The U.S. Department of Education (ED) last week issued, and asked for public comment on, proposed rules governing state and local accountability for the academic achievement of students with the most significant cognitive disabilities.

"The No Child Left Behind Act insists on an unprecedented level of accountability for the academic performance of all students," Undersecretary of Education Eugene Hickok said. "Under the law, every student and every group of students -- regardless of the special challenges they face or the disabilities they shoulder -- will be able to learn to higher standards. If they do not make the progress they should, families and communities will know, through this new, transparent system of accountability.

"And for that very limited group of students with the most significant cognitive disabilities, whose intellectual functioning can be well below that of their peers, we propose today to allow up to one percent of students to be assessed based on alternate achievement standards that can provide for state and local differences."

The proposed rule was published in the Federal Register last week and can also be accessed at: http://www.ed.gov/legislation/FedRegister/proprule/2003-1/032003a.html.

Specifically, the department is proposing the following:

• To permit states to define alternate achievement standards for students with the most significant cognitive disabilities. Such students will also take an alternate assessment. These alternate achievement standards must be aligned with the state's academic content standards and reflect professional judgment of the highest learning standards possible for those students.

• To allow states to use alternate achievement standards for students with the most significant cognitive disabilities to calculate adequate yearly progress (AYP), as long as the percentage of those students at the school district and state level, separately, does not exceed 1.0 percent of all students assessed.

• If a school district or state can document that the incidence of students with such disabilities exceeds 1.0 percent, the district could be permitted to request an exception from the state, or the state could request an exception from the secretary to exceed the 1.0 percent limitation.

• To define, for the Title I program, the term "students with the most significant cognitive disabilities" as students whose intellectual functioning and adaptive behavior are three or more standard deviations below the mean.

The proposed regulations also clarify that the achievement of students with less significant disabilities will be measured against a state's grade-level achievement standards for accountability purposes.

In an NPRM published in the Federal Register on Aug. 6, 2002, Secretary Paige proposed a similar regulation that would have limited the use of alternate achievement standards for calculating adequate yearly progress to no more than 0.5 percent of all students assessed. The department was persuaded by comments from a number of stakeholders who said that a higher, one percent limitation would more effectively allow for state and local education agency (LEA) variations and thus decided to issue a new proposed rule seeking additional comment.

In addition, the department is also seeking additional comments on a final rule published on Dec. 2, 2002. Under that rule, if a student takes a state assessment for a particular subject or grade level more than once, the state must use the student's results from the first administration to determine adequate yearly progress. Pending review of comments, the department may revise this rule.

The proposed regulations would amend the final regulations, published on July 5, 2002, for the standards and assessments provisions of Title I, Part A, and additional final regulations, published on December 2, 2002, for the accountability provisions of Title I, Parts A.

Comments are due to ED on or before May 19.

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