Ed-Flex Program: Increase in Flexibility Useful but Limited by Scope of
Waiver Authority (Testimony, 02/25/99, GAO/T-HEHS-99-67).

Pursuant to a congressional request, GAO discussed the Education
Flexibility Partnership Demonstration Program (Ed-Flex), which
authorizes 12 states to grant waivers (temporary exceptions from certain
federal requirements) to their local school districts, focusing on: (1)
the scope and limitations of the current Ed-Flex waiver authority; (2)
opportunities for expansion to more states under current eligibility
requirements; and (3) the challenges posed for the Ed-Flex program of
balancing the two objectives of achieving federal program oversight and
offering flexibility to state and local school districts.

GAO noted that: (1) states participating have generally found Ed-Flex to
be a useful tool for achieving flexibility and promoting educational
reform efforts even though--because of the limited scope of its waiver
authority--it does not address many of their key concerns about
implementing federal requirements; (2) Ed-Flex allows waivers from
specific requirements within six major education programs, the largest
of which is title I of the Elementary and Secondary Education Act, but
not from many other federal education and noneducation requirements,
such as the Individuals with Disabilities Education Act, the school
breakfast and lunch programs, and environmental requirements; (3)
Ed-Flex waiver authority does not address district officials' key
concerns such as their need for accurate and timely information on
federal requirements and the limited funds available to meet their
program and administrative costs; (4) the Ed-Flex program cannot be
expanded to a significant number of additional states unless the current
requirement that the states have an approved plan for education reform
under Goals 2000 is modified and the states make major changes in their
ability to waive state-imposed education-related requirements; (5) ten
states are ineligible for the Ed-Flex program because they do not have
an approved Goals 2000 education reform plan, even though they can waive
state statutes and regulations related to education; (6) of the
remaining 28 states not currently in Ed-Flex, only 2 clearly have the
statutorily required authority to waive state-imposed requirements; (7)
Ed-Flex creates challenges in holding districts accountable for the
results of individual waivers and also in holding states, districts, and
the Department of Education accountable for the results of federal
programs that are affected by these waivers; (8) some Ed-Flex states
have developed specific goals and have established clear and measurable
objectives for evaluating the effect of waivers; (9) many Ed-Flex
states, however, have established no goals or have defined only vague
objectives; (10) the Ed-Flex statute and the Department's guidance have
given the states little specific direction on how to ensure
accountability in return for the greater flexibility provided in the
program, and the Department has exercised limited oversight of the
program; and (11) more specific guidance and more explicit federal
direction might be difficult given the variation the types of waivers
that are allowed and the circumstances prompting them.

--------------------------- Indexing Terms -----------------------------

 REPORTNUM:  T-HEHS-99-67
     TITLE:  Ed-Flex Program: Increase in Flexibility Useful but Limited 
             by Scope of Waiver Authority
      DATE:  02/25/99
   SUBJECT:  Education program evaluation
             Aid for education
             State-administered programs
             Eligibility criteria
             School districts
             Waivers
             School management and organization
IDENTIFIER:  Dept. of Education Education Flexibility Partnership 
             Demonstration Program
             Dept. of Education Safe and Drug-Free Schools and 
             Communities Program
             Dept. of Education Dwight D. Eisenhower Professional 
             Development Program
             Dept. of Education Innovative Education Program Strategies 
             Program
             Dept. of Education Emergency Immigrant Education Act Program
             Dept. of Education Bilingual Education Program
             Colorado
             Illinois
             Iowa
             Kansas
             Maryland
             Massachusetts
             Michigan
             New Mexico
             Ohio
             Oregon
             Texas
             Vermont
             Dept. of Education Title I Program
             Goals 2000
             
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cover1-2.book GAO United States General Accounting Office

Testimony Before the Subcommittee on Early Childhood, Youth and
Families, Committee on Education and the Workforce,

House of Representatives For Release on Delivery Expected at 9: 30
a. m. Thursday, February 25, 1999 ED- FLEX PROGRAM

Increase in Flexibility Useful but Limited by Scope of Waiver
Authority

Statement of Carlotta C. Joyner, Director Education and Employment
Issues Health, Education, and Human Services Division




GAO/T-HEHS-99-67

  GAO/T-HEHS-99-67

Page 1 GAO/T-HEHS-99-67

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority

Mr. Chairman and Members of the Subcommittee: We are pleased to be
here today to discuss the Education Flexibility Partnership
Demonstration Program (Ed- Flex), which authorizes 12 states
Colorado, Illinois, Iowa, Kansas, Maryland, Massachusetts,
Michigan, New Mexico, Ohio, Oregon, Texas, and Vermont to grant
waivers (temporary exceptions from certain federal requirements)
to their local school districts.

Every federal education program has requirements with which
states, local school districts, or both must comply in
implementing the program. In earlier work on the range of federal
requirements that affect school districts, we found that some
programs such as the Safe and Drug- Free Schools and Communities
Program impose relatively few requirements on state and local
officials, while other programs are more restrictive. The

Department of Education can waive certain federal requirements
under specific programs; under Ed- Flex, the Department delegates
some of its waiver authority to the Ed- Flex states. That is, in
both Ed- Flex and non- EdFlex

states, districts and schools may be granted an exemption from
certain federal requirements for a given period of time. In Ed-
Flex states, a district or school applies to the state for a
waiver and the state decides whether or not to grant it. In non-
Ed- Flex states, similar waivers are available, but the district
must apply to the federal Department of Education for a decision.

Recently proposed legislation would increase the number of states
allowed to participate in Ed- Flex and would expand somewhat the
range of federal requirements that Ed- Flex states could waive.
Some legislators have supported such proposals because they view
Ed- Flex as highly successful in promoting educational reform
efforts and would like to see it expanded. Others, however, have
expressed concern that key federal objectives (such

as targeting federal resources to students most in need) could be
compromised.

My testimony today focuses on two main topics: (1) the scope and
limitations of the current Ed- Flex waiver authority and (2)
opportunities for expansion to more states under current
eligibility requirements. In

addition, I will discuss the challenges posed for the Ed- Flex
program of balancing the two objectives of achieving federal
program oversight and offering flexibility to state and local
school districts. My statement is based

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 2 GAO/T-HEHS-99-67

primarily on information from our recent report on the
implementation of the Ed- Flex waiver process. 1

In summary, states participating have generally found Ed- Flex to
be a useful tool for achieving flexibility and promoting
educational reform efforts even though because of the limited
scope of its waiver authority

it does not address many of their key concerns about implementing
federal requirements.  Ed- Flex allows waivers from specific
requirements within six major education programs, the largest of
which is title I of the Elementary and

Secondary Education Act (ESEA), but not from many other federal
education and noneducation requirements, such as the Individuals
with Disabilities Education Act (IDEA), the school breakfast and
lunch programs, and environmental requirements.  Ed- Flex waiver
authority does not address district officials' key concerns such
as their need for accurate and timely information on

federal requirements and the limited funds available to meet their
program and administrative costs. The Ed- Flex program cannot be
expanded to a significant number of additional states unless the
current requirement that the states have an approved plan for
education reform under Goals 2000 is modified and the states make
major changes in their ability to waive state- imposed education-
related requirements.

 Ten states are ineligible for the Ed- Flex program because they
do not have an approved Goals 2000 education reform plan, even
though they can waive state statutes and regulations related to
education.  Of the remaining 28 states not currently in Ed- Flex,
only 2 clearly have

the statutorily required authority to waive state- imposed
requirements. Ed- Flex creates challenges in holding districts
accountable for the results of individual waivers and also in
holding states, districts, and the Department accountable for the
results of federal programs (such as title I) that are affected by
these waivers.

1 Elementary and Secondary Education: Ed- Flex States Vary in
Implementation of Waiver Process (GAO/HEHS-99-17, Nov. 13, 1998).

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 3 GAO/T-HEHS-99-67

 Some Ed- Flex states have developed specific goals (such as
improving student achievement in mathematics and science) and have
established clear and measurable objectives for evaluating the
effect of waivers (such as improving test scores by a certain
number of points). Many EdFlex

states, however, have established no goals or have defined only
vague objectives.  The Ed- Flex statute and the Department's
guidance have given the

states little specific direction on how to ensure accountability
in return for the greater flexibility provided in the program, and
the Department has exercised limited oversight of the program. At
the same time, more specific guidance and more explicit federal
direction might be difficult

given the variation in the types of waivers that are allowed and
the circumstances prompting them. Ed- Flex Waiver Authority Is
Useful but Limited in Scope

The Ed- Flex waiver authority applies to specific requirements in
six major education programs, although most waivers being
requested concern requirements of the title I program. Most
participants find the Ed- Flex waiver authority useful in that it
helps them promote educational reform efforts and in that it
affords them some flexibility in implementing requirements related
to these six programs. At the same time, the authority cannot be
applied to some requirements within these programs, and it does

not cover other key education programs and programs in other
departments. Further, the waiver authority does not address
officials' key concerns with federal requirements.

Ed- Flex Waiver Authority Applies to Certain Requirements of Some
but Not All Education Programs

Ed- Flex states can waive specific requirements under the
following programs:

 Title I of ESEA, which provides funding to help local school
districts give additional educational assistance to disadvantaged
children;  Title II of ESEA, the Eisenhower Professional
Development Program,

which provides funding to local school districts for teacher
training and professional development in mathematics and science;
Title IV of ESEA, the Safe and Drug- Free Schools and Communities
Program, which provides funding for programs to prevent violence
and

substance abuse;  Title VI of ESEA, Innovative Education Program
Strategies, which

provides funding to help school districts develop innovative
programs in several areas, including adult education and family
literacy;

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 4 GAO/T-HEHS-99-67

 Part C of title VII of ESEA, Emergency Immigrant Education, which
provides funding for the educational needs of immigrant children;
and  The Carl D. Perkins Vocational- Technical Education Act,
which

provides support for secondary and postsecondary vocational and
technical education programs.

Ed- Flex states may also waive some requirements of the General
Education Provisions Act and the Education Department General
Administrative Regulations (EDGAR) that apply to these programs.
For example, Texas

waived one EDGAR provision that requires written approval before
transferring training funds from one budget category to another.
Although these six programs are included in Ed- Flex, many other
key Department programs including IDEA and the Bilingual Education
Program are not. Further, programs and requirements administered
outside the Department (such as the school breakfast and lunch
programs or environmental requirements) are not included in Ed-
Flex. In addition, even within the six programs that are covered
by Ed- Flex, the states are not authorized to waive any federal
regulatory or statutory requirement relating to

 health and safety,  civil rights,  maintenance of effort,
comparability of services,  equitable participation of students
and professional staff in private schools,

 parental participation and involvement, and

 distribution of funds to state and local education agencies. The
Ed- Flex waiver authority provides for two types of waivers:
statewide waivers and waivers to individual school districts. Of
the 12 Ed- Flex states, 7 Colorado, Maryland, Michigan, New
Mexico, Ohio, Texas, and Vermont have the authority to grant both
statewide waivers (which can be used by any qualifying district in
the state) and individual waivers (which can be used only by the
district that applied and was approved for the waiver). The
remaining 5 states Illinois, Iowa, Kansas, Massachusetts, and
Oregon have the authority to grant waivers only

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 5 GAO/T-HEHS-99-67

to individual school districts. 2 Under a statewide waiver, any
qualifying school district can take advantage of the waiver
without having to demonstrate a specific need for it.

States Differ in the Number of Waivers Granted but Most Waivers
Are Related to Title I

The states differ in the number of Ed- Flex waivers they have
granted. Of the nine states that had been participating in Ed-
Flex for more than 1 year as of January 1998, four had granted 10
or fewer individual waivers. Other states, however, have been more
active in their use of Ed- Flex. Kansas and

Maryland had granted more than 20 individual waivers each an
especially high total for Maryland considering the small number of
school districts (24) in the state. Ohio and Texas had not only
granted a relatively high number of individual waivers but had
also granted statewide waivers that have affected larger numbers
of school districts. For example, a statewide

waiver in Texas allows local school districts to use up to 25
percent of their Eisenhower Professional Development funds in the
areas of reading, English, language arts, and social studies
rather than restricting the funds for mathematics and science.
Some of the differences in the districts' use of waivers among the
states may reflect differences in the implementation of Ed- Flex
for example, the states differ in the amount of state resources
they devote to outreach to inform local school districts about the
possibility of Ed- Flex waivers and in their use of statewide
waivers.

Most of the Ed- Flex waivers that have been granted have centered
on title I, the largest federal program for elementary and
secondary education. Waivers of the provisions for operating title
I as a schoolwide program account for nearly 70 percent of
approved individual waivers; in addition,

three Ed- Flex states have granted statewide waivers to expand
schoolwide programs. Another common type of waiver allows school
districts to distribute title I funds according to criteria
established by the district rather than adhering solely to the
statutory formula. For example, one school in Massachusetts was
not eligible for title I services for the 1997- 98 school

year, although it had been eligible in the past; further, the
school was expected to become eligible again in the 1998- 99
school year, when the district was to begin implementing a
voluntary desegregation plan. The school district received a 1-
year waiver to continue providing title I funds

to this school rather than disrupt services for 1 year. 2 The
Department decided whether to grant an Ed- Flex state the
authority to grant statewide waivers as part of the application
process. Several states did not apply for the authority to grant
statewide waivers.

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 6 GAO/T-HEHS-99-67

Ed- Flex States Generally Report Positive Experiences, but Some
Say Ed- Flex Has Limited Use

Officials from participating states have generally reported
positive experiences with Ed- Flex. Two states that have used Ed-
Flex extensively Ohio and Texas told us that the waivers they have
granted under Ed- Flex have had a positive effect. For example, a
Texas official told us that the statewide waiver in Texas to allow
the more flexible use of federal teacher training funds has
allowed districts to better direct

professional development dollars to areas where they are needed
the most. According to several officials from this and other Ed-
Flex states, Ed- Flex is valuable, regardless of the number of
waivers granted, because it promotes a climate that encourages
state and local educators to explore new approaches, frequently
making better use of the flexibility that already

exists within state and federal requirements. One state official
reported that Ed- Flex motivates school districts to consider
nontraditional ways of using federal resources to enhance
educational services. Similarly, Ohio officials reported that as a
result of examining the relevant statutes and

regulations, many districts have discovered that they already have
the ability to do what they want without a waiver.

However, some officials from Ed- Flex states commented that the
program cannot meet their hopes and expectations because it is
limited to specific federal requirements. For example, one state
official told us that the cumulative effect of all regulations
combined, rather than any single requirement, causes problems for
school districts. Therefore, he believes that Ed- Flex's emphasis
on identifying specific individual requirements restricts its
effectiveness. In another Ed- Flex state, staff told us that the

Ed- Flex waiver authority is too narrow to do much good. Officials
in several states reported that Ed- Flex would be more helpful if
the waiver authority were extended to other programs, such as
special education or bilingual education.

These reactions to Ed- Flex are consistent with the findings in
our September 1998 report on how states and school districts have
used waivers and other federal flexibility initiatives. 3 In this
report, we found

that school districts' concerns did not focus on any single
program or requirement; instead, they extended across several
broad areas, including obtaining key information, working with
limited funds, and overcoming logistical and management
challenges. For example, Ed- Flex does not

assist school districts in hiring qualified teachers to plan and
implement 3 Elementary and Secondary Education: Flexibility
Initiatives Do Not Address Districts' Key Concerns About Federal
Requirements (GAO/HEHS-98-232, Sept. 30, 1998).

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 7 GAO/T-HEHS-99-67

education plans for special education students under IDEA.
According to district officials, Ed- Flex cannot reduce the
volumes of paperwork that must be processed within a short period
of time to determine student eligibility for assistance under
school breakfast and lunch programs.

Few States Meet Current Ed- Flex Eligibility Criteria

Although proposed legislation would remove the limit that only 12
states can participate in Ed- Flex, in practical terms, Ed- Flex
cannot be expanded to a significant number of additional states
unless current eligibility criteria are modified and the states
make major changes. Under current law, a state is eligible for Ed-
Flex only if it meets two criteria. First, the

legislation establishing Ed- Flex stipulates that only states that
have an approved state education reform plan under the Goals 2000
program are eligible for Ed- Flex status. Second, Ed- Flex states
must have the authority to waive their own state requirements to
make them consistent with the federal waivers they grant. When we
surveyed state agencies in the 38 non- Ed- Flex states, we found
that only 2 non- Ed- Flex states Utah and Washington clearly meet
current eligibility criteria, as table 1 shows. In addition,

 10 states are ineligible for Ed- Flex only because they do not
have an approved state education reform plan under the Goals 2000
program, 4  10 states are ineligible for Ed- Flex only because
they can waive neither

regulations nor statutes;  8 states are ineligible for both these
reasons, and  the remaining 8 states are potentially eligible for
Ed- Flex, depending on

the nature of their regulatory process. The education agencies in
these states reported that they could waive state- imposed
education regulations but not statutes. For these 8 states, if the
state requirements that apply to schools and school districts
appear largely or entirely in regulations rather than in statutes,
Department officials told us, a state

might be considered eligible for Ed- Flex. However, if many of the
potentially related state requirements are imposed by statute, the
state might not be eligible for Ed- Flex.

4 Since April 26, 1996, the states have not been required to
submit their Goals 2000 school reform plans to the Department for
review and approval in order to receive funds under the program.

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 8 GAO/T-HEHS-99-67

Table 1: States' Ed- Flex Status, 1998

a State is ineligible for Ed- Flex only because it lacks an
approved state education reform plan under the Goals 2000 program.

For states that do not qualify for Ed- Flex, however, both the
state and local school districts can still take advantage of
waivers. The Department can grant waivers to non- Ed- Flex states
and local school districts provided that no state requirements
will negatively affect a waiver's implementation.

Both the Department and Ed- Flex states have approved similar
kinds of waivers, most of which have sought to change the way in
which funds are distributed or to broaden the range of individuals
who may benefit.

States participating in Ed- Flex Clearly eligible for but not
participating in Ed- Flex Potentially eligible for

participation Clearly ineligible for participation

Colorado Illinois Iowa Kansas Maryland Massachusetts Michigan New
Mexico Ohio Oregon Texas Vermont

Utah Washington Alabama

Delaware Georgia Hawaii Kentucky Minnesota New Jersey West
Virginia

Alaska Arizona Arkansas California a Connecticut a Florida a Idaho
Indiana a Louisiana Maine a Mississippi Missouri Montana Nebraska
Nevada New Hampshire New York North Carolina a North Dakota
Oklahoma a Pennsylvania a Rhode Island South Carolina South Dakota
Tennessee a Virginia Wisconsin a Wyoming

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 9 GAO/T-HEHS-99-67

The Structure of EdFlex Poses Challenges for Ensuring
Accountability

In recent years, political leaders and government officials have
become increasingly concerned with improving government management
and increasing accountability for program results at the federal,
state, and local levels. For example, the 1993 Government
Performance and Results Act requires federal agencies to specify
strategic goals and related performance

objectives and to measure and report their progress in meeting
these goals and objectives. Proponents of the Results Act
anticipated that setting clearly defined goals (such as increasing
reading proficiency for all students) would focus program efforts
and that establishing specific, measurable objectives (such as
having all fourth- grade students pass a basic reading test) could
help assess progress toward these goals and thus enhance
accountability.

In a recently issued report on performance and accountability, we
discussed the challenges facing the Department in administering
elementary and secondary education programs that are a joint
responsibility with state and local agencies. 5 The Department is
required to manage programs and achieve results while striking a
balance between program flexibility and program controls. Ed- Flex
poses similar challenges for achieving and maintaining
accountability in a resultsfocused, data- driven environment. The
Department is accountable for the overall results of the federal
programs affected by Ed- Flex waivers. Yet, at the same time, it
is delegating to the states the responsibility to grant waivers
that might affect the programs' ability to achieve their purposes.

The challenge under Ed- Flex is to grant states the flexibility to
make decisions about waivers in return for their accepting the
accountability for results and for ensuring that program purposes
are not compromised that Education would otherwise exercise.

Ed- Flex legislation and the Department's guidance to the states
emphasize that the increased flexibility provided by Ed- Flex is
in exchange for accountability for results, but neither the
statute nor the additional guidance provides specific direction on
how the states should demonstrate accountability. The statute and
guidance clearly delineate that the states must monitor school
districts or schools affected by waivers, hold them

accountable for the performance of the students who are affected
by 5 Major Management Challenges and Program Risks: Department of
Education (GAO/OCG-99-5, Jan. 1999).

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 10 GAO/T-HEHS-99-67

such waivers, and annually report to the Department. 6 The
Department, in turn, is to approve the states' applications for
Ed- Flex only if they demonstrate that they can ensure
accountability for the activities and goals

in their education reform plan. Within this general framework,
however and without much further specification of the meaning of
accountability states have broad latitude to develop
accountability

systems with limited federal oversight. The Department requires
Ed- Flex states to submit an annual report to the Department
summarizing the waivers granted in the previous calendar year.
Aside from this reporting requirement, the Department's role in
Ed- Flex is generally confined to providing technical assistance
and information when the states request them.

Given this broad latitude, states vary widely in how they
establish goals, track districts' progress, and protect underlying
program purposes. Some states and districts have expressed their
goals only in the vaguest of terms, while others have been more
precise. For example, in one state where a district was granted a
schoolwide waiver, only nonspecific goals were reported, such as a
commitment to the identification and implementation of programs
that will create an environment in which all students actualize
academic potential. In contrast, the goals listed for two school
districts in

another state that received similar waivers to implement
schoolwide programs were to improve reading comprehension and to
ensure that students will become better readers and more
proficient in math skills.

The Department's limited oversight role raises questions about
ensuring accountability for the results of federal programs to
which waivers apply. With each state independently deciding
whether its waivers are consistent

with the purpose of the underlying federal program and with uneven
reporting of the results achieved through use of the waivers,
there is potential for inconsistency across states. At the same
time, it is not clear that the Department could or should be more
specific in its guidance or more active in its oversight role .
Providing more specificity could be difficult because of the
variation in the types of waivers that are allowed

and the circumstances prompting the waivers. In addition,
providing explicit federal direction may affect the states'
discretion in designing their own processes for overseeing and
evaluating Ed- Flex waivers.

6 Each district or school requesting a waiver in an Ed- Flex state
is supposed to describe to the state (1) the purposes and overall
expected results of the waiver and (2) for each school year,
specific, measurable educational goals it expects to achieve.

Ed- Flex Program: Increase in Flexibility Useful but Limited by
Scope of Waiver Authority Page 11 GAO/T-HEHS-99-67

Mr. Chairman, this concludes my prepared statement. We would be
happy to answer any questions that you or Members of the
Subcommittee may have.

(104963)

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