4320 Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 

DEPARTMENT OF EDUCATION 

Compliance Agreement 

AGENCY: Department of Education. 

ACTION: Notice of written findings and 

compliance agreement with the New 

Hampshire Department of Education. 

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 

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 and that 

a compliance agreement is a viable 

means of bringing about such 

compliance. 

On September 18, 2008, the 

Department entered into a compliance 

agreement with the New Hampshire 

Department of Education (NHDE). 

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: Dr. 

Sue Rigney, U.S. Department of 

Education, Office of Elementary and 

Secondary Education, 400 Maryland 

Avenue, SW., Room 3C139, 

Washington, DC 20202–6132. 

Telephone: (202) 260–0931. 

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 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: 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 was required 

to adopt academic content and student 

academic achievement standards in at 

least mathematics, reading or 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 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 

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. 

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 July 2007, NHDE 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 NHDE’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 28, 2007, 

to Lyonel B. Tracy, Commissioner of 

Education for New Hampshire, the 

Assistant Secretary asked that NHDE 

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. 

In accordance with the requirements 

of section 457(b) of GEPA, 20 U.S.C. 

1234f(b), on June 4, 2008, Department 

officials conducted a public hearing in 

New Hampshire to assess whether a 

compliance agreement with NHDE 

might be appropriate. Deborah Wiswell, 

the Administrator of the NHDE Bureau 

of Accountability, Gaye Fedorchak, also 

with the Bureau of Accountability, and 

one member of the public testified at 

this hearing. The Department 

considered the testimony provided at 

the June 2008 public hearing and all 

other relevant information and materials 

and concluded that NHDE would not be 

able to correct its non-compliance with 

Title I standards and assessment 

requirements immediately. 

On September 18, 2008, the Assistant 

Secretary issued written findings, 

holding that compliance by NHDE with 

the Title I standards and assessment 

requirements is genuinely not feasible 

until a future date. Under Title I, NHDE 

was required to implement its final 

assessment system no later than the 

2005–2006 school year. The evidence 

that NHDE submitted in July 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, 

due to the enormity and complexity of 

the work needed to bring NHDE’s 

standards and assessment system into 

full compliance, NHDE cannot 

immediately comply with all of the Title 

I requirements. 


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Federal Register / Vol. 74, No. 14 / Friday, January 23, 2009 / Notices 4321 

The Assistant Secretary also 

determined that a compliance 

agreement represents a viable means of 

bringing about compliance because of 

the steps NHDE has already taken to 

comply and the plan it has developed 

for further action. The compliance 

agreement sets out the action plan that 

NHDE must implement to come into 

compliance with Title I requirements. 

This plan, coupled with specific 

reporting requirements, will allow the 

Assistant Secretary to monitor closely 

NHDE’s progress in meeting the terms of 

the compliance agreement. 

The Commissioner of Education for 

NHDE, Lyonel B. Tracy, signed the 

compliance agreement on August 14, 

2008, and the Assistant Secretary signed 

the compliance agreement on 

September 18, 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: http://www.ed.gov/ 

news/fedregister. 

To use PDF, you must have the 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 (202) 512–1530. 

Note: The official version of a document is 

the document published in the Federal 

Register. Free Internet access to the official 

edition of the Federal Register and the Code 

of Federal Regulations is available on GPO 

Access at: http://www.gpoaccess.gov/nara/ 

index.html. 

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

Kerri L. Briggs, 

Assistant Secretary for Elementary and 

Secondary Education. 

Written Findings of the Assistant 

Secretary for Elementary and 

Secondary Education Regarding the 

Compliance Agreement Between the 

United States Department of Education 

and the New Hampshire 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 New 

Hampshire Department of Education 

(NHDE) 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 NHDE 

to achieve full compliance immediately. 

Specifically, the Assistant Secretary has 

determined that NHDE did not meet, 

within the statutory timeframe, a 

number of the Title I requirements 

concerning the academic achievement 

standards, technical quality, and 

alignment for New Hampshire’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 NHDE 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, NHDE 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 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., 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 


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• 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 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 

evidence presented, the Assistant 

Secretary determines that full 

compliance is genuinely not feasible 

until a future date 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 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 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 

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 NHDE is appropriate, the 

Assistant Secretary must first determine 

whether compliance by NHDE with the 

Title I standards and assessment 

requirements is genuinely not feasible 

until a future date. 20 U.S.C. 1234f(b)(2). 

Second, the Assistant Secretary must 

determine whether NHDE will, within a 

period of up to three years from the date 

of these written findings, be able to 

come into compliance with the Title I 

requirements. Not only must NHDE 

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 were not possible, then a 

compliance agreement between the 

Assistant Secretary and NHDE would 

not be appropriate. 

B. NHDE Has Failed To Comply 

Substantially With Title I Standards and 

Assessment Requirements 

In July 2007, NHDE 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 NHDE’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, NHDE had 

to submit the following evidence 

regarding its alternate assessment based 

on alternate academic achievement 

standards: 

Academic Achievement Standards 

1. Evidence of approved/adopted 

alternate academic achievement 

standards for students with the most 

significant cognitive disabilities in 

reading/language arts and mathematics 

for each of grades 3 through 8 and high 

school. 

2. Evidence that the alternate 

academic achievement standards 

include the following for each content 

area: 

a. At least three levels of achievement, 

including two levels of high 

achievement (e.g., proficient and 

advanced) that determine how well 

students are mastering the State’s 

academic content standards, and a third 

level of achievement (e.g., basic) to 

provide information about the progress 

of lower-achieving students toward 

mastering the two levels of high 

achievement; 

b. Descriptions of the competencies 

associated with each achievement level; 

and 

c. Assessment scores (‘‘cut scores’’) 

that differentiate among the 

achievement levels. 

3. Evidence that the Board or other 

authority has adopted all alternate 

academic achievement standards. 

4. Documentation that the State has 

reported separately the number and 

percent of those students with 

disabilities assessed (a) on an alternate 

assessment against alternate academic 

achievement standards, (b) on an 

alternate assessment against grade level 

standards, and (c) on the regular 

assessment (including those 

administered with appropriate 

accommodations). 

5. Documentation that the State has 

involved diverse stakeholders in the 

development of its alternate academic 

achievement standards. 

Technical Quality 

6. Evidence that the State has 

documented validity (in addition to the 

alignment of the alternate assessment 

with the content standards), as 

described in the Standards and 

Assessments Peer Review Guidance: 

Information and Examples for Meeting 

Requirements of the No Child Left 

Behind Act of 2001. 


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7. For the alternate assessment, 

documentation of the standard setting 

process, including a description of the 

selection of judges, the methodology 

employed, and the final results. 

8. For the alternate assessment, 

evidence that the State has considered 

the issue of reliability, as described in 

the Standards and Assessments Peer 

Review Guidance: Information and 

Examples for Meeting Requirements of 

the No Child Left Behind Act of 2001. 

9. Evidence that the State has ensured 

that its alternate assessment system is 

fair and accessible to all eligible 

students, including LEP students. 

10. Evidence that the State has taken 

steps (such as bias review of items) to 

ensure fairness in the development of 

the alternate assessment. 

11. If different test forms or formats 

are used for the alternate assessment, 

evidence that the State has ensured that 

the meaning and interpretation of the 

results are consistent. 

12. Evidence that the State has 

established: 

a. Clear criteria for the administration, 

scoring, analysis, and reporting 

components of its alternate assessment; 

and 

b. A system for monitoring and 

improving the ongoing quality of its 

alternate assessment. 

Alignment 

13. Evidence that the State has taken 

steps to ensure alignment between its 

alternate assessment and the State’s 

academic content and alternate 

academic achievement standards. 

14. Evidence that the State has 

developed ongoing procedures to 

maintain and improve alignment 

between the alternate assessment and 

standards over time, particularly if gaps 

have been noted. 

Inclusion 

15. Evidence that the State has 

implemented alternate assessments for 

students with disabilities who are 

unable to participate in the regular 

assessment even with accommodations. 

16. Evidence of guidelines and 

training that the State has in place to 

ensure that all students with disabilities 

taking the alternate assessment are 

included appropriately in the State 

assessment system. 

17. Evidence that the State has 

developed clear guidelines for 

Individualized Educational Program 

(IEP) Teams to apply in determining 

which assessment is most appropriate 

for a student. 

18. Regarding the alternate 

achievement standards: 

a. Evidence that the State has 

developed clear guidelines for IEP 

Teams to apply in determining when a 

child’s cognitive disability justifies 

assessment based on alternate academic 

achievement standards; and 

b. Evidence of the steps the State has 

taken to instruct regular and special 

education teachers and appropriate staff 

on how to properly administer 

assessments (including making use of 

accommodations) for students with the 

most significant cognitive disabilities. 

Reporting 

19. Evidence that the State’s reporting 

system facilitates appropriate, credible, 

and defensible interpretation and use of 

its assessment data. 

20. Evidence that the State has 

provided for the production of 

individual interpretive, descriptive, and 

[non-clinical] diagnostic reports that 

indicate relative strengths and 

instructional needs and possess the 

following characteristics: 

a. Express results in terms of the 

State’s alternate academic achievement 

standards rather than numerical values 

(e.g., scale scores or percentiles); 

b. Provide information for parents, 

teachers, and principals to help them 

understand and address a student’s 

specific academic needs; and 

c. Display the information in a format 

and language that is understandable to 

parents, teachers, and principals (e.g., 

through the use of descriptors that 

describe what students know and can 

do at different performance levels) and 

include interpretative guidance for these 

audiences. 

21. Evidence that the State ensures 

that these individual student reports 

will be delivered to parents, teachers, 

and principals as soon as possible after 

the alternate assessment has been 

administered. 

C. NHDE Cannot Correct Immediately 

Its Noncompliance With the Title I 

Standards and Assessment 

Requirements 

Under Title I, NHDE 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 

NHDE submitted in July 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, 

due to the enormity and complexity of 

the work that is needed to be done to 

bring NHDE’s standards and assessment 

system into full compliance, NHDE 

cannot immediately comply with all of 

the Title I requirements. As a result, the 

Assistant Secretary finds that it is not 

genuinely feasible for NHDE to come 

into compliance until a future date. 

D. NHDE 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, which was held 

on June 4, 2008, NHDE presented 

evidence of its commitment and 

capability to come into compliance with 

the Title I standards and assessment 

requirements within three years. For 

example, NHDE has already applied for 

and obtained a grant from the 

Department’s Office of Special 

Education Programs, and has begun 

using those grant funds to develop 

Grade Level Expectations and alternate 

assessment links. 

NHDE has also developed a 

comprehensive action plan, 

incorporated into the compliance 

agreement, which sets out a very 

specific schedule that NHDE has agreed 

to meet during the next three years for 

attaining compliance with the Title I 

standards and assessment requirements. 

As a result, NHDE 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 sets out 

documentation and reporting 

requirements with which NHDE must 

comply. These provisions will allow the 

Assistant Secretary to ascertain 

promptly whether NHDE 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 a standards 

and 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 NHDE to comply with 

the terms and conditions of the 

compliance agreement, it is possible for 

NHDE 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 NHDE with 

the standards and assessment 

requirements of Title I is genuinely not 

feasible until a future date; and (2) that 

NHDE can meet the terms and 

conditions of the attached compliance 

agreement and come into full 

compliance with the standards and 

assessment requirements of Title I 

within three years of the date of these 

findings. Therefore, the Assistant 


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Secretary has determined that it is 

appropriate to enter into a compliance 

agreement with NHDE. Under the terms 

of 20 U.S.C. 1234f, that compliance 

agreement becomes effective on the date 

of these findings. 

Dated: September 18, 2008. 

Kerri L. Briggs, PhD, 

Assistant Secretary, Office of Elementary and 

Secondary Education. 

Compliance Agreement Under Title I of 

the Elementary and Secondary 

Education Act Between the United 

States Department of Education and the 

New Hampshire 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 is 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 (LEP) 

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, migrant status, English 

proficiency status, students with 

disabilities, 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 New Hampshire Department of 

Education (NHDE) was unable to timely 

meet certain of the requirements for its 

standards and assessments system. In 

order to be eligible to continue to 

receive Title I funds while working to 

comply with the statutory and 

regulatory requirements regarding 

alternate assessments, Lyonel B. Tracy, 

Commissioner of Education, indicated 

NHDE’s interest in entering into a 

compliance agreement with the United 

States Department of Education 

(Department). On June 4, 2008, the 

Department conducted a public hearing 

regarding: (1) Whether NHDE’s full 

compliance with Title I is not feasible 

until a future date, and (2) whether 

NHDE is able to come into compliance 

with the Title I requirements for an 

alternate assessment system within 

three years. 

Pursuant to this Compliance 

Agreement under 20 U.S.C. Section 

1234f, NHDE must be in full compliance 

with the outstanding requirements 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. In order to achieve 

compliance with the standards and 

assessment requirements, NHDE must 

submit the following evidence: 

Because New Hampshire is 

substantially revising its alternate 

assessment based on alternate academic 

achievement standards (NH–Alt), NHDE 

must submit the following evidence: 

Academic Achievement Standards 

1. Evidence of approved/adopted 

alternate academic achievement 

standards for students with the most 

significant cognitive disabilities in 

reading/language arts and mathematics 

for each of grades 3 through 8 and high 

school. 

2. Evidence that the alternate 

academic achievement standards 

include the following for each content 

area: 

a. At least three levels of achievement, 

including two levels of high 

achievement (e.g., proficient and 

advanced) that determine how well 

students are mastering the State’s 

academic content standards, and a third 

level of achievement (e.g., basic) to 

provide information about the progress 

of lower-achieving students toward 

mastering the two levels of high 

achievement; 

b. Descriptions of the competencies 

associated with each achievement level; 

and 

c. Assessment scores (‘‘cut scores’’) 

that differentiate among the 

achievement levels. 

3. Evidence that the Board or other 

authority has adopted all alternate 

academic achievement standards. 

4. Documentation that the State has 

reported separately the number and 

percent of those students with 

disabilities assessed (a) on an alternate 

assessment against alternate academic 

achievement standards, (b) on an 

alternate assessment against grade level 

standards, and (c) on the regular 

assessment (including those 

administered with appropriate 

accommodations). 

5. Documentation that the State has 

involved diverse stakeholders in the 


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development of its alternate academic 

achievement standards. 

Technical Quality 

6. Evidence that the State has 

documented validity (in addition to the 

alignment of the alternate assessment 

with the content standards), as 

described in the Standards and 

Assessments Peer Review Guidance: 

Information and Examples for Meeting 

Requirements of the No Child Left 

Behind Act of 2001. 

7. For the alternate assessment, 

documentation of the standard-setting 

process, including a description of the 

selection of judges, the methodology 

employed, and the final results. 

8. For the alternate assessment, 

evidence that the State has considered 

the issue of reliability, as described in 

the Standards and Assessments Peer 

Review Guidance: Information and 

Examples for Meeting Requirements of 

the No Child Left Behind Act of 2001. 

9. Evidence that the State has ensured 

that its alternate assessment system is 

fair and accessible to all eligible 

students, including LEP students. 

10. Evidence that the State has taken 

steps (such as bias review of items) to 

ensure fairness in the development of 

the alternate assessment. 

11. If different test forms or formats 

are used for the alternate assessment, 

evidence that the State has ensured that 

the meaning and interpretation of the 

results are consistent. 

12. Evidence that the State has 

established: 

a. Clear criteria for the administration, 

scoring, analysis, and reporting 

components of its alternate assessment; 

and 

b. A system for monitoring and 

improving the on-going quality of its 

alternate assessment. 

Alignment 

13. Evidence that the State has taken 

steps to ensure alignment between its 

alternate assessment and the State’s 

academic content and alternate 

academic achievement standards. 

14. Evidence that the State has 

developed ongoing procedures to 

maintain and improve alignment 

between the alternate assessment and 

standards over time, particularly if gaps 

have been noted. 

Inclusion 

15. Evidence that the State has 

implemented alternate assessments for 

students with disabilities who are 

unable to participate in the regular 

assessment even with accommodations. 

16. Evidence of guidelines and 

training that the State has in place to 

ensure that all students with disabilities 

taking the alternate assessment are 

included appropriately in the State 

assessment system. 

17. Evidence that the State has 

developed clear guidelines for 

Individualized Educational Program 

(IEP) Teams to apply in determining 

which assessment is most appropriate 

for a student. 

18. Regarding the alternate 

achievement standards: 

a. Evidence that the State has 

developed clear guidelines for IEP 

Teams to apply in determining when a 

child’s cognitive disability justifies 

assessment based on alternate academic 

achievement standards; and 

b. Evidence of the steps the State has 

taken to instruct regular and special 

education teachers and appropriate staff 

on how to properly administer 

assessments (including making use of 

accommodations) for students with the 

most significant cognitive disabilities. 

Reporting 

19. Evidence that the State’s reporting 

system facilitates appropriate, credible, 

and defensible interpretation and use of 

its assessment data. 

20. Evidence that the State has 

provided for the production of 

individual interpretive, descriptive, and 

[non-clinical] diagnostic reports that 

indicate relative strengths and 

instructional needs and possess the 

following characteristics: 

a. Express results in terms of the 

State’s alternate academic achievement 

standards rather than numerical values 

(e.g., scale scores or percentiles); 

b. Provide information for parents, 

teachers, and principals to help them 

understand and address a student’s 

specific academic needs; and 

c. Display the information in a format 

and language that is understandable to 

parents, teachers, and principals (e.g., 

through the use of descriptors that 

describe what students know and can 

do at different performance levels) and 

include interpretative guidance for these 

audiences. 

21. Evidence that the State ensures 

that these individual student reports 

will be delivered to parents, teachers, 

and principals as soon as possible after 

the alternate assessment has been 

administered. 

During the duration of this 

Compliance Agreement, NHDE is 

eligible to receive Title I, Part A funds 

if it complies with the terms and 

conditions of this Agreement, and all 

other 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 

are a detailed plan and specific timeline 

for how NHDE will come into 

compliance with the Title I standards 

and assessment requirements. These 

action steps are incorporated into this 

Agreement and may be amended by 

joint written agreement of the parties, 

provided full compliance is still feasible 

by the expiration of the Agreement. 

In addition to all terms and 

conditions set forth above, NHDE 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 

that are not specifically addressed by 

this Agreement, including any 

amendments to the No Child Left 

Behind Act of 2001. 

If NHDE fails to comply with any of 

the terms and conditions of this 

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 New Hampshire Department of 

Education. 

/s/ lllllllllllllllllll

Lyonel B. Tracy 

Commissioner of Education 

Date 8–14–08 

For the United States Department of 

Education: 

/s/ lllllllllllllllllll

Kerri L. Briggs, Ph.D 

Assistant Secretary, Office of Elementary and 

Secondary Education 

Date 18–Sept–08 

Date this Compliance Agreement becomes 

effective: Sept. 18, 2008 

Expiration Date of this Agreement: Sept. 

18, 2011 

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[FR Doc. E9–1268 Filed 1–22–09; 8:45 am] 

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