A r c h i v e d  I n f o r m a t i o n

Letter to Louisiana Superintendent Picard regarding a request for waivers of certain fiscal requirements under the waiver authority in section 105 of the Hurricane Education Recovery Act

May 12, 2006

Honorable Cecil J. Picard
Superintendent of Education
State Department of Education
626 North 4th Street, 12th Floor
Baton Rouge, Louisiana 70804-9064

Dear Superintendent Picard:

Thank you for your letter of March 13, in which you reiterated your September 14, 2005 requests for waivers of certain fiscal requirements pertaining to Department of Education programs. You are requesting waivers of certain fiscal requirements under the waiver authority in section 105 of the Hurricane Education Recovery Act (HERA) enacted by Congress on December 30, 2005. I am pleased to respond to these concerns as well as some of the additional issues that you raised in your earlier requests for additional flexibility.

Before addressing the specifics of your request, let me again thank you for your efforts and continuing attention to the education needs of the children of Louisiana, including the many children in your State whose education was disrupted by last year's hurricanes.

As you have noted, we previously waived, for Fiscal Year (FY) 2006, the maintenance-of-effort (MOE) requirements in the Elementary and Secondary Education Act (ESEA) for all districts affected by the hurricanes and the State-level MOE requirement in the Individuals with Disabilities Education Act (IDEA). We also informed you, in September of last year, that we had no legal authority at that time to waive "supplement, not supplant" requirements. In light of new language enacted by Congress under HERA, you have resubmitted your request for a waiver of those requirements. As you know, the HERA specifically excludes IDEA from the waiver authority.

Under the new HERA waiver authority, I am waiving, for FY 2006, the following requirements, as applicable, for all Federal education programs (except IDEA) administered by the U.S. Department of Education:

1. maintenance of effort;
2. the use of Federal funds to supplement, and not supplant, non-Federal funds; and
3. any non-Federal share or capital contribution required to match Federal funds.

These HERA waivers apply to the Louisiana Department of Education (LDE) and all local educational agencies (LEAs) affected by the hurricanes. Please note that we are not waiving any statutory requirements prohibiting the supplanting of Federal funds. We have the authority only to waive requirements that prohibit the supplanting of non-Federal funds.

The ESEA and IDEA MOE waivers that we previously granted under separate waiver authorities remain in effect for FY 2006. With these MOE waivers, as well as the MOE waivers granted under the HERA waiver authority, an applicable entity is not required to maintain fiscal effort for FY 2006, and its failure to maintain effort will not affect its future funding under the relevant programs.

Your ongoing request to calculate adequate yearly progress (AYP) for school year 2005-2006 only for students who are continuously enrolled in the same school for two years (2004-2005 and 2005-2006) and that no additional sanctions be imposed based on the 2005-2006 calculations is still under review. Furthermore, the Department has received, and is reviewing, additional requests to change your accountability plan and will respond to them in conjunction with its response to your AYP calculation request. We plan to resolve these requests after Louisiana's standards and assessment peer review, which is currently underway.

Regarding your request for extensions needed for the School Improvement Plans for schools in School Improvement Year 2 or higher, we are prepared to consider this request after the assessment review should LDE determine the extensions are still needed.

In my letter dated January 13, 2006, I granted the LDE the flexibility for three parishes—Orleans, Calcasieu, and Jefferson—to provide supplemental educational services, for this school year, to students attending Title I schools in the first year of school improvement rather than providing the choice to attend a school that is not in improvement.

In a letter from Dr. Henry L. Johnson, dated March 16, 2006, the Department agreed to postpone its Title I monitoring visit; we will contact the LDE to schedule a new date. We extended the deadline for the submission of your State's No Child Left Behind Act Consolidated State Performance Report (CSPR) from March 6 to May 1, 2006. This extension applies to both Part I and Part II of the CSPR. You have recently reported that data from certain schools are permanently lost due to destruction by the hurricanes. We ask you to provide, in the relevant comment portion of the CSPR, information indicating that the data for certain LEAs have been irretrievably lost due to the hurricanes.

We hope that this additional flexibility will facilitate your exemplary efforts to address the educational needs of students throughout Louisiana. If I can be of further assistance, please feel free to contact me.