[Federal Register Volume 74, Number 14 (Friday, January 23, 2009)]
[Notices]
[Pages 4320-4331]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1268]



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Part II





Department of Education





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Compliance Agreement; Notice

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

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DEPARTMENT OF EDUCATION


Compliance Agreement

AGENCY: Department of Education.

ACTION: Notice of written findings and compliance agreement with the 
New Hampshire Department of Education.

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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.

[[Page 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

[[Page 4322]]

     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.

[[Page 4323]]

    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

[[Page 4324]]

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

[[Page 4325]]

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/-------------------------------------------------------------------
Lyonel B. Tracy

Commissioner of Education

Date 8-14-08

    For the United States Department of Education:

 /s/-------------------------------------------------------------------
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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