March 21, 2013

Honorable Thomas Luna
State Superintendent of Public Education
Idaho State Department of Education
P.O. Box 83720
Boise, ID 83720

Dear Superintendent Luna:

The U.S. Department of Education (ED) is committed to working with Idaho to ensure full and effective implementation of your approved request for ESEA flexibility, including by providing technical assistance and monitoring the progress of implementation toward the goals set for your schools and students. Toward that end, the purpose of this letter is to provide some additional information about how to implement your approved request and how to meet certain obligations related to your request.

Commitment on Approval

As you know, Idaho’s ESEA flexibility request is approved only through the end of the 2012–2013 school year. In order to receive approval to implement ESEA flexibility through the end of the 2013–2014 school year, Idaho must submit to ED for review and approval a revised Principle 3 request that meets the requirements of ESEA flexibility on or before May 15, 2013. As noted in my letter of February 14, 2013, if Idaho fails to submit the required revised Principle 3 submission that meets all requirements of ESEA flexibility, the waivers granted to Idaho through ESEA flexibility will expire at the end of the 2012–2013 school year.

Waivers in ESEA Flexibility

The waivers that comprise ESEA flexibility have been granted pursuant to the Secretary’s authority under section 9401 of the ESEA. Consistent with that authority, only the statutory requirements listed in the table enclosed with Secretary Duncan’s letter approving your request, and the related regulatory requirements, have been waived through ESEA flexibility. Idaho and its local educational agencies (LEAs) remain obligated to comply with all other requirements of the ESEA, including, for example, the fiscal requirements in ESEA section 1120A, the report card requirements, the regulatory requirements for calculating graduation rates, the caps on the number of proficient and advanced scores of students with disabilities who take an alternate assessment based on alternate or modified academic achievement standards that may be included in accountability determinations, and the requirements related to equitable services.

In addition, the waivers that are included in the table enclosed with Secretary Duncan’s letter include waivers that permit Idaho or LEAs in Idaho to: operate a schoolwide program in a priority or focus school that does not meet the 40 percent poverty threshold; provide funds reserved under ESEA section 1003(a) to any priority or focus school; provide funds reserved under ESEA section 1117(c)(2)(A) to any reward school; and provide funds under ESEA section 1003(g) to any priority school that will implement one of the four School Improvement Grants (SIG) school intervention models. Please note that these waivers apply only to schools that meet the ESEA flexibility definitions of priority, focus, and reward schools, as applicable. In other words, if Idaho identifies other schools as reward, priority, or focus schools that do not meet those definitions, these waivers would not be relevant to those additional schools. Moreover, approval of your request for ESEA flexibility does not waive any other requirements related to schoolwide programs, the reservation under ESEA section 1003(a), the provision of funds under ESEA section 1117(c)(2)(A), or the allocation of SIG funds, respectively; they merely modify the universe of schools to which those respective provisions apply.

Waivers of Requirements to Provide Supplemental Educational Services (SES) and Transportation for Public School Choice

Under ESEA flexibility, LEAs in Idaho are no longer required by Federal law to offer SES or transportation for public school choice. Accordingly, Idaho should have taken steps to ensure, as appropriate, that its LEAs provided parents with information regarding the termination of SES and transportation for public school choice, including an explanation of the interventions, incentives, and supports that have replaced those options.

Please note that, although LEAs are no longer obligated by Federal law to provide transportation for public school choice, a student who is already taking advantage of public school choice must be permitted to remain at his or her school of choice until he or she has completed the highest grade in that school because ESEA flexibility does not waive ESEA section 1116(b)(13). This right should have been clearly explained to parents in the information that was provided regarding the changes being made with respect to the provision of SES and public school choice.

Amendments to Idaho’s ESEA Flexibility Request

In addition to submitting a revised Principle 3 request, ED encourages Idaho to continuously evaluate the effectiveness of the plans and other elements of its ESEA flexibility request as it proceeds with implementation, and to make necessary changes to address any challenges that it identifies. As a result of this process of continuous improvement, ED anticipates that Idaho might want or need to make other changes to its ESEA flexibility request.

If Idaho wishes to make changes to its ESEA flexibility request, Idaho must submit those changes to ED as early as feasible for ED’s review and approval. Upon receipt of the proposed changes, ED will determine whether the changes require additional peer review. Idaho may not implement any changes to its approved request until those changes have been approved by ED. Additional information regarding the format and process for an SEA to submit a request to amend its ESEA flexibility request is available on the “Support and Technical Assistance for States” section of the ESEA flexibility webpage (http://www2.ed.gov/policy/elsec/guid/esea-flexibility/index.html). Please note that ED does not anticipate approving any amendment that would result in a State’s no longer meeting the required timelines for implementation of ESEA flexibility.

Continuing Consultation

Meaningfully engaging and soliciting input from teachers and their representatives, and other diverse stakeholders, was an important part of developing Idaho’s ESEA flexibility request. Such consultation will be equally important as you continue to implement your ESEA flexibility request.

Submission of Reports, Data, and Evidence

ESEA section 9401(e)(2) requires an SEA receiving a waiver under section 9401 to report such information as the Secretary may require. In accordance with that provision and as it assured in its request, Idaho must provide ED certain reports, data, and evidence regarding its progress in implementing the plans and other elements of its approved request. Generally, SEAs are meeting this requirement primarily by providing information to ED through EDFacts/Consolidated State Performance Report (CSPR), and by providing information required for ED’s monitoring of ESEA flexibility implementation.

Monitoring

ED has begun monitoring SEAs to ensure full and effective implementation of approved ESEA flexibility requests. ED will continue to track Idaho’s progress and success in implementing the plans and other elements of its approved ESEA flexibility request, including alignment with the four principles and the required timelines listed in the document titled ESEA Flexibility. In particular, ED will monitor the impact of Idaho’s use of the At-Risk Subgroup to ensure that Idaho continues to provide full and specific information with respect to the performance of individual ESEA subgroups and to ensure that schools and LEAs with continued low subgroup performance are identified for appropriate interventions and supports. Idaho has already been monitored by ED under Part A monitoring. ED expects to provide information on the next phase of monitoring in the coming weeks.

Please note that, as States’ implementation of ESEA flexibility proceeds, ED may adjust the reports, data, and evidence it needs to track implementation, as appropriate. We will keep you apprised of any modifications.

Secretary’s Right to Terminate Waivers

Under ESEA section 9401(f), the Secretary must terminate a waiver if the Secretary determines, after notice and an opportunity for a hearing, that the performance of the entity affected by the waiver has been inadequate to justify a continuation of the waiver or if the waiver is no longer necessary to achieve its original purpose. Accordingly, the Secretary may terminate the waivers granted through ESEA flexibility if Idaho or a significant number of its LEAs do not implement Idaho’s request as approved by ED, if Idaho fails to submit in a timely manner the required reports, and data, or if Idaho does not receive approval of its guidelines for teacher and principal evaluation and support systems. If the waivers are terminated, Idaho and its LEAs must immediately resume complying with the requirements of current law. Similarly, if the Secretary determines not to extend or renew the waivers granted to Idaho beyond the end of the 2012–2013 school year, Idaho and its LEAs would be required to immediately resume complying with the requirements of current law in that instance, as well.

I hope you find this information helpful. Congratulations again on receiving approval of Idaho’s request for ESEA flexibility. I look forward to working with you and your staff as you implement this flexibility and as you continue working to improve education in Idaho.

Sincerely,

/s/

Deborah S. Delisle

cc: Nick Smith, Chief Deputy Superintendent

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