements of its approved ESEA flexibility request, including alignment with the four principles and the required timelines listed in the document titled ESEA Flexibility. In addition, ED will closely monitor to ensure that Puerto Rico is in compliance with Federal civil rights laws that prohibit discrimination based on race, color, national origin, sex, disability, and age in their implementation of ESEA flexibility as well as their implementation of all other Federal education programs. ED expects to begin monitoring of Puerto Rico’s implementation of ESEA flexibility soon and will provide additional information on its monitoring plans in the coming weeks.
Please note that, as States’ implementation of ESEA flexibility proceeds, ED may adjust the reports, data, and evidence it needs to track implementation, as appropriate. ED will keep you apprised of any modifications.
Secretary’s Right to Terminate Waivers
Under ESEA section 9401(f), the Secretary must terminate a waiver if he determines, after notice and an opportunity for a hearing, that the performance of the entity affected by the waiver has been inadequate to justify a continuation of the waiver or if the waiver is no longer necessary to achieve its original purpose. Accordingly, the Secretary may terminate the waivers granted through ESEA flexibility if Puerto Rico does not implement its request as approved by ED, if Puerto Rico fails to submit in a timely manner the required reports, data, and evidence, or if Puerto Rico does not receive approval of its guidelines for teacher and principal evaluation and support systems. As noted above, Puerto Rico’s waivers will expire at the end of the 2013–2014 school year if it does not meet the four conditions listed above. If the waivers are terminated or expire by their own terms at the end of the 2013–2014 school year, Puerto Rico must immediately resume complying with the requirements of current law.
I hope you find this information helpful. Congratulations again on receiving approval of Puerto Rico’s request for ESEA flexibility. I look forward to working with you and your staff as you implement this flexibility and as you continue working to improve education in Puerto Rico.
Deborah S. Delisle
cc: Ramón L. De Azúa, Director of Federal Affairs