K-12 Education: Education's Experiences with Flexibility Waivers Could Inform Efforts to Assist States with New Requirements
Released: 2016-08-08T00:00:00

Letter

Background

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.

Education Assessed States’ Ability to Implement Flexibility Waivers and Identified Challenges but Has Not Yet Evaluated Its Own Oversight Processes

Education Identified Challenges to States’ Ability to Implement Flexibility Waivers

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.

Twelve States Faced Multiple Challenges in Implementing Their Flexibility Waivers, Especially Related to Local Oversight

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.

Education Has Not Yet Evaluated its Oversight Process for the Flexibility Initiative, Which Could Strengthen Its Ability to Support and Oversee ESSA Implementation Efforts

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.

Conclusions

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.

Recommendation for Executive Action

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.

Agency Comments and Our Evaluation

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.

Appendix I: Key Benefits and Challenges of Flexibility Waivers, According to Officials in Selected States

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.

State Officials Said Waivers Helped Them Identify and Assist Schools Most in Need of Resources

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.

Complying with Certain Waiver Requirements Was Challenging and State Officials Expressed Concerns about Education’s Support and Oversight

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.

Appendix II: No Child Left Behind Act of 2001 (NCLBA) Provisions Waived Through the Flexibility Initiative

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.

Appendix III: Comments from the Department of Education

Appendix IV: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgements

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.