K-12 Education: Education's Experiences with Flexibility Waivers Could Inform Efforts to Assist States with New Requirements
Published: 2016-07-07T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Beginning in 2011, Education used its statutory authority to invite states to apply for waivers from certain provisions in the ESEA through its Flexibility initiative. To receive Flexibility waivers, states had to agree to meet other requirements related to college- and career-ready expectations, school accountability and support, and effective instruction. Education approved Flexibility waivers for 43 states. In December 2015, Congress reauthorized the ESEA which modified Education's waiver authority. GAO was asked to review Education's Flexibility initiative.
GAO examined the extent to which Education assessed states' ability to fully implement their Flexibility waivers and the process it used to oversee the waivers. GAO reviewed relevant federal laws, guidance, and key documents related to the Flexibility initiative, such as monitoring reports; and interviewed Education officials. GAO reviewed Education's documents and identified states facing multiple challenges in implementing their waivers. GAO also interviewed officials in five states, selected to reflect a range of challenges states faced in implementing the waivers.
section_title: What GAO Found
paragraphs: Since introducing its Flexibility initiative in 2011—inviting states to request a waiver from certain provisions of the Elementary and Secondary Education Act of 1965 (ESEA) in effect at the time—the Department of Education (Education) has monitored states' efforts and identified challenges to states' ability to fully implement their waivers. According to GAO's analysis of Education letters and monitoring reports, 12 of the 43 states with Flexibility waivers faced multiple challenges that affected their ability to fully implement their waivers. Education used a risk assessment process to document these challenges throughout the waiver approval, monitoring, and renewal phases (see table). For example, Education identified risks with one state's capacity to oversee and monitor schools needing improvement prior to approving the state's waiver in 2013 and noted similar issues, as a result of monitoring, in 2015. Overseeing local districts and schools was particularly challenging for states, according to GAO's analysis of Education documents. Meanwhile, Education has not yet evaluated its process to review, approve, and monitor the Flexibility waivers given to states or incorporated any relevant lessons learned into its plans for implementing the December 2015 reauthorization of the ESEA. According to federal internal control standards, agencies should consider lessons learned when planning agency activities. As Education begins to implement the new law, it has an opportunity to learn from its experiences with the Flexibility initiative and incorporate any applicable lessons learned. Absent such an evaluation, Education may miss opportunities to better oversee state implementation of the new law.
section_title: What GAO Recommends
paragraphs: GAO recommends that Education evaluate its Flexibility initiative oversight process to identify lessons learned and incorporate any applicable lessons into its plans for overseeing state implementation of the new law. Education generally agreed and outlined steps to address the recommendation.

section_title: Letter
paragraphs: In December 2015, Congress reauthorized the Elementary and  Secondary Education Act of 1965 (ESEA). Among other things, the new  law, known as the Every Student Succeeds Act (ESSA), requires states  to submit plans to the Department of Education (Education) for approval  that describe states’ compliance with various requirements, such as  implementing a statewide accountability system to identify and support  low-performing schools. Like the prior reauthorization—known as the No  Child Left Behind Act of 2001 (NCLBA)—ESSA authorizes Education to  waive various statutory or regulatory provisions, subject to certain  requirements. ESSA also modified this waiver authority. For example,  ESSA prohibits Education from requiring states to include specific  academic standards in their waiver requests or to use specific academic  assessments as a condition of waiver approval.
In September 2011, in response to states’ requests for relief from certain  provisions of the NCLBA, Education invited states to request waivers that  would grant them flexibility in meeting certain NCLBA requirements in  effect at that time, such as identifying for improvement or corrective  action those schools and school districts that repeatedly failed to meet the  state’s adequate yearly progress goals. In response, almost every state  applied for a Flexibility waiver, and Education ultimately approved waivers  for 43 states. As part of the Flexibility initiative, states agreed to address  four principles identified by Education that included implementing college-  and career-ready standards and assessments; district and school  recognition, accountability and support systems; and systems for  evaluating and supporting teacher and principal effectiveness. The  Flexibility initiative built on reform efforts begun under the Race to the Top  and School Improvement Grants programs. We have previously reported  that states and school districts have experienced a variety of challenges  with those programs, such as obtaining support from stakeholders and  building staff capacity. Under the ESSA, all waivers granted through the  Flexibility initiative terminate on August 1, 2016.
You asked us to review Education’s design, implementation, and  oversight of its Flexibility initiative. In light of the effects that the ESSA  may have on state education systems, this report examines the extent to  which Education assessed states’ ability to fully implement their Flexibility  waivers and the process it used to oversee this initiative.
To perform this work, we used a variety of approaches. We reviewed  relevant federal laws and guidance, as well as key federal documentation  provided by Education related to the review and approval of Flexibility  waivers and monitoring reports. In addition, we interviewed officials in  Education’s Office of State Support, Risk Management Service, Office of  Elementary and Secondary Education, Office of the General Counsel,  and Office of Planning, Evaluation, and Policy Development. To  determine if any states faced challenges to their ability to fully implement  their Flexibility waivers, we reviewed states’ waiver approval letters,  waiver renewal letters, and monitoring reports. On the basis of that  review, we identified states that had at least two of the following  designations:
Education included conditions when approving the state’s initial
Education found during monitoring that the state was not  implementing an element of its Flexibility waiver consistent with its  approved request and meeting Education’s expectations for  establishing systems and processes—particularly for monitoring  schools and school districts—that supported waiver implementation;  or
Education included conditions when renewing the state’s Flexibility  waiver.
To learn more about challenges specific states faced in implementing  their Flexibility waivers, we conducted structured interviews with officials  in four states: Arizona, Louisiana, Oklahoma, and Pennsylvania. These  were selected from those states we identified that had at least two of the  designations noted above to reflect a range of challenges states faced in  implementing Flexibility waivers. We also interviewed an official in  Washington state—the only state whose waiver was not extended— because it was unable to fully implement its Flexibility waiver.
Of the four principles on which the Flexibility initiative was based, we  focused our efforts on three: district and school accountability and support systems; and college- and career-ready standards and assessments;  systems for evaluating and supporting teacher and principal  effectiveness.
We did this because Education’s oversight activities and state challenges  identified under the Flexibility initiative focused on these three principles.  Our review does not include the initiative’s fourth principle, which is  related to removing duplicative and burdensome reporting requirements  that do not directly affect student outcomes. We evaluated Education’s  process for risk assessment and its efforts to learn from its experiences  with the Flexibility initiative using standards for internal control in the  federal government. In addition, we considered our prior work on the  Flexibility initiative in which we held discussion groups with selected  states regarding the benefits and challenges of requesting and  implementing Flexibility waivers under NCLBA (for more about our prior  review, see app. I). Further, we interviewed education policy  stakeholders from the Council of Chief State School Officers and National  Conference of State Legislatures because they have direct, broad-based  knowledge about states’ experiences with the Flexibility initiative,  including challenges states encountered when implementing their  waivers.
We conducted this performance audit from August 2015 to July 2016 in  accordance with generally accepted government auditing standards.  Those standards require that we plan and perform the audit to obtain  sufficient, appropriate evidence to provide a reasonable basis for our  findings and conclusions based on our audit objectives. We believe that  the evidence obtained provides a reasonable basis for our findings and  conclusions based on our audit objectives.
subsections: section_title: Background
paragraphs: Under the NCLBA, the Secretary of Education had the authority to waive  many statutory and regulatory requirements for states, school districts,  and other entities that received funds under a program authorized by the  law, provided that certain conditions were met. In September 2011,  Education introduced the Flexibility initiative and invited states to request  a waiver for flexibility from certain NCLBA requirements in effect at the  time. For example, Education offered to waive requirements related to the  timeline for determining whether states, districts, and schools were  making adequate yearly progress toward improved academic  achievement for all students, including specified subgroups. (See app. II  for a full list of NCLBA provisions that could be waived under the  Flexibility initiative.) To be approved for a Flexibility waiver, Education  required states to address certain principles for improving elementary and  secondary education, as seen in table 1.
Education’s Student Achievement and School Accountability Office was  responsible for administering the Flexibility initiative until October 2014. At  that time, the Student Achievement and School Accountability Office  became part of the newly-created Office of State Support, which assumed  responsibility for administering the initiative.
As part of Education’s process for reviewing and approving states’  requests for waivers under the Flexibility initiative, Education invited  states to submit their requests in one of several “windows” between 2011  and 2014. Almost every state applied for a waiver during one of these  windows. Generally, Education approved states to implement their  requests for a certain number of years. As of April 2016, Education had  approved requests for Flexibility waivers in 43 states. In November  2014, Education invited states that had received approval for Flexibility  waivers for the 2014-2015 school year to submit a request to renew their  waivers for an additional 3 years, or through the end of the 2017-2018  school year.
As shown in figure 1, Education established a process in which states  requested Flexibility waivers, states’ requests were peer-reviewed, and  Education made final decisions. According to Education officials, the  review and decision process was focused on whether states’ requests  were consistent with Flexibility principles. Education convened peer  review panels to evaluate states’ initial Flexibility waiver requests and  suggest ways to strengthen a state’s plan for implementing the principles  of the Flexibility initiative. For example, peer reviewers in some cases  suggested strengthening plans to ensure that students from racial and  ethnic subgroups were sufficiently included in school accountability  systems. Ultimately, Education used the results of peer review and the  department’s internal analysis to inform its final decision of whether or not  to approve states’ Flexibility waiver requests.
After completing the initial review and decision process, Education  conducted a monitoring process to oversee Flexibility waiver  implementation and identify any areas in which states needed additional  support. The first part of the monitoring process (referred to as “Part A”  monitoring) was designed to provide Education with a more in-depth  understanding of a state’s goals and approach to implementing its  Flexibility waiver and to ensure that the state had the critical elements in  place to begin implementing its plan. The second part of the monitoring  process (referred to as “Part B” monitoring) was designed to enable  Education to review state implementation of the plan and follow up from  the initial monitoring.
section_title: Education Assessed States’ Ability to Implement Flexibility Waivers and Identified Challenges but Has Not Yet Evaluated Its Own Oversight Processes
subsections: section_title: Education Identified Challenges to States’ Ability to Implement Flexibility Waivers
paragraphs: By establishing a process to review, approve, and monitor states’  Flexibility waivers, Education identified challenges to states’ ability to fully  implement their waivers, as shown in table 2. Recognizing that Flexibility  waivers affected multiple significant aspects of state and local educational  systems, Education took steps that enhanced its ability to identify  implementation risks. For example, officials in Education’s Office of State  Support (the office responsible for the initiative) told us they coordinated  with other Education offices to identify findings or concerns regarding how  states were implementing other education programs that might affect a  state’s waiver implementation. Education’s efforts to identify  implementation risks were consistent with standards for internal control in  the federal government, which define risk assessment as identifying and  analyzing relevant risks associated with achieving program objectives.  Agency management is to comprehensively identify risks and consider  any effects they might have on the agency’s ability to accomplish its  mission for all projects, such as the Flexibility initiative.
Education asked states to include information in their initial Flexibility  waiver requests about how they consulted with teachers and their  representatives and other stakeholders, such as parents and  organizations representing students with disabilities and English learners,  in developing their waiver proposals. However, officials we interviewed in  two states, as well as an official from the National Conference of State  Legislatures, discussed issues related to stakeholder consultation,  especially with state legislatures, regarding their Flexibility waiver  requests. For example, Washington state was unable to implement a  teacher and principal evaluation and support system that included student  learning growth as a significant factor. A state official told us they  attempted to design a system that would meet the needs of various  stakeholders, including teachers, but ultimately the system was not  implemented because, according to Education, the state legislature did  not approve the changes needed to put the system in place. In addition,  Arizona officials said state laws and rules from the state board of  education limited their ability to implement an accountability system that  was consistent with their Flexibility waiver request. Under the ESSA,  states will be required to develop their Title I state plans with timely and  meaningful consultation with the governor and members of the state  legislature and state board of education, among others.
section_title: Twelve States Faced Multiple Challenges in Implementing Their Flexibility Waivers, Especially Related to Local Oversight
paragraphs: Of the 43 states with Flexibility waivers, we identified 12 states that faced  multiple significant challenges throughout the initiative, affecting their  ability to fully implement their waivers: Alabama, Arizona, Florida,  Louisiana, Massachusetts, Nevada, New Hampshire, Ohio, Oklahoma,  Pennsylvania, South Dakota, and Texas. As shown in table 3, these 12  states had at least two of the following designations:
Education included conditions when approving the state’s initial
Education found during monitoring that the state was not  implementing an element of its Flexibility waiver consistent with its  approved request meeting Education’s expectations for establishing  systems and processes—particularly for monitoring schools and  school districts—that supported waiver implementation; or
Education included conditions when renewing the state’s Flexibility  waiver.
Some of these states were unable to fully address the challenges  Education identified when their waiver was initially approved. For  example, Education identified risks related to Pennsylvania’s capacity to  monitor interventions in “focus schools” prior to approving the state’s  Flexibility waiver and subsequently found during Part B monitoring (nearly  2 years later) that the state lacked a plan to conduct such monitoring.  Pennsylvania officials told us that, according to Education officials, these  weaknesses resulted from not documenting how interventions in focus  schools were consistent with the state’s plan to improve student  achievement in these schools. To help manage these challenges,  Education included conditions when approving and renewing these  states’ Flexibility waivers and provided technical assistance. During Part  B monitoring, Education found that most of these states were not meeting  Education’s expectations for establishing monitoring systems and  processes that support implementation of their Flexibility waivers.
Many of these states were particularly challenged to develop systems for  overseeing local school districts and schools. Specifically, during Part B  monitoring, Education found that 8 of the 12 states we identified as facing  multiple challenges did not meet expectations regarding systems for  monitoring local implementation of their Flexibility waivers (see table 4).  According to Education officials, many states were not implementing  monitoring activities consistent with their approved Flexibility waivers and  the key Flexibility principles. For example, Education found that Alabama  did not have a formal monitoring mechanism to ensure its interventions in  priority schools, focus schools, and other Title I schools met the  requirements of the Flexibility initiative; and New Hampshire did not  monitor its districts’ adoption and implementation of college- and career- ready standards.
During the initial Flexibility waiver review and decision process and Part B  monitoring, Education asked states about their plans to monitor local  implementation and asked for documentation, such as monitoring  schedules or reports. Education officials told us that state monitoring of  local implementation is a persistent challenge across many education  programs, and said that the possible reasons states continue to  experience challenges related to monitoring include staff capacity and   staff turnover at state departments of education. Education officials told  us they could help states strengthen their monitoring efforts by  disseminating best practices but have not yet done so because of time  and resource constraints.
Education did not establish specific timeframes for providing final Part B  monitoring reports to states. According to our analysis of Education’s  documentation, it took over 4 months, on average, to provide states with  final Part B monitoring reports; for 10 states, it was over 6 months.  Education officials told us that many factors affected the time frames for  finalizing its monitoring reports, such as the complexity of the approaches  being used by a state to implement its Flexibility waiver, the need to  balance this work with other high-priority work being done by department  staff, and the U.S. government shutdown in October 2013. Recognizing  that the length of time Education takes to notify a state about monitoring  findings affects how long it will take a state to address any  implementation risks the department identified, Education officials told us  they provided draft reports to states earlier in the process and gave them  an opportunity to provide technical edits to the draft reports.
section_title: Education Has Not Yet Evaluated its Oversight Process for the Flexibility Initiative, Which Could Strengthen Its Ability to Support and Oversee ESSA Implementation Efforts
paragraphs: Although 12 states faced multiple challenges throughout the Flexibility  waiver initiative, Education has not yet evaluated its process for  reviewing, approving, and overseeing Flexibility waivers. Education  officials told us they intend to identify lessons from the Flexibility initiative,  particularly with regard to technical assistance for and oversight of state  monitoring efforts and that such lessons learned would help them better  support states with developing and implementing state plans for ESSA  implementation. For example, Education officials told us they plan to  determine how they can improve their use of the peer review process for  ESSA state plans. As of yet, however, Education has not evaluated its  oversight of Flexibility waivers and did not provide us with a time frame for  doing so. According to standards for internal control in the federal  government, agencies should consider lessons learned when planning  agency activity, as doing so can help an agency communicate acquired  knowledge more effectively and ensure that beneficial information is  factored into planning, work processes, and activities. As Education  begins its efforts to implement the ESSA, it has the opportunity to learn  from its experiences with the Flexibility initiative. Without identifying  lessons from oversight of the waiver process, Education may miss  opportunities to better support ESSA implementation.
section_title: Conclusions
paragraphs: The Flexibility waiver initiative affected multiple, complicated aspects of  state and local systems for elementary and secondary education and,  thus, was a significant undertaking by the department. In implementing its  Flexibility initiative, Education’s efforts identified many key challenges  states faced in implementing their waiver requests, such as incomplete  systems for school accountability or teacher and principal evaluation. We  found that 12 of the 43 states with Flexibility waivers faced significant  challenges in addressing risks identified throughout the initiative, affecting  their ability to fully implement their waivers. These challenges included  ensuring states were effectively monitoring their districts and schools,  which is a key aspect of program effectiveness, and an area where the  department has identified oversight issues across programs.
The waivers granted under Education’s Flexibility initiative will terminate  on August 1, 2016, and states are preparing to develop and implement  new Title I plans under the newly reauthorized law, the ESSA. Education  continues to develop its oversight and technical assistance strategies for  implementing the ESSA, which includes different requirements related to  school accountability, among other things. Absent an evaluation of its  oversight process for the Flexibility initiative to identify lessons learned,  Education may miss an opportunity to strengthen its monitoring and  oversight of states’ implementation of plans under ESSA and better  support them in the areas that have presented significant challenges.
section_title: Recommendation for Executive Action
paragraphs: To better manage any challenges states may face implementing the  ESSA, we recommend that the Secretary of Education direct the Office of  State Support to evaluate its oversight process in light of the challenges  states encountered in implementing the Flexibility initiative to identify  lessons learned and, as appropriate, incorporate any lessons into plans  for overseeing the ESSA, particularly around issues such as the design  and implementation of states’ monitoring systems.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to Education for its review and  comment. Education’s written comments are reproduced in appendix III.  Education also provided technical comments, which we incorporated into  the report, as appropriate.
In its written comments, Education agreed that it is important to  continuously evaluate its work and to consider ways to improve its  efficiency and effectiveness and cited examples of the agency doing so  during ESEA Flexibility implementation. For example, Education said it  developed the Office of State Support, in part based on lessons learned  while implementing the Flexibility initiative. In addition, Education said that  since the ESSA was enacted in December 2015, it has continued to  informally evaluate ESEA Flexibility implementation and oversight and  cited several examples relevant to ESEA Flexibility and other Education  programs and initiatives. For example, Education said that it has been  considering changes to its planned performance review system designed  to support state implementation of the Flexibility initiative and other  programs. Further, the agency provided new information in its letter,  telling us that it is piloting quarterly calls between Education program  officers and states and piloting a fiscal review in eight states focused on  components of the law it says did not change significantly between  NCLBA and ESSA. As Education continues its efforts to evaluate lessons  learned from the Flexibility initiative—including the peer review process—  and apply them to its oversight of ESSA, we encourage Education to  incorporate these lessons into how it oversees the design and  implementation of states’ monitoring systems which are key to the  success of ESSA’s accountability provisions. We believe that by doing so,  Education will be better positioned to support states as they implement  the law’s new requirements.
As agreed with your offices, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  report date. At that time, we will send copies to the appropriate  congressional committees, the Secretary of Education, and other  interested parties. In addition, the report will be available at no charge on  the GAO web site at http://www.gao.gov.
If you or your staff should have any questions about this report, please  contact me at (617) 788-0580 or nowickij@gao.gov. Contact points for  our Offices of Congressional Relations and Public Affairs may be found  on the last page of this report. GAO staff who made key contributions to  this report are listed in appendix IV.
section_title: Appendix I: Key Benefits and Challenges of Flexibility Waivers, According to Officials in Selected States
paragraphs: In prior work, we interviewed selected states regarding the benefits and  challenges of requesting and implementing waivers granted through the  Department of Education’s (Education) Flexibility initiative under the  Elementary and Secondary Education Act of 1965 (ESEA), as amended  by the No Child Left Behind Act of 2001 (NCLBA). To develop this  information, we collected information from 20 states by conducting  interviews with 15 states that had waivers and 5 states that did not have  waivers at the time of our review. We presented this information orally to  congressional requesters in August 2015. The following summarizes that  briefing.
subsections: section_title: State Officials Said Waivers Helped Them Identify and Assist Schools Most in Need of Resources
paragraphs: Officials from 6 states told us the waivers allowed districts to better  identify the lowest-performing schools and better target their  resources.
Officials from 10 states told us the waivers helped them develop a  single school accountability system or align their existing federal and  state school accountability systems to help streamline data collection  and reporting.
section_title: Complying with Certain Waiver Requirements Was Challenging and State Officials Expressed Concerns about Education’s Support and Oversight
paragraphs: Officials from 14 states told us that implementing teacher and  principal evaluation systems was a challenging aspect of their  waivers, in some cases due to lack of stakeholder support for needed  legislative or collective bargaining changes, or difficulty in meeting  Education’s requirements for incorporating student growth into  teacher and principal evaluation systems.
Officials from 9 states expressed concerns that Education’s  timeframes to implement waiver requirements were too rigid and  accelerated for such large-scale reforms. Officials from 5 of these  states told us that timelines for implementing teacher and principal  evaluation systems were especially challenging.
Officials in 4 states without waivers told us they do not have waivers because they could not come to agreement with Education about key  aspects of requirements for accountability or teacher and principal  evaluation systems.
Officials in 3 states told us Education staff were responsive to day-to- day emails and phone calls; officials in 3 other states told us Education was slow to provide more substantive oversight, such as formal monitoring.
Officials in 8 states told us that, because of staff turnover at Education during the waiver initiative, there was often an incomplete transfer of information from one staff person to the next, which required state officials to explain previous discussions or decisions, frustrating states, and wasting time.
section_title: Appendix II: No Child Left Behind Act of 2001 (NCLBA) Provisions Waived Through the Flexibility Initiative
paragraphs: Appendix II: No Child Left Behind Act of 2001  (NCLBA) Provisions Waived Through the  Flexibility Initiative the Every Student Succeeds Act (ESSA), enacted December 10, 2015. As a result, the provisions  referenced in this table do not reflect current law. Under the ESSA, all approved Flexibility waivers will  terminate on August 1, 2016; other changes made by ESSA will be phased in over time.  After the initiative began, Education determined this provision was unnecessary and did not include it  for states requesting to renew their waivers.  States could request these optional flexibilities when renewing their Flexibility waivers.
section_title: Appendix III: Comments from the Department of Education
section_title: Appendix IV: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgements
paragraphs: In addition to the contact named above, Scott Spicer (Assistant Director),  Jason Palmer (Analyst-in-Charge), Sarah Cornetto, Brian Egger, Jean  McSween, Linda Siegel, and Carmen Yeung made key contributions to  this report. Also contributing to this report were James Bennett, Deborah  Bland, Holly Dye, Nisha Hazra, John Lack, Avani Locke, and David  Perkins.