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###### Department of Education

# AGENCY:

Department of Education. 

# ACTION:

Notice of written findings and compliance agreement with the Nevada 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                               ( print page 4384)                            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.                     

                        On December 4, 2008, the Department entered into a compliance agreement with the Nevada Department of Education (NDE). 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:

Sharon Hall, U.S. Department of Education, Office of Elementary and Secondary Education, 400 Maryland Avenue, SW., room 3W214, Washington, DC 20202-6132. Telephone: (202) 260-0998. 

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 accessible 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 is 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. 

Title I also requires each State to implement a student assessment system 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 June 2007, NDE 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 NDE'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 21, 2007, to Keith W. Rheault, Nevada's Superintendent of Public Instruction, the Assistant Secretary notified NDE that, in order to remain eligible to receive Title I funds, it would have to 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. 

In accordance with the requirements of section 457(b) of GEPA, 20 U.S.C 1234f (b), on June 23, 2008, Department officials conducted a public hearing in Nevada to assess whether a compliance agreement with NDE might be appropriate. Keith W. Rheault, Nevada's Superintendent of Public Instruction, testified at this hearing on behalf of NDE. The Department considered the testimony provided at the June 2008 public hearing and all other relevant information and materials and concluded that NDE would not be able to correct its non-compliance with Title I standards and assessment requirements immediately. 

On January 12, 2009, the Assistant Secretary issued written findings holding that compliance by NDE with the Title I standards and assessment requirements is genuinely not feasible until a future date. Under Title I, NDE was required to implement its final assessment system no later than the 2005-2006 school year. The evidence that NDE submitted in June 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, the compliance agreement sets out the action plan that NDE must implement to come into compliance with Title I requirements. Due to the enormity and complexity of the work that is needed to bring NDE's standards and assessment system into full compliance, NDE cannot immediately comply with all of the Title I requirements. 

Nevada's Superintendent of Public Instruction, Keith W. Rheault, signed the compliance agreement on December 1, 2008, and the Assistant Secretary signed the compliance agreement on December 4, 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*.                           ( print page 4385)    

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 this 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. 

Dated: January 16, 2009. 

Kerri L. Briggs, 

Assistant Secretary for Elementary and Secondary Education. 

# Appendix A 

## Written Findings of the Assistant Secretary for Elementary and Secondary Education Regarding the Compliance Agreement Between the United States Department of Education and the Nevada 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 Nevada Department of Education (NVDOE) 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 NVDOE to achieve full compliance immediately. Specifically, the Assistant Secretary has determined that NVDOE did not meet, within the statutory timeframe, a number of the Title I requirements concerning the alignment of Nevada's High School Proficiency Examination (HSPE) to grade-level content standards as well as requirements concerning the academic achievement standards and alignment of the Nevada Alternate Scales of Academic Achievement (NASAA), Nevada'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 NVDOE to bring it into full compliance as soon as feasible. During the effective period of the compliance agreement, which ends December 4, 2011, NVDOE 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 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
    - 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. 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, 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                               ( print page 4386)                            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 

In deciding whether a compliance agreement between the Assistant Secretary and NVDOE is appropriate, the Assistant Secretary must determine whether compliance by NVDOE with the Title I standards and assessment requirements is genuinely not feasible until a future date. 20 U.S.C. 1234f(b)(2). 

### A. NVDOE Has Failed To Comply Substantially With Title I Standards and Assessment Requirements 

In June 2007, NVDOE 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 NVDOE'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, NVDOE had to submit the following evidence regarding its alternate assessment based on alternate academic achievement standards: 

#### Academic Achievement Standards 

1. A clear and complete description of the process and decisions made in the development of the Nevada Alternate Scales of Academic Achievement (NASAA) standards for reading and mathematics, including the qualifications of participants in the standards-setting activity. 

2. Documentation confirming Board approval of the revised cut scores that were applied to the 2007 results of the NASAA. 

#### Technical Quality 

1. Data that supports the current policy that accommodations yield valid scores and modifications do not. 

#### Alignment 

1. A detailed explanation of the actions that will be taken to ensure improved alignment between assessments and revised content standards as the basis for test validity. 

2. Evidence of alignment of the High School Proficiency Examination (HSPE) with Nevada's academic content standards. 

3. A plan for using alignment study results to guide future development activities to improve alignment of the tests to standards. 

4. Documentation of alignment between the NASAA tasks administered by teachers and grade-level content standards. 

### B. NVDOE Cannot Correct Immediately Its Noncompliance With the Title I Standards and Assessment Requirements 

Under Title I, NVDOE 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 NVDOE submitted in June 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, substantial work is required to bring NVDOE into compliance with the Title I requirements.

At the public hearing, which was held on June 23, 2008, NVDOE presented evidence that compliance is not feasible until a future date, particularly in light of the work necessary to come into full compliance with the Title I standards and assessment requirements. In particular, Dr. Keith W. Rheault, Nevada's Superintendent of Public Instruction, testified that NVDOE is committed to resolving all outstanding issues related to the State's high school proficiency assessment (HSPE) and its alternate assessment based on alternate academic achievement standards (NASAA) within three years, but that it would not be possible for Nevada to come into compliance with all applicable requirements sooner than the 2010-11 school year. Dr. Rheault stated that, during the period the compliance agreement is in effect, NVDOE plans to align the HSPE to the State's new reading and mathematics content standards and to field test both the reading and mathematics assessments. Dr. Rheault also testified that NVDOE remains committed to assessing student performance on the NASAA through a portfolio of student work, but that NVDOE needs time to ensure that districts and teachers receive all training necessary to implement the changes being made to the NASAA. Dr. Rheault's testimony is consistent with the comprehensive action plan that NVDOE developed and that is incorporated into the compliance agreement. That action plan sets out a very specific schedule that NVDOE has agreed to meet during the next three years for completing all of the work necessary to attain compliance with the Title I standards and assessment requirements.

Due to the enormity and complexity of the work that is needed to bring NVDOE's standards and assessment system into full compliance, NVDOE cannot immediately comply with all of the Title I requirements. As a result, the Assistant Secretary finds that it is not genuinely feasible for NVDOE to come into compliance until a future date. 

## IV. Conclusion 

For the foregoing reasons, the Assistant Secretary finds that full compliance by NVDOE with the standards and assessment requirements of Title I is genuinely not feasible until a future date. Therefore, the Assistant Secretary has determined that it is appropriate to enter into a compliance agreement with NVDOE.

Dated: Jan. 12, 2009.

/s/

Kerri L. Briggs, Ph.D.,

*Assistant Secretary for Elementary and Secondary Education.*

## Appendix B 

## Compliance Agreement Under Title I of the Elementary and Secondary Education Act Between the United States Department of Education and the Nevada 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 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 standards across grades and subjects;
    - Provide for the inclusion of all students in the grades assessed, including students with disabilities and limited-English-proficient 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,       ( print page 4387)                              migrant status, students with disabilities, LEP students, 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 Nevada Department of Education (NVDOE) failed to timely meet certain of the statutory and regulatory requirements for its standards and assessment system. In order to be eligible to continue to receive Title I funds while working to comply with the requirements, Keith Rheault, Superintendent of Education, indicated NVDOE's interest in entering into a compliance agreement with the United States Department of Education (Department). On June 23, 2008, the Department conducted a public hearing regarding: (1) whether NVDOE's full compliance with Title I is not feasible until a future date; and (2) whether NVDOE is able to come into compliance with the Title I standards and assessment requirements within three years. 

Pursuant to this Compliance Agreement under 20 U.S.C. Section 1234f, NVDOE must be in full compliance with the outstanding requirements of Title I 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. To achieve compliance with the standards and assessment requirements, NVDOE must submit the following evidence: 

## 2.0—Academic Achievement Standards

1. A clear and complete description of the process and decisions made in the development of the Nevada Alternate Scales of Academic Achievement (NASAA) standards for reading and mathematics, including the qualifications of participants in the standards-setting activity. 

2. Documentation confirming Board approval of the revised cut scores that were applied to the 2007 results of the NASAA. 

## 4.0—Technical Quality 

1. Data that supports the current policy that accommodations yield valid scores and modifications do not. 

## 5.0—Alignment 

2. A detailed explanation of the actions that will be taken to ensure improved alignment between assessments and revised content standards as the basis for test validity. 

3. Evidence of alignment of the High School Proficiency Examination (HSPE) with Nevada's academic content standards. 

4. A plan for using alignment study results to guide future development activities to improve alignment of the tests to standards. 

5. Documentation of alignment between the NASAA tasks administered by teachers and grade-level content standards. 

During the period that this Compliance Agreement is in effect, NVDOE is eligible to receive Title I, Part A funds if it complies with the terms and conditions of this Agreement, as well as the provisions of Title I, Part A and other applicable Federal statutory and regulatory requirements that are not specifically addressed by this Agreement. The attached action steps constitute a detailed plan and specific timeline for how NVDOE will come into compliance with the Title I standards and assessment requirements. The action steps are incorporated by reference into this Compliance Agreement as though fully set forth herein and may be amended by joint agreement of the parties, provided full compliance is still feasible by the expiration of the Agreement. 

In addition to all of the terms and conditions set forth above, NVDOE 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, including those that are not specifically addressed by this Agreement, including any amendments to the No Child Left Behind Act of 2001. 

If NVDOE fails to comply with any of the terms and conditions of this Compliance 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 Nevada Department of Education: 

/s/

Keith Rheault,

*Superintendent of Education.*

Date: Dec. 1, 2008.

For the United States Department of Education: 

/s/

Kerri L. Briggs, Ph.D.,

*Assistant Secretary, Office of Elementary and Secondary Education.*

Date: Dec. 4, 2008.

Date this Compliance Agreement becomes effective: Dec. 4, 2008.

Expiration Date of this Agreement: Dec. 4, 2011. 
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BILLING CODE 4000-01-P

[FR Doc. E9-1552 Filed 1-23-09; 8:45 am] 

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