[Federal Register: April 9, 2007 (Volume 72, Number 67)]
[Rules and Regulations]
[Page 17747-17781]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap07-18]
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Part IV
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); Final 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: Final regulations.
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SUMMARY: The Secretary amends 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 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 regulations as
the IDEA program). These regulations provide States with additional
flexibility regarding State, local educational agency (LEA), and school
accountability for the achievement of a small group of students with
disabilities whose progress is such that, even after receiving
appropriate instruction, including special education and related
services designed to address the students' individual needs, the
students' individualized education program (IEP) teams (IEP Teams) are
reasonably certain that the students will not achieve grade-level
proficiency within the year covered by the students' IEPs.
DATES: These regulations are effective May 9, 2007.
FOR FURTHER INFORMATION CONTACT: Regarding Part 200, 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 3W202, FB-6, Washington,
DC 20202-6132. Telephone: (202) 260-0826. Regarding Part 300, Alexa
Posny, Ph.D., Director, Office of Special Education Programs, Office of
Special Education and Rehabilitative Services, U.S. Department of
Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC
20202-2641. Telephone: (202) 245-7459, Ext. 3.
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 one of the contact persons listed in the
preceding paragraph.
SUPPLEMENTARY INFORMATION: These regulations amend regulations in 34
CFR part 200, implementing certain provisions of Title I, Part A of the
ESEA, as amended by NCLB, which are designed to help disadvantaged
children meet high academic standards. They also amend regulations in
34 CFR part 300, implementing programs for students with disabilities
under Part B of the IDEA. On December 15, 2005, the Secretary published
a notice of proposed rulemaking (NPRM) for these programs in the
Federal Register (70 FR 74624).
These regulations build upon flexibility that currently is
available under the Title I regulations in 34 CFR part 200 for
measuring the achievement of students 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 academic achievement standards in measuring adequate yearly
progress (AYP), subject to a cap of 1.0 percent of all students
assessed at the State and district levels. Since those regulations were
published, the experiences of many States, as well as recent research,
indicate that in addition to students with the most significant
cognitive disabilities, there is a small group of students whose
disability has precluded them from achieving grade-level proficiency
and whose progress is such that they will not reach grade-level
achievement standards in the same time frame as other students.
Currently, these students must take either a grade-level assessment or
an alternate assessment based on alternate academic achievement
standards. Neither of these options provides an accurate assessment of
what these students know and can do. A grade-level assessment is too
difficult and, therefore, does not provide data about a student's
abilities or information that would be helpful to guide instruction. An
alternate assessment based on alternate academic achievement standards
is too easy and is not intended to assess a student's achievement
across the full range of grade-level content. Such an assessment,
therefore, would not provide teachers and parents with information to
help these students progress toward grade-level achievement.
These regulations permit States to develop an assessment that is
appropriately challenging for this group of students as part of their
State accountability and assessment systems under Title I of the ESEA,
as amended by NCLB. This assessment is based on modified academic
achievement standards that cover grade-level content. The requirement
that modified academic achievement standards be aligned with grade-
level content standards is important--in order for these students to
have an opportunity to achieve at grade level, they must have access
to, and instruction in, grade-level content. The regulations include a
number of safeguards to ensure that students assessed based on modified
academic achievement standards have access to grade-level content so
that they can work toward grade-level achievement, such as the
requirement that their IEPs include goals that are based on grade-level
content standards and provide for monitoring of the students' progress
in achieving those goals. In addition to ensuring that students with
disabilities are appropriately assessed, these regulations also will
give teachers and schools credit for the work that they do with these
students to help them progress toward grade-level achievement.
Major Concepts Regarding Modified Academic Achievement Standards in
These Regulations
What are modified academic achievement standards? The NPRM
described modified academic achievement standards as academic
achievement standards aligned with grade-level content standards, but
modified in such a manner that they reflect reduced breadth or depth of
grade-level content. Based on the comments we received, it was clear
that this language was confusing and did not sufficiently convey our
intent that only the academic achievement standards for students are to
be modified, not the content standards on which those modified academic
achievement standards are based. The final regulations make clear that
modified academic achievement standards are challenging for eligible
students, but are a less rigorous expectation of mastery of grade-level
academic content standards. Notably, modified academic achievement
standards must be based on a State's grade-level academic content
standards for the grade in which an eligible student with disabilities
is
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enrolled. In other words, a State's academic content standards are not
what are modified. The expectations for whether a student has mastered
those standards, however, may be less difficult than grade-level
academic achievement standards.
The characteristics of modified academic achievement standards are
the same as those described in Sec. 200.1(c) of the Title I
regulations for grade-level academic achievement standards. That is,
they must be aligned with a State's academic content standards,
describe at least three levels of achievement, include descriptions of
the competencies associated with each achievement level, and include
assessment scores (cut scores) that differentiate among the achievement
levels. A State must provide a description of the rationale and
procedures used to determine each achievement level as part of the
Department's peer review of Statewide assessment systems under Title I
of the ESEA.
Which students with disabilities are eligible to be assessed based
on modified academic achievement standards? The final regulations
reflect our intent that students assessed based on modified academic
achievement standards are not limited to students with disabilities
achieving close to grade level, may be in any of the disability
categories listed in the IDEA, and may represent a wide spectrum of
abilities. The comments we received indicated that the proposed
requirement that a student receive direct instruction in grade-level
content in order to be eligible for an alternate assessment based on
modified academic achievement standards was mistakenly understood to
mean that only students achieving close to grade level could be
assessed based on modified academic achievement standards. That was not
our intent. We included this requirement because we believe that all
students with disabilities, including students assessed based on
modified academic achievement standards, should have access to grade-
level content. This is consistent with the provisions in the IDEA that
focus on ensuring that all students with disabilities have access to
the general curriculum (See, e.g., section 614(d)(1)(A)(i)(II)(aa) and
(IV)(bb)).
However, in order to clarify the policy and limit further
misunderstanding, we have removed the requirement that a student
receive direct instruction in grade-level content in order to be
eligible for an alternate assessment based on modified academic
achievement standards from the final regulations and replaced it with a
requirement that if the IEPs of these students include goals for a
subject assessed under Sec. 200.2, those goals must be based on grade-
level content standards. We believe this will help ensure that students
have access to grade-level content before they are assessed based on
modified academic achievement standards and that they receive
instruction in grade-level content after they are assessed based on
modified academic achievement standards. Such an approach focuses the
IEP Team and the student on grade-level content standards and on the
student's current achievement relative to those standards. We believe
that instruction in grade-level content is critical to ensure that
students who participate in alternate assessments based on modified
academic achievement standards are prepared to demonstrate their
mastery of grade-level content and can move closer to grade-level
achievement. The final regulations intentionally do not prescribe which
students with disabilities are eligible to be assessed based on
modified academic achievement standards; that is the determination of a
student's IEP Team, which includes the student's parents, based on
criteria developed by the State as part of the State's guidelines for
IEP Teams. Those criteria must include, but are not limited to, the
following:
(1) There must be objective evidence demonstrating that the
student's disability has precluded the student from achieving grade-
level proficiency in the content area assessed. Such evidence may
include the student's performance on State assessments or other
assessments that can validly document academic achievement;
(2) The student's progress to date in response to appropriate
instruction, including special education and related services designed
to address the student's individual needs, is such that, even if
significant growth occurs, the IEP Team is reasonably certain that the
student will not achieve grade-level proficiency within the year
covered by the student's IEP. The IEP Team must use multiple valid
measures of the student's progress over time in making this
determination; and
(3) If the student's IEP includes goals for a subject assessed
under Sec. 200.2, those goals must be based on the academic content
standards for the grade in which the student is enrolled.
In addition to requiring that the IEP of a student assessed based
on modified academic achievement standards include goals that are based
on academic content standards, the final regulations include safeguards
to ensure that a student assessed based on modified academic
achievement standards has the opportunity to learn grade-level content.
Specifically, the final regulations in Sec. 200.1(f)(2) require a
State to (a) establish and monitor implementation of clear and
appropriate guidelines for an IEP Team to apply in developing and
implementing the IEP of a student assessed based on modified academic
achievement standards; (b) ensure that a student who takes an alternate
assessment based on modified academic achievement standards has access
to the curriculum, including instruction, for the grade in which the
student is enrolled; and (c) ensure that a student who takes an
alternate assessment based on modified academic achievement standards
is not precluded from attempting to complete the requirements, as
defined by the State, for a regular high school diploma.
To help IEP Teams make appropriate decisions and ensure that
students are not inappropriately assessed based on modified academic
achievement standards, Sec. 200.1(f)(1)(iii) requires a State to
provide IEP Teams with a clear explanation of the differences between
assessments based on grade-level academic achievement standards and
those based on modified or alternate academic achievement standards
(including any effects of State and local policies on the student's
education resulting from taking an alternate assessment based on
alternate or modified academic achievement standards). Under Sec.
200.1(f)(1)(iv), a State also must ensure that the parents of a student
selected to be assessed based on alternate or modified academic
achievement standards are informed that their child's achievement will
be measured based on alternate or modified academic achievement
standards.
The assumption underlying these regulations is that many students
eligible to be assessed based on modified academic achievement
standards are in regular classrooms with children of the same
chronological age and are receiving instruction in grade-level
curriculum; however, because of these students' disabilities, their IEP
Teams are reasonably certain they will not achieve grade-level
proficiency within the year covered by their IEPs. In most schools,
students assessed based on modified academic achievement standards will
represent a small portion of students with disabilities. The final
regulations in Sec. 200.13(c)(2)(ii) provide that up to 2.0 percent
(approximately 20 percent of students with disabilities) of the
proficient and advanced scores from alternate assessments based on
modified
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academic achievement standards may be included in calculating AYP.
What assessments measure performance based on modified academic
achievement standards? Because a student eligible to be assessed based
on modified academic achievement standards must have access to a
curriculum based on the State's academic content standards for the
grade in which the student is enrolled, that student must be assessed
with a measure that is also based on those same grade-level academic
content standards, although the assessment may be less difficult than
the State's regular assessment. An out-of-level assessment cannot be
used as an alternate assessment based on modified academic achievement
standards because, by definition, an out-of-level assessment does not
cover the same content as an assessment based on grade-level academic
content standards.
The final regulations in Sec. 200.6(a)(3) make clear that a State
may develop a new alternate assessment based on modified academic
achievement standards or adapt its general assessment. Consistent with
Sec. 200.6(a)(3)(ii), an alternate assessment based on modified
academic achievement standards must cover the same grade-level content
as the regular assessment. Beyond this essential requirement, a State
may employ a variety of strategies to design an alternate assessment
based on modified academic achievement standards. For example, it might
replace the most difficult items on a State's general assessment with
simpler items while retaining coverage of the State's academic content
standards or modify the same items that appear on the grade-level
assessment by eliminating one of the incorrect answers in a multiple
choice test. Alternatively, a State might choose to develop a unique
assessment based on grade-level academic content standards that
provides flexibility in the presentation of test items, for example, by
using technology to allow students to access items via print, spoken,
and pictorial form. Or States may permit students to respond to test
items by dictating responses or using mathematics manipulatives to
illustrate conceptual or procedural knowledge. Regardless of whether a
State chooses to construct a unique assessment or to adapt its general
assessment, any alternate assessment based on modified academic
achievement standards must meet the requirements for high technical
quality set forth in Sec. Sec. 200.2(b) and 200.3(a)(1) (including
validity, reliability, accessibility, objectivity, and consistency with
nationally recognized professional and technical standards) and be
based on modified academic achievement standards that have been
developed through a documented and validated standards-setting process
that includes broad stakeholder input, consistent with new Sec.
200.1(e)(1)(iv).
Other Provisions Addressed in These Regulations
These regulations also finalize several other provisions under
Title I and the IDEA that were proposed in the NPRM, including the
following:
Minimum group size. The final Title I regulations in Sec.
200.7(a)(2)(ii) prohibit a State, beginning in the 2007-08 school year,
from establishing a different minimum number (group size or ``n size'')
of students across the required AYP subgroups for purposes of
calculating AYP. This requirement applies to all States, not just those
that choose to develop and administer an alternate assessment based on
modified academic achievement standards.
Multiple test administrations. With the removal of current Sec.
200.20(c)(3), States will now be permitted to administer their State
assessments (including regular and alternate assessments) more than
once and include the student's best score in determining AYP.
Guidelines for IEP Teams. Title I requires a State to administer
assessments that are valid and reliable for the purposes for which they
are used. Accordingly, students, including students with disabilities,
who are assessed with assessments that are not valid and reliable are
not ``participants'' for purposes of calculating participation rates in
determining AYP. The final IDEA regulations that are included in these
regulations provide that a State's (or in the case of district-wide
assessments, an LEA's) guidelines require each child to be validly
assessed and identify, for each assessment, any accommodations that
would result in an invalid score. Consistent with Title I, a student
with disabilities must receive a valid score in order to be counted as
a participant under the IDEA.
The final Title I regulations in Sec. 200.1(f) place
responsibility on a State to develop guidelines for IEP Teams and in
new Sec. 200.20(c)(3) make clear that, to count a student who is
assessed based on alternate or modified academic achievement standards
as a participant for purposes of meeting the 95 percent assessment
participation requirement, a State must have guidelines for IEP Teams
to use to determine appropriately which students should participate in
alternate assessments based on alternate or modified academic
achievement standards that meet the requirements of these regulations.
Former students with disabilities. The final regulations in Sec.
200.20(f)(2) provide additional flexibility in calculating AYP for the
students with disabilities subgroup. Under the final regulations, a
State may include, for a period of up to two years, the scores of
students who were previously identified with a disability under the
IDEA but who no longer receive special education services. A State,
however, 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 (e.g., participation rates) under Title
I.
Assessment of students with disabilities under the IDEA. To ensure
a coordinated administration of the IDEA and Title I programs, the
final IDEA regulations on assessment in Sec. 300.160, which are
included in this regulations package, incorporate provisions regarding
modified academic achievement standards that are consistent with the
changes to the regulations under Title I of the ESEA. In addition, the
final IDEA regulations provide that a State's (or in the case of a
district-wide assessment, an LEA's) guidelines must require each child
to be validly assessed and must identify, for each assessment,
accommodations that would result in an invalid score. Consistent with
Title I, these final regulations also provide in Sec. 300.160(f)(1)
that a student taking an assessment with an accommodation that
invalidates the score would not be reported as a participant under the
IDEA. This coordination of the regulations for the IDEA and Title I
programs should 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.
Major Changes in the Regulations
The following is a summary of the major substantive changes in
these final regulations from the regulations proposed in the NRPM (the
rationale for each of these changes is discussed in the Analysis of
Comments and Changes section elsewhere in this preamble).
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
State Responsibilities for Developing Challenging Academic Standards
(Sec. 200.1(a))
Section 200.1(a)(1) and (a)(2) have been revised to
clarify that the same
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academic content standards apply to all public schools and all public
school students and that the authority to develop alternate and
modified academic achievement standards for eligible students with
disabilities does not apply to academic content standards. Proposed
paragraph (b)(1)(i) is redundant with these changes and has been
removed.
Modified Academic Achievement Standards (Sec. 200.1(e))
Section 200.1(e)(1), which defines modified academic
achievement standards for a State that chooses to develop such
standards, has been revised as follows:
(1) Paragraph (e)(1) of Sec. 200.1, which permits a State to
develop modified academic achievement standards for students with
disabilities, has been changed by deleting the reference to a
documented and validated standards-setting process. The requirement for
a State to use a documented and validated standards-setting process has
been clarified and expanded in new Sec. 200.1(e)(1)(iv).
(2) Proposed paragraph (e)(1)(i) of Sec. 200.1, which requires
modified academic achievement standards to be aligned with a State's
academic content standards for the grade in which the student is
enrolled, would have permitted modified academic achievement standards
to reflect reduced breadth or depth of grade level content. The
requirement has been changed by deleting the reference to reduced
breadth or depth.
(3) A new paragraph (e)(1)(ii) has been added to Sec. 200.1 to
specify that modified academic achievement standards must be
challenging for eligible students, but may be less difficult than
grade-level academic achievement standards.
(4) Proposed paragraph (e)(1)(ii) of Sec. 200.1, which would have
required modified academic achievement standards to provide access to
grade-level curriculum, has been removed. This requirement has been
incorporated into the requirements for State guidelines in new Sec.
200.1(f)(2)(iii). In addition, we have clarified that grade-level
curriculum includes instruction.
(5) A new paragraph (e)(1)(iii) has been added to Sec. 00.1
indicating that modified academic achievement standards, like grade-
level academic achievement standards, must include at least three
achievement levels.
(6) Proposed paragraph (e)(1)(iii) of Sec. 200.1, which would have
required that modified academic achievement standards not preclude a
student from earning a high school diploma, has been removed. A similar
provision has been included in the requirements for State guidelines in
new Sec. 200.1(f)(2)(iv).
(7) A new Sec. 200.1(e)(1)(iv) has been added requiring modified
academic achievement standards to be developed through a documented and
validated standards-setting process that includes broad stakeholder
input, including persons knowledgeable about a State's academic content
standards and experienced in standards setting and special educators
who are most knowledgeable about children with disabilities.
Section 200.1(e)(2), regarding the criteria for IEP Teams
to use in determining whether a student is eligible to be assessed
based on modified academic achievement standards, has been revised to
make the following changes:
(1) The introduction to Sec. 200.1(e)(2) has been changed to
clarify that a State may include criteria, in addition to those listed
in paragraphs (e)(2)(i) through (e)(2)(iii), for IEP Teams to use in
determining whether a student should be assessed based on modified
academic achievement standards.
(2) Paragraph (e)(2)(ii) of Sec. 200.1, regarding the guidelines
that a State must establish for IEP Teams, has been changed by (A)
removing the requirement that IEP Teams consider a student's progress
in response to high-quality instruction and replacing it with a
requirement that IEP Teams consider a student's progress to date in
response to appropriate instruction; and (B) removing the requirement
that IEP Teams determine that a student is not likely to achieve grade-
level proficiency within the year covered by the student's IEP, and
replacing it with a requirement that IEP Teams be reasonably certain
that, even if significant growth occurs, the student will not achieve
grade-level proficiency within the year covered by the student's IEP.
(3) A new paragraph (e)(2)(iii) has been added to Sec. 200.1
requiring that if a student assessed based on modified academic
achievement standards has an IEP that includes goals for a subject
assessed under Sec. 200.2, those goals must be based on the academic
content standards for the grade in which the student is enrolled.
Proposed Sec. 200.1(e)(2)(iii), which would have required, as an
eligibility condition, that a student be receiving instruction in the
grade-level curriculum for the subjects in which the student is
assessed, has been removed.
Proposed Sec. 200.1(e)(3), which would have permitted a
student assessed based on modified academic achievement standards to be
in any of the 13 disability categories listed in the IDEA, has been
removed. This provision has been incorporated into the requirements for
State guidelines in new Sec. 200.1(f)(1)(ii).
Proposed Sec. 200.1(e)(4), which would have provided that
a student could be assessed based on modified academic achievement
standards in one or more subjects for which assessments are
administered under Title I, has been removed. This provision has been
revised and incorporated into the requirements for State guidelines in
new Sec. 200.1(f)(1)(i)(B) (proposed Sec. 200.1(f)(1)(ii)).
Proposed Sec. 200.1(e)(5), which would have required the
decision to assess a student based on modified academic achievement
standards to be reviewed annually by a student's IEP Team, has been
removed. This requirement has been revised and incorporated into the
requirements for State guidelines in new Sec. 200.1(f)(2)(v).
State Guidelines (Sec. 200.1(f))
Proposed Sec. 200.1(f), regarding the requirements for
State guidelines, has been restructured into new paragraphs (f)(1) and
(f)(2). New paragraph (f)(1) includes the requirements for State
guidelines for students who are assessed based on either alternate or
modified academic achievement standards. New paragraph (f)(2) includes
additional requirements for State guidelines for students who are
assessed based on modified academic achievement standards.
Proposed Sec. 200.1(f)(1), which would have required a
State to establish and ensure implementation of clear and appropriate
guidelines for IEP Teams to determine if students are to be assessed
based on alternate or modified academic achievement standards, has been
expanded to require a State to establish and monitor implementation of
clear and appropriate guidelines for IEP Teams. Proposed Sec. Sec.
200.1(f)(1) and 200.1(f)(1)(i) have been redesignated as new Sec. Sec.
200.1(f)(1)(i) and 200.1(f)(1)(i)(A), respectively.
Proposed Sec. 200.1(f)(1)(ii), which requires a State to
establish guidelines for IEP Teams to use in determining if students
are to be assessed based on modified academic achievement standards,
has been revised to clarify that students may be assessed based on
modified academic achievement standards in one or more of the subjects
tested under Title I. Proposed Sec. 200.1(f)(1)(ii) has been
redesignated as new Sec. 200.1(f)(1)(i)(B).
A new Sec. 200.1(f)(1)(ii) has been added to require a
State to inform IEP Teams that students eligible to be
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assessed based on alternate or modified academic achievement standards
may be from any of the disability categories listed in the IDEA.
A new Sec. 200.1(f)(1)(iii) has been added to require a
State to provide IEP Teams with a clear explanation of the differences
between assessments based on grade-level academic achievement standards
and those based on modified or alternate academic achievement
standards, including any effects of State and local policies on a
student's education resulting from taking an alternate assessment based
on alternate or modified academic achievement standards (such as
whether only satisfactory performance on a regular assessment would
qualify a student for a regular high school diploma).
Proposed Sec. 200.1(f)(2), which would have required that
parents of a student selected to be assessed based on alternate or
modified academic achievement standards are informed that their child's
achievement will be measured based on alternate or modified academic
achievement standards, has been redesignated as Sec. 200.1(f)(1)(iv).
A new Sec. 200.1(f)(2), regarding requirements for State
guidelines for a student who is assessed based on modified academic
achievement standards, has been added and includes the following:
(1) New paragraph (f)(2)(i) in Sec. 200.1 requires a State to
inform IEP Teams that a student may be assessed based on modified
academic achievement standards in one or more subjects for which
assessments are administered under Title I.
(2) New paragraph (f)(2)(ii) in Sec. 200.1 requires a State to
establish and monitor the implementation of clear and appropriate
guidelines for an IEP Team to apply in developing and implementing an
IEP for a student who is assessed based on modified academic
achievement standards. New paragraph (f)(2)(ii)(A) and (B) requires
that the IEP of a student assessed based on modified academic
achievement standards include IEP goals that are based on the academic
content standards for the grade in which the student is enrolled, and
be designed to monitor the student's progress in achieving the
student's standards-based goals.
(3) New paragraph (f)(2)(iii) in Sec. 200.1 requires a State to
ensure that a student who is assessed based on modified academic
achievement standards has access to the curriculum, including
instruction, for the grade in which the student is enrolled.
(4) New paragraph (f)(2)(iv) in Sec. 200.1 requires a State to
ensure that a student who takes an alternate assessment based on
modified academic achievement standards is not precluded from
attempting to complete the requirements, as defined by the State, for a
regular high school diploma.
(5) New paragraph (f)(2)(v) in Sec. 200.1 ensures that each IEP
Team reviews annually for each subject its decision to assess a student
based on modified academic achievement standards.
Inclusion of All Students (Sec. 200.6)
Section 200.6(a)(1)(ii)(A) has been revised to clarify
that a State must develop, disseminate information on, and promote the
use of appropriate accommodations to increase the number of students
who are tested against academic achievement standards for the grade in
which a student is enrolled.
Section 200.6(a)(2)(iii), which requires a State to
document that a student with the most significant cognitive
disabilities is, to the maximum extent possible, included in the
general curriculum, has been changed by deleting the word ``maximum.''
Section 200.6(a)(3), regarding alternate assessments based
on modified academic achievement standards, has been revised as
follows:
(1) The heading in Sec. 200.6(a)(3) has been changed to clarify
that an assessment based on modified academic achievement standards is
an ``alternate'' assessment.
(2) Section 200.6(a)(3) has been revised by removing the regulatory
references to grade-level assessments and alternate assessments.
(3) A new Sec. 200.6(a)(3)(i) has been added to clarify that a
State may develop a new alternate assessment or adapt a grade-level
assessment to assess a student based on modified academic achievement
standards.
(4) A new Sec. 200.6(a)(3)(ii) has been added to include the
requirements for alternate assessments based on modified academic
achievement standards. Proposed Sec. 200.6(a)(3)(i) through
(a)(3)(iv), which included the requirements for alternate assessments
based on modified academic achievement standards, has been redesignated
as new Sec. 200.6(a)(3)(ii)(A) through (a)(3)(ii)(D).
Section 200.6(a)(4), regarding the reporting requirements
under section 1111(h)(4) of Title I, has been changed by redesignating
(A) proposed paragraph (a)(4)(iv), regarding alternate assessments
based on grade-level academic achievement standards, as new paragraph
(a)(4)(iii); and (B) proposed paragraph (a)(4)(iii), regarding
alternate assessments based on modified academic achievement standards,
as new paragraph (a)(4)(iv). In addition, ``to the Secretary'' has been
added to the introductory sentence in Sec. 200.6(a)(4) to clarify to
whom States must report the data collected under section 1111(h)(4) of
the Act.
Disaggregation of Data (Sec. 200.7)
Section 200.7(a)(ii), providing that a State may not
establish a different minimum number of students for separate
subgroups, has been revised by clarifying that this provision also
applies to the school as a whole. In addition, the final regulations
make clear that this provision takes effect for AYP determinations
based on 2007-08 assessment data.
Making Adequate Yearly Progress (Sec. 200.20(f))
Proposed Sec. 200.20(f)(1), which permits a State to
include, for a period of up to two years, the scores of students who
were previously identified with a disability in AYP calculations, has
been incorporated into current Sec. 200.20(f)(2), which codifies the
final regulations on accountability for former limited English
proficient (LEP) students published in the Federal Register on
September 13, 2006 (71 FR 54187).
Proposed Sec. 200.20(f)(2) has been changed to clarify
that if a State includes the scores of former students with
disabilities in calculating AYP, it must include the scores of all such
students. Proposed Sec. 200.20(f)(2) has been incorporated into new
Sec. 200.20(f)(2)(ii).
Transition Provision Regarding Modified Academic Achievement Standards
(Sec. 200.20(g))
A new Sec. 200.20(g) has been added to make explicit that
the Secretary may provide States flexibility in accounting for the
achievement of some students with disabilities in AYP determinations
that are based on assessments administered in 2007-08 and 2008-09.
States must demonstrate, for each year for which flexibility is
available, that they are expeditiously moving to adopt and administer
assessments based on modified academic achievement standards consistent
with these regulations and meet other criteria, as the Secretary
determines appropriate, in order to be considered for this flexibility.
[[Page 17753]]
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILTIES
Participation in Assessments (Sec. 300.160)
Section 300.160(b)(2), regarding accommodation guidelines
that a State must develop, has been revised to clarify that the State
guidelines must (A) identify the accommodations for each assessment
that do not invalidate the score; and (B) instruct IEP Teams to select,
for each assessment, only those accommodations that do not invalidate
the score.
Proposed Sec. 300.160(c), which would have required a
State that has adopted modified academic achievement standards to have
guidelines for the participation of students with disabilities in
assessments based on those standards, has been removed. With the
clarification in Sec. 200.6(a)(3) that assessments based on modified
academic achievement standards are alternate assessments, proposed
Sec. 300.160(c) is redundant with new Sec. 300.160(c) (proposed Sec.
300.160(d)).
Proposed Sec. 300.160(d)(1), which requires a State (or
in the case of a district-wide assessment, an LEA) to develop and
implement alternate assessments and guidelines for children who cannot
participate in regular assessments, even with accommodations, has been
redesignated as new Sec. 300.160(c)(1).
Proposed Sec. 300.160(d)(2)(ii), which would have
required a State to measure the achievement of children based on
alternate academic achievement standards if a State has adopted those
standards, has been changed by replacing ``alternate academic
achievement standards'' with ``modified academic achievement
standards,'' and clarifying that modified academic achievement
standards are permitted for children who meet the State's criteria
under Sec. 200.1(e)(2). Proposed Sec. 300.160(d)(2)(ii) has been
redesignated as Sec. 300.160(c)(2)(ii).
A new Sec. 300.160(c)(2)(iii) has been added, providing
that, if a State has adopted alternate academic achievement standards,
the State must measure the achievement of children with the most
significant cognitive disabilities against those standards.
A new paragraph (d) has been added, requiring a State to
provide IEP Teams with a clear explanation of the differences between
assessments based on grade-level academic achievement standards and
those based on modified or alternate academic achievement standards,
including any effects of State or local policies on the student's
education resulting from taking an alternate assessment based on
alternate or modified academic achievement standards (such as whether
only satisfactory performance on a regular assessment would qualify a
student for a regular high school diploma).
A new paragraph (e) has been added, requiring a State to
ensure that parents of a student selected to be assessed based on
alternate or modified academic achievement standards are informed that
their child's achievement will be measured based on alternate or
modified academic achievement standards.
Proposed Sec. 300.160(e), regarding reports on the
assessment of students with disabilities, has been redesignated as
Sec. 300.160(f) and changed as follows:
(1) Proposed paragraph (e)(1) in Sec. 300.160, which requires a
State to report on 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, has been redesignated as Sec. 300.160(f)(1).
(2) Proposed paragraph (e)(2) in Sec. 300.160 has been
redesignated as Sec. 300.160(f)(2) and revised to require a State to
report on the number of children participating in alternate assessments
based on grade-level academic achievement standards.
(3) Proposed paragraph (e)(3) in Sec. 300.160, which requires a
State to report on the number of children with disabilities who are
assessed based on alternate academic achievement standards, has been
changed to require a State to report on the number of children with
disabilities, if any, who are assessed based on modified academic
achievement standards. The regulatory reference to alternate
assessments based on alternate academic achievement standards has been
deleted and proposed Sec. 300.160(e)(3) has been redesignated as Sec.
300.160(f)(3).
(4) Proposed paragraph (e)(4) in Sec. 300.160, which requires a
State to report on the number of children with disabilities who are
assessed based on modified academic achievement standards, has been
changed to require a State to report on the number of children with
disabilities, if any, who are assessed based on alternate academic
achievement standards. The regulatory reference to modified academic
achievement standards has been deleted and proposed Sec. 300.160(e)(4)
has been redesignated as Sec. 300.160(f)(4).
(5) Proposed paragraph (e)(5) in Sec. 300.160, which required a
State to report on the performance results of children with
disabilities on regular assessments and on alternate assessments, has
been clarified by specifically identifying alternate assessments based
on grade-level academic achievement standards; alternate assessments
based on modified academic achievement standards; and alternate
assessments based on alternate academic achievement standards. It also
has been revised to require that performance results for children with
disabilities be compared to the achievement of all students, including
children with disabilities. Proposed Sec. 300.160(e)(5) has been
redesignated as Sec. 300.160(f)(5).
Proposed Sec. 300.160(f), regarding universal design, has
been redesignated as Sec. 300.160(g).
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, more than
300 parties submitted comments on the proposed regulations, many of
which were substantially similar. An analysis of the comments and
changes in the regulations since publication of the NPRM follows.
We discuss substantive issues under the sections of the regulations
to which they pertain. Generally, we do not address technical or minor
changes, and suggested changes that we are not authorized to make under
the law. We also do not address comments on Title I or IDEA regulations
that were not part of the NPRM published on December 15, 2005 (70 FR
74624), such as comments concerning the regulations regarding alternate
academic achievement standards.
Interim Flexibility
Comment: Several commenters made recommendations regarding the
Department's interim flexibility, which gave eligible States the
flexibility to provide credit to schools or districts that missed AYP
solely because of the achievement of the students with disabilities
subgroup. Some commenters opposed this flexibility; most others
suggested extending the flexibility until the final regulations on
modified academic achievement standards are in effect or until States
have had time to develop modified academic achievement standards and
aligned alternate assessments. One commenter recommended that the
interim flexibility be made permanent instead of the Department
regulating to permit States to establish modified academic achievement
standards. Finally, one commenter stated that offering interim
flexibility prior to rulemaking violated
[[Page 17754]]
Title I negotiated rulemaking requirements.
Discussion: The Department permitted States that expressed interest
in developing modified academic achievement standards and assessments
based on those standards to take advantage of interim flexibility while
the Department drafted the proposed regulations. This flexibility was
granted for the 2004-05 school year and then extended for a second year
(2005-06) to cover the period of time when members of the public were
commenting on the proposed regulations and while the Department
developed the final regulations. The interim flexibility will be
extended for the 2006-07 school year for States that can show evidence
of a commitment to develop modified academic achievement standards.
We believe that the flexibility to develop modified academic
achievement standards provides a means to assess appropriately some
students with disabilities and include them in State accountability
systems. Therefore, we do not believe the interim flexibility should be
used in lieu of setting modified academic achievement standards, as
recommended by one commenter.
We do not believe that offering interim flexibility prior to
rulemaking violated negotiated rulemaking requirements. We understand
the statutory requirements for negotiated rulemaking in section 1901 of
the ESEA to apply to Title I standards and assessment regulations
required to be implemented within one year of enactment of NCLB, not to
subsequent regulatory amendments such as those included in these
regulations.
The Department recognizes that some States may need time beyond the
2006-07 school year to develop and implement alternate assessments
based on modified academic achievement standards. Therefore, we are
adding a new Sec. 200.20(g) providing that the Secretary may give
flexibility for two additional years (through the 2008-09 school year)
to States that are developing alternate assessments based on modified
academic achievement standards consistent with these regulations.
Changes: We have added a new Sec. 200.20(g) specifying that the
Secretary may provide a State that is moving expeditiously to adopt and
administer alternate assessments based on modified academic achievement
standards flexibility in accounting for the achievement of students
with disabilities in AYP determinations that are based on assessments
administered in school years 2007-08 and 2008-09. To be eligible for
this flexibility, a State must meet criteria, as the Secretary
determines appropriate, for each year for which the flexibility is
available.
State Responsibilities for Developing Challenging Academic Standards
(Sec. 200.1)
Comment: A few commenters recommended revising Sec. 200.1(a)(1) to
clarify when the regulation applies to academic content standards
versus academic achievement standards. The commenters noted that the
authority to develop modified and alternate academic achievement
standards appears erroneously also to apply to academic content
standards.
Discussion: We agree that the regulation in Sec. 200.1(a)(1)
should be more specific when referring to academic standards.
Therefore, we have clarified that the same academic content standards
apply to all public schools and all public school students in a State
and that the authority to develop alternate academic achievement
standards in paragraph (d) and modified academic achievement standards
in paragraph (e) for eligible students with disabilities does not apply
to academic content standards. We also have modified paragraph (a)(2)
to be consistent with these changes. Section 200.1(b)(1)(i) is
redundant with these changes and has been removed.
Changes: We have made the following changes in Sec. 200.1(a)(1):
(1) Added ``content and academic achievement'' before ``standards'; and
(2) added ``which apply only to the State's academic achievement
standards'' at the end of the sentence in paragraph (a)(1). Consistent
with these changes, we have revised paragraph (a)(2) to read, ``Include
the same knowledge and skills expected of all students and the same
levels of achievement of all students, except as provided in paragraphs
(d) and (e) of this section.'' We have removed Sec. 200.1(b)(1)(i).
Modified Academic Achievement Standards (Sec. 200.1(e))
Comment: Several commenters recommended that the regulations
provide more detail on the essential components of the documented and
validated standards-setting process required in Sec. 200.1(e)(1).
These commenters stated that the process should include broad
stakeholder input. One commenter requested that the regulations require
a State to explain to the public how it proposes to change its content
standards to coincide with modified academic achievement standards. A
few commenters requested that the regulations specify the persons who
should define the standards and participate in the standards-setting
process, and include information about how parents and specialists
should be involved.
Discussion: We do not believe that it is necessary to include the
details of a validated standards-setting process in these regulations
because the field generally agrees that the process should be
consistent with the standards for educational and psychological testing
(1999).\1\ This process relies on both empirical data and the informed
judgments of persons familiar with academic content as well as with the
students with disabilities to be assessed. We agree with the commenters
that the development of achievement standards typically benefits from
broad stakeholder involvement to ensure consensus regarding the
knowledge and skills essential for all students and have clarified this
in the regulations. In response to the request to define who should be
involved in the standards-setting process for modified academic
achievement standards, we believe that the process should include
persons who are knowledgeable about the State's academic content
standards and experienced in standards setting, as well as special
educators who are most knowledgeable about the academic abilities and
achievement of students with disabilities, and we have added clarifying
language in the regulations. We decline to comment on how parents and
specialists should be involved in the process. These determinations are
best left to State and local officials.
---------------------------------------------------------------------------
\1\ AERA, APA, & NCME. (1999). (American Educational Research
Association, American Psychological Association, & National Council
on Measurement in Education) Joint Committee on Standards for
Educational and Psychological Testing. Standards for educational and
psychological testing. Washington, DC: AERA.
---------------------------------------------------------------------------
With regard to the commenter who requested that the regulations
require a State to explain to the public how it proposes to change its
content standards to coincide with modified academic achievement
standards, we note that a State that intends to develop modified
academic achievement standards consistent with these regulations would
not propose to change its academic content standards. As required in
Sec. 200.1(e)(1), modified academic achievement standards must be
aligned with the State's academic content standards.
Changes: We have removed the phrase ``through a documented and
validated standards-setting process'' in proposed Sec. 200.1(e)(1) and
have added a new Sec. 200.1(e)(1)(iv) to require that modified
academic achievement standards be developed through a
[[Page 17755]]
documented and validated standards-setting process that includes broad
stakeholder input, including persons knowledgeable about the State's
academic content standards and experienced in standards setting and
special educators who are most knowledgeable about children with
disabilities.
Comment: A number of commenters disagreed with the requirement in
Sec. 200.1(e)(1)(i) that modified academic achievement standards be
aligned with the State's academic content standards for the grade in
which the student is enrolled. Several commenters stated that this
requirement excludes students who need to be assessed against a truly
modified set of learning standards. These commenters argued that
modified academic achievement standards should be for students with
learning goals that are substantively different from the general
education standards, but not as different as the learning goals for
students with the most significant cognitive disabilities who are
assessed based on alternate academic achievement standards.
Several commenters stated that modified academic achievement
standards should focus on the individual needs of a student with
disabilities and be aligned with standards that are appropriate for the
student's instructional level, not grade level. A few commenters stated
that the criteria for modified academic achievement standards are too
prescriptive and that States should have the flexibility to develop
modified academic achievement standards in ways that meet their needs.
Discussion: We disagree with the commenters. Modified academic
achievement standards are intended for a small group of students who,
by virtue of their disability, are not likely to meet grade-level
academic achievement standards in the year covered by their IEPs even
with appropriate instruction. These students need the benefit of access
to instruction in grade-level content so that they can move closer to
grade-level achievement. We believe that allowing modified academic
achievement standards to focus on something other than grade-level
content standards (e.g., allowing them to be based on a student's
instructional level) would lower expectations and limit opportunities
for these students to access grade-level content and meet grade-level
achievement standards. We also believe that allowing States to develop
modified academic achievement standards without placing any parameters
or restrictions on their use would likely result in lowered
expectations.
Changes: None.
Comment: Many commenters requested specific guidance on how a State
could appropriately reduce the breadth or depth of grade-level
standards, as proposed in Sec. 200.1(e)(1)(i). One commenter requested
that the regulations clarify that reducing breadth or depth would
permit the assessment of prerequisite skills that are needed to master
grade-level content standards.
Discussion: Modified academic achievement standards are intended to
be challenging for a small group of students whose disability has thus
far prevented them from attaining grade-level proficiency. However,
while the modified academic achievement standards may be less demanding
than grade-level academic achievement standards, these students must
have access to a curriculum based on grade-level content standards so
that they can move closer to grade-level achievement. This means that
an alternate assessment based on modified academic achievement
standards must cover the same grade-level content, but may include less
difficult questions overall.
We agree that the phrase ``breadth or depth'' in the context of
developing modified academic achievement standards is not clear and
does not sufficiently convey that only the academic achievement
standards for students, not the content on which they are assessed, are
to be modified. In addition, the terms ``breadth'' and ``depth'' are
descriptive, rather than technical, and do not have consistent meanings
for the different stakeholders involved in developing and using student
assessments. Therefore, we have removed the reference to reduced
breadth or depth from Sec. 200.1(e)(1)(i). Section 200.1(e)(1)(i)
continues to require modified academic achievement standards to be
aligned with the State's academic content standards for the grade in
which the student is enrolled. We have added a new paragraph (e)(1)(ii)
clarifying that modified academic achievement standards must be
challenging for eligible students, but may be less difficult than
grade-level academic achievement standards. Consistent with section
1111(b)(1)(D)(i) of the ESEA, we also have clarified that modified
academic achievement standards must include at least three achievement
levels.
Changes: The phrase ``reflect reduced breadth or depth of grade
level content'' has been removed from Sec. 200.1(e)(1)(i). A new Sec.
200.1(e)(1)(ii) has been added specifying that modified academic
achievement standards must be challenging for eligible students, but
may be less difficult than grade-level academic achievement standards.
We also have added a new Sec. 200.1(e)(1)(iii) to require modified
academic achievement standards to include at least three achievement
levels.
Comment: One commenter stated that modified academic achievement
standards should be designed to allow a student, over time, to reach
grade-level academic achievement standards. Many commenters stated that
the regulations should include protections so that the regulations do
not result in lowered expectations for students with disabilities.
Discussion: We added a number of safeguards to the safeguards that
were already included in the proposed regulations to ensure that a
student with disabilities who is assessed based on modified academic
achievement standards has access to grade-level content so that the
student has the opportunity, over time, to reach grade-level academic
achievement standards. The safeguards for students that are included in
these final regulations include the following: Sec. 200.1(e)(1)(i)
requires that modified academic achievement standards be aligned with a
State's academic content standards for the grade in which a student is
enrolled; new Sec. 200.1(e)(2)(iii) requires that a student's IEP
include goals that are based on the academic content standards for the
grade in which the student is enrolled and be designed to monitor a
student's progress in achieving the student's standards-based goals;
new Sec. 200.1(f)(2)(ii) requires a State to establish and monitor
implementation of clear and appropriate guidelines for an IEP Team to
apply in developing and implementing the IEP of a student assessed
based on modified academic achievement standards; new Sec.
200.1(f)(2)(iii) requires that a State's guidelines for IEP Teams
ensure that a student who is assessed based on modified academic
achievement standards has access to the curriculum, including
instruction, for the grade in which the student is enrolled; and new
Sec. 200.1(f)(2)(iv) requires a State to ensure that a student who
takes an alternate assessment based on modified academic achievement
standards is not precluded from attempting to complete the
requirements, as defined by the State, for a regular high school
diploma.
Changes: None.
Comment: We received several comments regarding proposed Sec.
200.1(e)(1)(iii), which requires that modified academic achievement
standards not preclude a student from
[[Page 17756]]
earning a regular high school diploma. Several commenters stated that
it would be an intrusion into State graduation standards if a State was
required to diminish its standards for a regular diploma to include
students who are assessed on modified academic achievement standards.
Discussion: The intent of proposed Sec. 200.1(e)(1)(iii) was not
to require States to alter their graduation requirements or to provide
a regular high school diploma to a student who scores proficient on an
alternate assessment based on modified academic achievement standards.
Rather, we wanted to ensure that a student is not automatically
precluded from attempting to earn a regular high school diploma simply
because the student was assessed based on modified academic achievement
standards. For example, if a State requires students to pass a State
graduation test in order to obtain a regular high school diploma, we
did not want the fact that a student was assessed based on modified
academic achievement standards to automatically prevent the student
from attempting to pass the State's graduation test.
An important requirement for modified academic achievement
standards is that they be aligned with the State's grade-level academic
content standards and provide access to grade-level curriculum.
Therefore, we believe it is reasonable that students assessed based on
modified academic achievement standards have the opportunity to attempt
to earn a regular high school diploma. We recognize that proposed Sec.
200.1(e)(1)(iii) could be misconstrued and, therefore, have changed the
language to make clear that States may not prevent a student from
attempting to complete the requirements, as defined by the State, for a
regular high school diploma simply because the student participates in
an alternate assessment based on modified academic achievement
standards.
Changes: Proposed Sec. 200.1(e)(1)(iii) has been removed. A new
Sec. 200.1(f)(2)(iv) has been added to require a State to ensure that
students who take alternate assessments based on modified academic
achievement standards are not precluded from attempting to complete the
requirements, as defined by the State, for a regular high school
diploma.
Comment: Many commenters requested additional guidance on the
development of modified academic achievement standards. A few
commenters requested guidance on addressing the technical issues
regarding the development of modified academic achievement standards.
Discussion: The Department recognizes the need to provide States
with additional guidance on the development and implementation of
modified academic achievement standards and will provide nonregulatory
guidance, along with technical assistance and support to States on
modified academic achievement standards following the release of these
final regulations.
Changes: None.
Criteria for Defining Eligible Students (Sec. 200.1(e)(2))
Comment: Several commenters recommended that the regulations
clearly state that a student's IEP Team is responsible for determining
whether the student should be assessed based on modified academic
achievement standards. One commenter added that LEAs should not be able
to unilaterally change an IEP Team's decision. Many commenters
recommended requiring that parents be included in this decision and
informed in writing of any potential consequences of such decisions.
Several commenters stated that the information should be provided to
parents in the parent's native language and in language that is easily
understandable.
Discussion: We agree that it would be helpful to clarify that the
State guidelines are for IEP Teams to use in determining which students
with disabilities are eligible to be assessed based on modified
academic achievement standards and have made this change in Sec.
200.1(e)(2) and (e)(2)(ii)(A). Consistent with Sec. 200.1(f)(1)(i),
States have an important role in providing clear and appropriate
guidelines for IEP Teams to use in determining who will be assessed
based on modified academic achievement standards and in monitoring the
implementation of these guidelines by IEP Teams. We also agree that an
LEA cannot unilaterally change an IEP Team's decision regarding whether
a child will be assessed based on modified academic achievement
standards. Section 300.320(a)(6), consistent with section
614(d)(1)(A)(i)(VI) of the IDEA, already provides that it is the
child's IEP Team, not the LEA, that is responsible for determining how
the child will participate in State and district-wide assessments.
We do not believe it is necessary to add language to the Title I
regulations ensuring that parents are included in decisions regarding
whether their child will be assessed based on modified academic
achievement standards. The IDEA regulations already require public
agencies to include parents of children with disabilities in decisions
regarding their child's special education, including how the child will
participate in State and district-wide assessments. Section 300.321(a)
of the IDEA regulations requires public agencies to include parents of
children with disabilities as members of the IEP Team. If a child's
parent and the other members of the child's IEP Team determine that the
child will take an alternate assessment based on alternate or modified
academic achievement standards, Sec. 300.320(a)(6)(i), consistent with
section 614(d)(1)(A)(i)(VI) of the IDEA, requires that the child's IEP
include a statement of why the particular assessment is appropriate for
the child.
We agree with the commenters that it is important for parents to be
informed of any effects on their child's education that may result from
the child participating in an alternate assessment based on modified or
alternate academic achievement standards. In addition to parents, we
believe it is important for all IEP Team members to have knowledge
about modified or alternate academic achievement standards and any
effects that may result from a child participating in such assessments.
Therefore, we have added language to require States to provide IEP
Teams, which include the parent, with a clear explanation of the
differences between assessments based on grade-level academic
achievement standards and those based on modified or alternate academic
achievement standards, including any effects of State or local policies
on the student's education resulting from taking an alternate
assessment based on alternate or modified academic achievement
standards, such as whether only satisfactory performance on a regular
assessment would qualify a student for a regular high school diploma.
We do not believe, however, that it is necessary to require States
to inform a parent in writing, in addition to the IEP process, that his
or her child will not be assessed based on the same academic
achievement standards as other children. Parents are integral members
of the IEP Team and participate in the decision regarding the type of
assessment in which their child will participate. We expect that, in
the course of determining the appropriate assessment in which a student
will participate, there will be a discussion of how alternate or
modified academic achievement standards differ from grade-level
academic achievement standards and any possible
[[Page 17757]]
consequences of participating in alternate assessments based on those
standards.
Finally, we do not believe it is necessary to add language to the
Title I regulations requiring public agencies to provide explanations
to parents in the parent's native language and in language that is
easily understandable, as suggested by the commenters. Section
300.322(e) of the IDEA regulations already requires public agencies to
take whatever action is necessary to ensure that parents understand the
proceedings of IEP Team meetings, including arranging for an
interpreter for parents with deafness or whose native language is other
than English.
Changes: We have changed Sec. 200.1(e)(2) to require that the
guidelines that a State establishes under Sec. 200.1(f)(1) include
criteria for IEP Teams to use in determining which students with
disabilities are eligible to be assessed based on modified academic
achievement standards. We also have rewritten paragraph (e)(2)(ii)(A)
to state that the IEP Team must be ``reasonably certain'' that the
student will not achieve grade-level proficiency within the year
covered by the student's IEP, ``even if significant growth occurs.''
We have added a new paragraph (f)(1)(iii) to require the State
guidelines for IEP Teams to provide a clear explanation of the
differences between assessments based on grade-level academic
achievement standards and those based on modified or alternate academic
achievement standards, including any effect of State and local policies
on the student's education resulting from taking an alternate
assessment based on alternate or modified academic achievement
standards (such as whether only satisfactory performance on a regular
assessment would qualify a student for a regular high school diploma).
We also have reorganized paragraph (f) regarding State guidelines
into two paragraphs: paragraph (f)(1) lists the requirements for
students who are assessed based on either alternate or modified
academic achievement standards; and paragraph (f)(2) lists additional
requirements for students who are assessed based on modified academic
achievement standards. With this reorganization, proposed Sec.
200.1(e)(3), has been redesignated as new Sec. 200.1(f)(1)(ii);
proposed Sec. 200.1(e)(5) has been rewritten and redesignated as Sec.
200.1(f)(2)(v); and proposed Sec. 200.1(e)(1)(ii) has been rewritten
and redesignated as Sec. 200.1(f)(2)(iii).
Comment: Several commenters stated that determining whether a
student's disability has precluded the student from achieving grade-
level proficiency should not be based solely on a student's performance
on State assessments because State assessments may not allow the
accommodations a student needs to demonstrate what the student knows
and can do. The commenters recommended changing the ``or'' between
paragraphs (e)(2)(i)(A) and (e)(2)(i)(B) in Sec. 200.1 to ``and.''
Discussion: We do not believe that the determination of a student's
progress always must include consideration of a student's performance
on State assessments and, therefore, decline to make the change
requested by the commenters. Other objective assessments may be
necessary, for example, for students who are new to the State or for
younger students who have not yet taken a State assessment. What is
important is that the IEP Team consider multiple measurements over a
period of time that are valid for the subjects being assessed, as
specified in Sec. 200.1(e)(2)(ii)(B). These measures may include
evidence from a State assessment or other assessments that can validly
document the student's achievement.
Changes: None.
Comment: Several commenters requested a definition of ``high-
quality instruction,'' as used in proposed Sec. 200.1(e)(2)(ii)(A),
stating that, without a definition, the requirement that IEP Teams
consider the student's response to high-quality instruction in
determining whether the student should be assessed based on modified
academic achievement standards is not meaningful. One commenter stated
that the proposed regulation assumes that students with disabilities
receive high-quality instruction, but stated that this is not always
the case.
Discussion: The purpose of Sec. 200.1(e)(2)(ii)(A) is to ensure
that students are not identified for an alternate assessment based on
modified academic achievement standards if they have not been receiving
high-quality instruction and services. We agree that it is difficult to
establish objective standards that could be used to determine whether
this criterion has been met and will, therefore, remove this
requirement. However, we continue to believe that safeguards are needed
to ensure that IEP Teams consider whether a student has had an
opportunity to learn grade-level content before determining that the
student should be assessed based on modified academic achievement
standards.
Under Sec. 300.306(b) of the IDEA regulations, a student may not
be determined to be eligible for special education and related services
if the determinant factor is lack of appropriate instruction in reading
or mathematics. Schools use current, data-based evidence to examine
whether a student responds to appropriate instruction before
determining that the student needs special education and related
services. State and local officials are responsible for determining
what constitutes appropriate instruction. (See 71 FR 46646 (Aug. 14,
2006).) State and local officials, therefore, have experience and
knowledge in making judgments about the instruction that a student has
received and whether it has been appropriate. Accordingly, we have
changed the language in Sec. 200.1(e)(2)(ii)(A) to ensure that
students are not identified for an alternate assessment based on
modified academic achievement standards if they have not been receiving
appropriate instruction.
Changes: We have replaced ``high-quality instruction'' with
``appropriate instruction'' in Sec. 200.1(e)(2)(ii)(A). We also have
added ``to date'' following ``progress'' for clarity.
Comment: Several commenters recommended requiring instruction by
highly qualified teachers, as defined in the ESEA and the IDEA, before
determining that a student should be assessed based on modified
academic achievement standards.
Discussion: Both the ESEA and the IDEA already require teachers to
meet the highly qualified teacher standards and we do not believe it is
necessary to reiterate this requirement in these regulations.
Furthermore, while we expect that the vast majority of students will
receive instruction from highly qualified teachers, we do not want a
student who may not have received instruction from a highly qualified
teacher in the past to be precluded from being assessed based on
modified academic achievement standards if that alternate assessment is
most appropriate for that student.
Changes: None.
Comment: One commenter asked if the number of years a student with
disabilities' performance was below grade level could be used to
identify the student as eligible to be assessed based on modified
academic achievement standards.
Discussion: Section 200.1(e)(2)(ii) requires a student's IEP Team
to consider the student's progress to date in response to appropriate
instruction and to be reasonably certain that, even if significant
growth occurs, the student will not achieve grade-level proficiency
within the year covered by the student's IEP. Data documenting that a
student
[[Page 17758]]
has been performing below grade level for a number of years could be
one factor in determining if a student should be assessed based on
modified academic achievement standards.
Changes: None.
Comment: One commenter requested examples of multiple measures over
time that may be used to determine a student's progress under Sec.
200.1(e)(2)(ii)(B). Another commenter asked whether States are required
to use response to intervention procedures to demonstrate student
progress over a period of time.
Discussion: In order to determine whether a student may be eligible
for an alternate assessment based on modified academic achievement
standards, an IEP Team may examine results from a variety of measures
that indicate a student's progress over time. These may be either
criterion-referenced tests (i.e., tests that assess skill mastery and
compare a student's performance to curricular standards, such as State
and district-wide tests) or norm-referenced tests (i.e., tests that
compare a student's performance to that of students of the same age or
grade). The format of the multiple measures may include performance
assessments (i.e., an assessment that focuses on specific objectives
and enables the student to actively demonstrate knowledge and
understanding, such as direct writing and math assessments); portfolio
assessments (i.e., a collection of student work samples); curriculum-
based measures (i.e., repeated measures from the student's curriculum
that assess the specific skills being taught in the classroom and the
effectiveness of instruction and instructional changes); and teacher-
developed assessments (i.e., assessments developed by individual
teachers for use in their own classrooms).
Section 200.1(e)(2)(ii)(B) does not require States to use response
to intervention procedures; nor does it specify the procedures or
measures that must be used to determine a student's progress over time.
We believe that IEP Teams should have as much flexibility as possible
to use objective data to determine whether a student is eligible for an
alternate assessment based on modified academic achievement standards.
The purpose of Sec. 200.1(e)(2)(ii)(B) is to clarify that IEP Teams
must not rely on a single measure to determine whether it is
appropriate to assess a student based on modified academic achievement
standards. So long as the measures are objective and valid for the
subjects being assessed, they may be used to determine whether a
student is making progress.
Changes: None.
Comment: Several commenters supported the proposed requirement that
a student be receiving instruction in grade-level content in order to
be assessed based on modified academic achievement standards and asked
what documentation would be required to ensure that students with
disabilities have the opportunity to learn grade-level content. Other
commenters stated that the proposed regulations did not address the
broad continuum of cognitive functioning and, instead, focused on the
wrong group of students. Many commenters stated that modified academic
achievement standards should be for students who are closer in
achievement to students with the most significant cognitive
disabilities rather than students who are close to grade-level
achievement.
Discussion: The requirement that a student be receiving grade-level
instruction was intended to ensure that students identified to be
assessed based on modified academic achievement standards have access
to grade-level content. We did not want students to be assessed based
on modified academic achievement standards merely because they did not
have access to grade-level content or solely because their achievement
was one or two grades below their enrolled grade. However, based on the
comments we received, we believe this requirement was misinterpreted to
mean that only students achieving close to grade level could
potentially be assessed based on modified academic achievement
standards. That was not our intent. Rather, we anticipated that
students assessed based on modified academic achievement standards
could include students from any of the disability categories under the
IDEA and represent a fairly wide spectrum of abilities. Therefore, we
have removed the requirement in Sec. 200.1(e)(2)(iii) that students
identified to be assessed based on modified academic achievement
standards be receiving grade-level instruction.
However, we continue to believe that it is critical to ensure that
students who participate in an alternate assessment based on modified
academic achievement standards receive instruction in grade-level
content so that they are prepared to demonstrate their mastery of
grade-level content on an alternate assessment based on modified
academic achievement standards and can move closer to grade-level
achievement. One way to help ensure that students have access to grade-
level content before they are assessed based on modified academic
achievement standards, and receive instruction in grade-level content
after they are assessed based on modified academic achievement
standards, is to require IEP Teams to include goals that are based on
grade-level content standards in the IEPs of these students. Such an
approach focuses the IEP Team and the student on grade-level content
and the student's achievement level relative to those content
standards. Therefore, we have added a requirement that the IEP of a
student to be assessed based on modified academic achievement standards
include goals that are based on the academic content standards for the
grade in which the student is enrolled and that the IEP be designed to
monitor a student's progress in achieving the student's standards-based
goals. To further emphasize the importance of ensuring that students
who participate in an alternate assessment based on modified academic
achievement standards receive instruction in grade-level content, we
also make clear in new Sec. 200.1(f)(2)(iii) that States must ensure
that these students have access to the curriculum, including
instruction, for the grade in which the student is enrolled.
Incorporating State content standards in IEP goals is not a new
idea. Because the reauthorization of IDEA in 1997 required States to
provide students with disabilities access to the general curriculum,
the field has been working toward incorporating State standards in IEP
goals. Some States already require IEP Teams to select the grade-level
content standards that the student has not yet mastered and to develop
goals on the basis of the skills and knowledge that the student needs
to acquire in order to meet those standards. In addition, some States
have developed extensive training materials and professional
development opportunities for staff to learn how to write IEP goals
that are tied to State standards.\2\
---------------------------------------------------------------------------
\2\ Ahearn, E. (2006). Standards-based IEPs: Implementation in
Selected States. National Association of State Directors of Special
Education, 1800 Diagonal Road, Suite 320, Alexandria, VA 22314.
---------------------------------------------------------------------------
We appreciate that States that have not moved in this direction may
need technical assistance and support to institute this change for
students who are assessed based on modified academic achievement
standards. The Department's Office of Special Education Programs (OSEP)
is preparing such technical assistance, which will be disseminated and
available upon publication of these final regulations.
[[Page 17759]]
We believe that requiring IEP Teams to incorporate grade-level
content standards in the IEP of a student who is assessed based on
modified academic achievement standards and to monitor the student's
progress in achieving the standards-based goals will focus IEP Teams on
identifying the educational supports and services that the student
needs to reach those standards. This will align the student's
instruction with the general education curriculum and the assessment
that the IEP Team determines is most appropriate for the student.
Changes: We have removed the requirement in Sec. 200.1(e)(2)(iii)
that a student be receiving grade-level instruction in order to be
assessed based on modified academic achievement standards, and replaced
it with a requirement that, if a student identified for an alternate
assessment based on modified academic achievement standards has an IEP
that includes goals for a subject assessed under Sec. 200.2, those
goals must be based on the content standards for the grade in which the
student is enrolled. We have added ``the'' before ``curriculum'' and
``including instruction,'' before ``for the grade in which the students
are enrolled'' in Sec. 200.1(f)(2)(iii). For consistency with these
changes, we have added this requirement as new Sec. 200.1(f)(2)(ii)(A)
to the list of requirements for States to include in their guidelines
for IEP Teams. We also have added Sec. 200.1(f)(2)(ii)(B) to require
that a student's IEP be designed to monitor the student's progress in
achieving the standards-based goals.
Comment: Some commenters stated that requiring a student to be
receiving instruction in grade-level content in order to be assessed
based on modified academic achievement standards would encourage social
promotion or retention.
Discussion: As noted above, we removed the requirement that a
student be receiving instruction in grade-level content in order to be
assessed based on modified academic achievement standards because it
was misinterpreted to mean that only students achieving close to grade-
level could potentially be assessed based on modified academic
achievement standards. However, we continue to believe that it is
critical to ensure that students who participate in an alternate
assessment based on modified academic achievement standards receive
instruction in grade-level content. We believe that students who are
not exposed to grade-level content will not learn the content, which
will delay their learning and increase the likelihood of being retained
or socially promoted.
Changes: None.
Comment: One commenter stated that another alternate assessment is
needed for students with mild cognitive impairments. Several commenters
stated that, because a student's performance would not be based on
grade-level academic achievement standards, the requirements for
participation in an alternate assessment based on modified academic
achievement standards should be stricter to ensure that students are
not inappropriately assessed.
Discussion: We do not believe that another alternate assessment is
needed for students with mild cognitive disabilities. These final
regulations give States the flexibility to develop and implement
modified academic achievement standards in ways that fit within their
existing assessment systems, while ensuring that students with
disabilities are not inappropriately assessed based on modified
academic achievement standards. We believe that the criteria for
modified academic achievement standards in Sec. 200.1(e), along with
the safeguards provided by the requirements for State guidelines in
Sec. 200.1(f), are adequate to ensure that students are not
inappropriately assessed based on modified academic achievement
standards. Depending on the nature of a State's grade-level and
alternate academic achievement standards, a State may wish to tailor
its alternate assessment based on modified academic achievement
standards to a more narrowly defined group of students. We, therefore,
have made clear that the criteria for students to be assessed based on
modified academic achievement standards in Sec. 200.1(e)(2) are only a
minimum threshold and that States may add additional criteria if they
choose to do so.
Changes: We have added ``Those criteria must include, but are not
limited to, each of the following:'' to the end of Sec. 200.1(e)(2).
Comment: Several commenters requested that the regulations clarify
that an IEP Team must make a determination of eligibility for each
subject assessed. Other commenters added that a student who has
difficulty in only one subject area should be allowed to take an
alternate assessment in that one area and take a regular assessment in
the other subject(s).
Discussion: If a State chooses to develop modified academic
achievement standards, proposed Sec. 200.1(e)(4) would have required
that a student be allowed to take an alternate assessment based on
modified academic achievement standards in one or more subjects. Thus,
a student could take an alternate assessment based on modified academic
achievement standards in reading, for example, and a regular assessment
in mathematics. However, we agree that the regulations should state
more clearly that a student's IEP Team is responsible for making a
determination for each subject assessed whether the student
participates in an alternate assessment based on modified academic
achievement standards. Therefore, we have added a new Sec.
200.1(f)(2)(i) clarifying that States must inform IEP Teams that a
student may be assessed based on modified academic achievement
standards in one or more subjects. We also have added language to new
Sec. 200.1(f)(1)(i)(B) (proposed Sec. 200.1(f)(1)(ii)) and Sec.
200.1(f)(2)(v) (proposed Sec. 200.1(c)(5)) to make this clear.
Changes: We have added a new Sec. 200.1(f)(2)(i) requiring States
to inform IEP Teams that 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. We also have added
``These students may be assessed based on modified academic achievement
standards in one or more subjects for which assessments are
administered under Sec. 200.2'' at the end of new Sec.
200.1(f)(1)(i)(B) (proposed Sec. 200.1(f)(1)(ii)). With this addition,
proposed Sec. 200.1(e)(4) is no longer necessary and has been removed.
Finally, we have added ``for each subject'' following ``Ensure that
each IEP Team reviews annually'' in new Sec. 200.1(f)(2)(v) (proposed
Sec. 200.1(c)(5)).
Comment: Several commenters requested that the decision to assess a
student based on modified academic achievement standards be reviewed
annually.
Discussion: New Sec. 200.1(f)(2)(v) (proposed Sec. 200.1(e)(5))
already requires that the decision to assess a student based on
modified academic achievement standards be reviewed annually for each
subject by the student's IEP Team to ensure that those standards remain
appropriate.
Changes: None.
Comment: One commenter stated that a student should not be eligible
for an alternate assessment based on modified academic achievement
standards unless the student had been provided with all the appropriate
accommodations for the grade-level assessment.
Discussion: We believe that a student's IEP Team is in the best
position to determine whether the student should be assessed on the
regular assessment with accommodations before participating in an
alternate assessment based on modified academic achievement
[[Page 17760]]
standards and, therefore, decline to make the requested change.
Changes: None.
State Guidelines (Sec. 200.1(f))
Comment: Several commenters recommended that the regulations
require a State to provide training to IEP Teams so that the guidelines
are implemented in a manner that ensures that students can progress to
grade-level achievement standards. The commenters also recommended
requiring a State to collect and review data from LEAs on how the
guidelines are being implemented and investigate LEAs when proficiency
rates are higher on alternate assessments than on the regular
assessment.
Discussion: Proposed Sec. 200.1(f)(1) already requires a State
that defines alternate or modified academic achievement standards to
establish and ensure implementation of clear and appropriate guidelines
for IEP Teams to apply in determining whether a student will be
assessed based on modified or alternate academic achievement standards.
Furthermore, the general supervision requirements in section 612(a)(11)
of the IDEA require a State to monitor the implementation of State
guidelines for the participation of students with disabilities in State
and district-wide assessments. The specific ways in which a State
conducts its monitoring are best left to the State to determine based
on State and local needs. Therefore, we decline to require a State to
investigate when proficiency rates are higher on alternate assessments
as compared with regular assessments. We also do not believe it is
necessary to duplicate monitoring requirements under Title I that would
generate additional and unnecessary paperwork. However, we do believe
that it is important to emphasize that a State is responsible for
monitoring, as well as establishing and implementing State guidelines,
and have made this change in the regulations.
Changes: We have changed ``establish and ensure implementation of
clear and appropriate guidelines'' to ``establish and monitor
implementation of clear and appropriate guidelines'' in new Sec.
200.1(f)(1)(i) (proposed Sec. 200.1(f)(1)). We also have added a new
Sec. 200.1(f)(2)(ii), which reiterates the responsibility of a State
to establish and monitor implementation of clear and appropriate
guidelines for IEP Teams to apply for students who are assessed based
on modified academic achievement standards.
Comment: One commenter argued that a State's guidelines for IEP
Teams would not have the force of law and recommended that the
regulations require the State to implement requirements that are
enforceable by law.
Discussion: It is unnecessary to add a regulation requiring States
to implement requirements that are enforceable by law because,
regardless of the legal mechanism a State uses to implement guidelines
for IEP Teams, those guidelines must meet the requirements of these
regulations in order for the State to be in compliance with part A of
Title I and to continue to receive funds under this part.
Changes: None.
Comment: Several commenters stated that the regulations should
include additional guidelines to ensure that States use similar
criteria to identify students to be assessed based on modified academic
achievement standards. One commenter stated that the guidelines should
draw a ``bright line'' between students with the most significant
cognitive disabilities and students assessed based on modified academic
achievement standards. Specifically, the commenter recommended
clarifying that students with the most significant cognitive
disabilities are those who will never be able to demonstrate progress
on grade-level academic achievement standards even if provided with the
very best possible education and accommodations.
Discussion: Section 200.1(d), regarding alternate academic
achievement standards, and Sec. 200.1(e), regarding modified academic
achievement standards, leave to each State the responsibility to define
the students with disabilities who may be assessed based on alternate
or modified academic achievement standards. These final regulations set
certain parameters that a State must meet, but we do not believe it is
the proper role of the Federal government to specifically set forth a
``bright line'' between the students who should participate in an
alternate assessment based on alternate academic achievement standards
versus an alternate assessment based on modified academic achievement
standards. Moreover, such a distinction may vary from one State to the
next depending on how States have organized their State content
standards and established their academic achievement standards.
Changes: None.
Inclusion of All Students (Sec. 200.6)
Students Eligible Under IDEA and Section 504 (Sec. 200.6(a))
Comment: One commenter recommended that the regulations permit
students with disabilities to use modifications, as well as
accommodations, in State assessments. The commenter stated that an
accommodation in one State (e.g., a calculator) may be considered a
modification in another State and that this variation is unfair to
students and schools.
Discussion: A ``modification'' used in an assessment is generally
regarded as a change in test administration that alters what is being
measured and, therefore, results in an invalid test score. Whether a
particular support, such as use of a calculator, is considered a
modification or an accommodation can only be determined by considering
the intended purpose and content of an assessment. States vary in terms
of the purposes and content of their assessments and, therefore, may
vary in terms of whether a particular support provided to a student
during an assessment is considered a modification or an accommodation.
States determine whether a particular testing procedure or support,
such as use of a calculator, invalidates the results. States must
provide evidence for the Department's peer review of Statewide
assessment systems under Title I of the ESEA that their State
assessments are valid and reliable for the purposes for which the
assessments are used, and are consistent with relevant, nationally
recognized professional and technical standards. Therefore, we decline
to make the change requested by the commenter.
Changes: None.
Comment: Several commenters recommended that States develop and
disseminate information on, and promote the use of, appropriate
accommodations for alternate assessments based on modified and
alternate academic achievement standards, in addition to assessments
based on grade-level standards.
Discussion: Section 1111(b)(3)(C)(ix)(II) of the ESEA and section
612(a)(16) of the IDEA already require a State to provide appropriate
accommodations for students to participate in a State's assessment
system. This includes accommodations for alternate assessments.
Therefore, the change recommended by the commenters is unnecessary.
Changes: None.
Comment: None.
Discussion: In reviewing the proposed regulations, we noted that
[[Page 17761]]
Sec. 200.6(a)(1)(ii)(A) referred to ``grade-level academic achievement
standards.'' We wanted to be clear that Sec. 200.6(a)(1)(ii)(A) refers
to the academic achievement standards for the grade in which the
student is enrolled. Therefore, we have made this change in Sec.
200.6(a)(1)(ii)(A).
Changes: Section 200.6(a)(1)(ii)(A) has been changed by adding
``for the grade in which a student is enrolled'' following ``academic
achievement standards'' and removing ``grade-level'' before ``academic
achievement standards.''
Comment: One commenter recommended requiring a State to (A) develop
assessments that are universally designed and valid for the widest
possible range of students; (B) study the effect of accommodations on
the validity of the State's assessment in order to identify which
accommodations are valid for each assessment; and (C) document the
extent to which universal design principles are not used.
Discussion: We decline to make the changes requested by the
commenter. The IDEA regulations already require a State (or in the case
of a district-wide assessment, an LEA), to the extent feasible, to use
universal design principles in developing and administering
assessments. (See new Sec. 300.160(g) (proposed Sec. 300.160(f)) and
section 612(a)(16)(E) of the IDEA.)
The Department's peer review of Statewide assessment systems under
Title I of the ESEA requires a State to provide evidence that its State
assessments are valid and reliable for the purposes for which they are
used and are consistent with relevant, nationally recognized
professional and technical standards. In order to ensure that
assessments are valid and reliable and meet the technical quality
requirements of the peer review, a State must study the effect of
accommodations on the validity of the State's assessment.
We believe that implementing the commenter's recommendation to
require States to document the extent to which universal design
principles are not used (e.g., defining ``universal design
principles'') would require significant resources and time and be a
burden for a State to report. Therefore, we decline to make the changes
requested by the commenters.
Changes: None.
Comment: One commenter recommended changing Sec.
200.6(a)(1)(ii)(B) to require a State to ensure that related services
providers, in addition to regular and special education teachers, know
how to administer assessments and use appropriate accommodations.
Discussion: Section 200.6(a)(1)(ii)(B) already requires States to
ensure that ``other appropriate staff,'' in addition to regular and
special education teachers, know how to administer assessments and make
appropriate use of accommodations. We believe State and local
authorities are in the best position to determine the other appropriate
staff, which could include related services providers, who must know
how to administer assessments and make use of appropriate
accommodations. Therefore, we decline to make the change requested by
the commenter.
Changes: None.
Comment: A few commenters recommended requiring a State to develop
personnel standards and provide professional development in order to
ensure that all educators are skilled in administering assessments and
providing appropriate accommodations.
Discussion: Section 200.6(a)(1)(ii)(B) requires States to ensure
that regular and special educators, as well as other appropriate staff,
know how to administer assessments and make use of appropriate
accommodations. Whether a State ensures that this occurs through
developing personnel standards or professional development is best left
for each State to determine.
Changes: None.
Comment: One commenter recommended changing Sec. 200.6(a)(2)(iii)
to require that students with the most significant cognitive
disabilities be involved in and make progress in the general
curriculum, consistent with the IDEA. The commenter also recommended
that the regulations be changed to require students with the most
significant cognitive disabilities to be included in assessments that
are aligned to the content standards for the grade in which the student
is enrolled.
Discussion: Section 200.6(a)(2)(iii) already requires a State to
document that students with the most significant cognitive disabilities
are included in the general curriculum. Further, as the commenter
notes, the IDEA requires students with disabilities to be involved in
the general curriculum. Specifically, section 614(d)(1)(A)(i)(IV)(bb)
of the IDEA requires each student's IEP to include a statement of the
special education and related services and supplementary aids and
services to be provided to the child to be involved in and make
progress in the general education curriculum. This requirement applies
to all students with disabilities, including students with the most
significant cognitive disabilities. Therefore, we do not believe it is
necessary to repeat this requirement in Sec. 200.6(a)(2)(iii).
However, in preparing these final regulations, we noted an error in
current Sec. 200.6(a)(2)(iii) \3\ in the NPRM. Current Sec.
200.6(a)(2)(iii) requires that, if a State permits the use of alternate
assessments based on alternate academic achievement standards, the
State must document that students with the most significant cognitive
disabilities are, to the extent possible, included in the general
curriculum. In the NPRM for these final regulations on modified
academic achievement standards, ``maximum'' was inadvertently added
before ``extent possible.'' We have corrected this error in the final
regulations. It is important to correct this error because the
provision could be interpreted as extending authority beyond the IDEA,
which requires each student's IEP to include a statement of the special
education and related services and supplementary aids and services to
be provided to the child to be involved in and make progress in the
general education curriculum.\4\
---------------------------------------------------------------------------
\3\ Current Sec. 200.6(a)(2)(iii) was finalized in the December
9, 2003 regulations for students with the most significant cognitive
disabilities (68 FR 68698).
\4\ See section 614(d)(1)(A)(i)(IV)(bb) of the IDEA.
---------------------------------------------------------------------------
With regard to the comment that the regulations be changed to
require students with the most significant cognitive disabilities to be
included in assessments that are aligned to the curriculum for the
grade in which the student is enrolled, the Department's non-regulatory
guidance on alternate academic achievement standards for students with
the most significant cognitive disabilities states that, if a State
chooses to establish alternate academic achievement standards, such
standards must be aligned with the State's academic content standards
for the grade in which the student is enrolled (or in the case of
students in un-graded classrooms, the grade level commensurate to the
student's age). (See C-3 of the guidance.) \5\
---------------------------------------------------------------------------
\5\ Alternate Achievement Standards for Students with the Most
Significant Cognitive Disabilities (August, 2005) is available at
http://www.ed.gov/policy/elsec/guid/altguidance.doc.
---------------------------------------------------------------------------
Substantive changes to existing regulations cannot be made without
publishing an NPRM and providing an opportunity for the public to
comment on proposed regulations. The NPRM published on December 15,
2005 regarding modified academic achievement standards did not include
the recommended change to the regulations governing alternate
assessments based on alternate
[[Page 17762]]
academic achievement standards. Therefore, we cannot make the requested
change in these final regulations.
Changes: We have deleted ``maximum'' before ``extent possible'' in
Sec. 200.6(a)(2)(iii).
Alternate Assessments that Measure Performance Based on Modified
Academic Achievement Standards (Sec. 200.6)(a)(3))
Comment: Many commenters recommended requiring that an assessment
based on modified academic achievement standards be referred to as an
alternate assessment.
Discussion: We did not describe assessments based on modified
academic achievement standards as alternate assessments in the NPRM
because we wanted to distinguish such assessments from alternate
assessments based on alternate academic achievement standards. However,
we agree with the commenter that it would be clearer to refer to such
assessments as alternate assessments and have made this change in the
regulations.
Changes: Where appropriate, we have inserted ``alternate'' before
``assessment'' throughout the regulations to make clear that an
assessment based on modified academic achievement standards is an
alternate assessment.
Comment: Many commenters suggested that terminology be clarified to
differentiate among various alternate assessments using ``modified
assessment'' to refer to an assessment based on modified academic
achievement standards and ``adapted assessment'' to refer to an
alternate assessment based on alternate academic achievement standards.
Discussion: Precise use of terminology to avoid confusion in the
development and use of alternate assessments for students with
disabilities is desirable. However, the particular terms suggested by
the commenters would not likely accomplish this goal. In the
measurement community ``modified assessment'' has a restricted meaning
that is not consistent with the intent of the assessment permitted
under these regulations, and we believe ``adapted assessment'' does not
accurately convey that an alternate assessment is based on alternate
academic achievement standards. Therefore, we decline to make the
changes recommended by the commenters.
Changes: None.
Comment: Several commenters requested that the regulations define
``aligned,'' as used in new Sec. 200.6(a)(3)(ii)(A) (proposed Sec.
200.6(a)(3)(i)). One commenter requested that the regulations include
the criteria that will be used to determine whether there is sufficient
coverage of grade-level content standards. One commenter recommended
requiring alternate assessments based on modified academic achievement
standards to assess the core objectives of a State's grade-level
academic content standards.
Discussion: We decline to include a definition of ``alignment'' in
these regulations because it is a term of art in the assessment field.
However, the Department's standards and assessment peer review guidance
for Title I includes several characteristics of alignment that are
considered by peer reviewers in determining whether assessments are
aligned with content standards. First, reviewers consider the range of
content, meaning that all of the standards are represented in the
assessment and that the assessment is as cognitively challenging as the
standards (depth/difficulty). This is the single aspect of alignment
that may differ between the regular grade-level assessment and an
alternate assessment based on modified academic achievement standards.
Second, reviewers look for evidence that the assessment represents both
the content knowledge and the process skills evident in the content
standards. Third, reviewers consider whether the assessment reflects
the same degree and pattern of emphasis as the content standards
(balance). Generally, an alternate assessment based on modified
academic achievement standards should be aligned with grade-level
content standards in the same manner as the regular assessment. That
is, it should represent the full array of content standards, including
factual knowledge and application skills, with the same pattern of
emphasis that is evident in the content standards. The Department's
peer review guidance further states ``[i]f a State's assessments do not
adequately measure the knowledge and skills specified in the State's
academic content standards, or if they measure something other than
what these standards specify, it will be difficult to determine whether
students have achieved the intended knowledge and skills. As a result,
it will be difficult to make appropriate policy, program, and
instructional decisions meant to improve students' achievement.'' (page
41) \6\
---------------------------------------------------------------------------
\6\ Standards and assessment peer review guidance: Information
and examples for meeting requirements of the No Child Left Behind
Act of 2001, (April 28, 2004). Available at http://www.ed.gov/policy/elsec/guid/saaprguidance.doc
.
---------------------------------------------------------------------------
An alternate assessment based on modified academic achievement
standards should be aligned with grade-level content standards in the
same manner as the general test, with the possible exception of a
reduced level of cognitive demand, sometimes referred to as depth of
knowledge. This is a critical difference between an alternate
assessment based on modified academic achievement standards and an
alternate assessment based on alternate academic achievement standards,
which is viewed as aligned with grade-level content standards even
though the content has been simplified or represented as pre-requisite
skills that are an essential part of the grade-level content.
The assumption underlying the requirement for alignment is that
many students eligible for an alternate assessment based on modified
academic achievement standards are in a regular classroom with children
of the same chronological age; they are receiving instruction in the
grade-level curriculum but because of their disability are not likely
to meet grade-level academic achievement standards in the year covered
by their IEPs. These students may need a less difficult test in order
to effectively demonstrate their knowledge of the grade-level content
standards.
We do not agree with the recommendation that an alternate
assessment based on modified academic achievement standards be required
to assess only the ``core objectives'' of a State's grade-level
academic content standards. Modified academic achievement standards
must represent the full array of content standards, including factual
knowledge and application of skills, with the same pattern of emphasis
that is evident in the content standards. This is so, regardless of how
a State structures its academic content standards. The approach taken
by a State to ensure the alignment of modified academic achievement
standards to grade-level content standards will depend on how the State
has structured its academic content standards. Content standards may be
grade specific or may cover more than one grade if grade-level content
expectations are provided for each grade. Ultimately, a State that
chooses to develop and implement modified academic achievement
standards must demonstrate during the Department's peer review of State
assessments that its alternate assessment based on modified academic
achievement standards is aligned with challenging grade-level academic
content standards in the same manner as is required for the approval of
the
[[Page 17763]]
State's regular assessment. The Department acknowledges that measuring
the academic achievement of students with disabilities, particularly
those who will be eligible to be assessed based on modified academic
achievement standards, is an area in which there is much to learn and
improve. We welcome information from States and others on ways to
improve the assessment of students with disabilities. As data and
research on assessments for students with disabilities improve, the
Department may decide to issue additional regulations or guidance.
Changes: None.
Comment: Several commenters argued that the regulations should
permit the use of out-of-level assessments. Another commenter
questioned whether out-of-level assessments would be as valid as
alternate assessments based on modified academic achievement standards.
Discussion: Alternate assessments based on modified academic
achievement standards are intended for a small group of students who,
by virtue of their disability, are not likely to meet grade-level
achievement standards in the year covered by their IEPs, despite
appropriate instruction. These students need the benefit of access to
grade-level content so that they can move closer to grade-level
achievement. Therefore, alternate assessments based on modified
academic achievement standards must be aligned with grade-level content
standards.
Out-of-level testing means assessing students enrolled in a
specific grade with tests designed for students at lower grades. By
definition, an out-of-level assessment does not cover the same content
as an assessment based on grade-level content standards. Out-of-level
testing is often associated with lower expectations for students with
disabilities, tracking such students into lower-level curricula with
limited opportunities. Therefore, an out-of-level assessment cannot be
used as an alternate assessment based on modified academic achievement
standards.
Changes: None.
Comment: One commenter recommended requiring an alternate
assessment based on modified academic achievement standards to be
distinguished from the regular assessment by more than a lower cut
score or a change in administration or format.
Discussion: New Sec. 200.1(e)(1)(iv) makes clear that modified
academic achievement standards must be developed through a documented
and validated standards setting process that includes broad stakeholder
input, and Sec. Sec. 200.2(b) and 200.3(a)(1) make clear that an
alternate assessment based on modified academic achievement standards
must meet the requirements for high technical quality, including
validity, reliability, accessibility, objectivity, and consistency with
nationally recognized professional and technical standards. Merely
changing the cut-score on a regular assessment would not be sufficient
to meet these requirements.
Changes: None.
Comment: Many commenters requested additional guidance on
developing an alternate assessment based on modified academic
achievement standards.
Discussion: Grade-level content standards serve as the foundation
of an alternate assessment based on modified academic achievement
standards. Beyond this essential requirement, a State may construct a
unique assessment or adapt its regular assessment. We have added this
language to the regulations to make this clear. In addition, the
Department will be issuing nonregulatory guidance and providing
technical assistance to assist States in developing alternate
assessments based on modified academic achievement standards.
Changes: We have simplified proposed Sec. 200.6(a)(3) by deleting
references to paragraphs (a)(1) and (a)(2) and including a new
paragraph (a)(3)(i) to permit a State that chooses to assess students
with disabilities based on modified academic achievement standards to
develop a new alternate assessment or adapt an assessment based on
grade-level academic achievement standards. We also have added a new
paragraph (a)(3)(ii) that lists the requirements for an alternate
assessment based on modified academic achievement standards. Proposed
paragraphs (a)(3)(i) through (a)(3)(iv) have been redesignated as new
paragraphs (a)(3)(ii)(A) through (a)(3)(ii)(D), respectively.
Reporting (Sec. 200.6(a)(4))
Comment: Several commenters recommended requiring a State to report
the number and percentage of students using accommodations who take
alternate assessments based on modified academic achievement standards,
alternate assessments based on grade-level academic achievement
standards, and alternate assessments based on alternate academic
achievement standards. The commenters stated that these data are
necessary to measure whether students are receiving appropriate
accommodations and whether these accommodations are helping students
achieve.
Discussion: Section 200.6(a)(4) already requires a State to report
on the number and percentage of students with disabilities taking
regular assessments; regular assessments with accommodations; alternate
assessments based on grade-level academic achievement standards;
alternate assessments based on modified academic achievement standards;
and alternate assessments based on alternate academic achievement
standards. We believe that requiring a State to report the additional
data requested by the commenters would place a significant burden on
the State. In addition, such data would not, by itself, provide
information regarding whether students are receiving appropriate
accommodations and whether those accommodations are helping students
achieve. Therefore, we decline to make the change requested by the
commenters.
We have, however, changed the order of the list of assessments in
Sec. 200.6(a)(4) so that ``alternate assessments based on the grade-
level academic achievement standards'' follows ``regular assessments
with accommodations.'' This will appropriately keep the three types of
assessments based on grade-level academic achievement standards
together in the list, to be followed by ``alternate assessments based
on the modified academic achievement standards,'' and ``alternate
assessments based on the alternate academic achievement standards.''
Changes: We have redesignated proposed paragraph (a)(4)(iv),
regarding alternate assessments based on grade-level academic
achievement standards, as new paragraph (a)(4)(iii), and proposed
(a)(4)(iii), regarding alternate assessments based on modified academic
achievement standards, as new paragraph (a)(4)(iv).
Comment: One commenter recommended requiring the Department to
provide an annual report to Congress on the implementation of the
regulations regarding modified academic achievement standards. One
commenter asked who receives the data required under Sec. 200.6(a)(4).
Another commenter expressed concern that reporting the data in Sec.
200.6(a)(4) could violate a student's right to privacy under the Family
Educational Rights and Privacy Act (FERPA) if there were small numbers
of students taking any of the assessments.
Discussion: Section 200.6(a)(4) pertains to the requirements in
part A of Title I for reporting data to the Secretary and ensures that
the data reported in
[[Page 17764]]
accordance with section 1111(h) of the ESEA include data on assessments
based on alternate academic achievement standards and modified academic
achievement standards. We have added language to Sec. 200.6(a)(4) to
make this clear. These data are also reported to Congress and,
therefore, we do not believe that an additional report to Congress is
necessary, as suggested by one commenter. With regard to the commenter
who expressed concern with the data reporting requirements and a
student's right to privacy, a State is not required to report data that
would violate FERPA (20 U.S.C. 1232g).
Changes: We have added ``to the Secretary'' following ``A State
must report separately'' to make clear that the assessment data
referred to in Sec. 200.6(a)(4) are reported separately to the
Secretary.
Comment: One commenter recommended requiring LEAs and SEAs to
collect data on the disability and race of students who are assessed
based on modified academic achievement standards.
Discussion: We believe that requiring LEAs and SEAs to collect data
on the disability and race of students who are assessed based on
modified academic achievement standards would place an unnecessary
burden on SEAs and LEAs and, therefore, decline to implement the
commenter's recommendation.
Changes: None.
Disaggregation of Data (Sec. 200.7)
Comment: Several commenters supported proposed Sec. 200.7(a)(2)
that would prohibit a State from establishing a different minimum
number (group size or ``n size'') of students for some subgroups,
regardless of whether a State chooses to implement modified academic
achievement standards. The commenters stated that having the same group
size for all subgroups would ensure transparency and greater
accountability.
However, one commenter stated that the same group size across all
subgroups should be required only for States that develop modified
academic achievement standards. The commenter also expressed concern
that requiring the same group size across all subgroups could reduce
the desire by some schools and districts to accept out-of-area students
due to concerns that adding more students in a subgroup would affect
their accountability status.
Discussion: Prior to the implementation of the final regulations on
alternate academic achievement standards for students with the most
significant cognitive disabilities and the announcement of the proposed
regulations on modified academic achievement standards, a State had
limited 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 subgroup of students (many of whom were assessed with a
range of accommodations to the regular assessment), some States
requested permission to use a larger group size for their students with
disabilities and limited English proficient subgroups. In support of
their requests, States argued that a larger group size for these
subgroups of students would take into consideration the challenges of
measuring their achievement.
With the implementation of these final regulations on modified
academic achievement standards and the Title I regulations on
assessment and accountability for recently arrived and former limited
English proficient (LEP) students (71 FR 54187 (Sept. 13, 2006)), we
believe that States now have sufficient flexibility to measure the
achievement of students with disabilities and LEP students
appropriately and, therefore, no longer need a different group size for
these subgroups. In addition, all States now test in grades 3 through 8
and once in high school, as opposed to just once per grade span,
thereby decreasing the sampling error associated with smaller group
sizes. With these additional test scores to include in AYP
determinations, the argument for a larger group size for these two
subgroups is no longer statistically justified. Setting a different
subgroup size also may lead to unintended consequences, such as
manipulating the number of students with disabilities in a particular
school to ensure that the school will not be held accountable for those
students. We believe that, in order to ensure that schools are held
accountable for the achievement of students with disabilities (as well
as for students with limited English proficiency), the use of
differentiated subgroup sizes for purposes of measuring AYP must end.
Given the timing of these regulations, we do not expect States with
differentiated subgroup sizes to make this change for the 2006-07
school year. Therefore, we have added language to make clear that this
provision takes effect for AYP determinations based on assessments
administered in the 2007-08 school year.
Changes: We have added ``Beginning with AYP decisions that are
based on the assessments administered in the 2007-08 school year,'' at
the beginning of the sentence in Sec. 200.7(a)(2)(ii).
Comment: Some commenters recommended changing Sec. 200.7(a)(2)(ii)
to require a State to set group sizes consistent with the smallest of
its existing subgroups.
Discussion: States that need to adjust their group sizes in order
to comply with Sec. 200.7(a)(2)(ii) must do so by amending their
accountability plans with the approval of the Department. The
Department will consider each State's rationale for its proposed group
size (consistent across all groups). We do not believe it is
appropriate to mandate a particular group size or to require a specific
process by which a State establishes its group size and, therefore,
decline to make the recommended change.
Changes: None.
Comment: One commenter agreed with the decision to prohibit
different group sizes for subgroups, but did not agree that the group
size for the school as a whole should be the same as that of each
subgroup.
Discussion: Section 200.7(a)(2)(ii) was intended to require the
minimum group size for a school as a whole (the ``all students'' group)
to be the same as that of each subgroup. Therefore, we have changed
Sec. 200.7(a)(2)(ii) to make this clear.
There may be instances where the number of students in a school is
less then a State's minimum group size. A State must have a policy in
place to determine AYP for every school, even in these cases. Given
that requirement, a State may choose to have a minimum group size of
zero for the ``all students'' group. However, a State may not choose a
minimum group size for the ``all students'' group, other than zero,
that is different than that of its subgroups.
Changes: Section 200.7(a)(2)(ii) has been revised by adding ``or
for the school as a whole'' at the end of the sentence.
Adequate Yearly Progress in General (Sec. 200.13)
Comment: Many commenters stated that there is no extant research to
support establishing a 2.0 percent cap on the number of proficient and
advanced scores based on modified academic achievement standards that
may be included in AYP determinations. Many commenters stated that the
research cited in the NPRM excludes IDEA-eligible students, is based
only on reading interventions for early elementary-age students, and
does not include research on math or on older students.
[[Page 17765]]
Some commenters stated that the 2.0 percent cap is too low.
However, many commenters expressed concern that the cap is too high,
stating that the 2.0 percent cap on modified academic achievement
standards and the 1.0 percent cap on alternate academic achievement
standards translates to 3.0 percent of all students or 30 percent of
students with disabilities counted as proficient for AYP purposes on
alternate assessments that are not based on grade-level academic
achievement standards. A few commenters stated this is considerably
higher than data reported by the National Center on Educational
Outcomes (NCEO) in its report on the participation of students with
disabilities in 2002-03 and the 2003 data from the State of Kansas.
Discussion: To ensure that modified academic achievement standards
are used appropriately, these regulations set a cap of 2.0 percent on
the proficient and advanced scores of students who are assessed based
on modified academic achievement standards that may be included in AYP
determinations. Together with the State guidelines required in Sec.
200.1(f), we believe that a numeric cap of 2.0 percent will discourage
schools from inappropriately holding students with disabilities to
lower standards.
We acknowledge that it is difficult to determine a numerical limit
on the number of proficient and advanced scores based on modified
academic achievement standards to be included in AYP determinations.
Unlike the 1.0 percent cap on proficient and advanced scores based on
alternate academic achievement standards for students with the most
significant cognitive disabilities, we cannot rely on disability
incidence rates because students who would be appropriately assessed
based on modified academic achievement standards are less likely to be
predominately from a few disability categories, as is the case with
students with the most significant cognitive disabilities. In fact, we
anticipate that students who are assessed based on modified academic
achievement standards will be from most, if not all, the different
disability categories listed in the IDEA.
We also considered data from States, including the data from NCEO
\7\ and the State of Kansas \8\ referred to by the commenters,
recognizing that there may be variability among States in the number of
students who meet the requirements to be assessed based on modified
academic achievement standards. We do not expect that every State will
use the full 2.0 percent cap. Therefore, rather than relying on
incidence data or data from a single State or study to establish the
cap for modified academic achievement standards, we relied on multiple
sources of data from research and State experiences. We believe that
these multiple sources of data, when considered together, provide a
sound and legitimate basis for establishing the 2.0 percent cap, while
at the same time protecting students from being inappropriately
assigned to take an alternate assessment based on modified academic
achievement standards. Because our major concern is holding students
with disabilities to high standards, we have taken a conservative
approach to estimating the cap. As a matter of policy, we believe this
to be the right approach.
---------------------------------------------------------------------------
\7\ Clapper, A.T., Morse, A.B., Lazarus, S.S., Thompson, S.J., &
Thurlow, M.L. (2005). 2003 State policies on assessment
participation and accommodations for students with disabilities
(Synthesis Report 56). Minneapolis, MN: University of Minnesota,
National Center on Educational Outcomes.
\8\ Posny, A. (2004). Clash of the titans: No child left behind
and students with disabilities. Paper presented at the Center on
Education Policy's forum on ideas to improve the NCLB accountability
provisions for students with disabilities and English language
learners, September 14, 2004, Washington, DC. Available at: http://www.cep-c.org/pubs/Forum14September2004/PochowskiPaper.pdf
.
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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 appropriate educational services and
interventions. The studies cited in the preamble to the NPRM included
students with disabilities, but excluded students with the most severe
cognitive impairments.\9\ For example, McMaster et al. (2005) defined a
group of low-performing students who were persistent non-responders to
reading interventions. The group included both students identified as
students with disabilities and students not identified to receive
special education services, but did not include students with the most
severe cognitive disabilities. McMaster et al. reported that 22 percent
of the group remained two standard deviations below average on an
outcome reading assessment following reading intervention. Torgensen et
al. (2001) indicated that 15 to 20 percent of students with severe
reading disabilities remained below average in reading comprehension
following intervention. Finally, literature reviewed and reported by
Lyon et al. (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.
---------------------------------------------------------------------------
\9\ McMaster, K.L., Fuchs, D., Fuchs, L.S., & Compton, D.L.
(2005). Responding to non-responders: An experimental field trial of
identification and intervention methods. Exceptional Children, 71,
445-463; Torgensen, J.K., Alexander, A.W., Wagner, R.K., Rashotee,
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; Lyon, G.R., Fletcher, J.M., Fuchs,
L.S., & Chhabra, V. (in press). Learning Disabilities. In E. Mash &
R. Barkley (Eds.), Treatment of Childhood Disorders (2nd ed.) New
York: Guilford Press.
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Ideally, we would have preferred to base the 2.0 percent cap on a
greater number of studies across a greater age range and encompassing
more math, as well as reading, scores. However, we believe that, given
the available evidence, and our desire to protect students with
disabilities from being inappropriately assessed based on modified
academic achievement standards, the 2.0 percent cap is appropriate,
particularly considering that the cap is not a limit on the number of
students who may participate in an alternate assessment based on
modified academic achievement standards, and the numerous safeguards
that we included in the regulations. However, the Department also
desires to maintain high standards and accountability for the
achievement of all students with disabilities and, therefore, welcomes
comments and data from States and others about how the regulations are
working and may consider revising the regulations in the future should
the comments indicate a need to do so. In addition, the Department
intends to issue a report on the implementation of these regulations
after two years of implementation. 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.
Changes: None.
Comment: A few commenters stated that the 2.0 percent cap violates
the IDEA requirement that students with disabilities receive a free
appropriate public education (FAPE). The commenters acknowledged that
the cap imposes a limit on the number of proficient and advanced scores
that may be counted as proficient for purposes of calculating AYP and
is not a limit on the number of students who may be assessed based on
modified academic achievement standards. However, the commenters stated
that LEAs will put pressure on IEP Teams to
[[Page 17766]]
inappropriately include students in the regular assessment when an LEA
is close to reaching the 2.0 percent cap, which would be a violation of
FAPE.
Discussion: Section 200.1(f) of these final regulations requires
States to establish and monitor guidelines for IEP Teams to apply in
determining which students with disabilities will be assessed based on
alternate and modified academic achievement standards. In addition,
Sec. 300.160(c), consistent with section 612(a)(16) of the IDEA,
requires a State (or in the case of a district-wide assessment, an LEA)
to develop and implement alternate assessments and guidelines for the
participation of students who cannot participate in the regular
assessment even with accommodations. These guidelines are intended to
increase the options for IEP Teams regarding appropriate assessments.
The guidelines, however, cannot guarantee that all IEP Team decisions
are the most appropriate.
Under the general supervision requirements in Sec. 300.149,
consistent with section 612(a)(11) of the IDEA, we anticipate that a
State will exercise its authority to ensure that LEAs and IEP Teams
follow the State guidelines and give thoughtful, careful consideration
to the assessment that is most appropriate for an individual student so
that the situation described by the commenters does not occur.
Changes: None.
Comment: One commenter recommended that the regulations allow a
State to determine the number of students in an LEA who may take an
alternate assessment based on alternate or modified academic
achievement standards. The commenter also recommended giving a State
the authority to take corrective action to prevent an LEA from
exceeding the 1.0 and 2.0 percent caps.
Discussion: Permitting a State to impose numeric limits on the
number of students to whom an LEA may administer alternate assessments,
thereby excluding a student whose IEP Team determines that an alternate
assessment is the most appropriate assessment for the student, would be
inconsistent with the IDEA. Section 614(d)(1)(A)(i)(VI) of the IDEA
gives a student's IEP Team the authority to determine how a student
with a disability will participate in State and district-wide
assessments. IEP Team decisions should be consistent with State
guidelines, including guidelines for alternate assessments based on
alternate or modified academic achievement standards. Therefore, we
cannot make the change requested by the commenter.
With regard to the commenter's second recommendation to give a
State the authority to take corrective action to prevent an LEA from
exceeding the 1.0 percent and 2.0 percent caps, under Sec.
200.13(c)(3), an LEA may exceed the 2.0 percent cap only if the number
of proficient and advanced scores on the alternate assessment based on
alternate academic achievement standards is less than 1.0 percent, and
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 assessed. Likewise, a State may grant an
exception to an LEA and permit the LEA to exceed the 1.0 percent cap
under the conditions listed in Sec. 200.13(c)(5). If an LEA does not
abide by these provisions and exceeds the 1.0 and 2.0 percent caps
inappropriately, Sec. 200.13(c)(7) already requires a State to count
as non-proficient the proficient and advanced scores that exceed the
caps and determine which scores to count as non-proficient in the
schools and LEAs responsible for students who are assessed based on
alternate or modified academic achievement standards.
Changes: None.
Comment: One commenter asked if a State would be allowed to assess
students on alternate assessments based on alternate academic
achievement standards if the State chose not to assess students based
on modified academic achievement standards.
Discussion: The development of modified academic achievement
standards and assessments based on those standards is voluntary and
does not affect a State's implementation of alternate assessments based
on alternate academic achievement standards. Therefore, a State that
already provides an alternate assessment based on alternate academic
achievement standards may choose not to provide an alternate assessment
based on modified academic achievement standards.
Changes: None.
Comment: Several commenters opposed the prohibition on a State
requesting an exception to the 1.0 percent cap on the number of
proficient and advanced scores on alternate assessments based on
alternate academic achievement standards that may be included in AYP
determinations. Some commenters recommended permitting a State to
exceed a combined total of 3.0 percent; other commenters supported a
``dotted line'' approach that would set an absolute cap of 3.0 percent,
but would permit a State to exceed the 1.0 percent cap or the 2.0
percent cap. Some commenters stated that, by not allowing exceptions,
the Department was eliminating the distinction between students with
the most significant cognitive disabilities and students for whom
modified academic achievement standards are appropriate and asked what
would happen to the scores of students in a State that had previously
received an exception to exceed the 1.0 percent cap. Commenters also
were concerned about rural States and the need for exceptions for very
small school districts. Other commenters supported not allowing
exceptions. One commenter stated that there should be a lower cap, and
that exceptions should be permitted based on a lower cap.
Discussion: The final regulations on alternate academic achievement
standards permitted a State to request an exception to the 1.0 percent
cap to account for extraordinary circumstances in the State that
warranted an exception, or for a rural State with small numbers of
students. Since the final regulations were issued in December 2003, the
Department has granted exception requests to four States. Two requests
were for statistical reasons due to the rural nature of the State. The
other two requests were for very small increments over 1.0 percent. In
both of the latter cases neither State has used the exception because
less than 1.0 percent of students tested scored proficient or advanced
on the alternate assessment based on alternate academic achievement
standards.
Based on the requests submitted to date, we believe that there is
no real need to have an exception to the 1.0 percent cap at the State
level. When there are truly unique circumstances within an LEA, such as
a hospital with special services, the LEA exception process should
suffice. In addition, as we stated in the preamble to the proposed
regulations on modified academic achievement standards, we do not
believe that it is appropriate or necessary to permit more than 3.0
percent of proficient and advanced scores on alternate assessments
based on alternate or modified academic achievement standards to be
included in AYP determinations.
We do not agree with the commenters who proposed an absolute cap of
3.0 percent while allowing a State to exceed the 1.0 or 2.0 percent
caps. Section 200.13(c)(3) permits a State's or LEA's number of
proficient and advanced scores based on modified academic achievement
standards to exceed the 2.0 cap only if the number of proficient and
advanced scores based on alternate academic achievement standards is
less
[[Page 17767]]
than 1.0 percent. We believe that this may encourage the participation
of students who are currently assessed based on alternate academic
achievement standards to be assessed based on the more challenging
modified academic achievement standards. A State may not exceed the 1.0
percent cap when there are less than 2.0 percent of proficient and
advanced scores on modified academic achievement standards because we
do not want to create an incentive to identify more students for
alternate assessments based on the less challenging alternate academic
achievement standards.
Changes: None.
Comment: One commenter recommended changing Sec.
200.13(c)(5)(i)(C) to require an LEA to document that it is ``fully and
effectively'' implementing the State's guidelines for IEP Teams before
it is granted an exception to the 1.0 percent cap on proficient and
advanced scores based on alternate academic achievement standards.
Discussion: Section 200.13(c)(5) permits a State to grant an
exception to an LEA to exceed the 1.0 percent cap on proficient and
advanced scores based on alternate academic achievement standards if
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, and if the LEA explains why the
incidence of such students exceeds 1.0 percent of all students in the
combined grades assessed.
We do not believe it is necessary to add the requirement suggested
by the commenter that an LEA demonstrate that it has fully and
effectively implemented the State's guidelines. A State must seriously
consider whether to grant an exception to an LEA to exceed the 1.0
percent cap because the State may not exceed the 1.0 percent cap. We
believe that, in the course of determining whether to grant an
exception to an LEA, a State will consider whether the LEA has followed
the State's guidelines and appropriately identified students to
participate in an alternate assessment based on alternate academic
achievement standards.
Changes: None.
Making Adequate Yearly Progress (Sec. 200.20)
Comment: One commenter stated that multiple assessment
administrations should be permitted for all students, not just for
students with disabilities.
Discussion: Current Sec. 200.20(c)(3) applies to all students, not
just students with disabilities. Therefore, the removal of current
Sec. 200.20(c)(3) permits multiple test administrations for all
students.
Changes: None.
Comment: Most commenters supported removing 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.
However, a number of commenters opposed this change and requested that
the regulations continue to require a State to use the results from the
first administration of a test. A few commenters stated that the
results from only the first administration of an assessment should be
used because these scores provide a more accurate measure of school
accountability. The commenters stated that accountability
determinations based on the first assessment administered reflect the
effectiveness of a school's core academic program, while scores from
subsequent administrations improve a school's AYP and give credit for
successful remediation.
One commenter expressed concern that administering an assessment
multiple times compromises the reliability of accountability
determinations because students learn the test. Another commenter
requested additional guidance regarding how many times a State may
administer an assessment and whether different forms of the assessment
must be used. Some commenters suggested limiting retests to one
additional test administration each year to avoid excessive testing and
delays in releasing AYP data.
One commenter suggested changing the regulations to prevent
retesting a student with a different type of assessment or in a
different manner (e.g., with an accommodation) for the sole purpose of
obtaining a proficient score. Several commenters expressed concern that
the removal of current Sec. 200.20(c)(3) would result in excessive
testing. Other commenters stated that allowing a State to use the best
score from multiple administrations of a test might result in teachers
concentrating on test preparation instead of improving instruction.
Discussion: A State that permits multiple administrations of its
assessment must ensure that the assessment continues to be reliable and
valid and provides an accurate measure of school accountability.
We understand that permitting multiple administrations of an
assessment may raise concerns about over-testing and focusing on test
preparation, rather than instruction. However, we continue to believe
that allowing a State to use the best score of multiple administrations
of an assessment will motivate students, parents, schools, and States
to continue working to attain grade-level achievement and thereby
result in greater student success.
Changes: None.
Comment: A few commenters recommended allowing a student's IEP Team
to determine the number of times the student may retake an assessment.
Discussion: The IEP Team is responsible for determining how a
student will participate in State and district-wide assessments. (See
Sec. 300.320(a)(6) of the IDEA regulations.) Determining the number of
times a student retakes an assessment is not the role of the IEP Team.
IEP Teams do not have the authority to override a State policy
regarding the number of times a student may take an assessment.
Changes: None.
Including Scores of Students Previously Identified Under IDEA in AYP
Calculations for the Students With Disabilities Subgroup (Sec.
200.20(f))
Comment: A number of commenters supported proposed Sec.
200.20(f)(1), which permits a State, in calculating AYP for the
students with disabilities subgroup, to include, for up to two years,
the scores of students who were previously identified under section
602(3) of the IDEA but who no longer receive special education
services. These commenters applauded this section as acknowledging
students' academic achievement and recognizing the positive impact of
schools, teachers, and parents in facilitating that success.
A number of other commenters, however, disagreed. These commenters
expressed concern that allowing a State to include former students with
disabilities in the students with disabilities subgroup would mask the
true performance of students with disabilities and shift the focus away
from improving instruction for those students. One commenter stated
that including former students with disabilities in the disabilities
subgroup would ensure that the disability label would continue to
follow the students.
Discussion: We recognize that the students with disabilities
subgroup is one whose membership can change from year to year as
students who were once identified as needing services and an IEP exit
the subgroup. Because these students have exited the subgroup, school
assessment results for the students with disabilities subgroup would
not reflect the gains the exiting students have made in academic
achievement. Recognizing this situation, the final regulations allow a
State to
[[Page 17768]]
include ``former students with disabilities'' within the students with
disabilities subgroup in making AYP determinations for up to two AYP
determination cycles after they no longer receive special education
services.
At the same time, however, we recognize that it is important that
parents and the public have a clear picture of the academic achievement
of those students with disabilities who remain identified under section
602(3) of the IDEA. Thus, the final regulations distinguish between
including former students with disabilities in the subgroup for
reporting assessment data and including them in the subgroup when
reporting AYP on State and LEA report cards.
Under section 1111(h)(1)(C) and section 1111(h)(2)(B) (as that
section applies to an LEA and each school served by the LEA) of the
ESEA, information on subgroups is reported in two distinct ways. Under
section 1111(h)(1)(C)(i), (iii), (iv), (v), and (vi) and section
1111(h)(2)(B) (as that section applies to an LEA and each school served
by the LEA) of the ESEA, information is reported for all students and
the students in each subgroup, regardless of whether a student's
achievement is used in determining if the subgroup has made AYP (i.e.,
reporting includes students who have not been enrolled for a full
academic year, as defined by the State, and students in subgroups too
small to meet the State's minimum group size for determining AYP). For
reporting under these provisions, former students with disabilities may
not be included in the students with disabilities subgroup because it
is important that parents and the public have a clear picture of the
academic achievement of students with disabilities who are currently
identified under section 602(3) of the IDEA and are receiving services.
On the other hand, section 1111(h)(1)(C)(ii) and section 1111(h)(2)(B)
(as that section applies to an LEA and each school within the LEA)
provide for a comparison between the achievement levels of subgroups
and the State's annual measurable achievement objectives for AYP in
reading/language arts and mathematics (for all students and
disaggregated by race/ethnicity, disability status, English
proficiency, and status as economically disadvantaged). For this
section of State and LEA report cards, a State and its LEAs are
reporting on how students whose assessment scores were used in
determining AYP (i.e., students enrolled for a full academic year) for
reading/language arts and mathematics compare to the State's annual
measurable objective for AYP. For reporting AYP by subgroup, former
students with disabilities may be included in the students with
disabilities subgroup. In this way, a school's and district's
accountability status will reflect their good work in successfully
enabling students with disabilities to make progress so that they no
longer need special education services while providing parents and the
public clear information on how the subgroup of students with
disabilities who are still receiving services is performing.
We note, of course, that former students with disabilities, because
they are no longer receiving services under section 602(3) of the IDEA,
would not be eligible to be assessed based on either alternate or
modified academic achievement standards.
With regard to the commenter who expressed concern that including
the scores of former students with disabilities in the students with
disabilities subgroup would ensure that the disability label would
follow the student, we do not agree. Students who no longer receive
special education services are not ``labeled'' as such. The inclusion
of their scores in the students with disabilities subgroup is for AYP
purposes only.
Since the publication of the NPRM on modified academic achievement
standards, the Department published final regulations on the
accountability for recently-arrived and former limited English
proficient (LEP) students (71 FR 54187 (Sept. 13, 2006)) (referred to
in this notice as the LEP regulations). The final LEP regulations
permit a State, in determining AYP for the subgroup of LEP students, to
include, for up to two AYP determination cycles, the scores of students
who were LEP, but who no longer meet the State's definition of limited
English proficiency. The final regulations regarding including the
scores of former students with disabilities in AYP determinations that
are a part of this notice mirror the final LEP regulations in current
Sec. 200.20(f)(2). Therefore, we have incorporated the provisions from
proposed Sec. 200.20(f)(1), regarding former students with
disabilities, into current Sec. 200.20(f)(2). Incorporating these
provisions into current Sec. 200.20(f)(2) has resulted in several
changes to the structure of current Sec. 200.20(f)(2) and the
provisions in proposed Sec. 200.20(f)(1). For example, current Sec.
200.20(f)(2) has been organized into paragraphs (f)(2)(i)(A) and
(f)(2)(i)(B) to include provisions regarding the scores of former LEP
students and former students with disabilities in the LEP subgroup and
students with disabilities subgroup, respectively. We have not detailed
all these changes in the discussion that follows because, while the
structure of new Sec. 200.20(f)(2) differs from proposed Sec.
200.20(f), the content regarding former students with disabilities is
the same as proposed Sec. 200.20(f), with one exception, which is
noted in the ``Changes'' section in the next comment.
Changes: We have incorporated the provisions in proposed Sec.
200.20(f) into current Sec. 200.20(f)(2). With these changes, proposed
paragraphs (a)(1), (b), and (c)(1) are no longer needed and have been
removed.
Comment: Several commenters noted that the proposed regulations
could permit a State to include only the scores of some students who
have exited the students with disabilities subgroup. The commenters
recommended that the regulations be amended to clarify that the scores
of all former students with disabilities must be included in
determining AYP if the scores of any former students with disabilities
are included. The commenters reasoned that a State should not have the
option to include only the proficient and advanced scores of former
students with disabilities in order to raise the achievement level of
the students with disabilities subgroup.
Discussion: We agree with the commenters. Whether to include the
scores of former students with disabilities in the students with
disabilities subgroup for up to two years is a discretionary decision
of each State. However, if a State makes the decision to include the
scores of former students with disabilities for AYP calculations, it
must include the scores of all such students; it may not include just
the scores of some students--for example, those who scored proficient
or advanced--and exclude the scores of others. Of course, former
students with disabilities must be included in each other subgroup to
which they belong--e.g., economically disadvantaged, Hispanic, etc. We
have changed the regulations to require a State to use the scores of
all former students with disabilities for AYP calculations if the State
decides to include the scores of any former student with a disability.
Changes: New Sec. 200.20(f)(2)(ii) has been changed by adding
``must include the scores of all such students, but'' at the end of the
sentence.
Comment: One commenter recommended that proposed Sec. 200.20(f)(1)
be amended to clarify that former students with disabilities also may
be included in calculating the participation rate for the students with
disabilities subgroup.
[[Page 17769]]
Discussion: We do not believe it is appropriate to permit a State
to include former students with disabilities in calculating the
participation rate for the students with disabilities subgroup. Those
students will be counted as participants in the ``all students'' group
and in any other subgroup to which they belong. These final regulations
permit a State to include the scores of former students with
disabilities to determine AYP for the students with disabilities
subgroup so that a school and LEA receive the benefits of their efforts
in providing special education and related services that enabled
students with disabilities to no longer need special education
services. There is no similar justification for including former
students with disabilities in calculating the participation rate of the
students with disabilities subgroup. In fact, it is important for the
public to know the participation rate of just students with
disabilities because historically they have been excluded from
Statewide assessments.
Changes: None.
Comment: Several commenters recommended that proposed Sec.
200.20(f)(2) be amended to require that the number of former students
with disabilities whose scores are used for AYP must also be included
in the subgroup size for all purposes for which the scores are used.
The commenters reasoned that the only reason to permit inclusion of the
scores of former students with disabilities in determining AYP without
adding those students to the number of students who make up the
subgroup is to keep those students from increasing the subgroup beyond
the minimum group size and thereby making it visible in AYP.
Discussion: The regulations are designed to assist schools and LEAs
that have a students with disabilities subgroup of sufficient size
(without including former students with disabilities) to yield
statistically reliable information to demonstrate their progress with
that subgroup by enabling those schools and LEAs to include the scores
of former students with disabilities in AYP calculations for up to two
years after the students no longer need special education services.
Therefore, we decline to require a State or LEA that takes advantage of
this flexibility also to include former students with disabilities in
determining whether the students with disabilities subgroup meets the
State's minimum group size. Nothing in these regulations would prevent
a State or LEA that wishes to include former students with disabilities
in the students with disabilities subgroup in determining whether a
school or LEA has a sufficient number of students to yield
statistically reliable information under Sec. 200.7(a) from doing so.
Changes: None.
Definitions (Sec. 200.103)
Comment: A few commenters recommended including a definition of
``universal design'' in these regulations.
Discussion: We do not believe it is appropriate to include a
definition of ``universal design'' in these regulations because it is a
term of art with different meanings when applied to different products
and services. As applied to assessments, universal design generally
means that assessments are developed to be accessible for the widest
possible range of students.
Changes: None.
Comment: A few commenters recommended defining ``pupil services''
to mean ``related services,'' as defined in section 602(26) of the
IDEA.
Discussion: Equating ``pupil services'' with ``related services''
would be inconsistent with the ESEA. Section 9101(36) of the ESEA
already defines ``pupil services'' as including ``related services.''
Therefore, we decline to make the change requested by the commenter.
Changes: None.
Part 300--Assistance to States for the Education of Children With
Disabilities
This summary includes comments made in response to the Title I NPRM
published in the Federal Register on December 15, 2005 (70 FR 74624),
as well as comments made in response to the proposed IDEA 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 the inclusion of children with disabilities
in State and district-wide assessment systems in accordance with
section 612(a)(16) of the IDEA.
Participation in Assessments (Sec. 300.160)
General (Sec. 300.160)
Comment: A few commenters requested that the regulations clearly
state that all students must participate in a State's assessment
program except for a child with a disability who is medically fragile
and cannot tolerate the stress of participating in an assessment.
Discussion: We cannot make the requested change. Section
300.160(a), consistent with section 612(a)(16)(A) of the IDEA, is clear
that a State must ensure that all children with disabilities are
included in State and district-wide assessment programs. Neither the
IDEA nor these regulations permit categorical exceptions to this
requirement.
Changes: None.
Comment: One commenter expressed concern that LEAs would have
difficulty developing alternate assessments for district-wide
assessments and requested assistance in identifying ways for LEAs to
meet the requirements in section 612(a)(16)(A) of the IDEA.
Discussion: Section 612(a)(16)(A) of the IDEA is clear that all
children must participate in State as well as district-wide
assessments. This has been a requirement since the 1997 reauthorization
of the IDEA. LEAs that conduct district-wide assessments must provide
an alternate assessment for children who cannot participate in the
district-wide assessment even with accommodations. Identifying the
manner in which an LEA meets this requirement, however, is a matter
that is best determined by State and local officials.
Changes: None.
Comment: One commenter recommended requiring benchmarks or short-
term objectives to be developed for students with disabilities
participating in alternate assessments based on modified academic
achievement standards.
Discussion: Section 614(d)(1)(A)(i)(I)(cc) of the IDEA requires
benchmarks or short-term objectives to be included only in the IEPs of
children with disabilities who participate in alternate assessments
based on alternate academic achievement standards. Alternate
assessments based on modified academic achievement standards are not
alternate assessments based on alternate academic achievement
standards. Therefore, we do not believe that benchmarks or short-term
objectives should be required for children with disabilities who
participate in alternate assessments based on modified academic
achievement standards. Congress specifically limited the requirement
for benchmarks and short-term objectives to the IEPs of children with
the most significant cognitive disabilities who participate in
alternate assessments based on alternate academic achievement
standards. As the Senate Committee on Health, Education, Labor, and
Pensions noted in Sen. Rep. No. 108-185 (p. 28), ``Short-term
objectives and benchmarks can focus too much on minor details and
distract from the real purpose of special education, which is to ensure
that all children and youth with disabilities
[[Page 17770]]
achieve high educational outcomes and are prepared to participate fully
in the social and economic fabric of their communities.''
We believe that students participating in alternate assessments
based on modified academic achievement standards will benefit more when
IEP Teams focus on goals that are based on grade-level content
standards, rather than on short-term objectives or benchmarks. In the
discussion of comments under Sec. 200.1(e)(2)(iii) in this notice, we
explain why we are requiring that the IEPs of children taking alternate
assessments based on modified academic achievement standards include
goals based on the academic content standards for the grade in which
the student is enrolled and that the IEP be designed to monitor the
student's progress in achieving the student's standards-based goals.
Changes: None.
Accommodation Guidelines (Sec. 300.160(b))
Comment: A few commenters requested that the regulations clarify
that accommodations that invalidate a score when used in an assessment
may continue to be used in classroom instruction. Other commenters
recommended that the regulations clarify that the accommodation
guidelines are to be used by IEP Teams to recommend necessary and
reasonable accommodations to enable a student to participate both in
the instructional program and in the assessment.
Discussion: The requirements in Sec. 300.160(b) pertain to
guidelines for the use of accommodations in assessments, and do not
speak to the use of accommodations in the classroom. However, there is
nothing in the IDEA or these regulations that would prohibit the use of
accommodations in classroom instruction that, if used in a State
assessment, would invalidate a student's score. Likewise, there is
nothing in the IDEA or these regulations that would prohibit a State
from encouraging IEP Teams to use the accommodation guidelines for
assessments to determine the instructional supports to be provided in
the classroom. Such instructional supports are generally referred to as
supplementary aids and services. Section 300.320(a)(4)(i), consistent
with section 614(d)(1)(A)(i)(IV)(aa) of the IDEA, requires the IEP Team
to identify the supplementary aids and services to be provided to a
child to enable the child to advance appropriately toward meeting the
child's annual IEP goals.
Changes: None.
Comment: One commenter recommended requiring States and LEAs to
have methodologies in place to determine that the accommodations
provided are valid and reliable and can be objectively determined. A
few commenters recommended requiring a State to submit proposed
accommodations for review and approval by a panel of peer reviewers.
Discussion: The Department's peer review of Statewide assessment
systems under Title I of the ESEA already requires a State to provide
evidence that the State's assessments are valid and reliable for the
purposes for which the assessments are used, and are consistent with
relevant, nationally recognized professional and technical standards. A
State must also provide evidence that appropriate accommodations are
available to students with disabilities.
For State and LEA assessments that are not part of a State's
assessment system under Title I of the ESEA, a State and its LEAs also
have an obligation, under the IDEA, to ensure that children with
disabilities have available the accommodations that are necessary to
measure the academic achievement and functional performance of the
child. In order to do this, States and LEAs need to determine, for each
particular assessment, the accommodations that will not result in
invalid scores and identify those accommodations in their accommodation
guidelines. We have revised Sec. 300.160(b)(2)(i) to make this clear.
The IDEA does not dictate a specific process to be followed in
determining allowable accommodations, and, therefore, we decline to
adopt the recommendations that we do so at this time. We will continue
to evaluate whether States are ensuring that accommodations that would
not result in invalid scores are available and revisit this decision if
the need to do so becomes apparent.
The commenters who recommended requiring a State to submit proposed
accommodations for review and approval by a panel of peer reviewers
seem to be proposing a review to determine the appropriateness of
accommodations that would be divorced from any review of the technical
qualities of the State's assessments. Since decisions about whether a
particular accommodation is or is not allowed depend on how a test is
constructed and validated, we are not making the requested change. As
required by Sec. Sec. 200.2(b)(2) and 200.6(a)(1), a State already is
under the obligation to ensure that its assessments under Title I of
the ESEA are designed to be used by the widest possible number of
students, and to ensure that accommodations are provided, when
necessary, to measure the academic achievement of students with
disabilities.
Changes: Section 300.160(b)(2)(i) has been changed to require a
State's guidelines (or in the case of a district-wide assessment, an
LEA's guidelines) to identify the accommodations for each assessment
that do not invalidate the score.
Comment: One commenter noted that the regulations must continue to
allow IEP Teams to select accommodations based on the needs of their
students, without regard to whether the accommodation could yield a
valid score.
Discussion: Several sections of the IDEA must be considered to
evaluate the proper role of a State in identifying accommodations that
do not invalidate the scores of children with disabilities (and result
in children being counted as nonparticipants) and the responsibility of
individual IEP Teams to select accommodations for individual children.
Under section 612(a)(16) of the IDEA, a State has a responsibility to
ensure that all children with disabilities are included in State and
district-wide assessments. Under section 614(d)(1)(A)(i)(VI) of the
IDEA and Sec. 300.320(a)(6)(i) of the IDEA regulations, a child's IEP
must include the individual appropriate accommodations that are
necessary to measure the academic achievement and functional
performance of the child.
A State's role in this regard is thus twofold--it must ensure that
children with disabilities are included in the assessments and that the
accommodations that are offered to individual children with
disabilities are ones that allow a child's academic achievement to be
measured. This carries with it, we believe, a responsibility for each
State to clearly identify for IEP Teams those accommodations that, if
used, will not result in an invalid score, so that children with
disabilities will be appropriately included in assessments. Therefore,
as noted earlier, we have changed Sec. 300.160(b)(2)(i) to require
State and LEA guidelines to identify the accommodations for each
assessment that do not result in invalid scores. We also believe that,
to meet its responsibility to ensure that children with disabilities
are included in assessments, a State needs to instruct IEP Teams to
select only accommodations that do not result in invalid scores. The
child's IEP Team, though, remains the primary decisionmaker for the
accommodations
[[Page 17771]]
that will be made available to the child. Therefore, we have changed
Sec. 300.160(b)(2)(ii) to make clear that State and LEA guidelines
must instruct IEP Teams to select only accommodations that do not
result in invalid scores.
Changes: We have changed Sec. 300.160(b)(2)(ii) to require that
State and LEA guidelines instruct IEP Teams to select, for each
assessment, only those accommodations that do not invalidate a score.
Comment: Several commenters stated that a State's accommodation
guidelines should focus on ``appropriate accommodations'' and not
require ``valid accommodations.'' These commenters stated that the
focus should be on universally-designed assessments that allow many
more accommodations, rather then denying children with disabilities the
right to use the accommodations that are necessary to meet the child's
needs. Another commenter recommended defining ``appropriate
accommodations'' and ``individually appropriate accommodations'' as
accommodations that are needed to meet a child's unique needs that
maintain and preserve test validity, reliability, and technical testing
standards.
Discussion: Tests administered with accommodations that do not
maintain test validity are not measuring academic achievement and
functional performance. Therefore, providing these accommodations would
be inconsistent with Sec. 300.320(a)(6)(i) and section
614(d)(1)(A)(i)(VI)(aa) of the IDEA, which require each IEP to include
the appropriate accommodations that are necessary to measure the
academic and functional performance of a child on State and district-
wide assessments. With regard to the recommendation that a State focus
on universally designed assessments, new Sec. 300.160(g) (proposed
Sec. 300.160(f)) already incorporates the requirement in section
612(a)(16)(E) of the IDEA that a State, in the case of Statewide
assessments, and an LEA, in the case of district-wide assessments, to
the extent possible, use universal design in developing and
implementing assessments. Moreover, Sec. 200.2(b)(2) of the Title I
regulations requires a State's assessment system to ``[b]e designed to
be valid and accessible for use by the widest possible range of
students, including students with disabilities.''
It is not necessary to provide specific definitions of the terms
``appropriate accommodations'' and ``individually appropriate
accommodations'' because we have revised the provisions in Sec.
300.160(b) to clarify what the accommodations guidelines need to
include.
Changes: None.
Comment: One commenter requested that the regulations require a
State and its LEAs to provide research-based decision-making tools for
IEP Team members to determine appropriate testing accommodations. A few
commenters recommended that the Department provide guidance regarding
accommodations for children with disabilities and require States and
LEAs to provide professional development to school personnel regarding
the participation of students with disabilities in State and district-
wide assessments.
Discussion: We do not believe that additional regulations are
necessary to address the commenters' concerns. Section 300.160(b)
already requires each State (or in the case of a district-wide
assessment, an LEA) to develop guidelines for IEP Teams to use
regarding the provision of appropriate accommodations. Section
200.6(a)(1)(ii)(B) of the Title I regulations also requires each State
to 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.
The Department has devoted considerable resources to provide
technical assistance to States regarding the appropriate use of
accommodations for children with disabilities. For example, the Office
of Special Education Programs supports the National Center on
Educational Outcomes (See http://www.education.umn.edu/nceo/) and the
Office of Elementary and Secondary Education supports a Comprehensive
Center on Accountability and Assessments (See http://www.aacompcenter.org/
). In addition, the Department's Institute of
Education Sciences supports research to address questions of how
assessments for accountability can best be designed and used to capture
and represent proficiency and growth for children with disabilities
(See http://ies.ed.gov/ncser/).
Changes: None.
Comment: One commenter recommended requiring a State to have in
effect policies and procedures that explain how children with
disabilities are included in assessments. The commenter stated that the
policies and procedures related to assessments must include a clear
statement that the IEP Team, including the parent, makes the decision
regarding a child's participation in State and district-wide
assessments; how parents will be notified when decisions regarding the
child's participation in assessments will be made; and when reports
will be distributed to parents and the public. A few commenters
requested that the regulations require the IEP to include the
accommodations to be provided to a child.
Discussion: The requirements recommended by the commenters are
already addressed in these and other existing regulations. Section
300.160(a), consistent with section 612(a)(16) of the IDEA, requires
each State to have in effect policies and procedures to ensure that all
children with disabilities in the State are included in State and
district-wide assessments, with appropriate accommodations and
alternate assessments where necessary. Section 300.320(a)(6),
consistent with section 614(d)(1)(A)(i)(VI) of the IDEA, requires a
child's IEP Team, which includes the parent, to include in the IEP any
individual appropriate accommodations that are necessary to measure the
academic achievement and functional performance of the child on State
and district-wide assessments. If the IEP Team determines that a child
will take an alternate assessment, the IEP Team must explain why the
child cannot participate in the regular assessment and why the
particular alternate assessment selected is appropriate for the child.
Section 300.322(b) requires that the notice to the parent regarding an
IEP Team meeting indicate the purpose of the meeting, in addition to
the time and location of the meeting. Finally, new Sec. 300.160(f)
(proposed Sec. 300.160(e)) requires that reports on the performance of
children with disabilities on State and district-wide assessments be
available to the public with the same frequency and in the same detail
as reports on the assessment of nondisabled children.
Changes: None.
Comment: One commenter stated that the requirement for valid
accommodations will lead to increased litigation because it violates
section 607(a) and (b) of the IDEA.
Discussion: We disagree with the commenter. Section 607(a) of the
IDEA states that the Secretary shall issue regulations only to the
extent that such regulations are necessary to ensure compliance with
the specific requirements of the IDEA. Section 607(b) of the IDEA
provides that the Secretary cannot publish final regulations that would
procedurally or substantively lessen the protections provided to
children with disabilities in
[[Page 17772]]
the regulations that were in effect on July 20, 1983, except to the
extent that such regulations reflect the clear and unequivocal intent
of Congress in legislation. We believe that Sec. 300.160(a) is
necessary to ensure that the requirements in sections 612(a)(16) and
614(d)(1)(A)(i)(VI)(aa) of the IDEA are met, does not lessen
protections for children with disabilities that were in regulations in
effect in 1983 (the 1983 regulations did not address assessments), and
reflects the clear and unequivocal intent of Congress. Section
614(d)(1)(A)(i)(VI)(aa) of the IDEA requires each IEP Team to include
in an IEP the appropriate accommodations that are necessary to measure
the academic and functional performance of a child on State and
district-wide assessments. Tests administered with accommodations that
do not maintain test validity are not measuring academic achievement.
Moreover, the importance of identifying valid accommodations was
recognized on page 97 of the House Committee Report No. 108-77 (2003):
* * * 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.
Similarly, the Senate Committee Report No. 108-185 (2003) on page
30 acknowledges that appropriate accommodations will not affect the
test's validity. Accordingly, we disagree that the validation
requirement violates section 607(a) or (b) of the IDEA.
Changes: None.
Comment: One commenter requested a definition of ``valid.'' Another
commenter stated that the regulations should make clear that
accommodations that alter the construct being assessed are not allowed.
Discussion: As used in Sec. 300.160(a), a ``valid'' accommodation
is an accommodation that does not alter the construct that the test is
intended to measure. Accommodations that affect test validity do not
measure a child's academic achievement. We believe the requirement for
valid accommodations is sufficient to guide IEP Teams and, therefore,
decline to add the suggested language to the regulation.
The Department's nonregulatory guidance on standards and assessment
defines validity (See question F-4.) and further clarifies a State's
responsibilities for the validity and reliability of assessments under
Title I. This document can be found at http://www.ed.gov/policy/elsec/guid/saaguidance03.doc.
We do not believe additional clarification is
needed in these regulations.
Changes: None.
Comment: Several commenters requested that definitions of
``accommodations'' and ``modifications'' be included in these
regulations because definitions of these two terms vary across States.
Discussion: The terms ``accommodations'' and ``modifications'' are
terms of art and have different meanings depending on the context in
which they are used. The terms are used in a number of ways, for
example, to refer to changes to a test or testing environment, or to
adaptations to an educational environment, the presentation of
educational material, the method of response, or the educational
content. We do not believe it is appropriate to define such terms of
art in these regulations. We also note that the term ``modifications''
is not used in the IDEA amendments of 2004 or the ESEA, as amended by
NCLB.
Changes: None.
Comment: One commenter stated that special accommodations should be
given for children with the most significant cognitive disabilities.
Discussion: Section 1111(b)(3)(C)(ix)(II) of the ESEA and section
612(a)(16) of the IDEA already require a State to provide appropriate
accommodations for students with disabilities to participate in State
assessment systems. This includes accommodations for alternate
assessments.
Changes: None.
Alternate Assessments (New Sec. 300.160(c)) (Proposed Sec.
300.160(d))
Comment: One commenter stated that the regulations must specify
that States and LEAs are required to develop two alternate
assessments--one measuring the same academic achievement standards as
all other students and the other based on alternate academic
achievement standards for students with the most significant cognitive
disabilities. A few commenters requested clarification as to whether
alternate assessments are based on high academic achievement standards
or alternate academic achievement standards. One commenter stated that
a State should be required to provide a definition of what constitutes
an alternate assessment.
Discussion: Section 612(a)(16)(C)(i) of the IDEA is clear that a
State must develop and implement alternate assessments and guidelines
for children with disabilities, but does not specify whether the
alternate assessments must be based on grade-level academic achievement
standards, modified academic achievement standards, or alternate
academic achievement standards. Modified academic achievement standards
under Sec. 200.1(e) and alternate academic achievement standards under
Sec. 200.1(d) are optional. However, having an alternate assessment is
not optional if there are children with disabilities who cannot be
appropriately assessed with the regular assessment. Therefore, if a
State chooses not to develop an alternate assessment based on modified
or alternate academic achievement standards, the State must have an
alternate assessment based on grade-level academic achievement
standards, unless all children with disabilities can be appropriately
assessed using the regular assessment.
Section 612(a)(16)(A) of the IDEA and Sec. 300.160(a) of these
regulations require a State to ensure that all children with
disabilities are included in general State and district-wide
assessments. Section 612(a)(16)(C)(i) of the IDEA and new Sec.
300.160(c) (proposed Sec. 300.160(d)) further require that a State (or
in the case of a district-wide assessment, an LEA) develop and
implement alternate assessments and guidelines for children with
disabilities who cannot participate in regular assessments even with
accommodations. Under Sec. Sec. 200.1(e) and 200.6(a)(3) of the Title
I regulations published in this notice and new Sec. 300.160(c), a
State has the option of developing alternate assessments based on
modified academic achievement standards. For clarity, we have
redesignated proposed Sec. 300.160(c) as new Sec. 300.160(c)(2)(ii)
so that it is clear that an assessment based on modified academic
achievement standards is an alternate assessment.
Because a State has options regarding the type of alternate
assessments that it will provide for students with disabilities, a
State would not necessarily report on the number of students who
participated in each of the alternate assessments. To acknowledge this
and for clarity, we have made clear in new Sec. 300.160(f)(2) through
(f)(4) (proposed Sec. 300.160(e)(2) through (e)(4)) that a State must
report the number of children with disabilities, if any, who are
assessed, using an Alternate assessment based on grade-level, modified,
or alternate academic achievement standards, respectively. We also have
removed the regulatory citations for the different academic achievement
standards (e.g., ``described in paragraph (d)(2)(i)'') and added the
name of the particular achievement standard to which we are referring
(e.g., ``grade-level'') in new Sec. 300.160(f)(2)
[[Page 17773]]
through (f)(4) (proposed Sec. 300.160(e)(2) through (e)(4)).
With regard to the request to clarify whether alternate assessments
are based on high achievement standards or alternate academic
achievement standards, this will depend on the type of alternate
assessment. We believe that the regulations are clear that there are
three types of alternate assessments permitted under Title I and the
IDEA: alternate assessments based on grade-level academic achievement
standards; Alternate assessments based on modified academic achievement
standards; and alternate assessments based on alternate academic
achievement standards.
We do not believe it is necessary for a State to provide a
definition of what constitutes an alternate assessment, as requested by
one commenter. New Sec. 300.160(c)(2) (proposed Sec. 300.160(d)(2))
clearly lays out that alternate assessments under Title I of the ESEA
must be aligned with a State's challenging academic content standards
and challenging academic achievement standards and, if a State has
adopted modified academic achievement standards or alternate academic
achievement standards, measure student achievement against those
standards.
Changes: We have (1) redesignated proposed Sec. 300.160(c) as new
Sec. 300.160(c)(2)(ii) and renumbered the subsequent paragraph; (2)
added ``if any'' following ``number of children with disabilities'' in
new paragraphs (f)(2) through (f)(4) (proposed paragraphs (e)(2)
through (e)(4)); and (3) replaced the regulatory citation in new
paragraphs (f)(2) through (f)(4) (proposed (e)(2) through (e)(4)) with
the name of the particular academic achievement standards to which we
are referring.
Comment: Several commenters recommended requiring public agencies
to notify parents in writing when a child's IEP Team determines that
the child will participate in an alternate assessment. A few commenters
recommended requiring parents to be informed in writing of the
consequences of their child taking an alternate assessment, including
any effect on the child's eligibility for graduation with a regular
high school diploma. The commenters stated that providing this
information to parents is particularly important in a State that
requires students to pass a State exam in order to receive a regular
high school diploma.
Discussion: We agree that it is important for parents to be
informed that their child will be assessed based on alternate or
modified academic achievement standards. We also believe that it is
important that parents, as well as other IEP Team members, are informed
about any effects of State or local policies on their student's
education that may result from taking an alternate assessment based on
alternate or modified academic achievement standards. As the commenters
point out, this information is particularly important in a State where
students must pass a particular assessment to be eligible to receive a
regular high school diploma. Therefore, we have added a regulation
requiring a State to provide IEP Teams, which include the parent, with
a clear explanation of the differences between assessments based on
grade-level academic achievement standards and those based on modified
or alternate academic achievement standards, including any effects of
State or local policies on the student's education resulting from
taking an alternate assessment based on alternate or modified academic
achievement standards (such as whether only satisfactory performance on
a regular assessment would qualify a student for a regular high school
diploma). We also have required a State to ensure that parents of
students selected to be assessed based on alternate or modified
academic achievement standards are informed that their child's
achievement will be measured based those standards. This also is
consistent with Sec. 200.1(f)(1)(iii) and (iv) of the Title I
regulations.
We do not believe it is necessary to add an additional requirement
that such parental notification be provided in writing, as suggested by
several commenters. Parents are integral members of the IEP Team and,
as such, are involved in decisions about how their child will
participate in the Statewide assessment system. Section
300.320(a)(6)(ii) of the IDEA regulations already provides that, if an
IEP Team determines that a child will not participate in a particular
regular State or district-wide assessment, the child's IEP must include
a statement of why the child cannot participate in the regular
assessment and how that child will be assessed. Under Sec. 300.322(f),
a copy of the child's IEP must be provided to the parents.
Changes: We have added new paragraph (d) to Sec. 300.160 requiring
a State to provide IEP Teams with a clear explanation of the
differences between assessments based on grade-level academic
achievement standards and those based on modified or alternate academic
achievement standards, including any effects of State or local policies
on the student's education resulting from taking an alternate
assessment based on alternate or modified academic achievement
standards (such as whether only satisfactory performance on a regular
assessment would qualify the student for a regular high school
diploma). We also have added a new paragraph (e) requiring a State to
ensure that parents of students selected to be assessed based on
alternate or modified academic achievement standards are informed that
their child's achievement will be measured based on alternate or
modified academic achievement standards. The subsequent paragraph has
been redesignated as new paragraph (f).
Reports (New Sec. 300.160(f)) (Proposed Sec. 300.160(e))
Comment: One commenter strongly disagreed with reporting on the
number of students with disabilities who receive accommodations. The
commenter stated that, since accommodations do not change the outcome
or alter the knowledge measured by the test, it is inappropriate to
maintain this information.
Discussion: This is a statutory requirement and therefore cannot be
deleted. Section 612(a)(16)(D)(i) of the IDEA requires a State (or in
the case of a district-wide assessment, an LEA) to make available to
the public information on the number of children with disabilities
participating in regular assessments and the number of these children
who were provided accommodations in order to participate in those
assessments.
Changes: None.
Comment: A few commenters stated that accommodations that
invalidate a test score should not be used and, therefore, it is
unnecessary to qualify in new Sec. 300.160(f)(1) (proposed Sec.
300.160(e)(1)) that the number of children participating in regular
assessments who were provided with accommodations refers to the number
of children participating in regular assessments who were provided with
accommodations ``that did not result in an invalid score.''
Discussion: We agree that accommodations that invalidate a test
score should not be used. However, given the lack of consistency in the
field regarding the use of the term ``accommodations,'' we believe it
is important to be clear and to qualify in new Sec. 300.160(f)(1)
(proposed Sec. 300.160(e)(1)) that reports on the assessment of
children with disabilities who participate in regular assessments with
accommodations include only those children who were provided with
[[Page 17774]]
accommodations that did not result in an invalid score. For clarity, we
also have reordered the sequence in which the alternate assessments are
listed in new paragraph (f) (proposed paragraph (e)) to be consistent
with the order in new Sec. 300.160(c)(2) (proposed Sec.
300.160(d)(2)).
Changes: We have redesignated proposed Sec. 300.160(e)(3),
regarding alternate academic achievement standards, as new Sec.
300.160(f)(4) and redesignated proposed Sec. 300.160(e)(4)), regarding
modified academic achievement standards, as new Sec. 300.160(f)(3).
Comment: A few commenters recommended requiring a State to report
on the number of children with disabilities who participated in the
regular assessment with accommodations that invalidated their test
scores. One commenter recommended requiring a State to report on the
number of children who received accommodations that invalidated their
test scores on alternate assessments based on alternate academic
achievement standards and alternate assessments based on modified
academic achievement standards.
Discussion: Children taking an assessment with accommodations that
invalidate their score should not be reported as participants. We
specify in Sec. 300.160(b)(2)(ii) that a State must instruct IEP Teams
to select only those accommodations for each assessment that do not
result in invalid scores. Therefore, we decline to make the changes
requested by the commenters.
Changes: None.
Comment: One commenter requested that a State be required to report
on the performance of children with disabilities for each assessment,
not just for regular assessments and alternate assessments.
Discussion: We agree that the regulation would be clearer if it
identified separately alternate assessments based on grade-level
academic achievement standards, alternate assessments based on modified
academic achievement standards, and alternate assessments based on
alternate academic achievement standards. We have made this change in
new Sec. 300.160(f)(5) (proposed Sec. 300.160(e)(5)). In addition, we
have added the language inadvertently omitted requiring the performance
results for children with disabilities to be compared to the
achievement of all children, including children with disabilities, as
specified in section 612(a)(16)(D)(iv) of the Act.
Changes: We have changed Sec. 300.160(f)(5) (proposed Sec.
300.160(e)(5)) to separately identify regular assessments, alternate
assessments based on grade-level academic achievement standards,
alternate assessments based on modified academic achievement standards,
and alternate assessments based on alternate academic achievement
standards. We also have added an introductory phrase requiring
comparison with assessment results for all children, including children
with disabilities.
Comment: One commenter recommended requiring a State to widely
distribute information about the reports required in new Sec.
300.160(f) (proposed Sec. 300.160(e)) by posting the reports on Web
sites, making the reports available in schools and libraries, and
providing parents with notices that the information is available.
Discussion: New Sec. 300.160(f) (proposed Sec. 300.160(e)),
consistent with section 612(a)(16)(D)(i) of the IDEA, requires a State
(or in the case of a district-wide assessment, an LEA) to 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 information outlined in new Sec. 300.160(f)
(proposed Sec. 300.160(e)) regarding the participation and performance
of children with disabilities on State and district-wide assessments.
The manner in which the information is provided to the public (e.g.,
via Web sites, parent notices) is a matter that is best left to State
and local officials to determine.
Changes: None.
Universal Design (New Sec. 300.160(g)) (Proposed Sec. 300.160(f))
Comment: One commenter recommended requiring a State to document
where universal design principles are not used.
Discussion: New 300.160(g) (proposed Sec. 300.160(f)), consistent
with section 612(a)(16)(E) of the IDEA, requires a State (or in the
case of a district-wide assessment, an LEA), to the extent feasible, to
use universal design principles in developing and administering
assessments. We believe that implementing the commenter's
recommendation (e.g., documenting ``universal design principles'')
would require significant resources and time and be a burden for a
State to report. Therefore, we decline to make the change requested by
the commenter.
Changes: None.
Executive Order 12866
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and therefore subject to the
requirements of the Executive Order and subject to review by OMB.
Section 3(f) of Executive Order 12866 defines a ``significant
regulatory action'' as an action likely to result in a rule that may
(1) have an annual effect on the economy of $100 million or more, or
adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule); (2) create serious
inconsistency or otherwise interfere with an action taken or planned by
another agency; (3) materially alter the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive order. The Secretary has
determined that this regulatory action is significant under section
3(f)(4) of the Executive Order.
1. Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action.
Summary of Public Comments: Several commenters suggested that the
cost of implementing an alternate assessment based on modified academic
achievement standards would be significant and that the Federal
government should fund new assessments, including universally designed
assessments. Some commenters disagreed with the figures from a study by
the Government Accountability Office (GAO) cited in the NPRM, regarding
the amount of funds spent on assessments in several States.
These comments were considered in conducting the analysis of the
costs and benefits of the final regulations. The Department's estimates
and assumptions on which they are based are described below.
Summary of Potential Costs and Benefits
These regulations provide States with additional flexibility in
implementing the accountability requirements in Title I and the IDEA
with respect to students with disabilities. Specifically, the final
regulations permit States to develop and implement alternate
assessments based on modified academic achievement standards for the
group of students with disabilities, for whom, according to recent
research and the experience of many States, these alternate assessments
are appropriate, and then to use their
[[Page 17775]]
results in making AYP determinations. Implementation of these alternate
assessments and standards would be a component of State and local
efforts to improve educational outcomes for this group of students,
consistent with the principles and objectives of NCLB.
The primary impact of the regulations is on the students with
disabilities who are eligible to be assessed based on modified academic
achievement standards. The regulations provide educational benefits to
students by permitting States and LEAs to assess eligible students with
disabilities using assessments that are appropriately challenging but
better designed to measure their educational strengths and weaknesses
and evaluate their achievement of grade-level content, and to provide
information that would be helpful to teachers to guide instruction to
meet the academic needs of these students so they can work toward
grade-level achievement. Based on an actual enrollment of 26.3 million
students \10\ in grades 3 through 8 and 10 in school year 2004-2005, we
estimate that as many as 530,000 children with disabilities could be
affected by, and benefit from, this change in the assessment and
accountability structure in school year 2008-2009.
---------------------------------------------------------------------------
\10\ Common Core of Data (CCD), ``State Nonfiscal Survey of
Public Elementary/Secondary Education, 2004-05 v.1c, National Center
for Education Statistics, U.S. Department of Education.
---------------------------------------------------------------------------
The potential costs to students would be the harm associated with
including the ``wrong'' children in the group to be assessed based on
modified academic achievement standards. Given the history of
inappropriately low expectations for children with disabilities, the
potential harm relates to finding students to be eligible for alternate
assessments based on modified academic achievement standards who, in
fact, with appropriate instruction and high quality special education
services, might be able to achieve at the same high level as their non-
disabled peers. The risk is that low expectations could impede the
ability of these students to perform to their potential. The Secretary
believes that the risk of including the ``wrong'' students in the group
to be assessed based on modified academic achievement standards is not
high because of the central role that IEP Teams play in determining how
individual children will be assessed. Moreover, any harm would be
minimal because the regulations require the assessment determinations
to be made on an annual basis by the IEP Team and they also include a
number of safeguards to ensure that students who are to be assessed
based on modified academic achievement standards have access to grade-
level content so that they can work toward grade-level achievement. The
Secretary has concluded that the educational benefits of assessing a
large number of students whose disabilities have prevented them from
achieving grade-level proficiency using more appropriate assessments
and standards will outweigh any potential harm associated with
assessing children based on modified academic achievement standards who
might have been able to reach grade-level proficiency in the same time
frame as other students. In addition to these benefits to children,
these regulations will give teachers and schools credit for work that
they do with these students to help them progress toward grade-level
achievement, even if they are unable to reach grade-level proficiency.
Although States are not required to take advantage of the
flexibility provided in these regulations, States may elect to do so,
and, as a result, may incur additional administrative costs associated
with the development of modified academic achievement standards and
assessments based on those standards. However, little information is
available for estimating these costs; we have used the limited
information available to us to develop a rough estimate of the
development costs for States that choose to take advantage of this
flexibility.
This analysis is based on a 2003 report, issued by the GAO, ``Title
I: Characteristics of Tests Will Influence Expenses: Information
Sharing May Help States Realize Efficiencies,'' that examined the costs
of developing assessments based on grade-level academic achievement
standards and provides estimates for the ongoing development
expenditures for existing assessments for 7 States.\11\ We have some
concerns about the accuracy of this information, its generalizibility,
and its direct relevance to estimating the costs of developing
alternate assessments based on modified academic achievement standards.
With those caveats, we believe the report does provide some indication
of the variation in costs among States in developing assessments and
represents the best information available to us at this point in
time.\12\
---------------------------------------------------------------------------
\11\ U.S. Government Accountability Office, Report 03-389, pg.
17.
\12\ We received a comment from one State indicating that the
cost of developing its assessments was approximately $250,000.
However, we do not have any information about how that figure was
derived and have, therefore, declined to use that estimate in this
analysis.
---------------------------------------------------------------------------
If we assume that GAO's category of ongoing development, which
includes question writing and review, involves the kinds of activities
that States would undertake in developing alternate assessments based
on modified academic achievement standards, the GAO data can be used as
a basis for projecting the possible costs of developing assessments
based on modified academic achievement standards. For example, we can
estimate an upper limit on the total costs of developing these
alternate assessments--$169 million--by using the GAO data reported for
Massachusetts \13\ and assuming that 52 jurisdictions would choose to
develop alternate assessments based on modified academic achievement
standards for each of the 17 assessments required by Title I to be
administered in 2008-2009. Although this upper-bound estimate
represents the best information available to us at this point in time,
we believe it may significantly overstate the costs of developing these
alternate assessments insofar as the estimate GAO included for
Massachusetts, which was more than 2.4 times as large as the estimates
included for 5 of the other States, may not be indicative of the costs
of assessment development in other States using different types of
questions or approaches to assessment.
---------------------------------------------------------------------------
\13\ GAO reported test development expenditures of $190,870 for
the State of Massachusetts.
---------------------------------------------------------------------------
In addition, this estimate does not reflect the reduced costs for
the 4 States that already have alternate assessments based on modified
academic achievement standards in place under the interim flexibility
policy. States that adopted alternate assessments based on modified
academic achievement standards under the interim flexibility policy
would still be required to undergo peer review once the final
regulations are in effect. However, if the peer review determines that
no adjustments are needed to any of the assessments in these States,
the estimated cost of producing alternate assessments in the other 48
jurisdictions would be reduced to $155 million.
In addition, we do not know the extent to which States would elect
to develop alternate assessments based on modified academic achievement
standards for each grade and subject, since States that choose to take
advantage of the flexibility are not required to develop modified
academic achievement standards in every grade or every subject.
However, in light of what we know about the performance of students
with disabilities on State assessments and AYP determinations,
[[Page 17776]]
we think it is highly unlikely that all States would elect to develop
alternate assessments based on modified academic achievement standards
for all of the required 17 assessments. If we assume that typically
States would develop only 8 assessments (e.g., reading/language arts
and mathematics assessments for grades 6, 7, 8, and a high school
grade), which may be a more accurate estimate of the impact of the rule
based on the available information, the total costs would be estimated
to be $79 million for 52 jurisdictions and $73 million for 48
jurisdictions.
Since the regulations would not require that States adopt separate
test administration or scoring procedures, we assume that no additional
costs would be incurred in administering assessments based on modified
academic achievement standards. In addition, although many States
choose to create new assessments or revise parts of assessments at
regular intervals, this is not required by these regulations so these
estimates assume that development costs are nonrecurring.
States that elect to develop modified academic achievement
standards would also incur minimal costs for the development and
implementation of guidelines for IEP Teams to apply in determining
whether these modified academic achievement standards are appropriate
for particular students with disabilities. The Department will provide
non-regulatory guidance regarding alternate assessments and modified
academic achievement standards that States can use in developing their
IEP Team guidelines.
We assume States that elect to take advantage of this new
flexibility to use modified academic achievement standards and
assessments based on these standards will do so because they believe
they will realize net benefits, primarily because of the benefits to
students of being more appropriately assessed and, secondarily, because
of the effect on AYP determinations. The benefits to States from
adopting assessments based on modified academic achievement standards
depend on such factors as whether the State has implemented assessments
based on alternate academic achievement standards and whether the
assessments are adaptable to a wide range of abilities, and the extent
to which students with disabilities are able to participate
appropriately in the State's general assessments. It also will depend,
in part, on the extent to which the scores for the 2.0 percent of
students affected by these regulations increase enough to meet the AYP
goals for schools currently in need of improvement. Testing data for
the 2003-2004 school year for 33 States for the Department's ``Study of
State Implementation of Accountability and Teacher Quality Under
NCLB,'' published in the ``National Assessment of Title I Interim
Report: Volume I; Implementation of Title I,'' indicates that 13.0
percent of schools missed AYP solely due to the achievement of the
students with disabilities subgroup. Under Title I, LEAs are required
to spend an amount equal to 20.0 percent of their Title I allocations
to fund supplemental services and choice-related transportation in
schools that fail to make AYP for two or more consecutive years and are
identified for improvement. LEAs will have greater flexibility in the
use of their Title I allocations if fewer schools miss AYP goals and
are subject to consequences as a school in need of improvement.
States that decide to adopt modified academic achievement standards
and implement alternate assessments based on those standards will be
able to use funds from Title I, Title VI State Assessment Grants, and
IDEA programs 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. The fiscal year 2007
appropriation for Title I Grants to Local Educational Agencies is
approximately $12.8 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 is $10.8 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 is $408 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.
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.
Regulatory Flexibility Act Certification
The Secretary certifies that these regulations will not have a
significant economic impact on a substantial number of small entities.
These provisions require States and LEAs to take certain actions only
if States choose to implement the flexibility these regulations afford.
The Department believes that these activities will be financed through
the appropriations for Title I and the IDEA and that the
responsibilities encompassed in these laws and regulations will not
impose a financial burden that States and LEAs will have to meet from
non-Federal sources.
Paperwork Reduction Act of 1995
There are several sections of the revised Title I regulations
(Sec. Sec. 200.1, 200.6, and 200.20) and one section of the revised
IDEA regulations (Sec. 300.160) that require collection of information
under the Paperwork Reduction Act. The following chart describes those
regulatory sections, the information being collected, and the
collections the Department will submit to the Office of Management and
Budget for approval and public comment. Separate notices will be
published in the Federal Register requesting comment on these
collections.
------------------------------------------------------------------------
Collection
Regulatory section information Collection
------------------------------------------------------------------------
Sec. 200.1(f)................. Requires SEAs Information
opting for the collection 1810-
flexibility 0576,
offered by these ``Consolidated
regulations to State
develop and Application.''
monitor the
implementation of
clear guidelines
for IEP Teams to
apply in
determining
students who will
be assessed based
on modified
academic
achievement
standards.
[[Page 17777]]
Sec. 200.6(a)(4) and Sec. Requires SEAs to Information
300.160(f)(3). report in their collection 1875-
annual State 0240, ``Annual
performance Mandatory
reports the total Collection of
number and Elementary and
percentage of Secondary
students tested Education Data
in math and for EDFacts.''
reading with
alternate
assessments based
on modified
academic
achievement
standards.
Sec. 200.20................... Permits SEAs and Information
LEAs to include collection 1810-
the scores of 0581, ``State
former students Educational
with disabilities Agency and Local
in the students Educational
with disabilities Agency and School
subgroup when Data Collection
reporting AYP on and Reporting
SEA and LEA under ESEA, Title
report cards. I, Part A.''
------------------------------------------------------------------------
Federalism
Executive Order 13132 requires us to ensure meaningful and timely
input by State and local elected officials in the development of
regulatory policies that have Federalism implications. ``Federalism
implications'' means substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
The need for the NPRM was raised to the Department by State and LEA
assessment professionals who were concerned that the assessment
alternatives contemplated in the existing Title I regulations (regular
assessments based on grade-level academic achievement standards and
alternate assessments for students with the most significant cognitive
disabilities), and reflected in the IDEA, did not recognize that there
was a group of students with disabilities who were not the most
significantly cognitively disabled, but who could not achieve to grade-
level academic achievement standards. Based on the concerns raised, the
Department convened several meetings with State and LEA officials,
parents of students with disabilities, and researchers to learn more
about the issues involved in assessing students with disabilities, the
concerns of parents and advocates for ensuring that all students with
disabilities be held to high academic achievement standards, and about
how some States were designing assessments for students with
disabilities. In issuing the NPRM, however, we did not believe that the
proposed regulations had Federalism implications as defined in the
Executive order.
We received several comments on Federalism issues. First, several
commenters stated that proposed Sec. 200.1(e)(1)(iii), which would
require that modified academic achievement standards not preclude a
student from earning a regular high school diploma, would be an
intrusion into State graduation standards if a State was required to
diminish its standards for a regular diploma to include students who
are assessed based on modified academic achievement standards. As we
have stated elsewhere in this preamble, the intent of proposed Sec.
200.1(e)(1)(iii) was not to require States to alter their graduation
requirements or to provide a regular high school diploma to a student
who scores proficient on an alternate assessment based on modified
academic achievement standards. Rather, we wanted to ensure that a
student is not automatically precluded from attempting to earn a
regular high school diploma simply because the student was assessed
based on modified academic achievement standards. To clarify our
intent, we have removed proposed Sec. 200.1(e)(1)(iii) and replaced it
with Sec. 200.1(f)(2)(iv), which requires a State to ensure that
students who take alternate assessments based on modified academic
achievement standards are not precluded from attempting to complete the
requirements, as defined by the State, for a regular high school
diploma.
Second, a few commenters stated that the criteria we proposed for
modified academic achievement standards were too prescriptive and that
States should have the flexibility to develop modified academic
achievement standards in ways that meet their needs. As we stated
elsewhere in this preamble, we do not agree with these commenters. We
believe that allowing States to develop modified academic achievement
standards without placing any parameters or restrictions on their use
would likely result in lowered expectations for this group of students
and limit opportunities for these students to access grade-level
content and meet grade-level achievement standards.
Taking into account these comments, and these final regulations, we
believe that we have sufficiently addressed any Federalism concerns
raised by the commenters with respect to Executive Order 13132.
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.
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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 education, 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--
[[Page 17778]]
education, Privacy, Private Schools, Reporting and recordkeeping
requirements.
Dated: April 2, 2007.
Margaret Spellings,
Secretary of Education.
0
For the reasons discussed in the preamble, the Secretary amends 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
0
1. The authority citation for part 200 continues to read as follows:
Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.
0
2. Section 200.1 is amended by:
0
A. Revising paragraphs (a)(1) and (a)(2).
0
B. Redesignating paragraphs (e) and (f) as paragraphs (g) and (h),
respectively.
0
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 content and academic achievement 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 provided in paragraphs
(d) and (e) of this section, which apply only to the State's academic
achievement standards;
(2) Include the same knowledge and skills expected of all students
and the same levels of achievement expected of all students, except as
provided in paragraphs (d) and (e) of this section; and
* * * * *
(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 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;
(ii) Are challenging for eligible students, but may be less
difficult than the grade-level academic achievement standards under
paragraph (c) of this section;
(iii) Include at least three achievement levels; and
(iv) Are developed through a documented and validated standards-
setting process that includes broad stakeholder input, including
persons knowledgeable about the State's academic content standards and
experienced in standards setting and special educators who are most
knowledgeable about students with disabilities.
(2) In the guidelines that a State establishes under paragraph
(f)(1) of this section, the State must include criteria for IEP teams
to use in determining which students with disabilities are eligible to
be assessed based on modified academic achievement standards. Those
criteria must include, but are not limited to, each of the following:
(i) The student's disability has precluded the student from
achieving grade-level proficiency, as demonstrated by such objective
evidence as the student's performance on--
(A) The State's assessments described in Sec. 200.2; or
(B) Other assessments that can validly document academic
achievement.
(ii)(A) The student's progress to date in response to appropriate
instruction, including special education and related services designed
to address the student's individual needs, is such that, even if
significant growth occurs, the IEP team is reasonably certain that the
student will not achieve grade-level proficiency within the year
covered by the student's 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) If the student's IEP includes goals for a subject assessed
under Sec. 200.2, those goals must be based on the academic content
standards for the grade in which the student is enrolled, consistent
with paragraph (f)(2) of this section.
(f) State guidelines. If a State defines alternate or modified
academic achievement standards under paragraph (d) or (e) of this
section, the State must do the following--
(1) For students who are assessed based on either alternate or
modified academic achievement standards, the State must--
(i) Establish and monitor implementation of clear and appropriate
guidelines for IEP teams to apply in determining--
(A) Students with the most significant cognitive disabilities who
will be assessed based on alternate academic achievement standards; and
(B) Students with disabilities who meet the criteria in paragraph
(e)(2) of this section who will be assessed based on modified academic
achievement standards. These students may be assessed based on modified
academic achievement standards in one or more subjects for which
assessments are administered under Sec. 200.2;
(ii) Inform IEP teams that students eligible to be assessed based
on alternate or modified academic achievement standards may be from any
of the disability categories listed in the IDEA;
(iii) Provide to IEP teams a clear explanation of the differences
between assessments based on grade-level academic achievement standards
and those based on modified or alternate academic achievement
standards, including any effects of State and local policies on the
student's education resulting from taking an alternate assessment based
on alternate or modified academic achievement standards (such as
whether only satisfactory performance on a regular assessment would
qualify a student for a regular high school diploma); and
(iv) Ensure that parents of students selected to be assessed based
on alternate or modified academic achievement standards under the
State's guidelines in this paragraph are informed that their child's
achievement will be measured based on alternate or modified academic
achievement standards.
(2) For students who are assessed based on modified academic
achievement standards, the State must--
(i) Inform IEP teams that 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;
(ii) Establish and monitor implementation of clear and appropriate
guidelines for IEP teams to apply in developing and implementing IEPs
for students who are assessed based on modified academic achievement
standards. These students' IEPs must--
(A) Include IEP goals that are based on the academic content
standards for the grade in which a student is enrolled; and
(B) Be designed to monitor a student's progress in achieving the
student's standards-based goals;
(iii) Ensure that students who are assessed based on modified
academic achievement standards have access to the curriculum, including
instruction, for the grade in which the students are enrolled;
(iv) Ensure that students who take alternate assessments based on
modified academic achievement standards are not
[[Page 17779]]
precluded from attempting to complete the requirements, as defined by
the State, for a regular high school diploma; and
(v) Ensure that each IEP team reviews annually for each subject,
according to the criteria in paragraph (e)(2) of this section, its
decision to assess a student based on modified academic achievement
standards to ensure that those standards remain appropriate.
* * * * *
0
3. Section 200.6 is amended by:
0
A. Revising paragraph (a)(1) and (a)(2)(iii).
0
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 academic achievement standards for
the grade in which a student is enrolled; 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 extent possible, included in the general
curriculum.
(3) Alternate assessments that are based on modified academic
achievement standards. (i) To assess students with disabilities based
on modified academic achievement standards, a State may develop a new
alternate assessment or adapt an assessment based on grade-level
academic achievement standards.
(ii) An alternate assessment under paragraph (a)(3)(i) of this
section must--
(A) Be aligned with the State's grade-level academic content
standards;
(B) Yield results that measure the achievement of those students
separately in reading/language arts and mathematics relative to the
modified academic achievement standards;
(C) Meet the requirements in Sec. Sec. 200.2 and 200.3, including
the requirements relating to validity, reliability, and high technical
quality; and
(D) Fit coherently in the State's overall assessment system under
Sec. 200.2.
(4) Reporting. A State must report separately to the Secretary,
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;
(iii) Alternate assessments based on the grade-level academic
achievement standards described in Sec. 200.1(c);
(iv) Alternate assessments based on the modified academic
achievement standards described in Sec. 200.1(e); and
(v) Alternate assessments based on the alternate academic
achievement standards described in Sec. 200.1(d).
* * * * *
0
4. Section 200.7 is amended by redesignating paragraph (a)(2) as
(a)(2)(i) and adding a new paragraph (a)(2)(ii) to read as follows:
Sec. 200.7 Disaggregation of data.
(a) * * *
(2)(i) * * *
(ii) Beginning with AYP decisions that are based on the assessments
administered in the 2007-08 school year, 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) or for the
school as a whole.
* * * * *
0
5. Section 200.13 is amended by:
0
A. Revising paragraph (c).
0
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 of
students with disabilities based 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 based 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--
[[Page 17780]]
(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, except as provided in paragraph (c)(3) 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 May 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.
When May a State or LEA Exceed the 1% and 2% Caps?
----------------------------------------------------------------------------------------------------------------
Alternate academic Modified academic Alternate and modified
achievement standards-- achievement standards-- academic achievement
1% cap 2% cap standards--3%
----------------------------------------------------------------------------------------------------------------
State................................ Not permitted.......... Only if State is below Not permitted.
1% cap, but cannot
exceed 3%.
LEA.................................. Only if granted an Only if LEA is below 1% Only if granted an
exception by the SEA. cap, but cannot exceed exception to the 1%
3%. cap by the SEA, and
only by the amount of
the exception.
----------------------------------------------------------------------------------------------------------------
0
6. Section 200.20 is amended by:
0
A. Revising paragraph (c)(3).
0
B. Revising paragraph (f)(2).
0
C. Adding a new paragraph (g).
The revisions and addition read as follows:
Sec. 200.20 Making adequate yearly progress.
* * * * *
(c) * * *
(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) * * *
(2)(i) In determining AYP for the subgroup of limited English
proficient students and the subgroup of students with disabilities, a
State may include, for up to two AYP determination cycles, the scores
of--
(A) Students who were limited English proficient but who no longer
meet the State's definition of limited English proficiency; and
(B) Students who were previously identified under section 602(3) of
the IDEA but who no longer receive special education services.
(ii) If a State, in determining AYP for the subgroup of limited
English proficient students and the subgroup of students with
disabilities, includes the scores of the students described in
paragraph (f)(2)(i) of this section, the State must include the scores
of all such students, but is not required to--
(A) Include those students in the limited English proficient
subgroup or in the students with disabilities subgroup in determining
if the number of limited English proficient students or students with
disabilities, respectively, is sufficient to yield statistically
reliable information under Sec. 200.7(a); or
(B) With respect to students who are no longer limited English
proficient--
(1) Assess those students' English language proficiency under Sec.
200.6(b)(3); or
(2) Provide English language services to those students.
(iii) For the purpose of reporting information on report cards
under section 1111(h) of the Act--
(A) A State may include the scores of former limited English
proficient students and former students with disabilities as part of
the limited English proficient and students with disabilities
subgroups, respectively, for the purpose of reporting AYP at the State
level under section 1111(h)(1)(C)(ii) of the Act;
(B) An LEA may include the scores of former limited English
proficient students and former students with disabilities as part of
the limited English proficient and students with disabilities
subgroups, respectively, for the purpose of reporting AYP at the LEA
and school levels under section 1111(h)(2)(B) of the Act; but
(C) A State or LEA may not include the scores of former limited
English proficient students or former students with disabilities as
part of the limited English proficient or students with disabilities
subgroup, respectively, in reporting any other information under
section 1111(h) of the Act.
(g) Transition provision regarding modified academic achievement
standards. The Secretary may provide a State that is moving
expeditiously to adopt and administer alternate assessments based on
modified academic achievement standards flexibility in accounting for
the achievement of students with
[[Page 17781]]
disabilities in AYP determinations that are based on assessments
administered in 2007-08 and 2008-09. To be eligible for this
flexibility, a State must meet criteria, as the Secretary determines
appropriate, for each year for which the flexibility is available.
0
7. Section 200.103 is amended by adding a new paragraph (c) to read 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
0
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.
0
9. A new Sec. 300.160 is added 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) Identify only those accommodations for each assessment that do
not invalidate the score; and
(ii) Instruct IEP Teams to select, for each assessment, only those
accommodations that do not invalidate the score.
(c) 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) For assessing the academic progress of students with
disabilities under Title I of the ESEA, the alternate assessments and
guidelines in paragraph (c)(1) of this section must provide for
alternate assessments that--
(i) Are aligned with the State's challenging academic content
standards and challenging student academic achievement standards;
(ii) If the State has adopted modified academic achievement
standards permitted in 34 CFR 200.1(e), measure the achievement of
children with disabilities meeting the State's criteria under Sec.
200.1(e)(2) against those standards; and
(iii) If the State has adopted alternate academic achievement
standards permitted in 34 CFR 200.1(d), measure the achievement of
children with the most significant cognitive disabilities against those
standards.
(d) Explanation to IEP Teams. A State (or in the case of a
district-wide assessment, an LEA) must provide IEP Teams with a clear
explanation of the differences between assessments based on grade-level
academic achievement standards and those based on modified or alternate
academic achievement standards, including any effects of State or local
policies on the student's education resulting from taking an alternate
assessment based on alternate or modified academic achievement
standards (such as whether only satisfactory performance on a regular
assessment would qualify a student for a regular high school diploma).
(e) Inform parents. A State (or in the case of a district-wide
assessment, an LEA) must ensure that parents of students selected to be
assessed based on alternate or modified academic achievement standards
are informed that their child's achievement will be measured based on
alternate or modified academic achievement standards.
(f) 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, if any, participating
in alternate assessments based on grade-level academic achievement
standards.
(3) The number of children with disabilities, if any, participating
in alternate assessments based on modified academic achievement
standards.
(4) The number of children with disabilities, if any, participating
in alternate assessments based on alternate academic achievement
standards.
(5) Compared with the achievement of all children, including
children with disabilities, the performance results of children with
disabilities on regular assessments, alternate assessments based on
grade-level academic achievement standards, alternate assessments based
on modified academic achievement standards, and alternate assessments
based on alternate academic achievement standards if--
(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.
(g) 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. 07-1700 Filed 4-4-07; 8:45 am]
BILLING CODE 4000-01-P