FR Doc 05-24083

[Federal Register: December 15, 2005 (Volume 70, Number 240)]
[Proposed Rules]
[Page 74623-74638]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de05-32]

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Part VI

Department of Education

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34 CFR Parts 200 and 300

Title I--Improving the Academic Achievement of the Disadvantaged;
Individuals With Disabilities Education Act (IDEA)--Assistance to
States for the Education of Children With Disabilities; Proposed Rule

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DEPARTMENT OF EDUCATION

34 CFR Parts 200 and 300

RIN 1810-AA98

Title I--Improving the Academic Achievement of the Disadvantaged;
Individuals With Disabilities Education Act (IDEA)--Assistance to
States for the Education of Children With Disabilities

AGENCY: Office of Elementary and Secondary Education; Office of Special
Education and Rehabilitative Services, U.S. Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the regulations governing
programs administered under Title I of the Elementary and Secondary
Education Act of 1965 (ESEA), as amended by the No Child Left Behind
Act of 2001 (NCLB) (referred to in these proposed regulations as the
Title I program) and the regulations governing programs under Part B of
the Individuals with Disabilities Education Act (IDEA) (referred to in
these proposed regulations as the IDEA program). The proposed
regulations would provide States with additional flexibility regarding
State, local educational agency (LEA), and school accountability for
the achievement of a group of students with disabilities who can make
significant progress, but may not reach grade-level achievement
standards within the same time frame as other students, even after
receiving the best-designed instructional interventions from highly
trained teachers.

DATES: We must receive your comments on or before February 28, 2006.

ADDRESSES: Address all comments about these proposed regulations to
Jacquelyn C. Jackson, Ed.D., Director, Student Achievement and School
Accountability Programs, Office of Elementary and Secondary Education,
U.S. Department of Education, 400 Maryland Avenue, SW., room 3C156, FB-
6, Washington, DC 20202-6132. If you prefer to send your comments
through the Internet, you may address them to us at the U.S. Government
Web site: http://www.regulations.gov.

Or you may send your Internet comments to us at the following
address: TitleIrulemaking@ed.gov. You must include the term ``proposed
2% rule'' in the subject line of your electronic message.
If you want to comment on the information collection requirements,
you must send your comments to the Office of Management and Budget at
the address listed in the Paperwork Reduction Act section of this
preamble. You may also send a copy of these comments to the Department
representative named in this section.

FOR FURTHER INFORMATION CONTACT: Jacquelyn C. Jackson, Ed.D, Director,
Student Achievement and School Accountability Programs, Office of
Elementary and Secondary Education, Telephone: (202) 260-0826 or via
Internet at jacqueline.jackson@ed.gov, or you may contact Troy R.
Justesen, Ed.D, Deputy Assistant Secretary, Office of Special Education
and Rehabilitative Services, Telephone: (202) 245-7468 or via Internet
at troy.justesen@ed.gov.
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 persons listed under FOR FURTHER
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

We invite you to submit comments regarding these proposed
regulations. To ensure that your comments have the maximum effect as we
develop the final regulations, we urge you to identify clearly the
specific section or sections of the proposed regulations that each of
your comments addresses and to arrange your comments in the same order
as the proposed regulations.
We invite you to assist us in complying with the specific
requirements of Executive Order 12866 and its overall requirement of
reducing regulatory burden that might result from these proposed
regulations. Please let us know of any further opportunities we should
take to reduce potential costs or increase potential benefits while
preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect all public
comments about these proposed regulations in room 3W100, FB-6, 400
Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m.
and 4 p.m., Eastern time, Monday through Friday of each week except
Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record

On request, we will supply an appropriate aid, such as a reader or
print magnifier, to an individual with a disability who needs
assistance to review the comments or other documents in the public
rulemaking record for these proposed regulations. If you want to
schedule an appointment for this type of aid, please contact the
persons listed under FOR FURTHER INFORMATION CONTACT.

Background

These proposed regulations would amend regulations in 34 CFR part
200, implementing certain provisions of Title I, Part A of the ESEA, as
amended by NCLB, which is designed to help disadvantaged children meet
high academic standards. They would also amend regulations in 34 CFR
part 300, implementing programs for students with disabilities under
Part B of the IDEA.
These proposed regulations provide flexibility for some students
with disabilities similar to that afforded by the current Title I
regulations in 34 CFR part 200 regarding children with the most
significant cognitive disabilities. Those Title I regulations permit a
State to develop alternate academic achievement standards for students
with the most significant cognitive disabilities and to include those
students' proficient and advanced scores on alternate assessments based
on alternate achievement standards in measuring adequate yearly
progress (AYP), subject to a cap of 1.0 percent of the students
assessed at the State and district levels. The purpose of those
regulations was to provide flexibility for States and LEAS regarding
the assessment of a very small group of students--those students with
the most significant cognitive disabilities--to ensure that schools and
districts receive credit for the good work they are doing with those
students.
In the preamble to the December 9, 2003 notice announcing the
regulations adopting the flexibility for students with the most
significant cognitive disabilities, the Department indicated that, ``as
data and research on assessing students with disabilities improve, the
Department may decide to issue regulations or guidance on other related
issues in the future'' (68 FR 68698). Since that time, information
accumulated from the experiences of many States, as well as recent
research, indicates that there are other students who, because of their
disability, have significant difficulty achieving grade-level
proficiency, even with the best instruction. This information and
research indicate that there is a group of students with disabilities
whose progress in response to high-quality instruction, including
special education

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and related services designed to address the student's individual
needs, is such that the student is not likely to achieve grade-level
proficiency within the school year covered by the student's
individualized education program (IEP).
The proposed regulations would provide States with additional
flexibility in measuring the achievement of this group of students with
disabilities who do not meet State guidelines to participate in an
alternate assessment based on alternate achievement standards, which is
appropriate only for students with the most significant cognitive
disabilities. Specifically, the proposed regulations would permit
States to develop modified achievement standards (and assessments that
measure achievement based on those standards) that are aligned with
grade-level content standards, but are modified in such a manner that
they reflect reduced breadth or depth of grade-level content. At the
same time, the proposed regulations would include several safeguards to
ensure that students are not inappropriately assessed based on modified
achievement standards, including requirements that each State develop
guidelines defining which students with disabilities are eligible to be
assessed based on modified achievement standards. Similar to the
current regulations, under the proposed regulations, States and LEAs
would be permitted to include the proficient and advanced scores from
assessments based on modified achievement standards in AYP
determinations, subject to a cap at the district and State levels based
on the total number of students assessed. As described elsewhere in
this notice, the best available research and data indicate that 2.0
percent, or approximately 20 percent of students with disabilities, is
a reasonable cap. We are also proposing other changes that would
address the implementation of this cap at the State and local levels.
Additionally, to ensure a coordinated administration of the IDEA
and Title I programs, Sec. 300.160 of these proposed regulations would
make changes to the proposed regulations published in the Federal
Register on June 21, 2005 (70 FR 35839) to implement the IDEA as
reauthorized by the Individuals with Disabilities Education Improvement
Act of 2004, Public Law No. 108-446, enacted on December 3, 2004,
regarding inclusion of children with disabilities in State and
district-wide assessment systems in accordance with section 612(a)(16)
of the IDEA. We are proposing regulations that will implement relevant
provisions of the recently reauthorized IDEA and will include this new
flexibility to assess students with disabilities based on modified
achievement standards. This coordination of the regulations for the
IDEA and Title I programs will avoid confusion among parents, teachers,
and administrators, and reinforce IDEA's and Title I's shared goal of
high expectations and accountability for all students. We will issue a
final Sec. 300.160 at the same time that we issue the final Title I
regulations proposed in this notice.

Significant Proposed Regulations

We discuss substantive issues under the sections of the proposed
regulations to which they pertain. Generally, we do not address
proposed regulatory provisions that are technical or otherwise minor in
effect.

Section 200.1 State Responsibilities for Developing Challenging
Academic Standards

Statute: Section 1111(b)(1) of Title I requires each State to adopt
challenging academic content standards and student academic achievement
standards in mathematics, reading/language arts, and, beginning in the
2005-2006 school year, science. These standards must be the same for
all public elementary and secondary schools and all public school
students in the State. The State's academic 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. The State's student academic achievement standards
must be aligned with the State's content standards and must describe at
least three levels of achievement: advanced, proficient, and basic.
Current regulations: Section 200.1 of the Title I regulations
implements the statutory requirements in section 1111(b)(1), regarding
the development of standards generally. A State must apply these
standards to all public elementary and secondary schools and public
school students in the State. Section 200.1 also recognizes that there
is a small percentage of students with disabilities--those with the
most significant cognitive disabilities--who will likely never reach
grade-level achievement standards, even with the very best instruction.
Thus, Sec. 200.1(d) permits a State to develop alternate achievement
standards for students with the most significant cognitive
disabilities, so long as those standards are aligned with the State's
academic content standards, promote access to the general curriculum,
and reflect professional judgment of the highest achievement standards
possible for those students. An alternate achievement standard is an
expectation of performance that differs in complexity from a grade-
level achievement standard.
Proposed Regulations: Similar to the flexibility afforded to States
and LEAs for students with the most significant cognitive disabilities,
proposed Sec. 200.1(e) would allow a State to use a documented and
validated standards-setting process to define modified achievement
standards for some students with disabilities. Proposed Sec.
200.1(e)(1)(i) through (iii) would require that modified achievement
standards provide access to grade-level curriculum; be aligned with the
State's academic content standards for the grade in which the student
is enrolled, although the modified achievement standards may reflect
reduced breadth or depth of grade-level content; and not preclude a
student from earning a regular high-school diploma.
Proposed Sec. 200.1(e)(2) would require a State to adopt specific
criteria for IEP teams to use in determining whether a student is
eligible to be assessed based on modified achievement standards.
Proposed Sec. 200.1(e)(2)(i) through (iii) provides that, in order for
an IEP team to determine that a student is eligible to be assessed
based on modified achievement standards, the IEP team must conclude
that: The student's disability has precluded the student from achieving
grade-level proficiency, as demonstrated by objective evidence; the
student's progress in response to high-quality instruction, including
special education and related services designed to address the
student's individual needs, is such that the student is not likely to
achieve grade-level proficiency within the school year covered by the
IEP; and the student is receiving instruction in the grade-level
curriculum for the subjects in which the student is being assessed.
Proposed Sec. 200.1(e)(3) would clarify that students eligible to take
assessments based on modified achievement standards may be in any of
the 13 disability categories listed in the IDEA. Proposed Sec.
200.1(e)(4) would provide that a student may be held to modified
academic achievement standards in one or more subjects for which the
State administers assessments. Proposed Sec. 200.1(e)(5) would require
that IEP teams review on an annual basis their decision to assess a
student based on modified achievement standards to ensure that those
standards remain appropriate.
Proposed Sec. 200.1(f), regarding the development of State
guidelines and

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notice to parents, would incorporate the provisions of Sec.
200.6(a)(2)(iii)(A) and include references to assessments based on
modified achievement standards. This provision would require each State
to establish and ensure implementation of clear and appropriate
guidelines for IEP teams to use in determining which students with
disabilities may be held to either alternate or modified academic
achievement standards and to ensure that parents of those students, as
members of the IEP team and as participants in the IEP process, are
informed that their child's achievement will be measured based on
alternate or modified achievement standards.
Reasons: In proposing these amendments to Sec. 200.1, we
acknowledge that, while all children can learn challenging content,
certain students, because of their disability, may not be able to
achieve grade-level proficiency within the same time-frame as other
students, even after receiving the best-designed instructional
interventions, including special education and related services
designed to address the student's individual needs, from highly trained
teachers. We believe it is appropriate for these students to be
assessed on grade-level content, but to measure their performance based
on achievement standards that have been modified and differ in breadth
or depth from grade-level achievement standards. The proposed
regulations would permit States to establish modified achievement
standards, so long as they meet certain requirements under proposed
Sec. 200.1(e)(1) that are designed to ensure that these students work
toward mastering grade-level content. The proposed regulation therefore
would require that modified achievement standards be aligned with
grade-level content, but adjusted to reflect reduced breadth or depth
of grade-level content so that students with disabilities participating
in an assessment based on modified achievement standards would be
better able to demonstrate what they know and can do.
Although proficient performance based on modified achievement
standards will not indicate the same level of achievement as proficient
performance based on grade-level achievement standards, modified
achievement standards must be aligned to grade-level content standards.
Furthermore, we anticipate that there will be significant overlap
between the regular and modified achievement standards; but there would
be no similar overlap between alternate achievement standards and
grade-level achievement standards. Because assessing a student's
performance based on modified achievement standards would not preclude
a student from receiving a regular diploma, students with disabilities
participating in this type of assessment would not automatically be
held to a lower graduation standard.
The proposed regulations also are necessary to ensure that States
have guidelines in place with certain key elements that will help IEP
teams appropriately determine which students should be assessed based
on modified achievement standards. We anticipate that it will be more
difficult, in general, for IEP teams to determine the students with
disabilities for whom modified achievement standards would be
appropriate than it is for IEP teams to determine the students with the
most significant cognitive disabilities for whom alternate achievement
standards are appropriate. Students assessed based on modified
achievement standards would not simply be students who are having
difficulty with grade-level content or who are receiving instruction
below grade level. Nor would they necessarily be the lowest-achieving
two percent of students, who are not students with the most significant
cognitive disabilities. In fact, based on recent data from the Special
Education Elementary Longitudinal Study (SEELS) funded by the Office of
Special Education Programs (OSEP), we anticipate that students from
each of the 13 disability categories listed in the IDEA will be among
those who are assessed based on modified achievement standards.
Students for whom modified achievement standards would be
appropriate may require assessments that are different both in format
or design due to the nature of their disability. IEP teams would
determine the appropriateness of modified achievement standards based
on the unique needs of each individual student with a disability.
However, because it is of paramount importance to ensure that students
are not held inappropriately to standards other than grade-level
achievement standards, the proposed regulations would include criteria
that we consider critical to support States in their implementation of
modified achievement standards and to ensure that IEP teams make
appropriate determinations about which students participate in
assessments based on modified achievement standards. The proposed
criteria are designed to help IEP teams distinguish between students
whose disability has truly precluded them from achieving grade-level
proficiency and those who, with appropriate services and interventions,
including special education and related services designed to address
the student's individual needs, can be assessed based on grade-level
achievement standards. The effect of these proposed regulations and the
IDEA will put into place four key safeguards regarding identification
for assessment based on modified achievement standards:
1. Consistent with the IDEA and as a part of the evaluation
process, a team of qualified professionals and the parent of the child
would ensure that a student is not identified for special education
services due to lack of instruction. That is, the team must demonstrate
that the determining factor for such identification is not a lack of
appropriate instruction in reading and math (20 U.S.C. 1414(b)(5)).
After a child is identified, the special education and related services
a child receives under the child's IEP should be of high quality and
specially designed to meet the unique needs of the individual, and move
a child closer to grade-level achievement, if the child is not already
achieving at grade level.
2. Proposed Sec. 200.1(e)(2)(ii)(A) would ensure that IEP teams
examine a student's progress in response to high-quality instruction,
including special education and related services designed to address
the student's needs. The requirement to assess the student's
performance using multiple measures over time in proposed Sec.
200.1(e)(2)(ii)(B) would ensure that a student is not given an
assessment based on modified achievement standards on the basis of
performance on one assessment or measurement.
3. Proposed Sec. 200.1(e)(2)(iii) would ensure that students are
not assessed based on modified achievement standards if they have not
had the opportunity to learn grade-level content. Implementing
challenging standards, coupled with ensuring that students are
receiving grade-level instruction in the subjects in which they are
assessed, would provide a safeguard against leaving children behind due
to lack of proper instruction.
4. As indicated in proposed 200.1(e)(5), the decision to assess a
student based on modified achievement standards would not be a
permanent one, and would be reviewed on a yearly basis as part of the
IEP process.
Proposed Sec. 200.1(f) emphasizes the very important
responsibility of each State to establish clear and appropriate
guidelines, which include the criteria for IEP teams to apply in
determining whether a student with a disability may be held to modified
academic

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achievement standards. The guidelines required by proposed Sec.
200.1(f) must provide sufficient guidance to ensure that IEP teams
(which include parents) make appropriate decisions regarding those
students for whom either alternate or modified achievement standards
are appropriate. Moreover, Sec. 200.1(f) would also safeguard
students' interests because parents, as members of the IEP teams, will
participate in and be informed about the decision to assess their
child's achievement based on alternate or modified achievement
standards.

Section 200.6 Inclusion of All Students

Statute: Section 1111(b)(3)(C) of Title I of the ESEA provides that
a State's academic assessment system must be aligned with the State's
challenging academic content and academic achievement standards and
measure the achievement of all students in the grades assessed,
including students with disabilities as defined under section 602(3) of
the IDEA, students covered by Section 504 of the Rehabilitation Act of
1973, as amended (Section 504), and students with limited English
proficiency. With respect to students with disabilities in particular,
the system must provide for reasonable accommodations necessary to
measure their academic achievement relative to the State's content and
achievement standards that all students are expected to meet.
Current regulations: Section 200.6 of the Title I regulations
clarifies that a State's academic assessment system must include
accommodations for students with disabilities under the IDEA and for
students covered under Section 504 to allow the State to measure the
academic achievement of these students relative to the State's academic
content and academic achievement standards for the grades in which they
are enrolled. In addition, the regulations require a State to provide
one or more alternate assessments for students with disabilities who
cannot participate in all or part of the State assessment, even with
appropriate accommodations. These alternate assessments must yield
results for the grade in which the student is enrolled in at least
reading/language arts, mathematics, and, beginning in the 2007-2008
school year, science.
Section 200.6 also permits the use of alternate assessments to
measure the achievement of students with the most significant cognitive
disabilities based on the alternate academic achievement standards a
State adopts under Sec. 200.1(d). If a State permits the achievement
of students with the most significant cognitive disabilities to be
measured with alternate assessments that yield results based on
alternate achievement standards, the State must report, to the
Secretary, those results separately from students with disabilities who
take the regular assessment or an alternate assessment based on grade-
level achievement standards. The State must also document that students
with the most significant cognitive disabilities are included, to the
extent possible, in the general curriculum and in assessments aligned
with that curriculum. In addition, the State must promote the use of
appropriate accommodations to increase the number of students with the
most significant cognitive disabilities who are tested against grade-
level achievement standards. Finally, the State must ensure that
teachers and other staff know how to administer assessments, including
how to use appropriate accommodations, for students with the most
significant cognitive disabilities.
Proposed regulations: Section 200.6 would be amended to allow a
State to develop and implement modified academic achievement standards
(defined by the State pursuant to proposed Sec. 200.1(e)(1)) to assess
students with disabilities who meet the criteria in proposed Sec.
200.1(e)(2).
Proposed Sec. 200.6(a)(3) would allow a State to use its regular
assessment, with accommodations if necessary, or an alternate
assessment, provided the assessment--
Is aligned with the State's grade-level content standards;
Yields results that measure the achievement of students
separately in both reading/language arts and mathematics relative to
the State's modified academic achievement standards;
Meets the requirements under Sec. Sec. 200.2 and 200.3,
including validity, reliability, and high technical quality; and
Fits coherently in the State's overall assessment system
required under Sec. 200.2.
Proposed Sec. 200.6(a)(4)(iii) would require a State to report
separately on the percentage of students with disabilities taking
assessments based on modified achievement standards. Finally, the
proposed regulations would move several similar existing provisions to
the same location in the regulations. Current Sec. 200.6(a)(2)(iii)(D)
and (E), regarding increasing accommodations and teacher training to
ensure that more students with disabilities can take a State's regular
assessments, would be moved to Sec. 200.6(a)(1)(ii). Current Sec.
200.6(a)(2)(iii)(C), regarding documenting that students with the most
significant cognitive disabilities are, to the extent possible,
included in the general curriculum, would be moved to Sec.
200.6(a)(2)(iii).
Reasons: The proposed amendments to Sec. 200.6 acknowledge the
appropriateness of allowing a small percentage of students with
disabilities to be assessed based on modified academic achievement
standards aligned with the State's grade-level academic content
standards. The proposed amendment does not limit the number or
percentage of students who may take assessments based on modified
achievement standards defined pursuant to Sec. 200.1(e) as determined
appropriate by their IEP teams.
The format of the assessment is less critical than the content of
the modified academic achievement standards. Modified achievement
standards may be expressed in various forms: for example, as scores
from an assessment limited to ``core content and achievement''
expectations; or as results from an assessment that includes non-
traditional items based on grade-level content. The critical
characteristic is that an assessment based on modified achievement
standards clearly reflects grade-level content standards even if the
breadth or depth of those standards is reduced or the format or design
is different.
The current Title I regulations do not prohibit the use of out-of-
level assessments in all cases. They may be used to assess students
with the most significant cognitive disabilities if they are aligned
with a State's alternate achievement standards that meet the
requirements of current Sec. 200.1(d). However, under proposed Sec.
200.1(e) and Sec. 200.6, States would not be permitted to use an out-
of-level test to measure the achievement of students with disabilities
based on modified achievement standards. The proposed regulations
require that any assessment based on modified achievement standards
must meet the grade-level alignment requirements of Sec. 200.1(e)(1),
and an out-of-level assessment, by definition, cannot meet these
requirements because it is not aligned with the content being taught at
the grade-level in which the student is enrolled. It is not acceptable,
for example, simply to assess a child who may be reading at a third-
grade level using a third-grade assessment when the child is actually
enrolled in the sixth grade and expected to be receiving grade-level
content.

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Even though modified achievement standards differ from grade-level
achievement standards, the following protections in the regulation are
designed to prevent students with disabilities from being left behind
and to ensure that these students continue to receive challenging,
grade-level instruction:
1. The modified achievement standards must be aligned to grade-
level content standards. Although the breadth or depth of the standards
may be reduced, it is grade-level content standards, not ``extended''
standards or instructional-level standards, that must be the basis of
the assessment and the modified achievement standards. (Proposed Sec.
200.1(e)(1)(i)). If a State's content standards include 20 different
statements of what a student should know, it would not be appropriate
to reduce the number of standards assessed on modified achievement
standards to address only a few of those content standards. Although
the Department will not set a specific numerical goal of how many
standards should be addressed, we note that the modified achievement
standards will be peer-reviewed and we expect States to establish
meaningful academic expectations for all students.
2. The student receives instruction based on grade-level content
standards. (Proposed Sec. 200.1(e)(1)(ii) and (2)(iii)).
3. ``Proficient'' performance on modified achievement standards
does not preclude a student from earning a regular high school diploma.
(Proposed Sec. 200.1(e)(1)(iii)).
A State may assess achievement based on modified achievement
standards in several ways, either by designing an entirely new
assessment, or by modifying an existing grade-level assessment.
Modifications might include:
Changes to content, such as coverage of a reduced number
of grade-level content standards that have been identified by the State
as essential for progress to the next grade.
Changes to test format or administration, such as modified
item format or response options, or use of only selected portions of
the assessment.
Regardless of the method employed, a State must limit the use of
modified achievement standards to the appropriate group of students. As
proposed by these regulations, the State must use a documented
standard-setting procedure. Results based on modified achievement
standards must be valid and reliable to be used as a component in AYP
determinations. Results would also need to be clearly explained to
parents in terms of student competencies represented by labels such as
``basic'' or ``proficient.''

Section 200.7 Disaggregation of Data

Statute: Section 1111(b)(2)(C)(iv) of Title I requires a State's
definition of AYP to measure the progress of specific subgroups of
students, including students with disabilities, unless the number of
students in a category is insufficient to yield statistically reliable
information.
Current regulations: Section 200.7(a)(1) of the Title I regulations
prohibits a State from using disaggregated data for one or more
subgroups to report achievement results or to identify schools in need
of improvement, corrective action, or restructuring if the number of
students in those subgroups is insufficient to yield statistically
reliable information. Section 200.7(a)(2) requires a State to
determine, based on sound statistical methodology, the minimum number
of students sufficient to yield statistically reliable information for
each purpose for which disaggregated data are used.
Proposed regulations: Section 200.7(a)(2) would be amended to
prohibit a State from establishing a different minimum number of
students for separate subgroups, regardless of whether the State
chooses to implement modified achievement standards. In other words, a
State would no longer be able to set a higher minimum number for the
subgroup of students with disabilities, for example, than it sets for
all its students or for its other subgroups. As another example, the
proposed regulation would restrict States from setting a higher minimum
group size for limited English proficient (LEP) students.
Reasons: Prior to the implementation of the regulations on
alternate achievement standards for students with the most significant
cognitive disabilities and the announcement of these proposed
regulations, a State did not have much flexibility in measuring the
achievement of students with disabilities for AYP purposes. Because of
ongoing concerns about how accurately State assessments measure the
achievement of a very heterogeneous group of students (many of whom
were assessed with a range of accommodations and modifications to the
regular assessment), some States requested permission to use a larger
minimum number of students--group size--for their students with
disabilities subgroup. In support of their request, these States argued
that a larger group size for this subgroup of students would account
for the challenges of measuring their achievement. States also
requested to set a higher minimum group size for LEP students for
similar reasons.
Setting a different group size, however, can lead to unintended
consequences, such as manipulating the number of LEP or special
education students in a particular school to ensure that the school
will not be specifically held accountable for those students. Once
these proposed regulations are implemented, we believe that States will
have sufficient flexibility to measure the achievement of students with
disabilities appropriately and will no longer need a different group
size for this subgroup. States will be able to use different
achievement standards for approximately thirty percent of students with
disabilities, which is a significant change in how those students are
assessed. States have also been offered flexibility in including the
scores of LEP students who have recently arrived in the United States,
as well as to count in the LEP subgroup for two years the scores of
students who exit the LEP category. We believe that, in order to ensure
that schools are held accountable for the achievement of LEP students
and students with disabilities, the use of differentiated group sizes
for purposes of measuring AYP must end.

Section 200.13 Adequate Yearly Progress in General

Statute: Under section 1111(b)(2)(B) of Title I of the ESEA, each
State must define what constitutes AYP of the State, and of all public
elementary and secondary schools and LEAs in the State, toward enabling
all students to meet the State's student academic achievement
standards. This definition must apply the same high standards of
academic achievement to all public elementary and secondary school
students in the State, be statistically valid and reliable, and measure
progress based primarily on the State's academic assessments. AYP must
also include measurable objectives for specific subgroups of students,
including students with disabilities. To make AYP, a school must: meet
or exceed the State's annual measurable objectives with respect to all
students and students in each subgroup; test at least 95 percent of all
students and of the students in each subgroup enrolled in the school;
and make progress on the other academic indicators determined by the
State.
Current Regulations: The current Title I regulations in Sec.
200.13 require that each State demonstrate in its State plan what
constitutes AYP of the State and of all public elementary and secondary
schools and LEAs in the State in a

[[Page 74629]]

manner that applies the same high standards of achievement to all
public school students; is statistically valid and reliable; results in
continuous and substantial academic improvement for all students;
measures the progress of all public schools, LEAs, and the State based
primarily on the State's academic assessment system; measures progress
separately for reading/language arts and for mathematics; is the same
for all public schools and LEAs in the State; and applies the same
annual measurable objectives for all students and for all identified
subgroups described in Sec. 200.13(b)(7)(ii).
Section 200.13(c) contains the rules for calculating AYP with
respect to students with the most significant cognitive disabilities.
It permits a State to include proficient and advanced scores of those
students on assessments based on alternate achievement standards in
determining AYP, subject to a 1.0 percent cap at the LEA and State
levels. There is no cap at the school level. A State may request from
the Secretary an exception to exceed the 1.0 percent cap if it can
document that the incidence of students with the most significant
disabilities exceeds 1.0 percent due to such circumstances as school,
community, or health programs that have drawn large numbers of families
of students with the most significant cognitive disabilities or a
student population so small that it would take only a very few students
to exceed the 1.0 percent cap. A State may grant an LEA's request for
an exception to exceed the 1.0 percent cap under similar conditions.
Proposed Regulations: Proposed Sec. 200.13(c) would specify
acceptable uses of modified achievement standards for students with
disabilities who meet the criteria in proposed Sec. 200.1(e)(2) for
the purpose of determining AYP. Specifically, proposed Sec.
200.13(c)(2)(ii) would permit a State to include in its calculation of
AYP the proficient and advanced scores of students with disabilities on
assessments based on modified achievement standards, provided the
number of such scores does not exceed 2.0 percent of all students in
the grades assessed in reading/language arts and mathematics,
separately, at the LEA and State levels. Although the 2.0 percent cap
would not apply at the school level, schools should be mindful of the
LEA limit, which may restrict the number of proficient scores for any
one school that the LEA or State may include in its AYP calculations.
Proposed Sec. 200.13(c)(3) would permit a State's or LEA's proficient
and advanced scores on assessments based on modified achievement
standards to exceed 2.0 percent of all students in the grades assessed,
without the need for an exception at the LEA level, if the number of
proficient and advanced scores on assessments based on alternate
achievement standards in Sec. 200.1(d) is less than 1.0 percent,
provided the number of proficient and advanced scores based on modified
and alternate achievement standards combined does not exceed 3.0
percent of all students in the grades assessed.
Proposed Sec. 200.13(c)(4) would provide that a State would no
longer be able to request from the Secretary an exception to exceed the
1.0 percent cap on proficient and advanced scores based on alternate
achievement standards, nor would the State be able to request an
exception to exceed the 2.0 percent cap on proficient and advanced
scores based on modified achievement standards. A State would still be
able to grant an exception to an LEA to exceed the 1.0 percent cap on
proficient and advanced scores based on alternate achievement standards
if the LEA meets certain requirements. A State would not be able,
however, to grant an exception to an LEA to exceed the 2.0 percent cap
on proficient and advanced scores based on modified academic
achievement standards. If a State grants an LEA an exception to exceed
the 1.0 percent cap, the total number of students with disabilities in
that LEA whose proficient and advanced scores may be included in
calculating AYP would thus exceed 3.0 percent by the amount of the
exception. However, the State would not be permitted to exceed its
overall cap of 3.0 percent based on exceptions it had granted to LEAs.
The proposed regulation also would provide that, for any proficient and
advanced scores of students with the most significant cognitive
disabilities that exceed the caps and authorized exceptions, a State
would need to count those scores as non-proficient and redistribute
them among schools and LEAs responsible for students with disabilities
who are assessed based on alternate or modified achievement standards.
The following table provides a summary of the circumstances in
which we are proposing that a State or LEA would be permitted to exceed
the 1% and 2% caps.

When Can a State or LEA Exceed the 1% and 2% Caps?
----------------------------------------------------------------------------------------------------------------
Alternate and modified
Alternate achievement Modified achievement achievement standards--
standards--1% Cap standards--2% Cap 3% Cap
----------------------------------------------------------------------------------------------------------------
State................................ Never.................. Only if State is below Never.
1% cap, but cannot
exceed 3% cap.
LEA.................................. Only if granted an Only if LEA is below 1% Only if granted an
exception by the SEA. cap. If not below 1% exception to the 1%
cap, never. cap by the SEA, and
only by the amount of
the exception.
----------------------------------------------------------------------------------------------------------------

Reasons: To ensure that modified achievement standards are used
appropriately, the proposed regulations would set a cap of 2.0 percent
on proficient and advanced scores based on modified achievement
standards that may be included in AYP determinations. In addition to
the guidelines in proposed Sec. 200.1(f), a numerical limit protects
students from being held to lower standards. In establishing the 1.0
percent cap on proficient and advanced scores based on alternate
achievement standards for students with the most significant cognitive
disabilities, we primarily relied upon disability incidence rate data.
Incidence rate data, however, are not as helpful in establishing a cap
on the number of students who would be appropriately assessed based on
modified achievement standards because students assessed based on
modified achievement standards are less likely to be predominantly from
a few disability categories, as is the case with students with the most
significant cognitive disabilities. Therefore, in order to set an
appropriate cap, we considered other sources of data from research and
State experiences. This numerical limit is set at 2.0 percent because
we do not believe it is necessary or appropriate for more than 3.0
percent of students to be assessed based on alternate or modified

[[Page 74630]]

achievement standards. For example, the Department reviewed several
studies that indicate 2.0 percent is an appropriate cap when States,
districts, and schools work to ensure that students receive high-
quality educational services and interventions.\1\ In particular,
research that has recently been summarized by Reid Lyon, Jack Fletcher,
Lynn Fuchs and Vinata Chabra in a literature review (currently in
press) indicates that a 2.0 percent cap is appropriate, based on the
percent of students who may not reach grade-level achievement standards
within the same time frame as other students, even after receiving the
best-designed instructional interventions from highly trained
teachers.\2\
---------------------------------------------------------------------------

\1\ For example, see: McMaster, K.L., Fuchs, D., Fuchs, L.S., &
Compton, D.L. (2005). Responding to nonresponders: An experimental
field trial of identification and intervention methods. Exceptional
Children, 71, 445-463; Torgensen, J.K., Alexander, A.W., Wagner,
R.K., Rashotte, C.A., Voeller, K.K.S., & Conway, T. (2001).
Intensive remedial instruction for children with severe reading
disabilities; Immediate and long-term outcomes from two
instructional approaches. Journal of Learning Disabilities, 34, 33-
58.
\2\ Lyon, G.R., Fletcher, J. M., Fuchs, L.S., & Chhabra, V. (in
press). Learning Disabilities. In E. Mash & R. Barkley (Eds.),
Treatment of Childhood Disorder (2nd ed.). New York: Guilford Press.
---------------------------------------------------------------------------

Further, we believe 2.0 percent is a reasonable cap when one takes
into consideration that the cap does not need to equal the total number
of students that may meet the criteria for this assessment. The cap is
only a cap on the number of proficient scores that may be included in
calculating AYP. In addition, we expect that over time State
assessments will improve, as well as interventions and services for
students with disabilities. The gains we have seen thus far when
disabled students are expected to meet high standards should continue.
The proposed regulations would not permit States to request
exceptions to the 1.0 or 2.0 percent caps. Under our current
regulations that provide flexibility with respect to students with the
most significant cognitive disabilities, we allow States to request an
exception to exceed the 1.0 percent cap if they can demonstrate that
there are exceptional circumstances in their State that would account
for higher numbers of students with the most significant cognitive
disabilities. However, with the proposed modified achievement standards
and a 2.0 percent cap, we do not believe it is necessary for States to
exceed the 1.0 percent cap. The vast majority of students with
disabilities can, and should, be assessed based on grade-level
achievement standards and, therefore, we believe it is not necessary or
appropriate at the State level for the proficient and advanced scores
of more than 3.0 percent of students who are assessed based on
alternate or modified achievement standards to count in AYP
determinations. We recognize, however, that there may still be
significant local variation in the number of students with the most
significant cognitive disabilities, and that is why we are proposing to
allow States to continue granting LEAs exceptions to the 1.0 percent
cap on proficient scores based on alternate achievement standards.
We know that it may be difficult to distinguish with absolute
precision between the achievement levels of the two groups of students
(students taking assessments based on modified achievement standards
and students taking an alternate assessment based on alternate
achievement standards). Therefore, the proposed regulations would
permit States and LEAs to include proficient and advanced scores based
on modified achievement standards in excess of 2.0 percent, if the
State's or LEA's proficient and advanced scores on alternate
assessments based on alternate achievement standards are less than 1.0
percent of the students assessed, and so long as the total number of
proficient and advanced scores based on modified and alternate
standards does not exceed 3.0 percent. No exception is needed in this
instance.
We would like to underscore that the decision about which
achievement standards to use when evaluating the achievement of a
student with disabilities is an individual determination made by the
IEP team, following the State guidelines. The Department expects that
there will be States that will assess fewer than 1.0 percent of their
students based on alternate achievement standards or fewer than 2.0
percent based on modified achievement standards.

Section 200.20 Making Adequate Yearly Progress

Statute: Under Section 1111(b)(2)(I) of Title I, a school or LEA
makes AYP if each group of students described in section
1111(b)(2)(C)(v) of the statute meets or exceeds the State's annual
measurable objectives in reading/language arts and mathematics,
separately; not less than 95 percent of the students in each group
participates in the State assessments required in section 1111(b)(3);
and the school or LEA as a whole meets the other academic indicators
selected by the State. If students in any group do not meet the State's
annual measurable objectives, a school or LEA makes AYP if the
percentage of students in that group who are not proficient decreased
by 10 percent from the preceding school year and the group made
progress on one or more of the State's other academic indicators.
Section 1111(b)(2)(J) of Title I permits a State, in determining
whether schools or LEAs are making AYP, to establish a uniform
procedure for averaging data from one school year with data from one or
two preceding school years, and to average data across grades in the
school or LEA. If a State wishes to use a uniform averaging procedure,
it is not required to include the new NCLB assessments in its annual
AYP decisions until the State has acquired two or three years of data
from those assessments.
Current regulations: Section 200.20 of the Title I regulations
implements these statutory provisions. In addition, with respect to any
student who takes the State assessment for a particular subject or
grade level more than once, Sec. 200.20(c)(3) requires a State to use
the student's results from the first administration of the assessment
to determine AYP.
Proposed regulations: Proposed Sec. 200.20 would make several
significant changes. First, current Sec. 200.20(c)(3), which requires
a State to use the student's results from the first administration of
the State assessment to determine AYP, would be removed. With this
removal, a State could administer its State assessments to a student
more than once and include the student's best score in determining AYP.
This practice, however, could not result in delaying the State's
ability to make timely AYP determinations.
Second, proposed Sec. 200.20(c)(3) would make clear that, to count
a student who is assessed based on alternate or modified achievement
standards as a participant for purposes of meeting the 95 percent
participation requirement, a State must have guidelines for IEP teams
to use to determine appropriately which students should participate in
assessments based on alternate or modified achievement standards in
accordance with proposed Sec. 200.1(f). If a State does not have
guidelines or those guidelines do not meet the requirements in Sec.
200.1(f), students inappropriately assessed based on alternate or
modified achievement standards would be considered non-participants for
purposes of calculating participation rates.
Third, proposed Sec. 200.20(f) would be added to provide
additional flexibility in calculating AYP for the students with
disabilities subgroup. Under this proposed section, a State would be
able to include, for a period of up to two

[[Page 74631]]

years, the scores of students who were previously identified with a
disability under section 602(3) of the IDEA, but who have exited from
special education services. In addition, if a State includes the scores
of these students in AYP, the State would not be required to include
those students in the students with disabilities subgroup in
determining if the number of students with disabilities is sufficient
to yield statistically reliable information under Sec. 200.7(a). As
indicated in proposed Sec. 200.20(f)(3), for the purpose of reporting
information on report cards under section 1111(h) of the ESEA, a State
and its LEAs would be able to include the scores of former students
with disabilities as part of the students with disabilities subgroup
for the purpose of reporting AYP, but would not be able to include the
scores of former students with disabilities as part of the students
with disabilities subgroup in reporting any other information under
section 1111(h) of the ESEA.
Reasons: The Secretary proposes to remove current Sec.
200.20(c)(3), which requires a State to use a student's results from
the first administration of the State assessment to determine AYP,
because the Secretary believes that it is possible to grant flexibility
to States to determine which score to count in AYP determinations
without compromising the integrity of the State accountability system
or the timing of AYP decisions. Since the publication of this
regulation on December 2, 2002, the Secretary has learned from several
States that they wish to administer their assessments to students more
than once during the school year for differing reasons. For example,
one State is required by law to offer multiple opportunities to
students to take and pass the State-mandated graduation exam. In taking
advantage of this flexibility, we emphasize that States should take
care not to establish an administrative schedule in which students are
repeatedly taking the State assessment in order to improve their
scores.
Proposed Sec. 200.20(c)(3) clarifies that, to consider a student
as a participant for AYP purposes under the State accountability
system, the student must be assessed with assessments that meet the
requirements of section 1111 of Title I of the ESEA and the Title I
regulations. That is, the student must be assessed based on grade-level
achievement standards unless the student qualifies under Sec. 200.1(d)
or proposed Sec. 200.1(e)(2) to be assessed based on alternate or
modified achievement standards, respectively. To determine which
students qualify to be assessed based on alternate or modified
standards, each State must have guidelines that meet the requirements
of Sec. 200.1(f)(1) to instruct its IEP teams. The current Title I
regulations permit only students with the most significant cognitive
disabilities to be assessed based on alternate achievement standards.
These regulations propose to permit a second group of students with
disabilities to be assessed using modified achievement standards.
However, both current and proposed regulations make clear that only
certain students may be appropriately assessed based on either
standard. Therefore, if a State has IEP team guidelines in place that
permit the use of alternate achievement standards for students without
the most significant cognitive disabilities, or if the guidelines are
used to determine that modified achievement standards are appropriate
for students who do not meet the requirements of proposed Sec.
200.1(e)(2), those students would not be considered participants when
determining whether the 95 percent participation requirement has been
met. For example, if a State decides to measure the performance of a
population of students based on modified achievement standards that is
broader than the group of students described in proposed Sec.
200.1(e)(2), only those students who meet the criteria under proposed
Sec. 200.1(e)(2) would be considered participants for AYP purposes.
The proposed amendments to Sec. 200.20(f) would allow a State, in
determining AYP for the students with disabilities subgroup, to include
in that subgroup any student tested in the current year who had exited
special education within the prior two-year period. Students are
identified as a student with a disability based on two factors: first,
that they have a disability, as defined under the IDEA; and second,
that they need special education and related services. Educators and
parents consider it a success when students succeed to such an extent
that special education services are no longer needed. Because students
with disabilities exit this subgroup once special education services
are no longer needed, school assessment results for that subgroup do
not reflect the gains that these students with disabilities have made
in academic achievement or the work that schools and teachers have done
to achieve this success. Recognizing this, the proposed regulations
would allow a State, for purposes of making AYP determinations, to
include the scores of students previously identified as students with
disabilities within the subgroup for up to two years after they no
longer receive IDEA services. States may not include the scores of
these students for reporting purposes under Section 1111(h) apart from
AYP, because it is very important to have information about the
achievement of students with disabilities who are currently receiving
services under the IDEA.
Finally, to further ensure a coordinated administration of Title I
and IDEA, we proposed to define in Sec. 200.103 student with a
disability to mean child with a disability as defined in section 602(3)
of the IDEA.

Part 300

Section 300.160 Participation in Assessments

Statute: Under section 612(a)(16) of the IDEA, a State must ensure
that all children with disabilities are included in all general State
and district-wide assessments with appropriate accommodations and
alternate assessments, if necessary, as indicated in their respective
IEPs. The State (or LEA, for district-wide assessments) must develop
guidelines for the provision of appropriate accommodations and must
develop and implement guidelines for the participation of children with
disabilities in alternate assessments for those children who cannot
participate in the regular assessments, even with accommodations, as
indicated in their IEPs. A State's alternate assessment guidelines must
provide for alternate assessments that are aligned with the State's
challenging academic content and achievement standards and, if the
State has adopted alternate academic achievement standards permitted
under the Title I regulations, measure the achievement of children with
disabilities against those standards.
The State (or LEA, for a district-wide assessment) must make
available to the public data on the participation of children with
disabilities and report to the public, with the same frequency and
detail as it reports on the assessment of nondisabled children,
The number of children with disabilities participating in
regular assessments, and the number of those children who were provided
accommodations to participate in the regular assessment,
The number of children with disabilities participating in
alternate assessments based on grade-level academic achievement
standards, and
The number of children with disabilities participating in
alternate assessments based on alternate academic achievement
standards.

[[Page 74632]]

A State must also report on the performance of children with
disabilities on regular assessments and on alternate assessments,
compared to the achievement of all children.
Reporting on performance is not required if the number of children
with disabilities is not sufficient to yield statistically reliable
information or if reporting that information would reveal personally
identifiable information. The State (or LEA, in the case of a district-
wide assessment) must, to the extent feasible, use universal design
principles in developing and administering any State or district-wide
assessments.
Current regulations: On June 21, 2005, we issued a notice of
proposed rulemaking (NPRM) to implement section 612 and other
provisions of the IDEA, as recently amended and authorized by the
Individuals with Disabilities Education Improvement Act of 2004, Pub.
L. No. 108-446. The IDEA NPRM included proposed language in Sec.
300.160, that would implement the provisions of section 612(a)(16) of
the IDEA regarding assessments, and we indicated in the preamble to the
IDEA NPRM that proposed Sec. 300.160 would replace Sec. Sec. 300.138
and 300.139 of the current regulations. The language we propose in this
notice would supercede the language we proposed in the IDEA NPRM.
Proposed regulations: Proposed Sec. 300.160(a) and (b)(1) would
incorporate the statutory requirements regarding the participation of
children with disabilities in State and district-wide assessments and
the development of guidelines for the provision of appropriate
accommodations. Proposed Sec. 300.160(b)(2) would require that State
(or, in the case of a district-wide assessment, LEA) guidelines require
that each child be validly assessed and identify any accommodations
that would result in an invalid score. Consistent with the changes to
the Title I regulations regarding modified achievement standards,
proposed Sec. 300.160(c) would require that States that have adopted
modified academic achievement standards as permitted under the Title I
regulations have guidelines for the participation of children with
disabilities in assessments based on those modified achievement
standards. Proposed Sec. 300.160(d) would incorporate the statutory
requirements regarding alternate assessment guidelines and requirements
for conducting alternate assessments. It also would clarify that the
requirements for alternate assessments aligned to challenging academic
content standards and academic achievement standards and alternate
assessments based on alternate academic achievement standards apply
only to assessments of student academic progress under Title I of the
ESEA.
Proposed Sec. 300.160(e) would incorporate the statutory
requirements regarding reporting on assessments, would clarify in
proposed Sec. 300.160(e)(1) that reports must include only the number
of children provided accommodations that did not invalidate the score,
and would add a requirement, in proposed Sec. 300.160(e)(4), that
States (or LEAs, in the case of district-wide assessments) also must
report on the number of children with disabilities who are assessed
based on modified academic achievement standards. Proposed Sec.
300.160(f) would adopt the statutory requirement regarding use of
universal design principles in developing and administering
assessments. We are also proposing to revise the authority citation for
part 300 to be consistent with the proposed regulations in the IDEA
NPRM.
Reasons: Under IDEA, States have a duty to ensure that children
with disabilities are validly assessed. The House Committee Report on
the reauthorization of the IDEA emphasizes the importance of ensuring
that accommodation guidelines identify accommodations that do not
affect test validity:

The bill also makes clear that States have an affirmative
obligation to determine what types of accommodations can be made to
assessments while maintaining their reliability and validity * * *.
The Committee is intent on ensuring that each child with a
disability receives appropriate accommodations, but is equally
intent that these accommodations not invalidate the particular
assessment. In developing the guidance on accommodations, the
Committee encourages States to work with test publishers, assessment
experts, special education teachers, and other experts to maximize
the opportunities for children with disabilities to participate in
regular assessments.\3\
---------------------------------------------------------------------------

\3\ H. Rep. No. 108-77, at 97 (2003).

Similarly, the Senate Committee Report acknowledges that
appropriate accommodations to a test will not affect the test's
validity.\4\
---------------------------------------------------------------------------

\4\ S. Rep. No. 108-185, at 30 (2003).
---------------------------------------------------------------------------

Tests administered with accommodations that do not maintain test
validity are not measuring academic achievement under the State's
assessment system. Under the reauthorized IDEA, each IEP now must
indicate ``appropriate accommodations that are necessary to measure the
academic achievement and functional performance of the child on State
and district wide assessments.'' \5\ State and LEA guidelines thus need
to identify, for IEP teams, those accommodations that will maintain
test validity. Similarly, under Title I, the concept of ``appropriate
accommodations'' in the context of assessments must be thought of as
accommodations that are needed by the individual child and that
maintain test validity. The Title I regulations would only consider a
student to be a participant for AYP purposes if his or her assessment
results in a valid score.
---------------------------------------------------------------------------

\5\ 20 U.S.C. 1414(d)(1)(A)(VI)(aa).
---------------------------------------------------------------------------

If a State adopts modified academic achievement standards under
Title I, it also must have guidelines for the participation of children
with disabilities in assessments based on those modified academic
achievement standards. State guidelines will ensure that IEP teams in
that State have information about the range of methods of assessment
under the State assessment system when making assessment decisions for
individual children. Consistency in the assessment and reporting
requirements of children with disabilities under Title I and IDEA will
reinforce NCLB's and IDEA's shared goal of high expectations and
accountability for all students and will avoid confusion among parents,
teachers and administrators.

Executive Order 12866

1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
The potential costs associated with the proposed regulations are
those resulting from statutory requirements and those we have
determined to be necessary for administering the Title I and IDEA
programs effectively and efficiently. Elsewhere in this SUPPLEMENTARY
INFORMATION section under the heading Paperwork Reduction Act of 1995,
we identify and explain burdens specifically associated with
information collection requirements.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this regulatory action, we have determined that the
benefits would justify the costs.
We have also determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.

[[Page 74633]]

Executive Order 12866

Summary of Potential Costs and Benefits

These proposed regulations would not add significantly to the costs
of implementing either the Title I or IDEA programs or alter the
benefits that the Secretary believes will be obtained through
successful implementation.
As noted elsewhere in this notice, the proposed regulations would
provide States with additional flexibility regarding State, LEA, and
school accountability for the achievement of students with disabilities
who qualify to be assessed based on modified achievement standards and
with respect to students with disabilities who no longer receive
special education services. The major benefit of this approach is that
it will permit States to develop and implement modified achievement
standards and aligned assessments for the group of students with
disabilities, for whom, according to recent research, assessments
aligned with modified achievement standards are appropriate, and then
to use the results from those assessments in making AYP determinations.
Implementation of these assessments and standards would be an element
of State and local efforts to improve educational outcomes for this
group of students, consistent with the principles and objectives of
NCLB. The benefits of higher educational achievement and better
outcomes for the students in question are the same as those that are
obtained for students in general.
Economists and other social scientists have found repeatedly that
better education results in major benefits, both economic and non-
economic, not only for the individuals who receive it but for society
as a whole. Nations that invest successfully in better education enjoy
higher levels of growth and productivity, and a high-quality education
is an indispensable element of a strong economy and a successful civil
society. Census Bureau data demonstrate that individual income
increases with the level of educational attainment. More educated
individuals also tend to have higher lifetime earnings and higher
savings rates, and to lead healthier lives.
As the proposed regulations make clear, a State could elect to
develop new modified achievement standards and new assessments to
measure achievement based on those standards, but no State would ever
be required to do so. Thus, the proposed regulations would impose no
direct costs on States, LEAs, or other entities or individuals.
Most implementation costs will stem from the underlying statute,
which requires each State to have academic content and academic
achievement standards and aligned assessments that measure the
achievement of all students, including students with disabilities.
States that decide to adopt modified achievement standards and
implement assessments aligned with those standards will be able to use
funds from Title I, Title VI State Assessment Grants, and IDEA to
finance those activities. The costs of developing and implementing
assessments vary considerably but are modest when compared to the
amounts available under Federal programs that States can draw on for
test development and implementation. In a 2003 report titled, ``Title
I: Characteristics of Tests Will Influence Expenses: Information
Sharing May Help States Realize Efficiencies,'' the Government
Accountability Office found that the State of Massachusetts had spent
approximately $200,000 to develop each of its assessments, while Texas
had spent $60,000 and Maine had spent $22,000 for their assessments.\6\
By comparison, the fiscal year 2005 appropriation for Title I Grants to
Local Educational Agencies was approximately $12.7 billion, and States
could reserve approximately 1 percent of this amount for administrative
expenses, including paying the costs of developing assessments. The
appropriation for IDEA Grants to States was $11.4 billion, and States
could reserve more than $900 million for such activities as the
development and provision of appropriate accommodations and assessments
of children with disabilities under Title I. For State Assessment
Grants, the appropriation was $412 million. The Department believes
that the regulations will not impose a financial burden that States and
LEAs will have to meet from non-Federal sources.
---------------------------------------------------------------------------

\6\ U.S. Government Accountability Office, Report 03-389, pg.
17.
---------------------------------------------------------------------------

For purposes of the Unfunded Mandates Reform Act of 1995, these
regulations do not include a Federal mandate that might result in
increased expenditures by State, local, and tribal governments, or
increased expenditures by the private sector of more than $100 million
in any one year.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 200.13 Adequate yearly progress).
Could the description of the proposed regulations in the
``Supplementary Information'' section of this preamble be more helpful
in making the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

The Secretary certifies that these proposed regulations would not
have a significant economic impact on a substantial number of small
entities.
These provisions require States and LEAs to take certain actions to
improve

[[Page 74634]]

student academic achievement. The Department believes that these
activities will be financed through the appropriations for Title I and
IDEA and that the responsibilities encompassed in the law and
regulations will not impose a financial burden that States and LEAs
will have to meet from non-Federal resources.

Paperwork Reduction Act of 1995

Sections 200.6 and 300.160 contain information collection
requirements. Under the Paperwork Reduction Act of 1995 (44 U.S.C.
3507(d)), the Department of Education has submitted a copy of this
section to the Office of Management and Budget (OMB) for its review.

Collection of Information: Improving the Academic Achievement of the
Disadvantaged and Assistance to States for the Education of Children
With Disabilities

The proposed regulations make changes in reporting requirements
already required under both Title I, Part A, of the ESEA and the IDEA
for States that voluntarily take advantage of the new flexibility.
States already report the number of students with disabilities
participating in assessments and the type of assessments these students
take. The proposed regulations would add one additional category for
students with disabilities who are assessed based on modified academic
achievement standards. States would be required annually to report
separately the number and percentage of students with disabilities
taking assessments based on the modified achievement standards under
Sec. 200.1 and Sec. 300.160(e). Each of the 50 SEAs, Puerto Rico and
the District of Columbia would report this data a single time each
year. However, there is no appreciable burden associated with the
collection as States already report on the number and percentage of
students with disabilities participating in State assessments under
1810-0614 and 1880-0541. The total number of students with disabilities
being reported does not change as a result of this collection. The cost
for this collection also is minimal as it is simply a matter of coding
on the test document, something the SEA is already doing to report the
data under 1810-0614 and 1880-0541. We estimate annual reporting and
recordkeeping burden for this collection of information to average 1
hour for 52 respondents.
If you want to comment on the information collection requirements,
please send your comments to the Office of Information and Regulatory
Affairs, OMB, room 10235, New Executive Office Building, Washington, DC
20503; Attention: Desk Officer for U.S. Department of Education. You
may also send a copy of these comments to the Department's
representative named in the ADDRESSES section of this preamble.
We consider your comments on this proposed collection of
information in--
Deciding whether the proposed collection is necessary for
the proper performance of our functions, including whether the
information will have practical use;
Evaluating the accuracy of our estimate of the burden of
this proposed collection, including the validity of our methodology and
assumptions;
Enhancing the quality, usefulness, and clarity of the
information we collect; and
Minimizing the burden on those who must respond. This
includes exploring the use of appropriate automated, electronic,
mechanical, or other technological collection techniques or other forms
of information technology, e.g., permitting electronic submission of
responses.
OMB is required to make a decision concerning the collection of
information contained in these proposed regulations between 30 and 60
days after publication in the Federal Register. Therefore, to ensure
that OMB gives your comments full consideration, it is important that
OMB receives the comments within 30 days of publication. This does not
affect the deadline for your comments to us on the proposed
regulations.

Intergovernmental Review

This program is not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.

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 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 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 on GPO Access at: http://www.gpoaccess.gov/nara/index.html
.

(Catalog of Federal Domestic Assistance Numbers: 84.010 Improving
Programs Operated by Local Educational Agencies; 84.027 Assistance
to States for the Education of Children with Disabilities)

List of Subjects

34 CFR Part 200

Administrative practice and procedure, Adult education, Children,
Education of children with disabilities, Education of disadvantaged
children, Elementary and secondary education, Eligibility, Family-
centered education, Grant programs--education, Indians education,
Institutions of higher learning, Local educational agencies, Nonprofit
private agencies, Private schools, Public agencies, Reporting and
recordkeeping requirements, State-administered programs, State
educational agencies.

34 CFR Part 300

Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Equal
educational opportunity, Grant programs-- education, Privacy, Private
Schools, Reporting and recordkeeping requirements.

Dated: December 12, 2005.
Margaret Spellings,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary proposes
to amend parts 200 and 300 of title 34 of the Code of Federal
Regulations as follows:

PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED

1. The authority citation for part 200 continues to read as
follows:

Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.

2. Section 200.1 is amended by:
A. Revising paragraphs (a)(1), (a)(2), and (b)(1)(i).
B. Redesignating paragraphs (e) and (f) as paragraphs (g) and (h),
respectively.
C. Adding new paragraphs (e) and (f).
The revisions and additions read as follows:

Sec. 200.1 State responsibilities for developing challenging academic
standards.

(a) * * *
(1) Be the same academic standards that the State applies to all
public schools and public school students in the State, including the
public schools and public school students served under subpart A of
this part, except as

[[Page 74635]]

provided in paragraphs (d) and (e) of this section;
(2) Include the same knowledge, skills, and levels of achievement
expected of all students, except as provided in paragraphs (d) and (e)
of this section; and
* * * * *
(b) * * *
(1) * * *
(i) Specify what all students are expected to know and be able to
do, except as provided in paragraphs (d) and (e) of this section;
* * * * *
(e) Modified academic achievement standards. (1) For students with
disabilities under section 602(3) of the Individuals with Disabilities
Education Act (IDEA) who meet the State's criteria under paragraph
(e)(2) of this section, a State may, through a documented and validated
standards-setting process, define modified academic achievement
standards, provided those standards--
(i) Are aligned with the State's academic content standards for the
grade in which the student is enrolled, although the modified academic
achievement standards may reflect reduced breadth or depth of grade-
level content;
(ii) Provide access to grade-level curriculum; and
(iii) Do not preclude a student from earning a regular high-school
diploma.
(2) A State must include the following criteria in the guidelines
for defining which students with disabilities are eligible to be
assessed based on modified academic achievement standards that the
State establishes under paragraph (f) of this section:
(i) The student's disability has precluded the student from
achieving grade-level proficiency, as demonstrated by such objective
evidence as--
(A) The State's assessments described in Sec. 200.2; or
(B) Other assessment data that can validly document academic
achievement.
(ii)(A) The student's progress in response to high-quality
instruction, including special education and related services designed
to address the student's individual needs, is such that the student is
not likely to achieve grade-level proficiency within the year covered
by the student's individualized education program (IEP).
(B) The determination of the student's progress must be based on
multiple measurements, over a period of time, that are valid for the
subjects being assessed.
(iii) The student is receiving instruction in the grade-level
curriculum for the subjects in which the student is being assessed.
(3) A student eligible to be assessed based on modified academic
achievement standards may be in any of the 13 disability categories
listed in the IDEA.
(4) A student may be assessed based on modified academic
achievement standards in one or more subjects for which assessments are
administered under Sec. 200.2.
(5) The decision to assess a student based on modified academic
achievement standards must be reviewed annually by the student's IEP
team to ensure that those standards remain appropriate.
(f) State guidelines. If a State defines alternate or modified
academic achievement standards under paragraph (d) or (e) of this
section, the State must--
(1) Establish and ensure implementation of clear and appropriate
guidelines for IEP teams to apply in determining--
(i) Students with the most significant cognitive disabilities who
will be assessed based on alternate academic achievement standards; and
(ii) Students with disabilities who meet the criteria in Sec.
200.1(e)(2) who will be assessed based on modified academic achievement
standards; and
(2) Ensure that parents of students selected for assessment based
on alternate or modified academic achievement standards under the
guidelines in this paragraph (f) are informed that their child's
achievement will be measured based on alternate or modified academic
achievement standards.
* * * * *
3. Section 200.6 is amended by:
A. Revising paragraph (a)(1) and (a)(2)(iii).
B. Adding paragraphs (a)(3) and (a)(4).
The revisions and additions read as follows:

Sec. 200.6 Inclusion of all students.

* * * * *
(a) Students eligible under IDEA and Section 504. (1) Appropriate
accommodations. (i) A State's academic assessment system must provide--
(A) For each student with a disability, as defined under section
602(3) of the IDEA, appropriate accommodations that the student's IEP
team determines are necessary to measure the academic achievement of
the student relative to the State's academic content and academic
achievement standards for the grade in which the student is enrolled,
consistent with Sec. 200.1(b)(2), (b)(3), and (c); and
(B) For each student covered under section 504 of the
Rehabilitation Act of 1973, as amended (Section 504), appropriate
accommodations that the student's placement team determines are
necessary to measure the academic achievement of the student relative
to the State's academic content and academic achievement standards for
the grade in which the student is enrolled, consistent with Sec.
200.1(b)(2), (b)(3), and (c).
(ii) A State must--
(A) Develop, disseminate information on, and promote the use of
appropriate accommodations to increase the number of students with
disabilities who are tested against grade-level academic achievement
standards; and
(B) Ensure that regular and special education teachers and other
appropriate staff know how to administer assessments, including making
appropriate use of accommodations, for students with disabilities and
students covered under Section 504.
(2) * * *
(iii) If a State permits the use of alternate assessments that
yield results based on alternate academic achievement standards, the
State must document that students with the most significant cognitive
disabilities are, to the maximum extent possible, included in the
general curriculum.
(3) Assessments that measure modified academic achievement
standards. A State may use the assessments described in paragraph
(a)(1) or (2) of this section to assess students with disabilities
based on modified academic achievement standards pursuant to Sec.
200.1(e)(1), provided the assessments--
(i) Are aligned with the State's grade-level academic content
standards;
(ii) Yield results that measure the achievement of those students
separately in reading/language arts and mathematics relative to the
modified academic achievement standards;
(iii) Meet the requirements in Sec. Sec. 200.2 and 200.3,
including the requirements relating to validity, reliability, and high
technical quality; and
(iv) Fit coherently in the State's overall assessment system under
Sec. 200.2.
(4) Reporting. A State must report separately, under section
1111(h)(4) of the Act, the number and percentage of students with
disabilities taking--
(i) Regular assessments described in Sec. 200.2;
(ii) Regular assessments with accommodations;

[[Page 74636]]

(iii) Assessments based on the modified academic achievement
standards described in Sec. 200.1(e).
(iv) Alternate assessments based on the grade-level academic
achievement standards described in Sec. 200.1(c); and
(v) Alternate assessments based on the alternate academic
achievement standards described in Sec. 200.1(d).
* * * * *
4. In Sec. 200.7, redesignate paragraph (a)(2) as (a)(2)(i) and
add a new paragraph (a)(2)(ii) to read as follows:

Sec. 200.7 Disaggregation of data.

(a) * * *
(2) * * *
(ii) A State may not establish a different minimum number of
students under paragraph (a)(2)(i) of this section for separate
subgroups under Sec. 200.13(b)(7)(ii).
* * * * *
5. Section 200.13 is amended by:
A. Revising paragraph (c).
B. Adding an appendix at the end of the section.
The revisions and addition read as follows:

Sec. 200.13 Adequate yearly progress in general.

* * * * *
(c)(1) In calculating AYP for schools, LEAs, and the State, a State
must, consistent with Sec. 200.7(a), include the scores of all
students with disabilities.
(2) With respect to scores based on alternate or modified academic
achievement standards, a State may include--
(i) The proficient and advanced scores of students with the most
significant cognitive disabilities based on the alternate academic
achievement standards described in Sec. 200.1(d), provided that the
number of those scores at the LEA and at the State levels, separately,
does not exceed 1.0 percent of all students in the grades assessed in
reading/language arts and in mathematics; and
(ii) The proficient and advanced scores of students with
disabilities based on the modified academic achievement standards
described in Sec. 200.1(e)(1), provided that the number of those
scores at the LEA and at the State levels, separately, does not exceed
2.0 percent of all students in the grades assessed in reading/language
arts and in mathematics.
(3) A State's or LEA's number of proficient and advanced scores on
the modified academic achievement standards described in Sec.
200.1(e)(1) may exceed 2.0 percent of all students in the grades
assessed if the number of proficient and advanced scores on the
alternate academic achievement standards described in Sec. 200.1(d) is
less than 1.0 percent, provided the number of proficient and advanced
scores based on modified and alternate academic achievement standards
combined does not exceed 3.0 percent of all students in the grades
assessed.
(4) A State may not request from the Secretary an exception
permitting it to exceed the caps on proficient and advanced scores
based on alternate or modified academic achievement standards under
paragraph (c)(2) and (3) of this section.
(5)(i) A State may grant an exception to an LEA permitting it to
exceed the 1.0 percent cap on proficient and advanced scores based on
the alternate academic achievement standards described in paragraph
(c)(2)(i) of this section only if--
(A) The LEA demonstrates that the incidence of students with the
most significant cognitive disabilities exceeds 1.0 percent of all
students in the combined grades assessed;
(B) The LEA explains why the incidence of such students exceeds 1.0
percent of all students in the combined grades assessed, such as
school, community, or health programs in the LEA that have drawn large
numbers of families of students with the most significant cognitive
disabilities, or that the LEA has such a small overall student
population that it would take only a few students with such
disabilities to exceed the 1.0 percent cap; and
(C) The LEA documents that it is implementing the State's
guidelines under Sec. 200.1(f).
(ii) The State must review regularly whether an LEA's exception to
the 1.0 percent cap is still warranted.
(6) A State may not grant an exception to an LEA to exceed the 2.0
percent cap on proficient and advanced scores based on modified
academic achievement standards under paragraph (c)(2)(ii) of this
section.
(7) In calculating AYP, if the percentage of proficient and
advanced scores based on alternate or modified academic achievement
standards under Sec. 200.1(d) or (e) exceeds the caps in paragraph (c)
of this section at the State or LEA level, the State must do the
following:
(i) Consistent with Sec. 200.7(a), include all scores based on
alternate and modified academic achievement standards.
(ii) Count as non-proficient the proficient and advanced scores
that exceed the caps in paragraph (c) of this section.
(iii) Determine which proficient and advanced scores to count as
non-proficient in schools and LEAs responsible for students who are
assessed based on alternate or modified academic achievement standards.
(iv) Include non-proficient scores that exceed the caps in
paragraph (c) of this section in each applicable subgroup at the
school, LEA, and State level.
(v) Ensure that parents of a child who is assessed based on
alternate or modified academic achievement standards are informed of
the actual academic achievement levels of their child.
* * * * *

Appendix to Sec. 200.13--When Can a State or LEA Exceed the 1% and 2%
Caps?

The following table provides a summary of the circumstances in
which a State or LEA may exceed the 1% and 2% caps described in Sec.
200.13. [FEDREG][VOL]*[/VOL][NO]*[/NO][DATE]*[/
DATE][PRORULES][PRORULE][PREAMB][AGENCY]*[/AGENCY][SUBJECT]*[/SUBJECT]

When Can a State or LEA Exceed the 1% and 2% Caps?
----------------------------------------------------------------------------------------------------------------
Alternate and Modified
Alternate achievement Modified Achievement Achievement standards--
Standards--1% Cap Standards--2% Cap 3% Cap
----------------------------------------------------------------------------------------------------------------
1. State............................. Never.................. Only if State is below Never.
1% cap, but cannot
exceed 3% cap.
2. LEA............................... Only if granted an Only if LEA is below 1% Only if granted an
exeception by the SEA. cap. If not below 1% exception to the 1%
cap, never. cap by the SEA, and
only by the amount of
the exception.
----------------------------------------------------------------------------------------------------------------

[[Page 74637]]

6. Section 200.20 is amended by:
A. Revising the introductory text of paragraph (a)(1).
B. Revising the introductory text of paragraph (b).
C. Revising the introductory text of paragraph (c)(1).
D. Revising paragraph (c)(3).
E. Adding a new paragraph (f).
The revisions and addition read as follows:

Sec. 200.20 Making adequate yearly progress.

* * * * *
(a)(1) A school or LEA makes AYP if, consistent with paragraph (f)
of this section--
* * * * *
(b) If students in any group under Sec. 200.13(b)(7) in a school
or LEA do not meet the State's annual measurable objectives under Sec.
200.18, the school or LEA makes AYP if, consistent with paragraph (f)
of this section--
* * * * *
(c)(1) A school or LEA makes AYP if, consistent with paragraph (f)
of this section--
* * * * *
(3) To count a student who is assessed based on alternate or
modified academic achievement standards described in Sec. 200.1(d) or
(e) as a participant for purposes of meeting the requirements of this
paragraph, the State must have, and ensure that its LEAs adhere to,
guidelines that meet the requirements of Sec. 200.1(f).
* * * * *
(f)(1) In determining AYP for the subgroup of students with
disabilities, a State may include, for a period of up to two years, the
scores of students who were previously identified under section 602(3)
of the IDEA but who have exited from special education services.
(2) If a State, in determining AYP for the subgroup of students
with disabilities, includes the scores of the students described in
paragraph (f)(1) of this section, the State is not required to include
those students in the students with disabilities subgroup in
determining if the number of students with disabilities is sufficient
to yield statistically reliable information under Sec. 200.7(a).
(3) For the purpose of reporting information on report cards under
section 1111(h) of the Act--
(i) A State may include the scores of the former students with
disabilities described in paragraph (f)(1) of this section as part of
the students with disabilities subgroup for the purpose of reporting
AYP at the State level under section 1111(h)(1)(C)(ii) of the Act;
(ii) An LEA may include the scores of the former students with
disabilities described in paragraph (f)(1) of this section as part of
the students with disabilities subgroup for the purpose of reporting
AYP at the LEA and school levels under section 1111(h)(2)(B) of the
Act; but
(iii) A State or LEA may not include the scores of former students
with disabilities as part of the students with disabilities subgroup in
reporting any other information under section 1111(h) of the Act.
7. Section 200.103 is amended by adding a new paragraph (c). The
addition reads as follows:

Sec. 200.103 Definitions.

* * * * *
(c) Student with a disability means child with a disability, as
defined in section 602(3) of the IDEA.

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES

8. The authority citation for part 300 is revised to read as
follows:

Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, unless otherwise
noted.

9. Add a new Sec. 300.160 to read as follows:

Sec. 300.160 Participation in assessments.

(a) General. A State must ensure that all children with
disabilities are included in all general State and district-wide
assessment programs, including assessments described under section 1111
of the ESEA, 20 U.S.C. 6311, with appropriate accommodations and
alternate assessments, if necessary, as indicated in their respective
IEPs.
(b) Accommodation guidelines. (1) A State (or, in the case of a
district-wide assessment, an LEA) must develop guidelines for the
provision of appropriate accommodations.
(2) The State's (or, in the case of a district-wide assessment, the
LEA's) guidelines must --
(i) Require that each child be validly assessed; and
(ii) Identify valid accommodations.
(c) Assessments based on modified academic achievement standards.
If a State has adopted modified academic achievement standards
permitted in 34 CFR 200.1(e), the State must have guidelines for the
participation of children with disabilities in assessments based on
those modified academic achievement standards.
(d) Alternate assessments. (1) A State (or, in the case of a
district-wide assessment, an LEA) must develop and implement alternate
assessments and guidelines for the participation of children with
disabilities in alternate assessments for those children who cannot
participate in regular assessments, even with accommodations as
indicated in their respective IEPs, as provided in paragraph (a) of
this section.
(2) The alternate assessments and guidelines in paragraph (d)(1) of
this section must provide for alternate assessments that, in the case
of assessments of student academic progress under Title I of the ESEA--
(i) Are aligned with the State's challenging academic content
standards and challenging student academic achievement standards; and
(ii) If the State has adopted alternate academic achievement
standards permitted in 34 CFR Sec. 200.1(d), measure the achievement
of children with disabilities against those standards.
(e) Reports. An SEA (or, in the case of a district-wide assessment,
an LEA) must make available to the public, and report to the public
with the same frequency and in the same detail as it reports on the
assessment of nondisabled children, the following:
(1) The number of children with disabilities participating in
regular assessments, and the number of those children who were provided
accommodations (that did not result in an invalid score) in order to
participate in those assessments.
(2) The number of children with disabilities participating in
alternate assessments described in paragraph (d)(2)(i) of this section.
(3) The number of children with disabilities participating in
alternate assessments described in paragraph (d)(2)(ii) of this
section.
(4) The number of children with disabilities who are assessed based
on modified academic achievement standards described in paragraph (c)
of this section.
(5) The performance results of children with disabilities on
regular assessments and on alternate assessments if--

[[Page 74638]]

(i) The number of children participating in those assessments is
sufficient to yield statistically reliable information; and
(ii) Reporting that information will not reveal personally
identifiable information about an individual student on those
assessments.
(f) Universal design. An SEA (or, in the case of a district-wide
assessment, an LEA) must, to the extent possible, use universal design
principles in developing and administering any assessments under this
section.

(Authority: 20 U.S.C. 1412(a)(16))

[FR Doc. 05-24083 Filed 12-14-05; 8:45 am]

BILLING CODE 4000-01-P