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Notice of Waivers Granted Under Section 9401 of the Elementary and Secondary Education Act of 1965, as Amended

In this notice, we announce the waivers that the U.S. Department of Education (Department) granted during calendar year 2014 under the waiver authority in the Elementary and Sec...

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Department of Education

AGENCY:

Office of Elementary and Secondary Education, Department of Education.

ACTION:

Notice.

SUMMARY:

In this notice, we announce the waivers that the U.S. Department of Education (Department) granted during calendar year 2014 under the waiver authority in the Elementary and Secondary Education Act of 1965, as amended by the No Child Left Behind Act of 2001 (ESEA), including waivers related to flexibilities granted to States in exchange for State-led reforms (ESEA flexibility).

The ESEA requires that the Department publish in the Federal Register , and disseminate to interested parties, a notice of its decision to grant a waiver of statutory or regulatory requirements under the ESEA. Between 2011 and 2016, the Department granted more than 800 waivers of statutory or regulatory requirements to State educational agencies (SEAs) but neglected to comply with the ESEA's publication and dissemination requirements. This notice is intended to fulfill the Department's obligation to publicize its waiver decisions by identifying the waivers granted during each calendar year.

FOR FURTHER INFORMATION CONTACT:

Kia Weems, U.S. Department of Education, 400 Maryland Avenue SW., Room 3W341, Washington, DC 20202. Telephone: (202) 260-2221 or by email: .

If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

In 2014, the Department granted waivers through an initiative known as ESEA flexibility to 39 States under the waiver authority in section 9401 of the ESEA, in exchange for rigorous and comprehensive State-developed plans designed to improve student academic ( printed page 46774) achievement and increase the quality of instruction. We granted:

(a) The following 10 waivers to 39 SEAs under ESEA flexibility:

1. Flexibility Regarding the 2014 Timeline for Determining Adequate Yearly Progress (AYP);

2. Flexibility in Implementation of School Improvement Requirements;

3. Flexibility in Implementation of Local Educational Agency (LEA) Improvement Requirements;

4. Flexibility for Rural LEAs;

5. Flexibility for Schoolwide Programs;

6. Flexibility to Support School Improvement;

7. Flexibility for Reward Schools;

8. Flexibility Regarding Highly Qualified Teacher (HQT) Improvement Plans;

9. Flexibility to Transfer Certain Funds; and

10. Flexibility to Use School Improvement Grant (SIG) funds to Support Priority Schools.

In addition to waiving the 10 provisions listed above, the Department granted three optional waivers under ESEA flexibility related to the following:

1. Waivers of the 21st Century Community Learning Centers (21st CCLC) requirement to provide services during non-school hours or when school is not in session;

2. Waivers of the requirement to make AYP determinations; and

3. Waivers of requirements pertaining to Title I, Part A within-district allocations.

(b) 67 waivers extending the period in which funds were available for obligation: Three waivers extending the period of availability of fiscal year (FY) 2009 SIG funds under the regular appropriation and the American Recovery and Reinvestment Act of 2009 (ARRA); 62 waivers extending the period of availability of FY 2010, 2011, 2012, or 2013 SIG funds; one waiver related to consolidated grant funds for Insular Areas; and one waiver extending the period for the Mathematics and Science Partnerships program funds;

(c) Eight waivers pertaining to SIG school eligibility requirements and the definition of “persistently lowest-achieving schools”;

(d) Six waivers allowing SEAs to approve schools or LEAs identified as “in need of improvement” to become supplemental educational services (SES) providers;

(e) 39 waivers of requirements related to State academic standards or assessments: 18 waivers of the statutory and regulatory requirements under Title I, Part A of the ESEA that required States to apply the same academic content and academic achievement standards to, and to use the same academic assessment for, all public schools and public school children in the State; 13 waivers that allowed students (except those with the most significant cognitive disabilities) to take only one assessment in each content area in 2013-2014—either the current State assessment or the full form of the field test of the new assessments aligned to college- and career-ready standards; four waivers permitting the State to assess students who were not yet enrolled in high school but who took advanced, high school level coursework with the corresponding advanced, high school level assessment alone; three waivers permitting students with the most significant cognitive disabilities within the State to take only one assessment in each content area in 2013-2014—either the current State alternate assessments based on alternate academic achievement standards or the field test of new alternate assessments; and one waiver permitting a State to administer the high school exit examination to high school students in grade 10 and the alternate performance assessment to students with the most significant cognitive disabilities;

(f) Two waivers of the third of three annual measureable achievement objectives (AMAOs 3) under Title III, allowing States to use the same targets used to determine AYP under Title I in place of the State's AMOs;

(g) One waiver of the requirement under Title I, Part A to provide parents notice of public school choice options at least 14 days before the start of the school year; and

(h) 10 waivers of the Teacher Incentive Fund (TIF) program absolute priority requirement in the notice of final priorities (NFR) that required each TIF grantee to develop a rigorous evaluation system for teachers and principals, and of one of the five core elements in the NFR.

I. ESEA Flexibility Waivers

A. Flexibility Regarding the 2014 Timeline for Determining AYP

The Department waived the requirements in section 1111(b)(2)(E)-(H) of the ESEA that prescribe how an SEA establishes AMOs for determining AYP to ensure that all students met or exceeded the State's proficient level of academic achievement on the State's assessments in reading/language arts and mathematics no later than the end of the 2013—2014 school year. Under this waiver, an SEA no longer needed to follow the statutory procedures for setting AMOs to use in determining AYP. Instead, an SEA had flexibility to develop new ambitious but achievable AMOs in reading/language arts and mathematics in order to provide meaningful goals to guide support and improvement efforts for the State, LEAs, schools, and student subgroups.

Provisions waived: Section 1111(b)(2)(E)-(H) of the ESEA.

B. Flexibility in Implementation of School Improvement Requirements

The Department waived the requirements in section 1116(b) of the ESEA for an LEA to identify for improvement, corrective action, or restructuring, as appropriate, a Title I school that failed, for two consecutive years or more, to make AYP, and for a school so identified and its LEA to take certain improvement actions. Under this waiver, an LEA was no longer required to identify respective Title I schools for improvement, corrective action, or restructuring, and neither the LEA nor its schools were required to take statutorily required improvement actions, including providing public school choice and supplemental educational services (SES) to eligible students. An LEA was also exempt from administrative and reporting requirements related to school improvement.

Provision waived: Section 1116(b) of the ESEA, except that (b)(13) was not waived.

C. Flexibility in Implementation of LEA Improvement

The Department waived the requirements in section 1116(c) of the ESEA for an SEA to identify for improvement or corrective action, as appropriate, an LEA that, for two consecutive years or more, failed to make AYP, and neither the LEA nor the SEA was required to take statutorily required improvement actions. An LEA was also exempt from associated administrative and reporting requirements related to LEA improvement.

Provisions waived: Section 1116(c)(3) and (5)-(11) of the ESEA.

D. Flexibility for Rural LEAs

The Department waived the requirements in sections 6213(b) and 6224(e) of the ESEA that limited participation in, and use of funds under, the Small, Rural School Achievement (SRSA) and Rural and Low-Income School (RLIS) programs based on whether an LEA made AYP and was complying with the requirements in section 1116 of the ESEA. Under the waiver, an LEA that received SRSA or RLIS funds had flexibility to use those ( printed page 46775) funds for any authorized purpose regardless of the LEA's AYP status.

Provisions waived: Sections 6213(b) and 6224(e) of the ESEA.

E. Flexibility for Schoolwide Programs

The Department waived the requirement in section 1114(a)(1) of the ESEA that a school have a poverty percentage of 40 percent or more in order to operate a schoolwide program. Under this waiver, an LEA had flexibility to operate a schoolwide program in a Title I school that did not meet the 40 percent poverty threshold if the SEA identified the school as a priority school or a focus school, and the LEA implemented interventions consistent with the turnaround principles or interventions that were based on the needs of the students in the school and designed to enhance the entire educational program in the school, as appropriate.

Provision waived: Section 1114(a)(1) of the ESEA.

F. Flexibility To Support School Improvement

The Department waived the requirement in section 1003(a) of the ESEA for an SEA to distribute funds reserved under that section only to LEAs with schools identified for improvement, corrective action, or restructuring. Under this waiver, an SEA had flexibility to allocate ESEA section 1003(a) funds to an LEA in order to serve any priority or focus school, if the SEA determined such school was most in need of additional support.

Provision waived: Section 1003(a) of the ESEA.

G. Flexibility for Reward Schools

The Department waived the provision in section 1117(c)(2)(A) of the ESEA that authorized an SEA to reserve Title I, Part A funds to reward a Title I school that (1) significantly closed the achievement gap between subgroups in the school; or (2) exceeded AYP for two or more consecutive years. Under this waiver, an SEA had flexibility to use funds reserved under section 1117(c)(2)(A) of the ESEA to provide financial rewards to any reward school, if the SEA determined such school was most appropriate to receive a financial reward.

Provision waived: Section 1117(b)(1)(B) of the ESEA.

H. Flexibility Regarding HQT Improvement Plans

The Department waived the requirements in section 2141(a) through (c) of the ESEA for an LEA and SEA to comply with certain requirements for improvement plans regarding highly qualified teachers. Under the waiver, an LEA that did not meet its HQT target did not have to develop an improvement plan under section 2141 of the ESEA and had flexibility in how it used its Title I and Title II funds. An SEA was exempt from the requirements regarding its role in the implementation of those plans, including the requirement that it enter into agreements with LEAs on the use of funds and the requirement that it provide technical assistance to LEAs on their plans.

Provisions waived: Section 2141(a)-(c) of the ESEA.

I. Flexibility To Transfer Certain Funds

The Department waived the limitations in section 6123 of the ESEA that limited the amount of funds an SEA or LEA may transfer from certain ESEA programs to other ESEA programs. Under this waiver, an SEA and its LEAs had flexibility to transfer up to 100 percent of the funds received under the authorized programs among those programs and into Title I, Part A. Moreover, to minimize burden at the State and local levels, the SEA was not required to notify the Department, and its participating LEAs were not required to notify the SEA, prior to transferring funds.

Provisions waived: Section 6123(a), (b)(1), (d), and (e)(1) of the ESEA.

J. Flexibility To Use SIG Funds To Support Priority Schools

The Department waived the requirements in section 1003(g)(4) of the ESEA and the definition of a Tier I school in Section I.A.3 of the SIG final requirements. Under this waiver, an SEA had flexibility to award SIG funds available under section 1003(g) of the ESEA to an LEA to implement one of the four SIG models in any priority school.

Provisions waived: Section 1003(g)(4) of the ESEA and section I.A.3 of the notice of final requirements for SIG Grants, published in the Federal Register on October 28, 2010 (74 FR 65618).

Waiver applicants:

K. Flexibility in the Use of 21st CCLC Program Funds

The Department waived requirements in sections 4201(b)(1)(A) and 4204(b)(2)(A) of the ESEA that restricted the activities provided by a community learning center under the 21st CCLC program to activities provided only during non-school hours or periods when school was not in session ( i.e., before and after school or during summer recess). Under this waiver, an SEA had flexibility to permit community learning centers to use 21st CCLC funds to support expanded learning time during the school day in addition to activities during non-school hours or periods when school was not in session.

Provisions waived: Section 4201(b)(1)(A) and 4204(b)(2)(A) of the ESEA.

Waiver applicants:

L. Flexibility Regarding Making AYP Determinations

The Department waived the requirements in section 1116(a)(1)(A)-(B) and (c)(1)(A) of the ESEA that required LEAs and SEAs to make determinations of AYP for schools and LEAs, respectively. Instead, an SEA and its LEAs had to report on their report cards performance against the AMOs for all subgroups identified in section 1111(b)(2)(C)(v) of the ESEA, and use performance against the AMOs to support continuous improvement in Title I schools.

Provisions waived: Section 1116(a)(1)(A)-(B) and (c)(1)(A) of the ESEA.

Waiver applicants:

M. Flexibility Regarding Within-District Title I Allocations

The Department waived the requirements in section 1113(a)(3)-(4) of the ESEA that required an LEA to serve eligible schools under Title I in rank order of poverty and to allocate Title I, Part A funds based on that rank ordering. Under this waiver, an LEA had flexibility to serve with Title I funds a Title I-eligible high school with a graduation rate below 60 percent that the SEA identified as a priority school even if that school did not rank sufficiently high to be served based solely on the school's poverty rate.

Provisions waived: Section 1113(a)(3)-(4) and (c)(1) of the ESEA.

Waiver applicants:

II. Extensions of the Obligation Period

A. Waivers to extend the period of availability of SIG ARRA funds.

Extended the period of availability of FY 2009 SIG funds awarded under Public Law 111-5, ARRA.

Provision waived: Tydings Amendment, section 421(b) of the General Education Provisions Act (GEPA) (20 U.S.C. 1225(b)).

Waiver applicants:

B. Waivers to extend the period of availability of SIG funds.

1. Extended the period of availability of FY 2009 SIG funds awarded under section 1003(g) of the ESEA.

Provision waived: Tydings Amendment, section 421(b) of GEPA (20 U.S.C. 1225(b)).

Waiver applicants:

2. Extended the period of availability of FY 2010 SIG funds awarded under section 1003(g) of the ESEA.

Provision waived: Tydings Amendment, section 421(b) of GEPA (20 U.S.C. 1225(b)).

Waiver applicants:

3. Extended the period of availability of FY 2011 SIG funds awarded under section 1003(g) of the ESEA.

Provision waived: Tydings Amendment, section 421(b) of GEPA (20 U.S.C. 1225(b)).

Waiver applicants:

4. Extended the period of availability of FY 2012 SIG funds awarded under section 1003(g) of the ESEA.

Provision waived: Tydings Amendment, section 421(b) of GEPA (20 U.S.C. 1225(b)).

Waiver applicants:

5. Extended the period of availability of FY 2013 SIG funds awarded under section 1003(g) of the ESEA.

Provision waived: Tydings Amendment, section 421(b) of GEPA (20 U.S.C. 1225(b)).

Waiver applicants:

C. Waiver to extend the period of availability of FY 2012 funds received under section 1003(g) of the ESEA and included in Consolidated Grant funds for Insular Areas.

Provision waived: Tydings Amendment, section 421(b) of GEPA (20 U.S.C. 1225(b)).

Waiver applicant:

D. Waiver to extend the period of availability of FY 2012 funds for the Mathematics and Science Partnerships program awarded under Title II, Part B of the ESEA.

Provision waived: Tydings Amendment, section 421(b) of GEPA (20 U.S.C. 1225(b)).

Waiver applicant:

III. Waivers of School Eligibility Requirements and Definition of “Persistently Lowest-Achieving Schools”

Waivers to replace the list of Tier I, Tier II, and Tier III schools with the State's list of priority schools and to replace the definition of “persistently lowest-achieving schools” with the State's definition of “priority schools.”

Provisions waived: Sections I.A.1 and I.A.3 of the SIG final requirements, 75 FR 66363.

Waiver applicants:

IV. Waivers Allowing SEAs To Approve Schools or LEAs Identified as in Need of Improvement To Become SES Providers

Waivers permitting SEAs to approve a school or LEA identified for improvement, corrective action, or restructuring to serve as an SES provider.

Provisions waived:34 CFR 200.47(b)(1)(iv)(A) and (B).

Waiver applicants:

V. Waivers Allowing Substitution of State Academic Standards and Assessments

Provisions waived: Section 1111(b)(1)(B), (b)(3)(A), (b)(3)(C)(i), and (b)(3)(C)(ii) of the ESEA, and 34 CFR 200.1(a)(1).

A. One-year waiver of the statutory and regulatory requirements under Title I, Part A of the ESEA that required States to apply the same academic content and academic achievement ( printed page 46778) standards to, and to use the same academic assessment for, all public schools and public school children in the State.

Waiver applicants:

B. Waiver permitting students (except those with the most significant cognitive disabilities) to take only one assessment in each content area in 2013-2014—either the current State assessment or the full form of the field test of the new assessments aligned to college- and career-ready standards.

Waiver applicants:

C. Waiver permitting the State to assess students who were not yet enrolled in high school but who took advanced, high school level coursework with the corresponding advanced, high school level assessment alone.

Waiver applicants:

D. Waiver permitting students with the most significant cognitive disabilities within the State to take only one assessment in each content area in 2013-2014—either the current State alternate assessments based on alternate academic achievement standards or the field test of new alternate assessments.

Waiver applicants:

E. Waiver permitting a State to administer the high school exit examination to high school students in grade 10 and the alternate performance assessment to students with the most significant cognitive disabilities.

Waiver applicant:

VI. AMAO Determinations Under ESEA Title III

One-year waiver to allow the SEA to use, for purposes of AMAO 3, the same targets used in the growth component of its State-developed differentiated recognition, accountability, and support system in reading, writing, and mathematics, in place of the State's AMOs.

Provision waived: Section 3122(a)(3)(A)(iii) of the ESEA.

Waiver applicants:

VII. Waivers Regarding Public School Choice Notice

Allowed a State to postpone notice of public school choice options beyond 14 days before the start of the school year to parents of eligible children attending schools that were newly identified for improvement or made AYP in the previous year, but did not exit improvement status.

Provisions waived: Section 1116(b)(1)(E)(i) of the ESEA and 34 CFR 200.37(b)(4)(iv).

Waiver applicant:

VIII. Waiver of Application Requirements for the TIF Program

Waiver of two TIF requirements, permitting: (1) LEAs to use results of State assessments as the measure of student growth for the performance evaluations for teachers of tested grades and subjects, and (2) eligibility for TIF-funded performance-based compensation to be based on results of evaluations that include such a measure of student growth.

Provision waived: Priority 2 of the TIF notice of final priorities, requirements, and definitions, published in the Federal Register on June 14, 2012 (77 FR 35785).

Waiver applicants:

Accessible Format: Individuals with disabilities can obtain this document in an accessible format ( e.g., Braille, large print, audiotape, or compact disc) on request to the program contact person listed under FOR FURTHER INFORMATION CONTACT .

Electronic Access to This Document: The official version of this document is the document published in the Federal Register . Free internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.gpo.gov/​fdsys. At this site you can view this document, as well as other documents of this Department published in the Federal Register , in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site.

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Dated: October 3, 2017.

Jason Botel,

Acting Assistant Secretary for Elementary and Secondary Education.

[FR Doc. 2017-21620 Filed 10-5-17; 8:45 am]

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82 FR 46773

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“Notice of Waivers Granted Under Section 9401 of the Elementary and Secondary Education Act of 1965, as Amended,” thefederalregister.org (October 6, 2017), https://thefederalregister.org/documents/2017-21620/notice-of-waivers-granted-under-section-9401-of-the-elementary-and-secondary-education-act-of-1965-as-amended.