FR Doc 03-30092
[Federal Register: December 9, 2003 (Volume 68, Number 236)]
[Rules and Regulations]
[Page 68697-68708]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09de03-27]
[[Page 68697]]
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Part II
Department of Education
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34 CFR Part 200
Title I--Improving the Academic Achievement of the Disadvantaged; Final
Rule
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DEPARTMENT OF EDUCATION
34 CFR Part 200
RIN 1810-AA95
Title I--Improving the Academic Achievement of the Disadvantaged
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing the programs
administered under title I, part A, of the Elementary and Secondary
Education Act of 1965 (ESEA). These regulations are needed to implement
statutory provisions regarding State, local educational agency (LEA),
and school accountability for the academic achievement of students with
the most significant cognitive disabilities and are needed to implement
changes to title I of the ESEA made by the No Child Left Behind Act of
2001 (NCLB Act).
DATES: These regulations are effective January 8, 2004.
FOR FURTHER INFORMATION CONTACT: Jacquelyn C. Jackson, Ed.D. Acting
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.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION: These regulations implement statutory
provisions of title I of the ESEA, as amended by the NCLB Act (Pub. L.
107-110), enacted January 8, 2002. On March 20, 2003, the Secretary
published a notice of proposed rulemaking (NPRM) for title I programs
in the Federal Register (68 FR 13796). The NPRM proposed allowing
States to adopt alternate achievement standards for children with the
most significant cognitive disabilities and include assessment scores
based on those standards in title I adequate yearly progress (AYP)
calculations.
Background
Including Children With Disabilities in State Assessment Programs
The Individuals with Disabilities Education Act (IDEA), section 504
of the Rehabilitation Act of 1973, and title I require inclusion of all
students with disabilities in the State assessment system. Title I
further requires that the assessment results for all students (and all
students with disabilities, among other groups) who have been enrolled
in a school for a full academic year be used in calculating AYP for the
school, and that the assessment results of students who have been in a
district for a full academic year be used in calculating AYP for the
district and the State. System accountability should be just that--
accountability for everyone in the system. Students with disabilities
are a part of the student body. Most of these students spend the
majority of their time in general education classrooms, and receive
instruction from regular classroom teachers. Regardless of where
students receive instruction, all students with disabilities should
have access to, participate in, and make progress in, the general
curriculum. Thus, all students with disabilities must be included in
the measurement of AYP toward meeting the State's standards.
Several critical elements in title I as amended by the NCLB Act
ensure that schools are held accountable for educational results, so
that the best education possible is provided to each and every student.
Three critical elements--academic content standards, academic
achievement standards, and assessments aligned to those standards--
provide the foundation for an accountability system ensuring that
students with disabilities reach high standards. State assessments are
the mechanism for determining whether schools have been successful in
teaching students the knowledge and skills defined by the content
standards. States are required to hold all students to the same
standards except that these regulations permit States to measure the
achievement of students with the most significant cognitive
disabilities based on alternate achievement standards.
Only by including all students in accountability measures will
certain unintended negative consequences be avoided. For example, we
know from research that when students with disabilities are allowed to
be excluded from school accountability measures, the rates of referral
of students for special education increase dramatically. (See National
Center for Educational Outcomes Synthesis 26: http://education.umn.edu/nceo/OnlinePubs/Synthesis26.html.
) In addition, students with
disabilities accrue positive benefits when they are included in school
accountability systems. Educators realize that these students also
count, just like all other students; they understand that they need to
make sure that these students learn to high levels, just like other
students. When students with disabilities are part of the
accountability system, educators' expectations for these students are
more likely to increase.
One State explains the instructional benefits of including students
with the most significant cognitive disabilities in its assessment:
``Some students with disabilities have never been taught academic
skills and concepts, for example, reading, mathematics, science, and
social studies, even at very basic levels. Yet all students are capable
of learning at a level that engages and challenges them. Teachers who
have incorporated learning standards into their instruction cite
unanticipated gains in students' performance and understanding.
Furthermore, some individualized social, communication, motor, and
self-help skills can be practiced during activities based on the
learning standards.'' (Concerns and Questions about Alternate
Assessment. http://www.doe.mass.edu/mcas/atl/QabdC.doc. September 22,
2003).
Too often in the past, students with disabilities were excluded
from assessments and accountability systems, and the consequence was
that they did not receive the academic attention they deserved. Access
and exposure to the general curriculum for students with disabilities
often did not occur, and there was no systemwide measure to indicate
whether or what they were learning. These regulations are designed to
ensure that schools are held accountable for the educational progress
of students with the most significant cognitive disabilities, just as
schools are held accountable for the educational results of all other
students with disabilities and students without disabilities.
Regulatory Development
In a notice of proposed rule making (NPRM) published in the Federal
Register (67 FR 50986) on August 6, 2002, the Secretary proposed a
regulation to allow States to develop and use alternate achievement
standards for students with the most significant cognitive disabilities
for the purpose of determining the AYP of States, LEAs, and schools,
provided that the number of proficient scores based on the alternate
achievement standards included in AYP calculations, at the
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State and LEA levels separately, did not exceed 0.5 percent of all
students in the grades assessed. However, because the comments
indicated significant misunderstanding of the proposed rule, Sec.
200.13 of title 34 of the Code of Federal Regulations, as adopted in
the final regulations published in the Federal Register (67 FR 71710)
on December 2, 2002, did not allow any use of alternate achievement
standards for students with the most significant cognitive
disabilities.
In an NPRM printed in the Federal Register on March 20, 2003, the
Secretary again proposed to amend the title I regulations to allow
States to develop and use alternate achievement standards for students
with the most significant cognitive disabilities for the purpose of
determining the AYP of States, LEAs, and schools. In the new NPRM, the
Secretary proposed that the number of proficient and advanced scores
based on alternate achievement standards included in AYP calculations
at the State and LEA levels, separately, could not exceed 1.0 percent
of all students in the grades assessed at the State and the LEA levels,
respectively. One percent of all students is approximately 9.0 percent
of students with disabilities.
The March 20, 2003, NPRM included additional explanatory
information on the purpose and intent of the proposed regulations.
However, the comments on this NPRM, like those received on the August
6, 2002, NPRM, indicated that there continued to be misunderstandings
about alternate assessments, alternate achievement standards, and the
intent and purpose of the proposed regulations. Many commenters
continued to think that the number of students with disabilities who
could take an alternate assessment was being limited. The NPRM did not
propose limiting the number or percentage of students who take an
alternate assessment; rather, it proposed to limit the number of
proficient and advanced scores based on alternate achievement standards
that may be counted in the calculation of AYP.
Being mindful of timing issues related to these proposed
regulations, the submission of State accountability plans, and State
efforts to develop assessments that better measure the progress of
students with disabilities toward meeting State standards, as well as
the fact that some States already had administered out-of-level
assessments (instructional level assessments) in the 2002-2003 school
year, the Secretary used his transitional authority to afford States
flexibility in making AYP determinations, based on data from
assessments administered during the 2002-2003 school year. Under that
transition policy, a State, in calculating AYP for schools and
districts, could use alternate achievement standards for students with
the most significant cognitive disabilities (subject to a 1.0 percent
cap) and also could use results from out-of-level assessments
(instructional level assessments). The Department communicated this
transition policy to States through the State accountability system
approval process as well as in a letter to each State.
(See http://www.ed.gov/policy/speced/guid/secletter/030627.html.
)
Key Concepts
The following paragraphs clarify the Department's understanding of
several critical issues related to these regulations. They are: (1)
Alternate assessments: (2) out-of-level assessments; and (3) and the
1.0 percent cap.
Alternate Assessments
An alternate assessment is an assessment designed for the small
number of students with disabilities who are unable to participate in
the regular State assessment, even with appropriate accommodations. An
alternate assessment may include materials collected under several
circumstances, including (1) teacher observation of the student, (2)
samples of student work produced during regular classroom instruction
that demonstrate mastery of specific instructional strategies in place
of performance on a computer-scored multiple-choice test covering the
same content and skills, or (3) standardized performance tasks produced
in an ``on-demand'' setting, such as completion of an assigned task on
test day. To serve the purposes of assessment under title I, an
alternate assessment must be aligned with the State's content
standards, must yield results separately in both reading/language arts
and mathematics, and must be designed and implemented in a manner that
supports use of the results as an indicator of AYP.
As part of the State assessment program, alternate assessments
should have a clearly defined structure, guidelines for which students
may participate, clearly defined scoring criteria and procedures, and a
report format that clearly communicates student performance in terms of
the academic achievement standards defined by the State. 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, apply to alternate assessments as
well as to regular State assessments.
Alternate assessments may be needed for students who have a broad
variety of disabling conditions; consequently, a State may employ more
than one alternate assessment. An alternate assessment may be scored
against grade-level standards, or, in the case of students with the
most significant cognitive disabilities, against alternate achievement
standards. Therefore, all students taking an alternate assessment are
included in calculations of AYP as either proficient (and above) or
non-proficient.
An alternate achievement standard is an expectation of performance
that differs in complexity from a grade-level achievement standard.
These regulations clarify that a State is permitted to use alternate
achievement standards to evaluate the performance of students with the
most significant cognitive disabilities and to give equal weight to
proficient and advanced performance based on the alternate standards in
calculating school, district, and State AYP, provided that the number
of proficient and advanced scores based on the alternate achievement
standards does not exceed 1.0 percent of all students in the grades
tested at the State or LEA level. The Secretary may approve an
exception for a specified period of time for a State (or a State may
approve a higher limit for an LEA.)
If a State chooses to create alternate achievement standards, the
State is not limited to setting a single alternate achievement
standard. If, however, the State chooses to define multiple alternate
achievement standards, it must employ commonly accepted professional
practices to define the standards; it must document the relationship
among the alternate achievement standards as part of its coherent
assessment plan; and it must include in the 1.0 percent cap proficient
scores resulting from all assessments based on alternate achievement
standards.
Although the 1.0 percent cap is applied to the number of proficient
and advanced scores that may be included in AYP determinations, rather
than the number of students taking an assessment against alternate
achievement standards, this regulation clarifies the Department's
position that alternate achievement standards are acceptable only for
the small number of students with the most significant cognitive
disabilities. In consideration of schools that, for example, are small
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schools or provide special services to students with the most
significant cognitive disabilities, the numerical cap of 1.0 percent
does not apply at the school level. This does not mean, however, that
the use of alternate assessments aligned with alternate standards is
unlimited at the school level. For most schools, only a small portion
of students with disabilities--those with the most significant
cognitive disabilities--should appropriately participate in an
assessment based on alternate achievement standards, and all other
students with disabilities should be assessed against grade-level
standards. In general, the Department expects that no more than 9.0
percent of students with disabilities will participate in an assessment
based on alternate achievement standards.
The Department expects most students with disabilities to
participate in the regular statewide assessment either without
accommodations or with appropriate accommodations that are consistent
with the accommodations provided during regular instruction. Current
Sec. 200.6 requires that the IEP team determine the accommodations
necessary to measure the academic achievement of students with
disabilities relative to the State's academic content and achievement
standards for the grade in which the student is enrolled. Through the
IEP process, parents should be informed of the potential consequences,
if any, for their child if he or she participates in a regular
assessment with particular accommodations, an alternate assessment
based on grade-level achievement standards, or an alternate assessment
based on alternate achievement standards. (For example, a parent should
be informed if a State will not allow a student to graduate with a
regular diploma if he or she takes an alternate assessment based on
alternate achievement standards.)
Out-of-Level Assessments
In order to improve instruction and achievement for all students
with disabilities, the Department expects States to assess as many
students as possible with academic assessments aligned to regular
achievement standards. To achieve that goal and reduce use of out-of-
level assessments, States should work to implement fully the IDEA
Amendments of 1997, provide students access to the general curriculum,
develop universally designed assessments that measure whether students
with disabilities are meeting the State's challenging academic
standards, and ensure that both special and regular education teachers
set high expectations for students with disabilities and understand the
State's academic content standards. The alternate achievement standards
associated with an out-of-level assessment used for calculating AYP
must meet the requirements of Sec. 200.1(d) and students taking such
assessments must be included in AYP calculations. The achievement
standards associated with out-of-level assessments may meet the
alternate achievement standards under Sec. 200.1(d), only if they are
aligned with the State's academic content standards, promote access to
the general curriculum, and reflect professional judgment of the
highest achievement standards possible. The results from those tests
must be included within the 1.0 percent cap for the purposes of
calculating AYP, because the achievement standards associated with the
content and skills measured by out-of-level assessments are clearly
different from the achievement standards in the target grade.
Previous guidance from the Department's Office of Special Education
Programs indicated that out-of-level assessments were not alternate
assessments. This new guidance, however, recognizes that out-of-level
assessments that are administered to students with the most significant
cognitive disabilities and that meet the requirements of Sec. 200.1(d)
may be considered to be alternate assessments aligned with alternate
achievement standards for the purposes of calculating AYP.
1.0 Percent Cap
Alternate achievement standards are appropriate only for students
with the most significant cognitive disabilities. The intent of the
March 20, 2003, NPRM was not to create a separate category of
disability and these regulations do not do so; rather, the intent was
to provide for a narrow population of children with disabilities whose
proficient and advanced scores based on alternate achievement standards
may be included in AYP calculations. Although some commenters argued
that no limit should be imposed on the use of scores based on alternate
achievement standards in calculating AYP, the Secretary has determined
that a cap is warranted both to protect the interests of individual
students (by providing an incentive for schools to provide maximum
learning opportunities to each student) and to protect the meaningful
interpretation and use of State assessment results for determining
school, district, and State AYP. This will ensure that States, LEAs,
and schools are held accountable for the academic progress of these
students and that students with the most significant cognitive
disabilities are assigned to a curriculum that is appropriately
challenging.
The Secretary welcomes comments and data from States and others
about how the regulations are working over time and may consider
revising them 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 this regulation 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.
Significant Changes From the March 20, 2003, NPRM
Section 200.1 of NPRM proposed defining ``students with the most
significant cognitive disabilities'' as students with disabilities
under the IDEA whose intellectual functioning and adaptive behavior are
three or more standard deviations below the mean. The regulations
remove this definition, thereby giving States greater flexibility in
applying the provisions for including a limited number of proficient
and advanced scores based on alternate achievement standards in
calculating AYP.
At the same time, as described in the discussion of comments
related to Sec. 200.6, the regulations require States to implement a
number of important safeguards to ensure that this flexibility will be
used in an appropriate manner.
Section 200.6 of the NPRM proposed allowing States to measure the
achievement of students with the most significant cognitive
disabilities against alternate achievement standards. In doing so, it
proposed requiring States to establish guidelines ensuring that only
students with the most significant cognitive disabilities are tested
against alternate standards including establishing clear policies for
determining when alternate achievement standards may be used. The
regulations retain these provisions while clarifying that a State is
not required to use alternate achievement standards. If it does, the
regulations establish these additional conditions associated with their
use: The State must ensure that parents are informed their children
will be assessed based on alternate achievement standards, and the
State must report on the number and percentage of students with
disabilities taking regular assessments (with or without
accommodations), alternate assessments based on grade-level
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achievement standards, and alternate assessments based on alternate
achievement standards. These regulations also require the State to
promote the use of appropriate accommodations, provide appropriate
guidance to IEP teams, and provide training for teachers and other
staff in the administration of assessments to children with the most
significant cognitive disabilities. These requirements will encourage
States to decrease or eliminate out-of-level testing and other changes
in the test that invalidate test results.
Whereas the NPRM proposed requiring reporting on the number and
percentage of students with disabilities taking various types of
assessments at the school and district levels, these regulations only
require reports about the types of assessments used for students with
disabilities at the State level. States also must document that
students with the most significant cognitive disabilities are, to the
extent possible, included in the general curriculum and participating
in assessments aligned with content standards. The Department's Office
of Special Education Programs, in its regular monitoring, may examine
this documentation and the Office of Elementary and Secondary Education
may review data during its peer review process for standards and
assessments.
In addition, States using alternate achievement standards must
promote the use of appropriate accommodations in order to increase the
numbers of students with disabilities who can be tested against grade-
level academic achievement standards. These regulations promote the use
of appropriate testing practices through the dissemination of
information about accommodations for regular assessments and ensure
that relevant staff know how to administer assessments to students with
disabilities.
Section 200.13 of the NPRM proposed providing that the Secretary
could permit a State--and a State could permit an LEA--to exceed the
1.0 percent cap on the number of proficient and advanced scores based
on alternative achievement standards that can be included in AYP
calculations if the State or LEA, as applicable, establishes that the
incidence of students with the most significant cognitive disabilities
exceeds the limit and if the agency documents circumstances that
explain the higher percentage. These regulations retain these
provisions but add further requirements to ensure (1) that students who
should be assessed against grade-level standards with appropriate
accommodations are not being assessed against alternate achievement
standards, and (2) that the alternate achievement standards embody
challenging academic expectations appropriate for those students who
are assessed against them.
Section 200.13(c)(3) of the NPRM proposed requiring a State, in
calculating AYP for the State and each LEA, to apply grade-level
academic content and achievement standards to assessment results of any
students taking alternate assessments that exceeded the percentage
limitations. To make the intent of this provision clearer, we are
revising Sec. 200.13(c)(4) of these regulations. First, Sec.
200.13(c)(4)(i) clarifies that a State must include the scores of all
students with the most significant cognitive disabilities who have been
in the LEA or State for a full academic year in calculating AYP. It may
not exclude the scores of students who exceed the percentage
limitations in Sec. 200.13(c)(1) through (3). Second, Sec.
200.13(c)(4)(ii) requires the State to count as non-proficient, the
scores of any such students who exceed the percentage limitations in
calculating AYP. In other words, the State must count the scores of
these students as not proficient, even if some or all of the students
achieved proficiency on the alternate achievement standards. Non-
proficient scores are any scores below proficient, as determined by the
State accountability plan.
Because the scores of all students must be included, if an LEA or
State educational agency (SEA) exceeds their cap, Sec.
200.13(c)(4)(iii) requires the State to determine which proficient
scores are counted as non-proficient in the LEAs and schools
responsible for students who took alternate assessments aligned to
alternate achievement standards. The State has flexibility in
determining how to do this.
Section 200.13(c)(4)(iv) through (v) has been added. Section
200.13(c)(4)(iv) clarifies that, in calculating AYP, a State must be
consistent in its use of the scores of students with the most
significant cognitive disabilities. For example, if there are such
students in an LEA who score at the proficient level on the State's
alternate assessment but who exceed the 1.0 percent cap, and the State
has not granted the LEA an exception, the State may not count those
students as proficient in determining AYP at the school, LEA, or State
level. Moreover, the State must also count their scores as not
proficient in the other subgroups to which they belong. Section
200.13(c)(4)(v), however, emphasizes that the State must ensure that
parents are informed of the actual achievement level that a student
with the most significant cognitive disabilities attains, even if that
student's score is determined to be in the group above the 1.0 percent
cap and counted as non-proficient for purposes of calculating AYP.
Multiple Test Administration
The March 20, 2003, NPRM also requested additional comments on
Sec. 200.20(c)(3) of the title I regulations published in the Federal
Register on December 2, 2002. Section 200.20(c)(3) provides that, 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 AYP. We are not changing Sec.
200.20(c)(3). Through the approval of State accountability systems this
year, we have been able to work with States to clarify the intent of
these regulations and to implement these requirements in a manner
consistent with their test administration policies. We believe these
regulations offer more flexibility than commenters understood at the
time of the March 20, 2003, NPRM, and that it is not necessary to
change Sec. 200.20(c)(3).
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM,
approximately 100 parties submitted comments on the proposed
regulations. An analysis of the comments and of the changes in the
regulations since publication of the NPRM is published as an appendix
at the end of these regulations.
Executive Order 12866
We have reviewed these final regulations in accordance with
Executive Order 12866. Under the terms of the order, we have assessed
the potential costs and benefits of this regulatory action.
The potential costs associated with these regulations are those we
have determined to be necessary for administering the requirements of
the statute effectively and efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of these regulations, we have determined that the
benefits of the regulations justify the costs.
We have also determined that this regulatory action does not unduly
interfere with State, local, and tribal governments in the exercise of
their governmental functions.
Regulatory Flexibility Act
The Secretary certifies that these regulations would not have a
significant economic impact on a substantial number of small entities.
[[Page 68702]]
These provisions require States and LEAs to take certain actions to
improve student academic achievement. The Department believes that
these activities will be financed through the appropriations for title
I and other Federal programs and that the responsibilities encompassed
in the law and regulations will not impose a financial burden that
States and LEAs will have to meet from non-Federal resources.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid Office of
Management and Budget (OMB) control number.
Section 200.6 of the proposed regulation contained an information
collection requirement. Under the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), the Department of Education submitted a copy of this
section to the Office of Management and Budget (OMB) for its review as
part of the paperwork collection titled ``State educational agency,
local educational agency, and school data collection and reporting
under ESEA, Title I, Part A''.
These regulations remove the requirement that LEAS and schools
report data and replace them with a requirement that States report data
as part of their report to the Secretary required under section
1111(h)(4) of title I. The Department is currently working on a
separate paperwork package (1820-0624), covering the 2002-2003 school
year, which includes the requirement in these regulations that States
report data on the number of students with disabilities taking regular
and alternate assessments. This data collection will not require States
to report data on the percentage of students with disabilities taking
regular and alternate assessments for the 2002-2003 school year.
However, the Department can calculate the percentages based on the data
that is included in 1820-0624. States will report on the percent of
students with disabilities taking regular and alternate assessments
will take place for school year 2003-2004. It will be included as part
of an existing paperwork package submitted at that time.
Executive Order 12372
These regulations are not subject to the requirements of Executive
Order 12372 and the regulations in 34 CFR part 79.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
To use PDF you must have Adobe Acrobat Reader, which is available
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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.gpo.access.gov/nara/index.html.
(Catalog of Federal Domestic Assistance Number: 84.010 Improving
Programs Operated by Local Educational Agencies.)
List of Subjects in 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, Indian 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.
Dated: November 26, 2003.
Rod Paige,
Secretary of Education.
0
The Secretary amends part 200 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. In Sec. 200.1, revise paragraph (a)(1), redesignate paragraphs (d)
and (e) as (e) and (f), and add new paragraph (d) to read as follows:
Sec. 200.1 State responsibilities for developing challenging academic
standards.
(a) * * *
(1) Be the same academic standards that the State applies to all
public schools and public school students in the State, including the
public schools and public school students served under subpart A of
this part, except as provided in paragraph (d) of this section;
* * * * *
(d) Alternate academic achievement standards. For students under
section 602(3) of the Individuals with Disabilities Education Act with
the most significant cognitive disabilities who take an alternate
assessment, a State may, through a documented and validated standards-
setting process, define alternate academic achievement standards,
provided those standards--
(1) Are aligned with the State's academic content standards;
(2) Promote access to the general curriculum; and
(3) Reflect professional judgment of the highest achievement
standards possible.
* * * * *
0
3. In Sec. 200.6, revise paragraph (a)(2)(ii) and add new paragraph
(a)(2)(iii) to read as follows:
Sec. 200.6 Inclusion of all students.
* * * * *
(a) * * *
(2) * * *
(ii)(A) Alternate assessments must yield results for the grade in
which the student is enrolled in at least reading/language arts,
mathematics, and, beginning in the 2007-2008 school year, science,
except as provided in the following paragraph.
(B) For students with the most significant cognitive disabilities,
alternate assessments may yield results that measure the achievement of
those students relative to the alternate academic achievement standards
the State has defined under Sec. 200.1(d).
(iii) If a State permits the use of alternate assessments that
yield results based on alternate academic achievement standards, the
State must--
(A)(1) Establish and ensure implementation of clear and appropriate
guidelines for Individualized Educational Program (IEP) teams to apply
in determining when a child's significant cognitive disability
justifies assessment based on alternate academic achievement standards;
and
(2) Ensure that parents of those students are informed that their
child's achievement will be based on alternate achievement standards;
and
(B) Report separately, under section 1111(h)(4) of the ESEA, the
number and percentage of students with disabilities taking--
(1) Alternate assessments based on the alternate academic
achievement standards defined under Sec. 200.1(d);
(2) Alternate assessments based on the academic achievement
standards defined under Sec. 200.1(c); and
[[Page 68703]]
(3) Regular assessments, including those administered with
appropriate accommodations.
(C) Document that students with the most significant cognitive
disabilities are, to the extent possible, included in the general
curriculum and in assessments aligned with that curriculum;
(D) Develop, disseminate information on, and promote use of
appropriate accommodations to increase the number of students with the
most significant cognitive disabilities who are tested against grade-
level academic achievement standards; and
(E) 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 the most
significant cognitive disabilities.
* * * * *
0
4. In Sec. 200.13, revise the introductory text of paragraph (b) and
paragraph (b)(1), redesignate paragraph (c) as paragraph (d), and add
new paragraph (c) to read as follows:
200.13 Adequate yearly progress in general.
* * * * *
(b) A State must define adequate yearly progress, in accordance
with Sec. Sec. 200.14 through 200.20, in a manner that--
(1) Applies the same high standards of academic achievement to all
public school students in the State, except as provided in paragraph
(c) of this section;
* * * * *
(c)(1) In calculating adequate yearly progress for schools, LEAs,
and the State, a State--
(i) Must, consistent with Sec. 200.7(a), include the scores of all
students with disabilities, even those with the most significant
cognitive disabilities; but
(ii) May include the proficient and advanced scores of students
with the most significant cognitive disabilities based on the alternate
academic achievement standards in Sec. 200.1(d), provided that the
number of those students who score at the proficient or advanced level
on those alternate achievement standards 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.
(2) An SEA may request from the Secretary an exception permitting
it to exceed the 1.0 percent cap. The Secretary will consider granting,
for a specified period of time, an exception to a State if the
following conditions are met:
(i) The SEA documents that the incidence of students with the most
significant cognitive disabilities exceeds 1.0 percent of all students
in the grades assessed.
(ii) The SEA 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 State that have drawn
large numbers of families of students with the most significant
cognitive disabilities, or such a small overall student population that
it would take only a very few students with such disabilities to exceed
the 1.0 percent cap.
(iii) The SEA documents that it is fully and effectively addressing
the requirements of Sec. 200.6(a)(2)(iii).
(3)(i) A State may grant an exception to an LEA permitting it to
exceed the 1.0 percent cap in paragraph (c)(1) of this section only if
the State evaluates the LEA's request using conditions consistent with
paragraph (c)(2) of this section.
(ii) The State must review regularly whether an LEA's exception to
the 1.0 percent cap is still warranted.
(4) In calculating adequate yearly progress, if the percentage of
proficient and advanced scores based on alternate academic achievement
standards under Sec. 200.1(d) exceeds the caps in paragraph (c)(1)
through (3) 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 of students
with the most significant cognitive disabilities.
(ii) Count as non-proficient the proficient and advanced scores
above the caps in paragraph (c)(1) through (3) of this section.
(iii) Determine which proficient scores to count as non-proficient
in schools and LEAs responsible for students who take an alternate
assessment based on alternate achievement standards.
(iv) Include those non-proficient scores in each applicable
subgroup at the school, LEA and State level.
(v) Ensure that parents are informed of the actual academic
achievement levels of their students with the most significant
cognitive disabilities.
Appendix--Analysis of Comments and Changes
Note: The following appendix will not appear in the Code of
Federal Regulations.
Section 200.1 State Responsibilities for Developing Challenging
Academic Standards
Comment: Several commenters noted that proposed language
requiring ``a documented and validated standards-setting process
[to] define achievement standards that * * * reflect professional
judgment of the highest learning standards possible for those
students'' seems to be more rigorous than the process required for
general assessments.
Discussion: Title I, as amended by the NCLB Act, requires that,
for the general assessment, States establish challenging academic
content standards that contain rigorous content and encourage the
teaching of advanced skills, and challenging student achievement
standards that determine how well students are mastering this
content. States must create the achievement standards with all
students in mind, so that they are realistic for a wide variety of
individuals. The standards should represent a consensus among
experienced teachers, parents, and other appropriate individuals
regarding the performance expected after appropriate student effort
in a challenging instructional program. In addition, the law calls
for all schools and districts to attain the long-range goal of all
students becoming proficient by 2013-14, thereby eliminating
existing achievement gaps. For a school, the challenge is to enable
all students to meet this achievement standard.
Students with the most significant cognitive disabilities who
participate in an alternate assessment are entitled to the same
deliberate approach to defining achievement standards that represent
a rigorous but realistic challenge for this heterogeneous group of
students and a challenging long-range goal for their school and
district. The use of ``highest learning standards possible'' is
intended to reflect that the alternate achievement standards should
be no less challenging for students with the most significant
cognitive disabilities than the standards set for all other
students.
Change: None, except that we have deleted the phrase, ``for
those students,'' as it was redundant.
Comment: Some commenters expressed confusion regarding the need
for achievement standards that are aligned with the State's academic
content standards. They questioned what it means for alternate
achievement standards to be aligned with the content standards when
children with the most significant cognitive disabilities are not
working on the same content as their peers.
Discussion: Alternate achievement standards must be aligned with
the State's academic content standards, promote access to the
general curriculum, and reflect professional judgment of the highest
learning standards possible for the group of students with the most
significant cognitive disabilities. In practice, alignment with the
State's academic content standards means that the State has defined
clearly the connection between the instructional content appropriate
for non-disabled students and the related knowledge and skills that
may serve as the basis for a definition of proficient achievement
for students with the most significant cognitive disabilities. One
State,
[[Page 68704]]
for example, has developed a curriculum framework for students with
the most significant cognitive disabilities that moves from grade-
level expectations to progressively less complex versions of the
standard. This continuum of ``entry points'' provides a range of
options at which a student with disabilities can access the content
at an appropriately challenging level. It lists, for example, the
following skills for grade 3 through 4 content standards under
Mathematics Operations: ``Select, use and explain various meanings
and models of multiplication and the division of whole numbers.
Understand and use the inverse relationship between the two
operations.'' The State's standards document also identifies the
essence of the standard in several brief statements, e.g.,
understand the meaning of multiplication and division; and represent
multiplication and division problems concretely. The State then
provides several illustrations of the knowledge and skills
appropriate for use in the alternate assessment. These range from
less complex, ``Illustrate the concept of multiplication using
groups of objects,'' to more complex knowledge that approaches
grade-level expectations such as ``Identify the commutative property
of addition and multiplication using number sentences (3 x 5 = 5 x
3).'' See http://www.doe.mass.edu/mcas/alt/rg/math.doc.
The alternate achievement standards may include prerequisite or
enabling skills that are part of a continuum of skills that
culminate in grade-level proficiency. The use of alternate
achievement standards, however, must not result in inappropriate
placements or assignment of students to a curriculum that does not
include academic content.
Change: None.
Comment: One commenter recommended that Sec. 200.1 be revised
to require States to develop alternate achievement standards rather
than making this authority permissive
Discussion: Section 1111(b)(1) of title I requires a State to
adopt challenging student achievement standards and to apply the
same standards ``to all schools and children in the State.'' The
Secretary acknowledges, however, that, while all children can learn
challenging content, evaluating that learning through alternate
achievement standards is appropriate for a small, limited percentage
of students who are within one or more of the existing categories of
disability, and whose cognitive impairments may prevent them from
attaining grade-level achievement standards. Therefore, these
regulations permit States to measure the achievement of a limited
percentage of students--those with the most significant cognitive
disabilities--against challenging but alternate achievement
standards. Based on the statutory language, the Secretary does not
have the authority to require a State to adopt alternate achievement
standards. The Secretary's interest, however, is in ensuring that if
a State adopts such standards, they are rigorous and used only for
those students for whom they are appropriate.
Change: None.
Comment: Two commenters indicated a desire for flexibility that
would permit individual students to show progress based on IEP goals
rather than performance against an additional set of standards.
Discussion: IEP goals address a broad range of individualized
instructional needs as well as behavioral and developmental goals.
Title I, as amended by the NCLB Act requires that schools be
accountable for student achievement only in the content areas of
reading/language arts and mathematics and requires assessment of all
students in these essential skill areas. To the maximum extent
possible, the IEP should provide for student access to, and
participation and progress in, the general curriculum. Students with
the most significant cognitive disabilities can address many of
their IEP goals using materials and activities that are related to
the State's reading/language arts and mathematics standards. To
ensure that schools are accountable for this group of students, they
must be included in the assessment and accountability systems. In
order to make confident accountability determinations for schools
based on student achievement, including the achievement of students
with the most significant cognitive disabilities, alternate
achievement standards must ensure consistency in the judgments made
about the schools rather than relying on measures that do not permit
consistent judgments using comparable measures of achievement across
all students. In addition to reporting student successes relative to
the achievement standard, well-designed assessments will also show
student progress over time.
Change: None.
Comment: Many commenters objected to proposed Sec. 200.1(d)(2)
that would define ``students with the most significant cognitive
disabilities'' as those ``who have been identified as students with
disabilities under IDEA and whose intellectual functioning and
adaptive behavior are three or more standard deviations below the
mean.'' Some commenters objected to the definition's implicit
reliance on IQ test scores. Others expressed concern that the
definition is inconsistent with the 1.0 percent cap.
Discussion: The Secretary agrees with the commenters on both
issues. He is concerned that the proposed definition would have
placed unwarranted reliance on an IQ test to determine three
standard deviations below the mean. Moreover, he acknowledges that
it was inconsistent to set a 1.0 percent cap while defining students
with the most significant cognitive disabilities as those three
standards deviations below the mean. A student may be appropriately
assessed on the basis of alternate achievement standards even if the
child's intellectual functioning and adaptive behavior are fewer
than three standard deviations from the mean. The definition in the
NPRM thus restricted the use of alternate achievement standards to a
more narrowly defined group of students than many educators feel
appropriate based on their professional experience. As a result, the
Secretary is removing the proposed definition. Removing the
definition while maintaining the 1.0 percent cap gives States and
LEAs more latitude in identifying the population that should
appropriately be evaluated against alternate achievement standards,
while ensuring that alternate achievement standards are not used as
a loophole to evade accountability for unwarrantedly large numbers
of students with disabilities. At the same time, the Secretary
believes there are other safeguards that States adopting alternate
achievement standards should establish to ensure that the
flexibility to use alternate achievement standards for a small
population of students with disabilities is exercised appropriately
and is not abused.
Change: The definition in proposed Sec. 200.1(d)(2) is removed
from the final regulations. New provisions have been added in Sec.
200.6(a)(2)(iii) (C), (D), and (E) requiring States that are using
alternate achievement standards to: (1) Document that students with
the most significant cognitive disabilities are included in the
general curriculum to the extent possible and are participating in
assessments aligned with that curriculum; (2) develop, disseminate
information on, and promote the use of appropriate accommodations;
(3) ensure that regular and special education teachers and other
appropriate staff know how to administer assessments to students
with the most significant cognitive disabilities; and (4) ensure
that parents are informed that their child is going to be measured
against alternate achievement standards.
Comment: Several commenters indicated concern that, because the
term ``students with the most significant cognitive disabilities''
introduces new terminology, it suggests a new category of
disability.
Discussion: The intent of the March 20, 2003, NPRM was not to
create a new category of disability. Rather, the Secretary intended
the term ``students with the most significant cognitive
disabilities'' to include that small number of students, who are (1)
within one or more of the 13 existing categories of disability (e.g.
autism, multiple disabilities, traumatic brain injury, etc.), and
(2) whose cognitive impairments may prevent them from attaining
grade-level achievement standards, even with the very best
instruction.
Change: None.
Comment: Several commenters expressed concern that the 1.0
percent cap would unnecessarily limit access of some students with
disabilities to alternate assessments.
Discussion: The intent of the NPRM was not to restrict students
with disabilities from taking alternate assessments when that is
appropriate. The NPRM and this regulation only address the inclusion
of scores for AYP calculations. The intent was to provide for a
narrow population of children with disabilities whose achievement on
alternate assessments is more appropriately measured by alternate
achievement standards. The regulations permit the proficient and
advanced scores of those students (limited to 1.0 percent of the
total population of students in the grades assessed for States and
LEAs) to be included in the calculation of AYP, even though their
proficient and advanced scores are based on alternate standards. The
Secretary developed this policy to ensure that States, LEAs, and
schools are held accountable for the progress of all students and
that students with disabilities--particularly students with the most
[[Page 68705]]
significant cognitive disabilities--are not inappropriately assigned
to a curriculum that is not appropriately challenging in order to
avoid accountability consequences.
Change: None.
Comment: Some commenters indicated that the proposed regulations
would require new recordkeeping for students with the most
significant cognitive disabilities.
Discussion: By eliminating the proposed definition of students
with the most significant cognitive disabilities, these regulations
should alleviate the concerns of commenters who were worried about
the need for additional documentation of individual students'
disabling characteristics. The regulations, however, will require
States to report separately on the number and percentage of students
taking an alternate assessment based on either grade-level
achievement standards, or on alternate achievement standards as well
as taking regular assessments (including with accommodations).
States are already collecting and reporting on the numbers of
students with disabilities taking regular assessments and alternate
assessments as a part of performance reporting under the IDEA as
well as reporting the results under title I and IDEA. Requiring
States to report separately on the number of students taking
alternate assessments measured against alternate and regular
achievement standards is necessary to ensure that alternate
achievement standards are being used consistent with the limitation
imposed by these regulations.
Change: The regulations have been amended to require that States
report on the number (in addition to percentage) of students with
disabilities taking alternate assessments measured against regular
and alternate achievement standards, and the number and percentage
of students with disabilities taking regular assessments.
Comment: One commenter suggested that some students should be
assessed using an alternate assessment based on the same standards
as all other students.
Discussion: An important purpose for alternate assessments in
State assessment systems is to increase the capacity of large-scale
accountability systems to create information about how a school,
district, or State is doing in terms of overall student performance.
As States have gained experience in developing assessment strategies
for students with disabilities, it has become apparent that there
can be several kinds of alternate assessments. These may include
different strategies for gathering information about what students
know and can do; for example, (1) teacher observation of the
student, (2) collecting and scoring samples of student work produced
during regular classroom instruction that demonstrates mastery of
specific instructional strategies, in place of performance on a
computer scored multiple choice test covering the same content and
skills, or (3) student work produced in an ``on-demand'' setting
such as completion of an assigned task on test day. Such variations
are permissible under title I as long as the State can to document
that the results provide evidence of student knowledge and skills
that is comparable to the evidence provided by results from the
regular standards-based State assessment.
For a very small group of students with the most significant
cognitive disabilities, alternate achievement standards are
appropriate. These alternate achievement standards must reflect a
set of expectations for students with the most significant cognitive
disabilities consistent with the State content standards in reading/
language arts and mathematics.
Change: None.
Section 200.6 Inclusion of All Students
Comment: Several commenters suggested that the proposed
regulation conflicted with the role of the IEP team in determining
how students with disabilities are assessed. Specifically,
commenters indicated that it is the responsibility of the IEP team
to decide which assessment students with disabilities take and
whether students with disabilities take an assessment based on
alternate achievement standards. Another commenter recommended that
the IEP team develop the alternate assessments.
Discussion: Under the IDEA, a student's IEP team is responsible
for determining how that student participates in a State assessment
of student achievement. The IEP team is charged with determining
whether accommodations for the assessments required under title I
are needed by each individual student to enable the student to
participate in the assessment. If the IEP team determines that a
student will not participate in the regular assessment (or part
thereof), the team is required to identify why the assessment is not
appropriate for the child and how the child will be assessed, such
as through an alternate assessment. IEP teams, however, do not have
complete discretion regarding the assessment of students with
disabilities. The team decides how a student participates, not
whether the student participates in the assessment at all.
For State assessment programs under title I, the State is
responsible for establishing the State academic content and
achievement standards against which all children in the State will
be assessed, including all students with disabilities. In addition,
under title I the State is responsible for implementing a system of
high-quality, yearly student academic assessments that are aligned
with the State's academic content standards, are valid and reliable
for the purposes for which they are used, and are consistent with
relevant, nationally recognized professional and technical
standards. Under the IDEA, the State also is responsible for
developing guidelines for the participation of students with
disabilities in alternate assessments for those students who cannot
participate in the regular State assessments. Thus, for assessments
under title I, the IEP team operates in an environment in which the
academic content and achievement standards and assessments are set
by the State, the technical qualities of the State assessments are
well established, (including whether accommodations are valid and do
not invalidate test results on all or part of the assessment), and
the State has guidelines regarding eligibility for alternate
assessments.
Change: None.
Comment: One commenter suggested that the alternate assessment
requirement be delayed until 2007-08 to give States time to develop
alternate assessments.
Discussion: States have received ample notification of this
requirement and should now have alternate assessments in place.
Under IDEA, States were required to implement an alternate
assessment as of July 1, 2000. The Office of Elementary and
Secondary Education notified States in spring 2000 that title I
requires that all students with disabilities be included in State
assessments, either with accommodations or in an alternate
assessment as determined by their IEP team. Further, whatever
assessment approach is taken, the scores of students with
disabilities must be included in the assessment system for purposes
of public reporting and school and district accountability.
Change: None.
Comment: One commenter proposed that alternate assessments
include functional life skills in addition to academic content.
Discussion: The purpose of alternate assessments under title I
is to measure the progress of schools in increasing the percentage
of students who reach or exceed the proficient level on State
academic performance standards. While States and LEAs have the
authority to develop assessments that measure the acquisition of
functional life skills, such assessments are not required by title I
and are beyond the scope of these regulations.
Change: None.
Comment: Several commenters requested that the regulation permit
the use of out-of-level assessments, although they disagreed about
whether out-of-level assessments should be considered as an
assessment based on alternate achievement standards or as another
form of assessment for which additional flexibility should be
permitted.
Discussion: The NCLB Act is based on the premise that holding
States, LEAs and schools to high expectations for the learning of
all students can significantly improve the educational attainment of
all students. Although these regulations recognize that there is a
small population of students with disabilities who may not achieve
grade-level proficiency, we expect, and State experience indicates,
that other students with disabilities can achieve when they are held
to high expectations, provided full access to the general
curriculum, and taught by teachers highly qualified in the core
academic subjects that they teach. Under these regulations, out-of-
level assessments are considered to be alternate assessments based
on alternate achievement standards to which the cap in Sec.
200.13(c) applies if they are based on alternate achievement
standards that meet the requirements of Sec. 200.1(d). If the out-
of-level assessment does not meet those requirements, it is not an
alternate assessment measuring alternate achievement standards.
Change: None.
Section 200.13 Adequate Yearly Progress in General
Comment: Numerous comments were received on the proposed cap on
the
[[Page 68706]]
percentage of proficient assessment scores based on alternate
achievement standards that may be included in the calculation of
AYP. Some commenters said the cap was too high; others said the cap
was too low; some said the 1.0 percent cap was appropriate; and
still others said there should be no cap at all.
Discussion: The 1.0 percent cap does not restrict the number of
students who may participate in an alternate assessment. It does
limit the number of proficient and advanced scores based on
alternate achievement standards that may be used in the calculation
of AYP. A limit is required in order to ensure a thoughtful
application of alternate achievement standards and to protect IEP
teams from pressure to assign low-performing students to assessments
and curricula that are inappropriately restricted in scope, thus
limiting educational opportunity for these students.
These regulations maintain the 1.0 percent cap that was included
in the proposed regulation. Specifically, Sec. 200.13(c)(1) permits
States to use results from assessments aligned to alternate
achievement standards for students with the most significant
cognitive disabilities in calculating AYP. A State may include the
proficient and advanced scores of students with the most significant
cognitive disabilities based on the alternate academic achievement
standards in Sec. 200.1(d), provided that the number of those
students who score at the proficient or advanced level on those
alternate achievement standards at the LEA and at the State levels,
separately, does not exceed 1.0 percent of all students in the
grades assessed. Nationally, 1.0 percent of students in the grades
assessed represent approximately 9 percent of students with
disabilities, but the actual percent varies across States. Section
200.13(c)(2) permits States to request a slightly higher cap if the
State is able to meet the criteria and documentation requirements
set forth in this section.
In the discussion of the March 20, 2003, proposed rule, we noted
that the 1.0 percent cap was based on current prevalence rates of
students with the most significant cognitive disabilities, allowing
for reasonable local variation in prevalence. In addition, we cited
converging scientific evidence from multiple sources that indicated
that the prevalence rates of students with the most significant
cognitive disabilities were somewhat less than 1.0 percent. We also
noted that these numbers are generally seen as reflecting national
rates, and, as a number of commenters on the August 6, 2002, NPRM
pointed out, may not account for more localized differences, caused
by a number of factors. Factors beyond the control of a school,
school district, or even a State may cause the number of students
with the most significant cognitive disabilities to exceed a
national average percentage of the total student population at the
grades assessed. For example, in small schools, a single student may
be more than that limit would allow. Moreover, certain schools,
districts, or States may have disproportionate numbers of students
with the most significant cognitive disabilities because of
proximity to special facilities or services.
State data reported to the Department under IDEA also support
the 1.0 percent cap. Of the 38 States for which sufficient data are
available, 21 States reported 5.0 percent or less of students with
disabilities who participated in the State assessment program took
an alternate assessment. (Five percent of students with disabilities
is roughly equivalent to 0.5 percent of all students.) In 14 other
States, between 5.0 and 10.0 percent of students with disabilities
participated in State assessment programs through an alternate
assessment (Analysis of 2000-2001 Biennial Performance Reports,
National Center for Educational Outcomes). In these States, students
with disabilities comprise approximately 8.0 to 12.0 percent of the
total student population (IDEA Annual Report to Congress, 2001).
The 1.0 percent cap is the limit on the number of proficient or
advanced scores based on alternate achievement standards that may
count as proficient or advanced for accountability purposes at the
LEA and SEA levels. Consequently, in cases where the number of
students taking an alternate assessment based on alternate
achievement standards exceeds 1.0 percent, it may not be necessary
to apply for a higher cap. For example, if 1.0 percent equals 200
students and 400 students are assessed with an alternate assessment
based on alternate achievement standards, but only half of the
students assessed are ``proficient,'' the LEA would not exceed the
cap.
In summary, the Secretary believes that the 1.0 percent cap is
consistent with disability incidence rates and the States' use of
alternate assessments. It provides sufficient flexibility for States
to measure the achievement of students with the most significant
cognitive disabilities for accountability purposes, while meeting
the spirit and intent of the law that all students be held to high
standards.
Change: None.
Comment: None.
Discussion: If a State chooses not to use alternate achievement
standards, it must still incorporate the assessment scores of all
students with disabilities in AYP determinations, including those
with the most significant cognitive disabilities.
Change: Section 200.13(c)(1)(i) has been added to clarify this
requirement.
Comment: A number of commenters raised questions about how the
1.0 percent cap would work in practice and how it would be applied
at the LEA and State levels. In particular, there were questions
about what effect this limitation would have on schools and their
AYP calculations.
Discussion: The cap applies at the State and LEA levels, but not
at individual schools, and is based on the number of students
enrolled in the grade(s) tested. Some districts may deliver special
services for students with the most significant cognitive
disabilities in one or a few schools. Additionally, the enrollment
patterns of students across districts may not result in an even
distribution of students with the most significant cognitive
disabilities among schools, even if there are not special centers
for these students. In these cases, a limitation on the number of
students who may score proficient on alternate assessments based on
alternate achievement standards may prove unworkable at a school
level and not be in the best interests of those students.
The actual enrollment of students who are appropriately assessed
with the alternate assessment based on alternate achievement
standards may not be evenly distributed across a district. One
school may have 2.0 percent of its students score proficient or
better on an alternate assessment based on alternate achievement
standards, while another school may not have even a single student
assessed using alternate achievement standards. The flexibility
offered by the Secretary in these regulations is meant to
accommodate such distributions. Working through the IEP development
process, the district should determine how best to ensure that
students with the most significant cognitive disabilities
participate in the general curriculum, are assessed appropriately,
and, quite importantly, are provided with an education in the least
restrictive environment.
All scores based on alternate achievement standards must be
included in school, LEA, and State AYP calculations. An individual
student's results from such assessments are counted in all
appropriate subgroups. Consequently, in those circumstances when a
district has more than 1.0 percent of its students score proficient
or advanced on an alternate assessment based on alternate
achievement standards, the State must determine which proficient
scores are counted as non-proficient at schools in the district
responsible for students who took an alternate assessment based on
alternate achievement standards. This ensures that schools do not
have an incentive to inappropriately increase the number of students
assessed with an assessment based on alternate achievement
standards. To implement this process, each student's score used for
calculating AYP must remain the same at each level of the
educational system--school, district, and State, and for each group
and subgroup of which the student is a member for which AYP is
calculated. However, regardless of how an individual student's score
is treated in AYP calculations, the parent must be informed of the
actual academic achievement level earned by the student.
The LEA is responsible for managing this process at the local
level in three ways. First, the LEA must provide information to
school personnel and IEP teams about the state assessment, the use
of accommodations, and assessment against alternate achievement
standards. State guidelines for use of alternate achievement
standards should be communicated to local schools early in the
school year to ensure consistency between instruction and assessment
and to prevent confusion at the time of test administration. A
reasonable expectation is that, in most cases, about 9 percent of
the students receiving special education services would be tested
against alternate achievement standards, unless a school provides
special services to students with the most significant disabilities
or is particularly small. An LEA may choose to provide individual
schools with preliminary estimates of the number of
[[Page 68707]]
students to be tested against alternate achievement standards based
on the characteristics of the school's student population and
existing State guidelines for participation. Second, the LEA should
ensure appropriate staff receive training to support sound IEP
decisions about which students participate in an alternate
assessment based on alternate achievement standards. These decisions
should always be made on a case-by-case basis and should support
access to the most challenging curriculum possible for the
individual student. Finally, the LEA should monitor implementation
of assessments based on alternate achievement standards in schools
throughout the district to ensure that alternate achievement
standards are being used in a manner consistent with the best
instructional practices known for students with the most significant
cognitive disabilities.
These regulations provide new flexibility to LEAs and schools
and will increase the number of schools and LEAs that can make AYP.
If an LEA manages the process well, AYP determinations should
withstand appeal under the State's accountability system. If an LEA
does not manage the cap well, however, and permits schools to assess
an inappropriately large number of students with an alternate
assessment aligned to alternate achievement standards, the LEA may
significantly exceed the cap and, thus, a large number of non-
proficient scores would have to be allocated among the schools that
administered the alternate assessment aligned with alternate
achievement standards. This would potentially create negative
consequences for schools that administer the alternate assessment.
States should ensure that these regulations are implemented
appropriately throughout the State to ensure schools benefit from
this new flexibility.
The following example illustrates how the policy works in
practice. As determined by its cap, a district may count for AYP
purposes no more than 100 students scoring at proficient or advanced
on an alternate assessment based on alternate achievement scores. If
this district has 150 students scoring at proficient or advanced on
an alternate assessment based on alternate achievement scores, and
has not received an exception from the State to exceed the 1.0
percent cap, it must (1) count the excess 50 scores as non-
proficient, and (2) determine which proficient and advanced scores
will be considered not proficient because they exceed the district's
1.0 percent cap when determining AYP for schools responsible for
students who took the alternate assessment aligned with alternate
achievement standards. To illustrate further, in this particular
district there are four schools responsible for students who take
alternate assessments aligned to alternate achievement standards.
[sbull] In school A, there are 50 proficient scores
[sbull] In school B, there are 50 proficient scores
[sbull] In school C, there are 25 proficient scores
[sbull] In school D, there are 25 proficient scores
The LEA needs to determine which 50 of the 150 ``proficient''
scores will be counted as ``non-proficient'' at schools A, B, C and/
or D. This district would follow the State's procedures for
allocating the scores among its schools. One State might identify a
particular method that all districts would use. Another State might
permit districts to select among several methods approved by the
State.
If a State requests an exception to the 1.0 percent cap, the
Secretary believes that the State should be able to document that it
is fully and effectively implementing the procedural safeguards set
out in Sec. 200.6(a)(2)(iii), as a means of showing that it is
appropriately including students with disabilities in its assessment
system. Because of these safeguards, the Secretary expects that it
will be necessary to grant exceptions only for small increments
above the 1.0 percent cap.
Change: Section 200.13(c)(2)(iii) has been added, requiring a
State requesting an exception to the cap to document that it is
fully and effectively addressing the procedural safeguards of Sec.
200.6(a)(2)(iii). Section 200.13(c)(4)(iv) now includes a provision
that requires States to apply the academic achievement level (e.g.,
advanced, proficient, basic) of students with the most significant
cognitive disabilities consistently in calculating AYP for the
State, LEA, and school. A new Sec. 200.13(c)(4)(i)-(iii) has been
added to explain that States must determine which proficient scores
that exceed the cap must count as non-proficient in calculating AYP
in LEAs and schools responsible for students who take an alternate
assessment based on alternate achievement standards.
Comment: Several commenters expressed concern that a school with
the capacity to provide effective services for students with the
most significant cognitive disabilities may suffer negative
consequences as a result of exceeding the 1.0 percent cap.
Discussion: The 1.0 percent cap on proficient and advanced
scores based on alternate achievement standards applies specifically
at the State and district levels, although scores must be treated
the same for AYP purposes at the State, district and school levels.
An extraordinarily effective school that draws students from across
the district, or from outside the district may exceed the limit so
long as the total number of proficient and advanced scores based on
alternate achievement standards does not exceed the 1.0 percent cap
within the district. The LEA has considerable discretion to
accommodate such schools in determining how to meet the 1.0 percent
cap at the LEA level. The responsibility for establishing guidelines
to inform local practice and for monitoring the use of alternate
achievement standards for AYP rests with the State and LEA. This
responsibility is consistent with the typical organization of
special education programs at the State and district levels.
Change: None.
Comment: None.
Discussion: The Secretary was concerned that these regulations
may lead to confusion between the use of scores based on alternate
achievement standards in AYP calculations, and reporting results to
parents.
Change: The regulation clarifies in Sec. 200.13(c)(4)(v) that
regardless of how a score is used for AYP, the actual score of a
child must be reported to parents.
General Comments
Comment: One commenter said that the proposed rule should be
subject to negotiated rulemaking.
Discussion: The statutory requirements for negotiated rulemaking
apply to regulations initially implementing the NCLB Act, not to
subsequent regulatory amendments such as those contained in these
regulations. The Secretary previously issued regulations for
standards and assessments through a negotiated rulemaking process.
(See 34 CFR part 200).
Change: None.
Comment: Several commenters recommended that the Department
closely monitor the cap to ensure it is being used appropriately.
Discussion: The Secretary agrees with the importance of
monitoring State and LEA implementation of these requirements as
they relate to students with disabilities. The Department's Office
of Special Education Programs and the Student Achievement and School
Accountability Programs office in the Office of Elementary and
Secondary Education will coordinate their efforts in monitoring
States for these requirements, and will establish internal
mechanisms to share student achievement data and other pertinent
information necessary to assess States' progress in this area. In
addition, the Secretary believes that it is crucial that SEAs
closely monitor how districts are using the 1.0 percent cap both
generally and specifically in the case of an LEA that receives an
exception to the 1.0 percent cap.
Change: A new provision is added in Sec. 200.13(c)(3)(ii) that
requires States to review annually whether an LEA's exception to the
1.0 percent cap is still warranted.
Section 200.20(c)(3)
Comment: Several commenters suggested that States be able to
determine which administration of an assessment counts for AYP
purposes, and in cases where a particular assessment is given more
than once, the best result from students should be used for
determining AYP.
Discussion: States have the authority and responsibility to
design assessments that measure what students should know and be
able to do at a given point in their schooling. States have an
expectation, as evident in the assessments, for when students should
learn the content standards. Accordingly, for AYP purposes States
must count the assessment results that reflect when they expect all
students to have learned the content standards. In other words, the
``first administration'' is the first time an assessment is
officially administered to measure a student's achievement of the
State's content standards in the grade or subject for which the
State expects the student to have achieved proficiency of those
standards. Scores from this first official administration must be
used for calculating AYP. Students who have scored at proficient or
higher on assessments taken earlier than the first official
administration, however, may ``bank'' those scores, and would not
have to retake the test at a later date. Consider the following
example: A State administers a third-grade reading test in the
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fall and spring, while expecting all students to have learned the
material by the spring administration. In this case, the State may
use the scores from students who were proficient on the fall
administration for calculating AYP and these students would not be
required to take the assessment a second time.
Through the accountability review process, we were able to work
with States and clarify the intent of the regulation. Consequently
we do not believe a change to these regulations is necessary to
address the concerns that were submitted earlier this year.
Change: None.
[FR Doc. 03-30092 Filed 12-8-03; 8:45 am]
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