DEPARTMENT
OF EDUCATION
4000-01-U
34
CFR Part 200
RIN 1810-AA95
Title
I—Improving the Academic Achievement of the Disadvantaged
Department of
Education.
ACTION: Final regulations.
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 [INSERT DATE 30 DAYS AFTER DATE OF PUBLICATION IN THE FEDERAL REGISTER].
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 (Public
Law 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.
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 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 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, §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 published 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 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 transition 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)
The following discussion clarifies several critical issues related to
these regulations. They are: (1) alternate assessments; (2)
out-of-level assessments; and (3) the 1.0 percent cap.
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 §§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 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 §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.)
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
grade-level 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 §200.1(d) and students
taking such assessments must be included in AYP calculations. Achievement standards associated with
out-of-level assessments meet the alternate achievement standards under
§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 out-of-level assessments 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
§200.1(d) may be considered to be alternate assessments aligned with alternate
achievement standards for the purposes of calculating AYP.
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 §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 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 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 changes in regular assessments 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 relevant 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 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 could be included in AYP calculations if the State or LEA, as applicable,
established that the incidence of students with the most significant cognitive
disabilities exceeded the limit and if the agency documented 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
§200.13(c)(4) of these regulations.
First, §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 §200.13(c)(1) through
(3). Second,
§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, §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 thus counted as non-proficient for
purposes of calculating AYP.
The March 20, 2003 NPRM also requested additional comments on
§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. The Secretary has
decided not to change §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. 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 §200.20(c)(3).
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.
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.
The Secretary certifies that these regulations
would not have a significant economic impact on a substantial number of small
entities.
These provisions require States and LEAs to
take certain actions to improve 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.
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 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 are not
subject to the requirements
of
Executive Order 12372 and the regulations in 34 CFR
part
79.
You may view this document,
as well as all other Department of Education documents published in the Federal
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(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:
______________________
Rod Paige,
Secretary
of Education.
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
1. The authority citation for part 200
continues to read as follows:
Authority: 20 U.S.C. 6301 through 6578, unless
otherwise noted.
2. In §200.1, revise paragraph
(a)(1), redesignate paragraphs (d) and (e) as (e) and (f), and add new
paragraph (d) to read as follows:
§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.
* * * * *
3. In §200.6, revise paragraph
(a)(2)(ii) and add new paragraph (a)(2)(iii) to read as follows:
§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
§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
§200.1(d);
(2) Alternate
assessments based on the academic achievement standards defined under
§200.1(c); and
(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.
* * *
* *
4. In §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 §§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 §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 §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 §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 §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 §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.
* * * * *
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, for example, has developed a
curriculum framework for students with the most significant cognitive
disabilities that moves from grade-level expectations to 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
(3X5=5X3).” 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
§200.1 be revised to require States to develop alternate achievement
standards rather than making this authority permissive.
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
§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 is
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
§200.1(d)(2) is removed from the final regulations. New provisions have been added in
§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
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.
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 E