[Federal Register: April 9, 2007 (Volume 72, Number 67)]
[Rules and Regulations]
[Page 17747-17781]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09ap07-18]
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Part IV
Department of Education
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34 CFR Parts 200 and 300
Title I--Improving the Academic Achievement of the Disadvantaged;
Individuals With Disabilities Education Act (IDEA); Final Rule
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DEPARTMENT OF EDUCATION
34 CFR Parts 200 and 300
RIN 1810-AA98
Title I--Improving the Academic Achievement of the Disadvantaged;
Individuals With Disabilities Education Act (IDEA)--Assistance to
States for the Education of Children With Disabilities
AGENCY: Office of Elementary and Secondary Education; Office of Special
Education and Rehabilitative Services, U.S. Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary amends the regulations governing programs
administered under Title I of the Elementary and Secondary Education
Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001
(NCLB) (referred to in these regulations as the Title I program) and
the regulations governing programs under Part B of the Individuals with
Disabilities Education Act (IDEA) (referred to in these regulations as
the IDEA program). These regulations provide States with additional
flexibility regarding State, local educational agency (LEA), and school
accountability for the achievement of a small group of students with
disabilities whose progress is such that, even after receiving
appropriate instruction, including special education and related
services designed to address the students' individual needs, the
students' individualized education program (IEP) teams (IEP Teams) are
reasonably certain that the students will not achieve grade-level
proficiency within the year covered by the students' IEPs.
DATES: These regulations are effective May 9, 2007.
FOR FURTHER INFORMATION CONTACT: Regarding Part 200, Jacquelyn C.
Jackson, Ed.D., Director, Student Achievement and School Accountability
Programs, Office of Elementary and Secondary Education, U.S. Department
of Education, 400 Maryland Avenue, SW., room 3W202, FB-6, Washington,
DC 20202-6132. Telephone: (202) 260-0826. Regarding Part 300, Alexa
Posny, Ph.D., Director, Office of Special Education Programs, Office of
Special Education and Rehabilitative Services, U.S. Department of
Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC
20202-2641. Telephone: (202) 245-7459, Ext. 3.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to one of the contact persons listed in the
preceding paragraph.
SUPPLEMENTARY INFORMATION: These regulations amend regulations in 34
CFR part 200, implementing certain provisions of Title I, Part A of the
ESEA, as amended by NCLB, which are designed to help disadvantaged
children meet high academic standards. They also amend regulations in
34 CFR part 300, implementing programs for students with disabilities
under Part B of the IDEA. On December 15, 2005, the Secretary published
a notice of proposed rulemaking (NPRM) for these programs in the
Federal Register (70 FR 74624).
These regulations build upon flexibility that currently is
available under the Title I regulations in 34 CFR part 200 for
measuring the achievement of students with the most significant
cognitive disabilities. Those Title I regulations permit a State to
develop alternate academic achievement standards for students with the
most significant cognitive disabilities and to include those students'
proficient and advanced scores on alternate assessments based on
alternate academic achievement standards in measuring adequate yearly
progress (AYP), subject to a cap of 1.0 percent of all students
assessed at the State and district levels. Since those regulations were
published, the experiences of many States, as well as recent research,
indicate that in addition to students with the most significant
cognitive disabilities, there is a small group of students whose
disability has precluded them from achieving grade-level proficiency
and whose progress is such that they will not reach grade-level
achievement standards in the same time frame as other students.
Currently, these students must take either a grade-level assessment or
an alternate assessment based on alternate academic achievement
standards. Neither of these options provides an accurate assessment of
what these students know and can do. A grade-level assessment is too
difficult and, therefore, does not provide data about a student's
abilities or information that would be helpful to guide instruction. An
alternate assessment based on alternate academic achievement standards
is too easy and is not intended to assess a student's achievement
across the full range of grade-level content. Such an assessment,
therefore, would not provide teachers and parents with information to
help these students progress toward grade-level achievement.
These regulations permit States to develop an assessment that is
appropriately challenging for this group of students as part of their
State accountability and assessment systems under Title I of the ESEA,
as amended by NCLB. This assessment is based on modified academic
achievement standards that cover grade-level content. The requirement
that modified academic achievement standards be aligned with grade-
level content standards is important--in order for these students to
have an opportunity to achieve at grade level, they must have access
to, and instruction in, grade-level content. The regulations include a
number of safeguards to ensure that students assessed based on modified
academic achievement standards have access to grade-level content so
that they can work toward grade-level achievement, such as the
requirement that their IEPs include goals that are based on grade-level
content standards and provide for monitoring of the students' progress
in achieving those goals. In addition to ensuring that students with
disabilities are appropriately assessed, these regulations also will
give teachers and schools credit for the work that they do with these
students to help them progress toward grade-level achievement.
Major Concepts Regarding Modified Academic Achievement Standards in
These Regulations
What are modified academic achievement standards? The NPRM
described modified academic achievement standards as academic
achievement standards aligned with grade-level content standards, but
modified in such a manner that they reflect reduced breadth or depth of
grade-level content. Based on the comments we received, it was clear
that this language was confusing and did not sufficiently convey our
intent that only the academic achievement standards for students are to
be modified, not the content standards on which those modified academic
achievement standards are based. The final regulations make clear that
modified academic achievement standards are challenging for eligible
students, but are a less rigorous expectation of mastery of grade-level
academic content standards. Notably, modified academic achievement
standards must be based on a State's grade-level academic content
standards for the grade in which an eligible student with disabilities
is
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enrolled. In other words, a State's academic content standards are not
what are modified. The expectations for whether a student has mastered
those standards, however, may be less difficult than grade-level
academic achievement standards.
The characteristics of modified academic achievement standards are
the same as those described in Sec. 200.1(c) of the Title I
regulations for grade-level academic achievement standards. That is,
they must be aligned with a State's academic content standards,
describe at least three levels of achievement, include descriptions of
the competencies associated with each achievement level, and include
assessment scores (cut scores) that differentiate among the achievement
levels. A State must provide a description of the rationale and
procedures used to determine each achievement level as part of the
Department's peer review of Statewide assessment systems under Title I
of the ESEA.
Which students with disabilities are eligible to be assessed based
on modified academic achievement standards? The final regulations
reflect our intent that students assessed based on modified academic
achievement standards are not limited to students with disabilities
achieving close to grade level, may be in any of the disability
categories listed in the IDEA, and may represent a wide spectrum of
abilities. The comments we received indicated that the proposed
requirement that a student receive direct instruction in grade-level
content in order to be eligible for an alternate assessment based on
modified academic achievement standards was mistakenly understood to
mean that only students achieving close to grade level could be
assessed based on modified academic achievement standards. That was not
our intent. We included this requirement because we believe that all
students with disabilities, including students assessed based on
modified academic achievement standards, should have access to grade-
level content. This is consistent with the provisions in the IDEA that
focus on ensuring that all students with disabilities have access to
the general curriculum (See, e.g., section 614(d)(1)(A)(i)(II)(aa) and
(IV)(bb)).
However, in order to clarify the policy and limit further
misunderstanding, we have removed the requirement that a student
receive direct instruction in grade-level content in order to be
eligible for an alternate assessment based on modified academic
achievement standards from the final regulations and replaced it with a
requirement that if the IEPs of these students include goals for a
subject assessed under Sec. 200.2, those goals must be based on grade-
level content standards. We believe this will help ensure that students
have access to grade-level content before they are assessed based on
modified academic achievement standards and that they receive
instruction in grade-level content after they are assessed based on
modified academic achievement standards. Such an approach focuses the
IEP Team and the student on grade-level content standards and on the
student's current achievement relative to those standards. We believe
that instruction in grade-level content is critical to ensure that
students who participate in alternate assessments based on modified
academic achievement standards are prepared to demonstrate their
mastery of grade-level content and can move closer to grade-level
achievement. The final regulations intentionally do not prescribe which
students with disabilities are eligible to be assessed based on
modified academic achievement standards; that is the determination of a
student's IEP Team, which includes the student's parents, based on
criteria developed by the State as part of the State's guidelines for
IEP Teams. Those criteria must include, but are not limited to, the
following:
(1) There must be objective evidence demonstrating that the
student's disability has precluded the student from achieving grade-
level proficiency in the content area assessed. Such evidence may
include the student's performance on State assessments or other
assessments that can validly document academic achievement;
(2) The student's progress to date in response to appropriate
instruction, including special education and related services designed
to address the student's individual needs, is such that, even if
significant growth occurs, the IEP Team is reasonably certain that the
student will not achieve grade-level proficiency within the year
covered by the student's IEP. The IEP Team must use multiple valid
measures of the student's progress over time in making this
determination; and
(3) If the student's IEP includes goals for a subject assessed
under Sec. 200.2, those goals must be based on the academic content
standards for the grade in which the student is enrolled.
In addition to requiring that the IEP of a student assessed based
on modified academic achievement standards include goals that are based
on academic content standards, the final regulations include safeguards
to ensure that a student assessed based on modified academic
achievement standards has the opportunity to learn grade-level content.
Specifically, the final regulations in Sec. 200.1(f)(2) require a
State to (a) establish and monitor implementation of clear and
appropriate guidelines for an IEP Team to apply in developing and
implementing the IEP of a student assessed based on modified academic
achievement standards; (b) ensure that a student who takes an alternate
assessment based on modified academic achievement standards has access
to the curriculum, including instruction, for the grade in which the
student is enrolled; and (c) ensure that a student who takes an
alternate assessment based on modified academic achievement standards
is not precluded from attempting to complete the requirements, as
defined by the State, for a regular high school diploma.
To help IEP Teams make appropriate decisions and ensure that
students are not inappropriately assessed based on modified academic
achievement standards, Sec. 200.1(f)(1)(iii) requires a State to
provide IEP Teams with a clear explanation of the differences between
assessments based on grade-level academic achievement standards and
those based on modified or alternate academic achievement standards
(including any effects of State and local policies on the student's
education resulting from taking an alternate assessment based on
alternate or modified academic achievement standards). Under Sec.
200.1(f)(1)(iv), a State also must ensure that the parents of a student
selected to be assessed based on alternate or modified academic
achievement standards are informed that their child's achievement will
be measured based on alternate or modified academic achievement
standards.
The assumption underlying these regulations is that many students
eligible to be assessed based on modified academic achievement
standards are in regular classrooms with children of the same
chronological age and are receiving instruction in grade-level
curriculum; however, because of these students' disabilities, their IEP
Teams are reasonably certain they will not achieve grade-level
proficiency within the year covered by their IEPs. In most schools,
students assessed based on modified academic achievement standards will
represent a small portion of students with disabilities. The final
regulations in Sec. 200.13(c)(2)(ii) provide that up to 2.0 percent
(approximately 20 percent of students with disabilities) of the
proficient and advanced scores from alternate assessments based on
modified
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academic achievement standards may be included in calculating AYP.
What assessments measure performance based on modified academic
achievement standards? Because a student eligible to be assessed based
on modified academic achievement standards must have access to a
curriculum based on the State's academic content standards for the
grade in which the student is enrolled, that student must be assessed
with a measure that is also based on those same grade-level academic
content standards, although the assessment may be less difficult than
the State's regular assessment. An out-of-level assessment cannot be
used as an alternate assessment based on modified academic achievement
standards because, by definition, an out-of-level assessment does not
cover the same content as an assessment based on grade-level academic
content standards.
The final regulations in Sec. 200.6(a)(3) make clear that a State
may develop a new alternate assessment based on modified academic
achievement standards or adapt its general assessment. Consistent with
Sec. 200.6(a)(3)(ii), an alternate assessment based on modified
academic achievement standards must cover the same grade-level content
as the regular assessment. Beyond this essential requirement, a State
may employ a variety of strategies to design an alternate assessment
based on modified academic achievement standards. For example, it might
replace the most difficult items on a State's general assessment with
simpler items while retaining coverage of the State's academic content
standards or modify the same items that appear on the grade-level
assessment by eliminating one of the incorrect answers in a multiple
choice test. Alternatively, a State might choose to develop a unique
assessment based on grade-level academic content standards that
provides flexibility in the presentation of test items, for example, by
using technology to allow students to access items via print, spoken,
and pictorial form. Or States may permit students to respond to test
items by dictating responses or using mathematics manipulatives to
illustrate conceptual or procedural knowledge. Regardless of whether a
State chooses to construct a unique assessment or to adapt its general
assessment, any alternate assessment based on modified academic
achievement standards must meet the requirements for high technical
quality set forth in Sec. Sec. 200.2(b) and 200.3(a)(1) (including
validity, reliability, accessibility, objectivity, and consistency with
nationally recognized professional and technical standards) and be
based on modified academic achievement standards that have been
developed through a documented and validated standards-setting process
that includes broad stakeholder input, consistent with new Sec.
200.1(e)(1)(iv).
Other Provisions Addressed in These Regulations
These regulations also finalize several other provisions under
Title I and the IDEA that were proposed in the NPRM, including the
following:
Minimum group size. The final Title I regulations in Sec.
200.7(a)(2)(ii) prohibit a State, beginning in the 2007-08 school year,
from establishing a different minimum number (group size or ``n size'')
of students across the required AYP subgroups for purposes of
calculating AYP. This requirement applies to all States, not just those
that choose to develop and administer an alternate assessment based on
modified academic achievement standards.
Multiple test administrations. With the removal of current Sec.
200.20(c)(3), States will now be permitted to administer their State
assessments (including regular and alternate assessments) more than
once and include the student's best score in determining AYP.
Guidelines for IEP Teams. Title I requires a State to administer
assessments that are valid and reliable for the purposes for which they
are used. Accordingly, students, including students with disabilities,
who are assessed with assessments that are not valid and reliable are
not ``participants'' for purposes of calculating participation rates in
determining AYP. The final IDEA regulations that are included in these
regulations provide that a State's (or in the case of district-wide
assessments, an LEA's) guidelines require each child to be validly
assessed and identify, for each assessment, any accommodations that
would result in an invalid score. Consistent with Title I, a student
with disabilities must receive a valid score in order to be counted as
a participant under the IDEA.
The final Title I regulations in Sec. 200.1(f) place
responsibility on a State to develop guidelines for IEP Teams and in
new Sec. 200.20(c)(3) make clear that, to count a student who is
assessed based on alternate or modified academic achievement standards
as a participant for purposes of meeting the 95 percent assessment
participation requirement, a State must have guidelines for IEP Teams
to use to determine appropriately which students should participate in
alternate assessments based on alternate or modified academic
achievement standards that meet the requirements of these regulations.
Former students with disabilities. The final regulations in Sec.
200.20(f)(2) provide additional flexibility in calculating AYP for the
students with disabilities subgroup. Under the final regulations, a
State may include, for a period of up to two years, the scores of
students who were previously identified with a disability under the
IDEA but who no longer receive special education services. A State,
however, would not be able to include the scores of former students
with disabilities as part of the students with disabilities subgroup in
reporting any other information (e.g., participation rates) under Title
I.
Assessment of students with disabilities under the IDEA. To ensure
a coordinated administration of the IDEA and Title I programs, the
final IDEA regulations on assessment in Sec. 300.160, which are
included in this regulations package, incorporate provisions regarding
modified academic achievement standards that are consistent with the
changes to the regulations under Title I of the ESEA. In addition, the
final IDEA regulations provide that a State's (or in the case of a
district-wide assessment, an LEA's) guidelines must require each child
to be validly assessed and must identify, for each assessment,
accommodations that would result in an invalid score. Consistent with
Title I, these final regulations also provide in Sec. 300.160(f)(1)
that a student taking an assessment with an accommodation that
invalidates the score would not be reported as a participant under the
IDEA. This coordination of the regulations for the IDEA and Title I
programs should avoid confusion among parents, teachers, and
administrators, and reinforce IDEA's and Title I's shared goal of high
expectations and accountability for all students.
Major Changes in the Regulations
The following is a summary of the major substantive changes in
these final regulations from the regulations proposed in the NRPM (the
rationale for each of these changes is discussed in the Analysis of
Comments and Changes section elsewhere in this preamble).
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
State Responsibilities for Developing Challenging Academic Standards
(Sec. 200.1(a))
Section 200.1(a)(1) and (a)(2) have been revised to
clarify that the same
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academic content standards apply to all public schools and all public
school students and that the authority to develop alternate and
modified academic achievement standards for eligible students with
disabilities does not apply to academic content standards. Proposed
paragraph (b)(1)(i) is redundant with these changes and has been
removed.
Modified Academic Achievement Standards (Sec. 200.1(e))
Section 200.1(e)(1), which defines modified academic
achievement standards for a State that chooses to develop such
standards, has been revised as follows:
(1) Paragraph (e)(1) of Sec. 200.1, which permits a State to
develop modified academic achievement standards for students with
disabilities, has been changed by deleting the reference to a
documented and validated standards-setting process. The requirement for
a State to use a documented and validated standards-setting process has
been clarified and expanded in new Sec. 200.1(e)(1)(iv).
(2) Proposed paragraph (e)(1)(i) of Sec. 200.1, which requires
modified academic achievement standards to be aligned with a State's
academic content standards for the grade in which the student is
enrolled, would have permitted modified academic achievement standards
to reflect reduced breadth or depth of grade level content. The
requirement has been changed by deleting the reference to reduced
breadth or depth.
(3) A new paragraph (e)(1)(ii) has been added to Sec. 200.1 to
specify that modified academic achievement standards must be
challenging for eligible students, but may be less difficult than
grade-level academic achievement standards.
(4) Proposed paragraph (e)(1)(ii) of Sec. 200.1, which would have
required modified academic achievement standards to provide access to
grade-level curriculum, has been removed. This requirement has been
incorporated into the requirements for State guidelines in new Sec.
200.1(f)(2)(iii). In addition, we have clarified that grade-level
curriculum includes instruction.
(5) A new paragraph (e)(1)(iii) has been added to Sec. 00.1
indicating that modified academic achievement standards, like grade-
level academic achievement standards, must include at least three
achievement levels.
(6) Proposed paragraph (e)(1)(iii) of Sec. 200.1, which would have
required that modified academic achievement standards not preclude a
student from earning a high school diploma, has been removed. A similar
provision has been included in the requirements for State guidelines in
new Sec. 200.1(f)(2)(iv).
(7) A new Sec. 200.1(e)(1)(iv) has been added requiring modified
academic achievement standards to be developed through a documented and
validated standards-setting process that includes broad stakeholder
input, including persons knowledgeable about a State's academic content
standards and experienced in standards setting and special educators
who are most knowledgeable about children with disabilities.
Section 200.1(e)(2), regarding the criteria for IEP Teams
to use in determining whether a student is eligible to be assessed
based on modified academic achievement standards, has been revised to
make the following changes:
(1) The introduction to Sec. 200.1(e)(2) has been changed to
clarify that a State may include criteria, in addition to those listed
in paragraphs (e)(2)(i) through (e)(2)(iii), for IEP Teams to use in
determining whether a student should be assessed based on modified
academic achievement standards.
(2) Paragraph (e)(2)(ii) of Sec. 200.1, regarding the guidelines
that a State must establish for IEP Teams, has been changed by (A)
removing the requirement that IEP Teams consider a student's progress
in response to high-quality instruction and replacing it with a
requirement that IEP Teams consider a student's progress to date in
response to appropriate instruction; and (B) removing the requirement
that IEP Teams determine that a student is not likely to achieve grade-
level proficiency within the year covered by the student's IEP, and
replacing it with a requirement that IEP Teams be reasonably certain
that, even if significant growth occurs, the student will not achieve
grade-level proficiency within the year covered by the student's IEP.
(3) A new paragraph (e)(2)(iii) has been added to Sec. 200.1
requiring that if a student assessed based on modified academic
achievement standards has an IEP that includes goals for a subject
assessed under Sec. 200.2, those goals must be based on the academic
content standards for the grade in which the student is enrolled.
Proposed Sec. 200.1(e)(2)(iii), which would have required, as an
eligibility condition, that a student be receiving instruction in the
grade-level curriculum for the subjects in which the student is
assessed, has been removed.
Proposed Sec. 200.1(e)(3), which would have permitted a
student assessed based on modified academic achievement standards to be
in any of the 13 disability categories listed in the IDEA, has been
removed. This provision has been incorporated into the requirements for
State guidelines in new Sec. 200.1(f)(1)(ii).
Proposed Sec. 200.1(e)(4), which would have provided that
a student could be assessed based on modified academic achievement
standards in one or more subjects for which assessments are
administered under Title I, has been removed. This provision has been
revised and incorporated into the requirements for State guidelines in
new Sec. 200.1(f)(1)(i)(B) (proposed Sec. 200.1(f)(1)(ii)).
Proposed Sec. 200.1(e)(5), which would have required the
decision to assess a student based on modified academic achievement
standards to be reviewed annually by a student's IEP Team, has been
removed. This requirement has been revised and incorporated into the
requirements for State guidelines in new Sec. 200.1(f)(2)(v).
State Guidelines (Sec. 200.1(f))
Proposed Sec. 200.1(f), regarding the requirements for
State guidelines, has been restructured into new paragraphs (f)(1) and
(f)(2). New paragraph (f)(1) includes the requirements for State
guidelines for students who are assessed based on either alternate or
modified academic achievement standards. New paragraph (f)(2) includes
additional requirements for State guidelines for students who are
assessed based on modified academic achievement standards.
Proposed Sec. 200.1(f)(1), which would have required a
State to establish and ensure implementation of clear and appropriate
guidelines for IEP Teams to determine if students are to be assessed
based on alternate or modified academic achievement standards, has been
expanded to require a State to establish and monitor implementation of
clear and appropriate guidelines for IEP Teams. Proposed Sec. Sec.
200.1(f)(1) and 200.1(f)(1)(i) have been redesignated as new Sec. Sec.
200.1(f)(1)(i) and 200.1(f)(1)(i)(A), respectively.
Proposed Sec. 200.1(f)(1)(ii), which requires a State to
establish guidelines for IEP Teams to use in determining if students
are to be assessed based on modified academic achievement standards,
has been revised to clarify that students may be assessed based on
modified academic achievement standards in one or more of the subjects
tested under Title I. Proposed Sec. 200.1(f)(1)(ii) has been
redesignated as new Sec. 200.1(f)(1)(i)(B).
A new Sec. 200.1(f)(1)(ii) has been added to require a
State to inform IEP Teams that students eligible to be
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assessed based on alternate or modified academic achievement standards
may be from any of the disability categories listed in the IDEA.
A new Sec. 200.1(f)(1)(iii) has been added to require a
State to provide IEP Teams with a clear explanation of the differences
between assessments based on grade-level academic achievement standards
and those based on modified or alternate academic achievement
standards, including any effects of State and local policies on a
student's education resulting from taking an alternate assessment based
on alternate or modified academic achievement standards (such as
whether only satisfactory performance on a regular assessment would
qualify a student for a regular high school diploma).
Proposed Sec. 200.1(f)(2), which would have required that
parents of a student selected to be assessed based on alternate or
modified academic achievement standards are informed that their child's
achievement will be measured based on alternate or modified academic
achievement standards, has been redesignated as Sec. 200.1(f)(1)(iv).
A new Sec. 200.1(f)(2), regarding requirements for State
guidelines for a student who is assessed based on modified academic
achievement standards, has been added and includes the following:
(1) New paragraph (f)(2)(i) in Sec. 200.1 requires a State to
inform IEP Teams that a student may be assessed based on modified
academic achievement standards in one or more subjects for which
assessments are administered under Title I.
(2) New paragraph (f)(2)(ii) in Sec. 200.1 requires a State to
establish and monitor the implementation of clear and appropriate
guidelines for an IEP Team to apply in developing and implementing an
IEP for a student who is assessed based on modified academic
achievement standards. New paragraph (f)(2)(ii)(A) and (B) requires
that the IEP of a student assessed based on modified academic
achievement standards include IEP goals that are based on the academic
content standards for the grade in which the student is enrolled, and
be designed to monitor the student's progress in achieving the
student's standards-based goals.
(3) New paragraph (f)(2)(iii) in Sec. 200.1 requires a State to
ensure that a student who is assessed based on modified academic
achievement standards has access to the curriculum, including
instruction, for the grade in which the student is enrolled.
(4) New paragraph (f)(2)(iv) in Sec. 200.1 requires a State to
ensure that a student who takes an alternate assessment based on
modified academic achievement standards is not precluded from
attempting to complete the requirements, as defined by the State, for a
regular high school diploma.
(5) New paragraph (f)(2)(v) in Sec. 200.1 ensures that each IEP
Team reviews annually for each subject its decision to assess a student
based on modified academic achievement standards.
Inclusion of All Students (Sec. 200.6)
Section 200.6(a)(1)(ii)(A) has been revised to clarify
that a State must develop, disseminate information on, and promote the
use of appropriate accommodations to increase the number of students
who are tested against academic achievement standards for the grade in
which a student is enrolled.
Section 200.6(a)(2)(iii), which requires a State to
document that a student with the most significant cognitive
disabilities is, to the maximum extent possible, included in the
general curriculum, has been changed by deleting the word ``maximum.''
Section 200.6(a)(3), regarding alternate assessments based
on modified academic achievement standards, has been revised as
follows:
(1) The heading in Sec. 200.6(a)(3) has been changed to clarify
that an assessment based on modified academic achievement standards is
an ``alternate'' assessment.
(2) Section 200.6(a)(3) has been revised by removing the regulatory
references to grade-level assessments and alternate assessments.
(3) A new Sec. 200.6(a)(3)(i) has been added to clarify that a
State may develop a new alternate assessment or adapt a grade-level
assessment to assess a student based on modified academic achievement
standards.
(4) A new Sec. 200.6(a)(3)(ii) has been added to include the
requirements for alternate assessments based on modified academic
achievement standards. Proposed Sec. 200.6(a)(3)(i) through
(a)(3)(iv), which included the requirements for alternate assessments
based on modified academic achievement standards, has been redesignated
as new Sec. 200.6(a)(3)(ii)(A) through (a)(3)(ii)(D).
Section 200.6(a)(4), regarding the reporting requirements
under section 1111(h)(4) of Title I, has been changed by redesignating
(A) proposed paragraph (a)(4)(iv), regarding alternate assessments
based on grade-level academic achievement standards, as new paragraph
(a)(4)(iii); and (B) proposed paragraph (a)(4)(iii), regarding
alternate assessments based on modified academic achievement standards,
as new paragraph (a)(4)(iv). In addition, ``to the Secretary'' has been
added to the introductory sentence in Sec. 200.6(a)(4) to clarify to
whom States must report the data collected under section 1111(h)(4) of
the Act.
Disaggregation of Data (Sec. 200.7)
Section 200.7(a)(ii), providing that a State may not
establish a different minimum number of students for separate
subgroups, has been revised by clarifying that this provision also
applies to the school as a whole. In addition, the final regulations
make clear that this provision takes effect for AYP determinations
based on 2007-08 assessment data.
Making Adequate Yearly Progress (Sec. 200.20(f))
Proposed Sec. 200.20(f)(1), which permits a State to
include, for a period of up to two years, the scores of students who
were previously identified with a disability in AYP calculations, has
been incorporated into current Sec. 200.20(f)(2), which codifies the
final regulations on accountability for former limited English
proficient (LEP) students published in the Federal Register on
September 13, 2006 (71 FR 54187).
Proposed Sec. 200.20(f)(2) has been changed to clarify
that if a State includes the scores of former students with
disabilities in calculating AYP, it must include the scores of all such
students. Proposed Sec. 200.20(f)(2) has been incorporated into new
Sec. 200.20(f)(2)(ii).
Transition Provision Regarding Modified Academic Achievement Standards
(Sec. 200.20(g))
A new Sec. 200.20(g) has been added to make explicit that
the Secretary may provide States flexibility in accounting for the
achievement of some students with disabilities in AYP determinations
that are based on assessments administered in 2007-08 and 2008-09.
States must demonstrate, for each year for which flexibility is
available, that they are expeditiously moving to adopt and administer
assessments based on modified academic achievement standards consistent
with these regulations and meet other criteria, as the Secretary
determines appropriate, in order to be considered for this flexibility.
[[Page 17753]]
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILTIES
Participation in Assessments (Sec. 300.160)
Section 300.160(b)(2), regarding accommodation guidelines
that a State must develop, has been revised to clarify that the State
guidelines must (A) identify the accommodations for each assessment
that do not invalidate the score; and (B) instruct IEP Teams to select,
for each assessment, only those accommodations that do not invalidate
the score.
Proposed Sec. 300.160(c), which would have required a
State that has adopted modified academic achievement standards to have
guidelines for the participation of students with disabilities in
assessments based on those standards, has been removed. With the
clarification in Sec. 200.6(a)(3) that assessments based on modified
academic achievement standards are alternate assessments, proposed
Sec. 300.160(c) is redundant with new Sec. 300.160(c) (proposed Sec.
300.160(d)).
Proposed Sec. 300.160(d)(1), which requires a State (or
in the case of a district-wide assessment, an LEA) to develop and
implement alternate assessments and guidelines for children who cannot
participate in regular assessments, even with accommodations, has been
redesignated as new Sec. 300.160(c)(1).
Proposed Sec. 300.160(d)(2)(ii), which would have
required a State to measure the achievement of children based on
alternate academic achievement standards if a State has adopted those
standards, has been changed by replacing ``alternate academic
achievement standards'' with ``modified academic achievement
standards,'' and clarifying that modified academic achievement
standards are permitted for children who meet the State's criteria
under Sec. 200.1(e)(2). Proposed Sec. 300.160(d)(2)(ii) has been
redesignated as Sec. 300.160(c)(2)(ii).
A new Sec. 300.160(c)(2)(iii) has been added, providing
that, if a State has adopted alternate academic achievement standards,
the State must measure the achievement of children with the most
significant cognitive disabilities against those standards.
A new paragraph (d) has been added, requiring a State to
provide IEP Teams with a clear explanation of the differences between
assessments based on grade-level academic achievement standards and
those based on modified or alternate academic achievement standards,
including any effects of State or local policies on the student's
education resulting from taking an alternate assessment based on
alternate or modified academic achievement standards (such as whether
only satisfactory performance on a regular assessment would qualify a
student for a regular high school diploma).
A new paragraph (e) has been added, requiring a State to
ensure that parents of a student selected to be assessed based on
alternate or modified academic achievement standards are informed that
their child's achievement will be measured based on alternate or
modified academic achievement standards.
Proposed Sec. 300.160(e), regarding reports on the
assessment of students with disabilities, has been redesignated as
Sec. 300.160(f) and changed as follows:
(1) Proposed paragraph (e)(1) in Sec. 300.160, which requires a
State to report on the number of children with disabilities
participating in regular assessments, and the number of those children
who were provided accommodations that did not result in an invalid
score, has been redesignated as Sec. 300.160(f)(1).
(2) Proposed paragraph (e)(2) in Sec. 300.160 has been
redesignated as Sec. 300.160(f)(2) and revised to require a State to
report on the number of children participating in alternate assessments
based on grade-level academic achievement standards.
(3) Proposed paragraph (e)(3) in Sec. 300.160, which requires a
State to report on the number of children with disabilities who are
assessed based on alternate academic achievement standards, has been
changed to require a State to report on the number of children with
disabilities, if any, who are assessed based on modified academic
achievement standards. The regulatory reference to alternate
assessments based on alternate academic achievement standards has been
deleted and proposed Sec. 300.160(e)(3) has been redesignated as Sec.
300.160(f)(3).
(4) Proposed paragraph (e)(4) in Sec. 300.160, which requires a
State to report on the number of children with disabilities who are
assessed based on modified academic achievement standards, has been
changed to require a State to report on the number of children with
disabilities, if any, who are assessed based on alternate academic
achievement standards. The regulatory reference to modified academic
achievement standards has been deleted and proposed Sec. 300.160(e)(4)
has been redesignated as Sec. 300.160(f)(4).
(5) Proposed paragraph (e)(5) in Sec. 300.160, which required a
State to report on the performance results of children with
disabilities on regular assessments and on alternate assessments, has
been clarified by specifically identifying alternate assessments based
on grade-level academic achievement standards; alternate assessments
based on modified academic achievement standards; and alternate
assessments based on alternate academic achievement standards. It also
has been revised to require that performance results for children with
disabilities be compared to the achievement of all students, including
children with disabilities. Proposed Sec. 300.160(e)(5) has been
redesignated as Sec. 300.160(f)(5).
Proposed Sec. 300.160(f), regarding universal design, has
been redesignated as Sec. 300.160(g).
Analysis of Comments and Changes
In response to the Secretary's invitation in the NPRM, more than
300 parties submitted comments on the proposed regulations, many of
which were substantially similar. An analysis of the comments and
changes in the regulations since publication of the NPRM follows.
We discuss substantive issues under the sections of the regulations
to which they pertain. Generally, we do not address technical or minor
changes, and suggested changes that we are not authorized to make under
the law. We also do not address comments on Title I or IDEA regulations
that were not part of the NPRM published on December 15, 2005 (70 FR
74624), such as comments concerning the regulations regarding alternate
academic achievement standards.
Interim Flexibility
Comment: Several commenters made recommendations regarding the
Department's interim flexibility, which gave eligible States the
flexibility to provide credit to schools or districts that missed AYP
solely because of the achievement of the students with disabilities
subgroup. Some commenters opposed this flexibility; most others
suggested extending the flexibility until the final regulations on
modified academic achievement standards are in effect or until States
have had time to develop modified academic achievement standards and
aligned alternate assessments. One commenter recommended that the
interim flexibility be made permanent instead of the Department
regulating to permit States to establish modified academic achievement
standards. Finally, one commenter stated that offering interim
flexibility prior to rulemaking violated
[[Page 17754]]
Title I negotiated rulemaking requirements.
Discussion: The Department permitted States that expressed interest
in developing modified academic achievement standards and assessments
based on those standards to take advantage of interim flexibility while
the Department drafted the proposed regulations. This flexibility was
granted for the 2004-05 school year and then extended for a second year
(2005-06) to cover the period of time when members of the public were
commenting on the proposed regulations and while the Department
developed the final regulations. The interim flexibility will be
extended for the 2006-07 school year for States that can show evidence
of a commitment to develop modified academic achievement standards.
We believe that the flexibility to develop modified academic
achievement standards provides a means to assess appropriately some
students with disabilities and include them in State accountability
systems. Therefore, we do not believe the interim flexibility should be
used in lieu of setting modified academic achievement standards, as
recommended by one commenter.
We do not believe that offering interim flexibility prior to
rulemaking violated negotiated rulemaking requirements. We understand
the statutory requirements for negotiated rulemaking in section 1901 of
the ESEA to apply to Title I standards and assessment regulations
required to be implemented within one year of enactment of NCLB, not to
subsequent regulatory amendments such as those included in these
regulations.
The Department recognizes that some States may need time beyond the
2006-07 school year to develop and implement alternate assessments
based on modified academic achievement standards. Therefore, we are
adding a new Sec. 200.20(g) providing that the Secretary may give
flexibility for two additional years (through the 2008-09 school year)
to States that are developing alternate assessments based on modified
academic achievement standards consistent with these regulations.
Changes: We have added a new Sec. 200.20(g) specifying that the
Secretary may provide a State that is moving expeditiously to adopt and
administer alternate assessments based on modified academic achievement
standards flexibility in accounting for the achievement of students
with disabilities in AYP determinations that are based on assessments
administered in school years 2007-08 and 2008-09. To be eligible for
this flexibility, a State must meet criteria, as the Secretary
determines appropriate, for each year for which the flexibility is
available.
State Responsibilities for Developing Challenging Academic Standards
(Sec. 200.1)
Comment: A few commenters recommended revising Sec. 200.1(a)(1) to
clarify when the regulation applies to academic content standards
versus academic achievement standards. The commenters noted that the
authority to develop modified and alternate academic achievement
standards appears erroneously also to apply to academic content
standards.
Discussion: We agree that the regulation in Sec. 200.1(a)(1)
should be more specific when referring to academic standards.
Therefore, we have clarified that the same academic content standards
apply to all public schools and all public school students in a State
and that the authority to develop alternate academic achievement
standards in paragraph (d) and modified academic achievement standards
in paragraph (e) for eligible students with disabilities does not apply
to academic content standards. We also have modified paragraph (a)(2)
to be consistent with these changes. Section 200.1(b)(1)(i) is
redundant with these changes and has been removed.
Changes: We have made the following changes in Sec. 200.1(a)(1):
(1) Added ``content and academic achievement'' before ``standards'; and
(2) added ``which apply only to the State's academic achievement
standards'' at the end of the sentence in paragraph (a)(1). Consistent
with these changes, we have revised paragraph (a)(2) to read, ``Include
the same knowledge and skills expected of all students and the same
levels of achievement of all students, except as provided in paragraphs
(d) and (e) of this section.'' We have removed Sec. 200.1(b)(1)(i).
Modified Academic Achievement Standards (Sec. 200.1(e))
Comment: Several commenters recommended that the regulations
provide more detail on the essential components of the documented and
validated standards-setting process required in Sec. 200.1(e)(1).
These commenters stated that the process should include broad
stakeholder input. One commenter requested that the regulations require
a State to explain to the public how it proposes to change its content
standards to coincide with modified academic achievement standards. A
few commenters requested that the regulations specify the persons who
should define the standards and participate in the standards-setting
process, and include information about how parents and specialists
should be involved.
Discussion: We do not believe that it is necessary to include the
details of a validated standards-setting process in these regulations
because the field generally agrees that the process should be
consistent with the standards for educational and psychological testing
(1999).\1\ This process relies on both empirical data and the informed
judgments of persons familiar with academic content as well as with the
students with disabilities to be assessed. We agree with the commenters
that the development of achievement standards typically benefits from
broad stakeholder involvement to ensure consensus regarding the
knowledge and skills essential for all students and have clarified this
in the regulations. In response to the request to define who should be
involved in the standards-setting process for modified academic
achievement standards, we believe that the process should include
persons who are knowledgeable about the State's academic content
standards and experienced in standards setting, as well as special
educators who are most knowledgeable about the academic abilities and
achievement of students with disabilities, and we have added clarifying
language in the regulations. We decline to comment on how parents and
specialists should be involved in the process. These determinations are
best left to State and local officials.
---------------------------------------------------------------------------
\1\ AERA, APA, & NCME. (1999). (American Educational Research
Association, American Psychological Association, & National Council
on Measurement in Education) Joint Committee on Standards for
Educational and Psychological Testing. Standards for educational and
psychological testing. Washington, DC: AERA.
---------------------------------------------------------------------------
With regard to the commenter who requested that the regulations
require a State to explain to the public how it proposes to change its
content standards to coincide with modified academic achievement
standards, we note that a State that intends to develop modified
academic achievement standards consistent with these regulations would
not propose to change its academic content standards. As required in
Sec. 200.1(e)(1), modified academic achievement standards must be
aligned with the State's academic content standards.
Changes: We have removed the phrase ``through a documented and
validated standards-setting process'' in proposed Sec. 200.1(e)(1) and
have added a new Sec. 200.1(e)(1)(iv) to require that modified
academic achievement standards be developed through a
[[Page 17755]]
documented and validated standards-setting process that includes broad
stakeholder input, including persons knowledgeable about the State's
academic content standards and experienced in standards setting and
special educators who are most knowledgeable about children with
disabilities.
Comment: A number of commenters disagreed with the requirement in
Sec. 200.1(e)(1)(i) that modified academic achievement standards be
aligned with the State's academic content standards for the grade in
which the student is enrolled. Several commenters stated that this
requirement excludes students who need to be assessed against a truly
modified set of learning standards. These commenters argued that
modified academic achievement standards should be for students with
learning goals that are substantively different from the general
education standards, but not as different as the learning goals for
students with the most significant cognitive disabilities who are
assessed based on alternate academic achievement standards.
Several commenters stated that modified academic achievement
standards should focus on the individual needs of a student with
disabilities and be aligned with standards that are appropriate for the
student's instructional level, not grade level. A few commenters stated
that the criteria for modified academic achievement standards are too
prescriptive and that States should have the flexibility to develop
modified academic achievement standards in ways that meet their needs.
Discussion: We disagree with the commenters. Modified academic
achievement standards are intended for a small group of students who,
by virtue of their disability, are not likely to meet grade-level
academic achievement standards in the year covered by their IEPs even
with appropriate instruction. These students need the benefit of access
to instruction in grade-level content so that they can move closer to
grade-level achievement. We believe that allowing modified academic
achievement standards to focus on something other than grade-level
content standards (e.g., allowing them to be based on a student's
instructional level) would lower expectations and limit opportunities
for these students to access grade-level content and meet grade-level
achievement standards. We also believe that allowing States to develop
modified academic achievement standards without placing any parameters
or restrictions on their use would likely result in lowered
expectations.
Changes: None.
Comment: Many commenters requested specific guidance on how a State
could appropriately reduce the breadth or depth of grade-level
standards, as proposed in Sec. 200.1(e)(1)(i). One commenter requested
that the regulations clarify that reducing breadth or depth would
permit the assessment of prerequisite skills that are needed to master
grade-level content standards.
Discussion: Modified academic achievement standards are intended to
be challenging for a small group of students whose disability has thus
far prevented them from attaining grade-level proficiency. However,
while the modified academic achievement standards may be less demanding
than grade-level academic achievement standards, these students must
have access to a curriculum based on grade-level content standards so
that they can move closer to grade-level achievement. This means that
an alternate assessment based on modified academic achievement
standards must cover the same grade-level content, but may include less
difficult questions overall.
We agree that the phrase ``breadth or depth'' in the context of
developing modified academic achievement standards is not clear and
does not sufficiently convey that only the academic achievement
standards for students, not the content on which they are assessed, are
to be modified. In addition, the terms ``breadth'' and ``depth'' are
descriptive, rather than technical, and do not have consistent meanings
for the different stakeholders involved in developing and using student
assessments. Therefore, we have removed the reference to reduced
breadth or depth from Sec. 200.1(e)(1)(i). Section 200.1(e)(1)(i)
continues to require modified academic achievement standards to be
aligned with the State's academic content standards for the grade in
which the student is enrolled. We have added a new paragraph (e)(1)(ii)
clarifying that modified academic achievement standards must be
challenging for eligible students, but may be less difficult than
grade-level academic achievement standards. Consistent with section
1111(b)(1)(D)(i) of the ESEA, we also have clarified that modified
academic achievement standards must include at least three achievement
levels.
Changes: The phrase ``reflect reduced breadth or depth of grade
level content'' has been removed from Sec. 200.1(e)(1)(i). A new Sec.
200.1(e)(1)(ii) has been added specifying that modified academic
achievement standards must be challenging for eligible students, but
may be less difficult than grade-level academic achievement standards.
We also have added a new Sec. 200.1(e)(1)(iii) to require modified
academic achievement standards to include at least three achievement
levels.
Comment: One commenter stated that modified academic achievement
standards should be designed to allow a student, over time, to reach
grade-level academic achievement standards. Many commenters stated that
the regulations should include protections so that the regulations do
not result in lowered expectations for students with disabilities.
Discussion: We added a number of safeguards to the safeguards that
were already included in the proposed regulations to ensure that a
student with disabilities who is assessed based on modified academic
achievement standards has access to grade-level content so that the
student has the opportunity, over time, to reach grade-level academic
achievement standards. The safeguards for students that are included in
these final regulations include the following: Sec. 200.1(e)(1)(i)
requires that modified academic achievement standards be aligned with a
State's academic content standards for the grade in which a student is
enrolled; new Sec. 200.1(e)(2)(iii) requires that a student's IEP
include goals that are based on the academic content standards for the
grade in which the student is enrolled and be designed to monitor a
student's progress in achieving the student's standards-based goals;
new Sec. 200.1(f)(2)(ii) requires a State to establish and monitor
implementation of clear and appropriate guidelines for an IEP Team to
apply in developing and implementing the IEP of a student assessed
based on modified academic achievement standards; new Sec.
200.1(f)(2)(iii) requires that a State's guidelines for IEP Teams
ensure that a student who is assessed based on modified academic
achievement standards has access to the curriculum, including
instruction, for the grade in which the student is enrolled; and new
Sec. 200.1(f)(2)(iv) requires a State to ensure that a student who
takes an alternate assessment based on modified academic achievement
standards is not precluded from attempting to complete the
requirements, as defined by the State, for a regular high school
diploma.
Changes: None.
Comment: We received several comments regarding proposed Sec.
200.1(e)(1)(iii), which requires that modified academic achievement
standards not preclude a student from
[[Page 17756]]
earning a regular high school diploma. Several commenters stated that
it would be an intrusion into State graduation standards if a State was
required to diminish its standards for a regular diploma to include
students who are assessed on modified academic achievement standards.
Discussion: The intent of proposed Sec. 200.1(e)(1)(iii) was not
to require States to alter their graduation requirements or to provide
a regular high school diploma to a student who scores proficient on an
alternate assessment based on modified academic achievement standards.
Rather, we wanted to ensure that a student is not automatically
precluded from attempting to earn a regular high school diploma simply
because the student was assessed based on modified academic achievement
standards. For example, if a State requires students to pass a State
graduation test in order to obtain a regular high school diploma, we
did not want the fact that a student was assessed based on modified
academic achievement standards to automatically prevent the student
from attempting to pass the State's graduation test.
An important requirement for modified academic achievement
standards is that they be aligned with the State's grade-level academic
content standards and provide access to grade-level curriculum.
Therefore, we believe it is reasonable that students assessed based on
modified academic achievement standards have the opportunity to attempt
to earn a regular high school diploma. We recognize that proposed Sec.
200.1(e)(1)(iii) could be misconstrued and, therefore, have changed the
language to make clear that States may not prevent a student from
attempting to complete the requirements, as defined by the State, for a
regular high school diploma simply because the student participates in
an alternate assessment based on modified academic achievement
standards.
Changes: Proposed Sec. 200.1(e)(1)(iii) has been removed. A new
Sec. 200.1(f)(2)(iv) has been added to require a State to ensure that
students who take alternate assessments based on modified academic
achievement standards are not precluded from attempting to complete the
requirements, as defined by the State, for a regular high school
diploma.
Comment: Many commenters requested additional guidance on the
development of modified academic achievement standards. A few
commenters requested guidance on addressing the technical issues
regarding the development of modified academic achievement standards.
Discussion: The Department recognizes the need to provide States
with additional guidance on the development and implementation of
modified academic achievement standards and will provide nonregulatory
guidance, along with technical assistance and support to States on
modified academic achievement standards following the release of these
final regulations.
Changes: None.
Criteria for Defining Eligible Students (Sec. 200.1(e)(2))
Comment: Several commenters recommended that the regulations
clearly state that a student's IEP Team is responsible for determining
whether the student should be assessed based on modified academic
achievement standards. One commenter added that LEAs should not be able
to unilaterally change an IEP Team's decision. Many commenters
recommended requiring that parents be included in this decision and
informed in writing of any potential consequences of such decisions.
Several commenters stated that the information should be provided to
parents in the parent's native language and in language that is easily
understandable.
Discussion: We agree that it would be helpful to clarify that the
State guidelines are for IEP Teams to use in determining which students
with disabilities are eligible to be assessed based on modified
academic achievement standards and have made this change in Sec.
200.1(e)(2) and (e)(2)(ii)(A). Consistent with Sec. 200.1(f)(1)(i),
States have an important role in providing clear and appropriate
guidelines for IEP Teams to use in determining who will be assessed
based on modified academic achievement standards and in monitoring the
implementation of these guidelines by IEP Teams. We also agree that an
LEA cannot unilaterally change an IEP Team's decision regarding whether
a child will be assessed based on modified academic achievement
standards. Section 300.320(a)(6), consistent with section
614(d)(1)(A)(i)(VI) of the IDEA, already provides that it is the
child's IEP Team, not the LEA, that is responsible for determining how
the child will participate in State and district-wide assessments.
We do not believe it is necessary to add language to the Title I
regulations ensuring that parents are included in decisions regarding
whether their child will be assessed based on modified academic
achievement standards. The IDEA regulations already require public
agencies to include parents of children with disabilities in decisions
regarding their child's special education, including how the child will
participate in State and district-wide assessments. Section 300.321(a)
of the IDEA regulations requires public agencies to include parents of
children with disabilities as members of the IEP Team. If a child's
parent and the other members of the child's IEP Team determine that the
child will take an alternate assessment based on alternate or modified
academic achievement standards, Sec. 300.320(a)(6)(i), consistent with
section 614(d)(1)(A)(i)(VI) of the IDEA, requires that the child's IEP
include a statement of why the particular assessment is appropriate for
the child.
We agree with the commenters that it is important for parents to be
informed of any effects on their child's education that may result from
the child participating in an alternate assessment based on modified or
alternate academic achievement standards. In addition to parents, we
believe it is important for all IEP Team members to have knowledge
about modified or alternate academic achievement standards and any
effects that may result from a child participating in such assessments.
Therefore, we have added language to require States to provide IEP
Teams, which include the parent, with a clear explanation of the
differences between assessments based on grade-level academic
achievement standards and those based on modified or alternate academic
achievement standards, including any effects of State or local policies
on the student's education resulting from taking an alternate
assessment based on alternate or modified academic achievement
standards, such as whether only satisfactory performance on a regular
assessment would qualify a student for a regular high school diploma.
We do not believe, however, that it is necessary to require States
to inform a parent in writing, in addition to the IEP process, that his
or her child will not be assessed based on the same academic
achievement standards as other children. Parents are integral members
of the IEP Team and participate in the decision regarding the type of
assessment in which their child will participate. We expect that, in
the course of determining the appropriate assessment in which a student
will participate, there will be a discussion of how alternate or
modified academic achievement standards differ from grade-level
academic achievement standards and any possible
[[Page 17757]]
consequences of participating in alternate assessments based on those
standards.
Finally, we do not believe it is necessary to add language to the
Title I regulations requiring public agencies to provide explanations
to parents in the parent's native language and in language that is
easily understandable, as suggested by the commenters. Section
300.322(e) of the IDEA regulations already requires public agencies to
take whatever action is necessary to ensure that parents understand the
proceedings of IEP Team meetings, including arranging for an
interpreter for parents with deafness or whose native language is other
than English.
Changes: We have changed Sec. 200.1(e)(2) to require that the
guidelines that a State establishes under Sec. 200.1(f)(1) include
criteria for IEP Teams to use in determining which students with
disabilities are eligible to be assessed based on modified academic
achievement standards. We also have rewritten paragraph (e)(2)(ii)(A)
to state that the IEP Team must be ``reasonably certain'' that the
student will not achieve grade-level proficiency within the year
covered by the student's IEP, ``even if significant growth occurs.''
We have added a new paragraph (f)(1)(iii) to require the State
guidelines for IEP Teams to provide a clear explanation of the
differences between assessments based on grade-level academic
achievement standards and those based on modified or alternate academic
achievement standards, including any effect of State and local policies
on the student's education resulting from taking an alternate
assessment based on alternate or modified academic achievement
standards (such as whether only satisfactory performance on a regular
assessment would qualify a student for a regular high school diploma).
We also have reorganized paragraph (f) regarding State guidelines
into two paragraphs: paragraph (f)(1) lists the requirements for
students who are assessed based on either alternate or modified
academic achievement standards; and paragraph (f)(2) lists additional
requirements for students who are assessed based on modified academic
achievement standards. With this reorganization, proposed Sec.
200.1(e)(3), has been redesignated as new Sec. 200.1(f)(1)(ii);
proposed Sec. 200.1(e)(5) has been rewritten and redesignated as Sec.
200.1(f)(2)(v); and proposed Sec. 200.1(e)(1)(ii) has been rewritten
and redesignated as Sec. 200.1(f)(2)(iii).
Comment: Several commenters stated that determining whether a
student's disability has precluded the student from achieving grade-
level proficiency should not be based solely on a student's performance
on State assessments because State assessments may not allow the
accommodations a student needs to demonstrate what the student knows
and can do. The commenters recommended changing the ``or'' between
paragraphs (e)(2)(i)(A) and (e)(2)(i)(B) in Sec. 200.1 to ``and.''
Discussion: We do not believe that the determination of a student's
progress always must include consideration of a student's performance
on State assessments and, therefore, decline to make the change
requested by the commenters. Other objective assessments may be
necessary, for example, for students who are new to the State or for
younger students who have not yet taken a State assessment. What is
important is that the IEP Team consider multiple measurements over a
period of time that are valid for the subjects being assessed, as
specified in Sec. 200.1(e)(2)(ii)(B). These measures may include
evidence from a State assessment or other assessments that can validly
document the student's achievement.
Changes: None.
Comment: Several commenters requested a definition of ``high-
quality instruction,'' as used in proposed Sec. 200.1(e)(2)(ii)(A),
stating that, without a definition, the requirement that IEP Teams
consider the student's response to high-quality instruction in
determining whether the student should be assessed based on modified
academic achievement standards is not meaningful. One commenter stated
that the proposed regulation assumes that students with disabilities
receive high-quality instruction, but stated that this is not always
the case.
Discussion: The purpose of Sec. 200.1(e)(2)(ii)(A) is to ensure
that students are not identified for an alternate assessment based on
modified academic achievement standards if they have not been receiving
high-quality instruction and services. We agree that it is difficult to
establish objective standards that could be used to determine whether
this criterion has been met and will, therefore, remove this
requirement. However, we continue to believe that safeguards are needed
to ensure that IEP Teams consider whether a student has had an
opportunity to learn grade-level content before determining that the
student should be assessed based on modified academic achievement
standards.
Under Sec. 300.306(b) of the IDEA regulations, a student may not
be determined to be eligible for special education and related services
if the determinant factor is lack of appropriate instruction in reading
or mathematics. Schools use current, data-based evidence to examine
whether a student responds to appropriate instruction before
determining that the student needs special education and related
services. State and local officials are responsible for determining
what constitutes appropriate instruction. (See 71 FR 46646 (Aug. 14,
2006).) State and local officials, therefore, have experience and
knowledge in making judgments about the instruction that a student has
received and whether it has been appropriate. Accordingly, we have
changed the language in Sec. 200.1(e)(2)(ii)(A) to ensure that
students are not identified for an alternate assessment based on
modified academic achievement standards if they have not been receiving
appropriate instruction.
Changes: We have replaced ``high-quality instruction'' with
``appropriate instruction'' in Sec. 200.1(e)(2)(ii)(A). We also have
added ``to date'' following ``progress'' for clarity.
Comment: Several commenters recommended requiring instruction by
highly qualified teachers, as defined in the ESEA and the IDEA, before
determining that a student should be assessed based on modified
academic achievement standards.
Discussion: Both the ESEA and the IDEA already require teachers to
meet the highly qualified teacher standards and we do not believe it is
necessary to reiterate this requirement in these regulations.
Furthermore, while we expect that the vast majority of students will
receive instruction from highly qualified teachers, we do not want a
student who may not have received instruction from a highly qualified
teacher in the past to be precluded from being assessed based on
modified academic achievement standards if that alternate assessment is
most appropriate for that student.
Changes: None.
Comment: One commenter asked if the number of years a student with
disabilities' performance was below grade level could be used to
identify the student as eligible to be assessed based on modified
academic achievement standards.
Discussion: Section 200.1(e)(2)(ii) requires a student's IEP Team
to consider the student's progress to date in response to appropriate
instruction and to be reasonably certain that, even if significant
growth occurs, the student will not achieve grade-level proficiency
within the year covered by the student's IEP. Data documenting that a
student
[[Page 17758]]
has been performing below grade level for a number of years could be
one factor in determining if a student should be assessed based on
modified academic achievement standards.
Changes: None.
Comment: One commenter requested examples of multiple measures over
time that may be used to determine a student's progress under Sec.
200.1(e)(2)(ii)(B). Another commenter asked whether States are required
to use response to intervention procedures to demonstrate student
progress over a period of time.
Discussion: In order to determine whether a student may be eligible
for an alternate assessment based on modified academic achievement
standards, an IEP Team may examine results from a variety of measures
that indicate a student's progress over time. These may be either
criterion-referenced tests (i.e., tests that assess skill mastery and
compare a student's performance to curricular standards, such as State
and district-wide tests) or norm-referenced tests (i.e., tests that
compare a student's performance to that of students of the same age or
grade). The format of the multiple measures may include performance
assessments (i.e., an assessment that focuses on specific objectives
and enables the student to actively demonstrate knowledge and
understanding, such as direct writing and math assessments); portfolio
assessments (i.e., a collection of student work samples); curriculum-
based measures (i.e., repeated measures from the student's curriculum
that assess the specific skills being taught in the classroom and the
effectiveness of instruction and instructional changes); and teacher-
developed assessments (i.e., assessments developed by individual
teachers for use in their own classrooms).
Section 200.1(e)(2)(ii)(B) does not require States to use response
to intervention procedures; nor does it specify the procedures or
measures that must be used to determine a student's progress over time.
We believe that IEP Teams should have as much flexibility as possible
to use objective data to determine whether a student is eligible for an
alternate assessment based on modified academic achievement standards.
The purpose of Sec. 200.1(e)(2)(ii)(B) is to clarify that IEP Teams
must not rely on a single measure to determine whether it is
appropriate to assess a student based on modified academic achievement
standards. So long as the measures are objective and valid for the
subjects being assessed, they may be used to determine whether a
student is making progress.
Changes: None.
Comment: Several commenters supported the proposed requirement that
a student be receiving instruction in grade-level content in order to
be assessed based on modified academic achievement standards and asked
what documentation would be required to ensure that students with
disabilities have the opportunity to learn grade-level content. Other
commenters stated that the proposed regulations did not address the
broad continuum of cognitive functioning and, instead, focused on the
wrong group of students. Many commenters stated that modified academic
achievement standards should be for students who are closer in
achievement to students with the most significant cognitive
disabilities rather than students who are close to grade-level
achievement.
Discussion: The requirement that a student be receiving grade-level
instruction was intended to ensure that students identified to be
assessed based on modified academic achievement standards have access
to grade-level content. We did not want students to be assessed based
on modified academic achievement standards merely because they did not
have access to grade-level content or solely because their achievement
was one or two grades below their enrolled grade. However, based on the
comments we received, we believe this requirement was misinterpreted to
mean that only students achieving close to grade level could
potentially be assessed based on modified academic achievement
standards. That was not our intent. Rather, we anticipated that
students assessed based on modified academic achievement standards
could include students from any of the disability categories under the
IDEA and represent a fairly wide spectrum of abilities. Therefore, we
have removed the requirement in Sec. 200.1(e)(2)(iii) that students
identified to be assessed based on modified academic achievement
standards be receiving grade-level instruction.
However, we continue to believe that it is critical to ensure that
students who participate in an alternate assessment based on modified
academic achievement standards receive instruction in grade-level
content so that they are prepared to demonstrate their mastery of
grade-level content on an alternate assessment based on modified
academic achievement standards and can move closer to grade-level
achievement. One way to help ensure that students have access to grade-
level content before they are assessed based on modified academic
achievement standards, and receive instruction in grade-level content
after they are assessed based on modified academic achievement
standards, is to require IEP Teams to include goals that are based on
grade-level content standards in the IEPs of these students. Such an
approach focuses the IEP Team and the student on grade-level content
and the student's achievement level relative to those content
standards. Therefore, we have added a requirement that the IEP of a
student to be assessed based on modified academic achievement standards
include goals that are based on the academic content standards for the
grade in which the student is enrolled and that the IEP be designed to
monitor a student's progress in achieving the student's standards-based
goals. To further emphasize the importance of ensuring that students
who participate in an alternate assessment based on modified academic
achievement standards receive instruction in grade-level content, we
also make clear in new Sec. 200.1(f)(2)(iii) that States must ensure
that these students have access to the curriculum, including
instruction, for the grade in which the student is enrolled.
Incorporating State content standards in IEP goals is not a new
idea. Because the reauthorization of IDEA in 1997 required States to
provide students with disabilities access to the general curriculum,
the field has been working toward incorporating State standards in IEP
goals. Some States already require IEP Teams to select the grade-level
content standards that the student has not yet mastered and to develop
goals on the basis of the skills and knowledge that the student needs
to acquire in order to meet those standards. In addition, some States
have developed extensive training materials and professional
development opportunities for staff to learn how to write IEP goals
that are tied to State standards.\2\
---------------------------------------------------------------------------
\2\ Ahearn, E. (2006). Standards-based IEPs: Implementation in
Selected States. National Association of State Directors of Special
Education, 1800 Diagonal Road, Suite 320, Alexandria, VA 22314.
---------------------------------------------------------------------------
We appreciate that States that have not moved in this direction may
need technical assistance and support to institute this change for
students who are assessed based on modified academic achievement
standards. The Department's Office of Special Education Programs (OSEP)
is preparing such technical assistance, which will be disseminated and
available upon publication of these final regulations.
[[Page 17759]]
We believe that requiring IEP Teams to incorporate grade-level
content standards in the IEP of a student who is assessed based on
modified academic achievement standards and to monitor the student's
progress in achieving the standards-based goals will focus IEP Teams on
identifying the educational supports and services that the student
needs to reach those standards. This will align the student's
instruction with the general education curriculum and the assessment
that the IEP Team determines is most appropriate for the student.
Changes: We have removed the requirement in Sec. 200.1(e)(2)(iii)
that a student be receiving grade-level instruction in order to be
assessed based on modified academic achievement standards, and replaced
it with a requirement that, if a student identified for an alternate
assessment based on modified academic achievement standards has an IEP
that includes goals for a subject assessed under Sec. 200.2, those
goals must be based on the content standards for the grade in which the
student is enrolled. We have added ``the'' before ``curriculum'' and
``including instruction,'' before ``for the grade in which the students
are enrolled'' in Sec. 200.1(f)(2)(iii). For consistency with these
changes, we have added this requirement as new Sec. 200.1(f)(2)(ii)(A)
to the list of requirements for States to include in their guidelines
for IEP Teams. We also have added Sec. 200.1(f)(2)(ii)(B) to require
that a student's IEP be designed to monitor the student's progress in
achieving the standards-based goals.
Comment: Some commenters stated that requiring a student to be
receiving instruction in grade-level content in order to be assessed
based on modified academic achievement standards would encourage social
promotion or retention.
Discussion: As noted above, we removed the requirement that a
student be receiving instruction in grade-level content in order to be
assessed based on modified academic achievement standards because it
was misinterpreted to mean that only students achieving close to grade-
level could potentially be assessed based on modified academic
achievement standards. However, we continue to believe that it is
critical to ensure that students who participate in an alternate
assessment based on modified academic achievement standards receive
instruction in grade-level content. We believe that students who are
not exposed to grade-level content will not learn the content, which
will delay their learning and increase the likelihood of being retained
or socially promoted.
Changes: None.
Comment: One commenter stated that another alternate assessment is
needed for students with mild cognitive impairments. Several commenters
stated that, because a student's performance would not be based on
grade-level academic achievement standards, the requirements for
participation in an alternate assessment based on modified academic
achievement standards should be stricter to ensure that students are
not inappropriately assessed.
Discussion: We do not believe that another alternate assessment is
needed for students with mild cognitive disabilities. These final
regulations give States the flexibility to develop and implement
modified academic achievement standards in ways that fit within their
existing assessment systems, while ensuring that students with
disabilities are not inappropriately assessed based on modified
academic achievement standards. We believe that the criteria for
modified academic achievement standards in Sec. 200.1(e), along with
the safeguards provided by the requirements for State guidelines in
Sec. 200.1(f), are adequate to ensure that students are not
inappropriately assessed based on modified academic achievement
standards. Depending on the nature of a State's grade-level and
alternate academic achievement standards, a State may wish to tailor
its alternate assessment based on modified academic achievement
standards to a more narrowly defined group of students. We, therefore,
have made clear that the criteria for students to be assessed based on
modified academic achievement standards in Sec. 200.1(e)(2) are only a
minimum threshold and that States may add additional criteria if they
choose to do so.
Changes: We have added ``Those criteria must include, but are not
limited to, each of the following:'' to the end of Sec. 200.1(e)(2).
Comment: Several commenters requested that the regulations clarify
that an IEP Team must make a determination of eligibility for each
subject assessed. Other commenters added that a student who has
difficulty in only one subject area should be allowed to take an
alternate assessment in that one area and take a regular assessment in
the other subject(s).
Discussion: If a State chooses to develop modified academic
achievement standards, proposed Sec. 200.1(e)(4) would have required
that a student be allowed to take an alternate assessment based on
modified academic achievement standards in one or more subjects. Thus,
a student could take an alternate assessment based on modified academic
achievement standards in reading, for example, and a regular assessment
in mathematics. However, we agree that the regulations should state
more clearly that a student's IEP Team is responsible for making a
determination for each subject assessed whether the student
participates in an alternate assessment based on modified academic
achievement standards. Therefore, we have added a new Sec.
200.1(f)(2)(i) clarifying that States must inform IEP Teams that a
student may be assessed based on modified academic achievement
standards in one or more subjects. We also have added language to new
Sec. 200.1(f)(1)(i)(B) (proposed Sec. 200.1(f)(1)(ii)) and Sec.
200.1(f)(2)(v) (proposed Sec. 200.1(c)(5)) to make this clear.
Changes: We have added a new Sec. 200.1(f)(2)(i) requiring States
to inform IEP Teams that a student may be assessed based on modified
academic achievement standards in one or more subjects for which
assessments are administered under Sec. 200.2. We also have added
``These students may be assessed based on modified academic achievement
standards in one or more subjects for which assessments are
administered under Sec. 200.2'' at the end of new Sec.
200.1(f)(1)(i)(B) (proposed Sec. 200.1(f)(1)(ii)). With this addition,
proposed Sec. 200.1(e)(4) is no longer necessary and has been removed.
Finally, we have added ``for each subject'' following ``Ensure that
each IEP Team reviews annually'' in new Sec. 200.1(f)(2)(v) (proposed
Sec. 200.1(c)(5)).
Comment: Several commenters requested that the decision to assess a
student based on modified academic achievement standards be reviewed
annually.
Discussion: New Sec. 200.1(f)(2)(v) (proposed Sec. 200.1(e)(5))
already requires that the decision to assess a student based on
modified academic achievement standards be reviewed annually for each
subject by the student's IEP Team to ensure that those standards remain
appropriate.
Changes: None.
Comment: One commenter stated that a student should not be eligible
for an alternate assessment based on modified academic achievement
standards unless the student had been provided with all the appropriate
accommodations for the grade-level assessment.
Discussion: We believe that a student's IEP Team is in the best
position to determine whether the student should be assessed on the
regular assessment with accommodations before participating in an
alternate assessment based on modified academic achievement
[[Page 17760]]
standards and, therefore, decline to make the requested change.
Changes: None.
State Guidelines (Sec. 200.1(f))
Comment: Several commenters recommended that the regulations
require a State to provide training to IEP Teams so that the guidelines
are implemented in a manner that ensures that students can progress to
grade-level achievement standards. The commenters also recommended
requiring a State to collect and review data from LEAs on how the
guidelines are being implemented and investigate LEAs when proficiency
rates are higher on alternate assessments than on the regular
assessment.
Discussion: Proposed Sec. 200.1(f)(1) already requires a State
that defines alternate or modified academic achievement standards to
establish and ensure implementation of clear and appropriate guidelines
for IEP Teams to apply in determining whether a student will be
assessed based on modified or alternate academic achievement standards.
Furthermore, the general supervision requirements in section 612(a)(11)
of the IDEA require a State to monitor the implementation of State
guidelines for the participation of students with disabilities in State
and district-wide assessments. The specific ways in which a State
conducts its monitoring are best left to the State to determine based
on State and local needs. Therefore, we decline to require a State to
investigate when proficiency rates are higher on alternate assessments
as compared with regular assessments. We also do not believe it is
necessary to duplicate monitoring requirements under Title I that would
generate additional and unnecessary paperwork. However, we do believe
that it is important to emphasize that a State is responsible for
monitoring, as well as establishing and implementing State guidelines,
and have made this change in the regulations.
Changes: We have changed ``establish and ensure implementation of
clear and appropriate guidelines'' to ``establish and monitor
implementation of clear and appropriate guidelines'' in new Sec.
200.1(f)(1)(i) (proposed Sec. 200.1(f)(1)). We also have added a new
Sec. 200.1(f)(2)(ii), which reiterates the responsibility of a State
to establish and monitor implementation of clear and appropriate
guidelines for IEP Teams to apply for students who are assessed based
on modified academic achievement standards.
Comment: One commenter argued that a State's guidelines for IEP
Teams would not have the force of law and recommended that the
regulations require the State to implement requirements that are
enforceable by law.
Discussion: It is unnecessary to add a regulation requiring States
to implement requirements that are enforceable by law because,
regardless of the legal mechanism a State uses to implement guidelines
for IEP Teams, those guidelines must meet the requirements of these
regulations in order for the State to be in compliance with part A of
Title I and to continue to receive funds under this part.
Changes: None.
Comment: Several commenters stated that the regulations should
include additional guidelines to ensure that States use similar
criteria to identify students to be assessed based on modified academic
achievement standards. One commenter stated that the guidelines should
draw a ``bright line'' between students with the most significant
cognitive disabilities and students assessed based on modified academic
achievement standards. Specifically, the commenter recommended
clarifying that students with the most significant cognitive
disabilities are those who will never be able to demonstrate progress
on grade-level academic achievement standards even if provided with the
very best possible education and accommodations.
Discussion: Section 200.1(d), regarding alternate academic
achievement standards, and Sec. 200.1(e), regarding modified academic
achievement standards, leave to each State the responsibility to define
the students with disabilities who may be assessed based on alternate
or modified academic achievement standards. These final regulations set
certain parameters that a State must meet, but we do not believe it is
the proper role of the Federal government to specifically set forth a
``bright line'' between the students who should participate in an
alternate assessment based on alternate academic achievement standards
versus an alternate assessment based on modified academic achievement
standards. Moreover, such a distinction may vary from one State to the
next depending on how States have organized their State content
standards and established their academic achievement standards.
Changes: None.
Inclusion of All Students (Sec. 200.6)
Students Eligible Under IDEA and Section 504 (Sec. 200.6(a))
Comment: One commenter recommended that the regulations permit
students with disabilities to use modifications, as well as
accommodations, in State assessments. The commenter stated that an
accommodation in one State (e.g., a calculator) may be considered a
modification in another State and that this variation is unfair to
students and schools.
Discussion: A ``modification'' used in an assessment is generally
regarded as a change in test administration that alters what is being
measured and, therefore, results in an invalid test score. Whether a
particular support, such as use of a calculator, is considered a
modification or an accommodation can only be determined by considering
the intended purpose and content of an assessment. States vary in terms
of the purposes and content of their assessments and, therefore, may
vary in terms of whether a particular support provided to a student
during an assessment is considered a modification or an accommodation.
States determine whether a particular testing procedure or support,
such as use of a calculator, invalidates the results. States must
provide evidence for the Department's peer review of Statewide
assessment systems under Title I of the ESEA that their State
assessments are valid and reliable for the purposes for which the
assessments are used, and are consistent with relevant, nationally
recognized professional and technical standards. Therefore, we decline
to make the change requested by the commenter.
Changes: None.
Comment: Several commenters recommended that States develop and
disseminate information on, and promote the use of, appropriate
accommodations for alternate assessments based on modified and
alternate academic achievement standards, in addition to assessments
based on grade-level standards.
Discussion: Section 1111(b)(3)(C)(ix)(II) of the ESEA and section
612(a)(16) of the IDEA already require a State to provide appropriate
accommodations for students to participate in a State's assessment
system. This includes accommodations for alternate assessments.
Therefore, the change recommended by the commenters is unnecessary.
Changes: None.
Comment: None.
Discussion: In reviewing the proposed regulations, we noted that
[[Page 17761]]
Sec. 200.6(a)(1)(ii)(A) referred to ``grade-level academic achievement
standards.'' We wanted to be clear that Sec. 200.6(a)(1)(ii)(A) refers
to the academic achievement standards for the grade in which the
student is enrolled. Therefore, we have made this change in Sec.
200.6(a)(1)(ii)(A).
Changes: Section 200.6(a)(1)(ii)(A) has been changed by adding
``for the grade in which a student is enrolled'' following ``academic
achievement standards'' and removing ``grade-level'' before ``academic
achievement standards.''
Comment: One commenter recommended requiring a State to (A) develop
assessments that are universally designed and valid for the widest
possible range of students; (B) study the effect of accommodations on
the validity of the State's assessment in order to identify which
accommodations are valid for each assessment; and (C) document the
extent to which universal design principles are not used.
Discussion: We decline to make the changes requested by the
commenter. The IDEA regulations already require a State (or in the case
of a district-wide assessment, an LEA), to the extent feasible, to use
universal design principles in developing and administering
assessments. (See new Sec. 300.160(g) (proposed Sec. 300.160(f)) and
section 612(a)(16)(E) of the IDEA.)
The Department's peer review of Statewide assessment systems under
Title I of the ESEA requires a State to provide evidence that its State
assessments are valid and reliable for the purposes for which they are
used and are consistent with relevant, nationally recognized
professional and technical standards. In order to ensure that
assessments are valid and reliable and meet the technical quality
requirements of the peer review, a State must study the effect of
accommodations on the validity of the State's assessment.
We believe that implementing the commenter's recommendation to
require States to document the extent to which universal design
principles are not used (e.g., defining ``universal design
principles'') would require significant resources and time and be a
burden for a State to report. Therefore, we decline to make the changes
requested by the commenters.
Changes: None.
Comment: One commenter recommended changing Sec.
200.6(a)(1)(ii)(B) to require a State to ensure that related services
providers, in addition to regular and special education teachers, know
how to administer assessments and use appropriate accommodations.
Discussion: Section 200.6(a)(1)(ii)(B) already requires States to
ensure that ``other appropriate staff,'' in addition to regular and
special education teachers, know how to administer assessments and make
appropriate use of accommodations. We believe State and local
authorities are in the best position to determine the other appropriate
staff, which could include related services providers, who must know
how to administer assessments and make use of appropriate
accommodations. Therefore, we decline to make the change requested by
the commenter.
Changes: None.
Comment: A few commenters recommended requiring a State to develop
personnel standards and provide professional development in order to
ensure that all educators are skilled in administering assessments and
providing appropriate accommodations.
Discussion: Section 200.6(a)(1)(ii)(B) requires States to ensure
that regular and special educators, as well as other appropriate staff,
know how to administer assessments and make use of appropriate
accommodations. Whether a State ensures that this occurs through
developing personnel standards or professional development is best left
for each State to determine.
Changes: None.
Comment: One commenter recommended changing Sec. 200.6(a)(2)(iii)
to require that students with the most significant cognitive
disabilities be involved in and make progress in the general
curriculum, consistent with the IDEA. The commenter also recommended
that the regulations be changed to require students with the most
significant cognitive disabilities to be included in assessments that
are aligned to the content standards for the grade in which the student
is enrolled.
Discussion: Section 200.6(a)(2)(iii) already requires a State to
document that students with the most significant cognitive disabilities
are included in the general curriculum. Further, as the commenter
notes, the IDEA requires students with disabilities to be involved in
the general curriculum. Specifically, section 614(d)(1)(A)(i)(IV)(bb)
of the IDEA requires each student's IEP to include a statement of the
special education and related services and supplementary aids and
services to be provided to the child to be involved in and make
progress in the general education curriculum. This requirement applies
to all students with disabilities, including students with the most
significant cognitive disabilities. Therefore, we do not believe it is
necessary to repeat this requirement in Sec. 200.6(a)(2)(iii).
However, in preparing these final regulations, we noted an error in
current Sec. 200.6(a)(2)(iii) \3\ in the NPRM. Current Sec.
200.6(a)(2)(iii) requires that, if a State permits the use of alternate
assessments based on alternate academic achievement standards, the
State must document that students with the most significant cognitive
disabilities are, to the extent possible, included in the general
curriculum. In the NPRM for these final regulations on modified
academic achievement standards, ``maximum'' was inadvertently added
before ``extent possible.'' We have corrected this error in the final
regulations. It is important to correct this error because the
provision could be interpreted as extending authority beyond the IDEA,
which requires each student's IEP to include a statement of the special
education and related services and supplementary aids and services to
be provided to the child to be involved in and make progress in the
general education curriculum.\4\
---------------------------------------------------------------------------
\3\ Current Sec. 200.6(a)(2)(iii) was finalized in the December
9, 2003 regulations for students with the most significant cognitive
disabilities (68 FR 68698).
\4\ See section 614(d)(1)(A)(i)(IV)(bb) of the IDEA.
---------------------------------------------------------------------------
With regard to the comment that the regulations be changed to
require students with the most significant cognitive disabilities to be
included in assessments that are aligned to the curriculum for the
grade in which the student is enrolled, the Department's non-regulatory
guidance on alternate academic achievement standards for students with
the most significant cognitive disabilities states that, if a State
chooses to establish alternate academic achievement standards, such
standards must be aligned with the State's academic content standards
for the grade in which the student is enrolled (or in the case of
students in un-graded classrooms, the grade level commensurate to the
student's age). (See C-3 of the guidance.) \5\
---------------------------------------------------------------------------
\5\ Alternate Achievement Standards for Students with the Most
Significant Cognitive Disabilities (August, 2005) is available at
http://www.ed.gov/policy/elsec/guid/altguidance.doc.
---------------------------------------------------------------------------
Substantive changes to existing regulations cannot be made without
publishing an NPRM and providing an opportunity for the public to
comment on proposed regulations. The NPRM published on December 15,
2005 regarding modified academic achievement standards did not include
the recommended change to the regulations governing alternate
assessments based on alternate
[[Page 17762]]
academic achievement standards. Therefore, we cannot make the requested
change in these final regulations.
Changes: We have deleted ``maximum'' before ``extent possible'' in
Sec. 200.6(a)(2)(iii).
Alternate Assessments that Measure Performance Based on Modified
Academic Achievement Standards (Sec. 200.6)(a)(3))
Comment: Many commenters recommended requiring that an assessment
based on modified academic achievement standards be referred to as an
alternate assessment.
Discussion: We did not describe assessments based on modified
academic achievement standards as alternate assessments in the NPRM
because we wanted to distinguish such assessments from alternate
assessments based on alternate academic achievement standards. However,
we agree with the commenter that it would be clearer to refer to such
assessments as alternate assessments and have made this change in the
regulations.
Changes: Where appropriate, we have inserted ``alternate'' before
``assessment'' throughout the regulations to make clear that an
assessment based on modified academic achievement standards is an
alternate assessment.
Comment: Many commenters suggested that terminology be clarified to
differentiate among various alternate assessments using ``modified
assessment'' to refer to an assessment based on modified academic
achievement standards and ``adapted assessment'' to refer to an
alternate assessment based on alternate academic achievement standards.
Discussion: Precise use of terminology to avoid confusion in the
development and use of alternate assessments for students with
disabilities is desirable. However, the particular terms suggested by
the commenters would not likely accomplish this goal. In the
measurement community ``modified assessment'' has a restricted meaning
that is not consistent with the intent of the assessment permitted
under these regulations, and we believe ``adapted assessment'' does not
accurately convey that an alternate assessment is based on alternate
academic achievement standards. Therefore, we decline to make the
changes recommended by the commenters.
Changes: None.
Comment: Several commenters requested that the regulations define
``aligned,'' as used in new Sec. 200.6(a)(3)(ii)(A) (proposed Sec.
200.6(a)(3)(i)). One commenter requested that the regulations include
the criteria that will be used to determine whether there is sufficient
coverage of grade-level content standards. One commenter recommended
requiring alternate assessments based on modified academic achievement
standards to assess the core objectives of a State's grade-level
academic content standards.
Discussion: We decline to include a definition of ``alignment'' in
these regulations because it is a term of art in the assessment field.
However, the Department's standards and assessment peer review guidance
for Title I includes several characteristics of alignment that are
considered by peer reviewers in determining whether assessments are
aligned with content standards. First, reviewers consider the range of
content, meaning that all of the standards are represented in the
assessment and that the assessment is as cognitively challenging as the
standards (depth/difficulty). This is the single aspect of alignment
that may differ between the regular grade-level assessment and an
alternate assessment based on modified academic achievement standards.
Second, reviewers look for evidence that the assessment represents both
the content knowledge and the process skills evident in the content
standards. Third, reviewers consider whether the assessment reflects
the same degree and pattern of emphasis as the content standards
(balance). Generally, an alternate assessment based on modified
academic achievement standards should be aligned with grade-level
content standards in the same manner as the regular assessment. That
is, it should represent the full array of content standards, including
factual knowledge and application skills, with the same pattern of
emphasis that is evident in the content standards. The Department's
peer review guidance further states ``[i]f a State's assessments do not
adequately measure the knowledge and skills specified in the State's
academic content standards, or if they measure something other than
what these standards specify, it will be difficult to determine whether
students have achieved the intended knowledge and skills. As a result,
it will be difficult to make appropriate policy, program, and
instructional decisions meant to improve students' achievement.'' (page
41) \6\
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\6\ Standards and assessment peer review guidance: Information
and examples for meeting requirements of the No Child Left Behind
Act of 2001, (April 28, 2004). Available at http://www.ed.gov/policy/elsec/guid/saaprguidance.doc
.
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An alternate assessment based on modified academic achievement
standards should be aligned with grade-level content standards in the
same manner as the general test, with the possible exception of a
reduced level of cognitive demand, sometimes referred to as depth of
knowledge. This is a critical difference between an alternate
assessment based on modified academic achievement standards and an
alternate assessment based on alternate academic achievement standards,
which is viewed as aligned with grade-level content standards even
though the content has been simplified or represented as pre-requisite
skills that are an essential part of the grade-level content.
The assumption underlying the requirement for alignment is that
many students eligible for an alternate assessment based on modified
academic achievement standards are in a regular classroom with children
of the same chronological age; they are receiving instruction in the
grade-level curriculum but because of their disability are not likely
to meet grade-level academic achievement standards in the year covered
by their IEPs. These students may need a less difficult test in order
to effectively demonstrate their knowledge of the grade-level content
standards.
We do not agree with the recommendation that an alternate
assessment based on modified academic achievement standards be required
to assess only the ``core objectives'' of a State's grade-level
academic content standards. Modified academic achievement standards
must represent the full array of content standards, including factual
knowledge and application of skills, with the same pattern of emphasis
that is evident in the content standards. This is so, regardless of how
a State structures its academic content standards. The approach taken
by a State to ensure the alignment of modified academic achievement
standards to grade-level content standards will depend on how the State
has structured its academic content standards. Content standards may be
grade specific or may cover more than one grade if grade-level content
expectations are provided for each grade. Ultimately, a State that
chooses to develop and implement modified academic achievement
standards must demonstrate during the Department's peer review of State
assessments that its alternate assessment based on modified academic
achievement standards is aligned with challenging grade-level academic
content standards in the same manner as is required for the approval of
the
[[Page 17763]]
State's regular assessment. The Department acknowledges that measuring
the academic achievement of students with disabilities, particularly
those who will be eligible to be assessed based on modified academic
achievement standards, is an area in which there is much to learn and
improve. We welcome information from States and others on ways to
improve the assessment of students with disabilities. As data and
research on assessments for students with disabilities improve, the
Department may decide to issue additional regulations or guidance.
Changes: None.
Comment: Several commenters argued that the regulations should
permit the use of out-of-level assessments. Another commenter
questioned whether out-of-level assessments would be as valid as
alternate assessments based on modified academic achievement standards.
Discussion: Alternate assessments based on modified academic
achievement standards are intended for a small group of students who,
by virtue of their disability, are not likely to meet grade-level
achievement standards in the year covered by their IEPs, despite
appropriate instruction. These students need the benefit of access to
grade-level content so that they can move closer to grade-level
achievement. Therefore, alternate assessments based on modified
academic achievement standards must be aligned with grade-level content
standards.
Out-of-level testing means assessing students enrolled in a
specific grade with tests designed for students at lower grades. By
definition, an out-of-level assessment does not cover the same content
as an assessment based on grade-level content standards. Out-of-level
testing is often associated with lower expectations for students with
disabilities, tracking such students into lower-level curricula with
limited opportunities. Therefore, an out-of-level assessment cannot be
used as an alternate assessment based on modified academic achievement
standards.
Changes: None.
Comment: One commenter recommended requiring an alternate
assessment based on modified academic achievement standards to be
distinguished from the regular assessment by more than a lower cut
score or a change in administration or format.
Discussion: New Sec. 200.1(e)(1)(iv) makes clear that modified
academic achievement standards must be developed through a documented
and validated standards setting process that includes broad stakeholder
input, and Sec. Sec. 200.2(b) and 200.3(a)(1) make clear that an
alternate assessment based on modified academic achievement standards
must meet the requirements for high technical quality, including
validity, reliability, accessibility, objectivity, and consistency with
nationally recognized professional and technical standards. Merely
changing the cut-score on a regular assessment would not be sufficient
to meet these requirements.
Changes: None.
Comment: Many commenters requested additional guidance on
developing an alternate assessment based on modified academic
achievement standards.
Discussion: Grade-level content standards serve as the foundation
of an alternate assessment based on modified academic achievement
standards. Beyond this essential requirement, a State may construct a
unique assessment or adapt its regular assessment. We have added this
language to the regulations to make this clear. In addition, the
Department will be issuing nonregulatory guidance and providing
technical assistance to assist States in developing alternate
assessments based on modified academic achievement standards.
Changes: We have simplified proposed Sec. 200.6(a)(3) by deleting
references to paragraphs (a)(1) and (a)(2) and including a new
paragraph (a)(3)(i) to permit a State that chooses to assess students
with disabilities based on modified academic achievement standards to
develop a new alternate assessment or adapt an assessment based on
grade-level academic achievement standards. We also have added a new
paragraph (a)(3)(ii) that lists the requirements for an alternate
assessment based on modified academic achievement standards. Proposed
paragraphs (a)(3)(i) through (a)(3)(iv) have been redesignated as new
paragraphs (a)(3)(ii)(A) through (a)(3)(ii)(D), respectively.
Reporting (Sec. 200.6(a)(4))
Comment: Several commenters recommended requiring a State to report
the number and percentage of students using accommodations who take
alternate assessments based on modified academic achievement standards,
alternate assessments based on grade-level academic achievement
standards, and alternate assessments based on alternate academic
achievement standards. The commenters stated that these data are
necessary to measure whether students are receiving appropriate
accommodations and whether these accommodations are helping students
achieve.
Discussion: Section 200.6(a)(4) already requires a State to report
on the number and percentage of students with disabilities taking
regular assessments; regular assessments with accommodations; alternate
assessments based on grade-level academic achievement standards;
alternate assessments based on modified academic achievement standards;
and alternate assessments based on alternate academic achievement
standards. We believe that requiring a State to report the additional
data requested by the commenters would place a significant burden on
the State. In addition, such data would not, by itself, provide
information regarding whether students are receiving appropriate
accommodations and whether those accommodations are helping students
achieve. Therefore, we decline to make the change requested by the
commenters.
We have, however, changed the order of the list of assessments in
Sec. 200.6(a)(4) so that ``alternate assessments based on the grade-
level academic achievement standards'' follows ``regular assessments
with accommodations.'' This will appropriately keep the three types of
assessments based on grade-level academic achievement standards
together in the list, to be followed by ``alternate assessments based
on the modified academic achievement standards,'' and ``alternate
assessments based on the alternate academic achievement standards.''
Changes: We have redesignated proposed paragraph (a)(4)(iv),
regarding alternate assessments based on grade-level academic
achievement standards, as new paragraph (a)(4)(iii), and proposed
(a)(4)(iii), regarding alternate assessments based on modified academic
achievement standards, as new paragraph (a)(4)(iv).
Comment: One commenter recommended requiring the Department to
provide an annual report to Congress on the implementation of the
regulations regarding modified academic achievement standards. One
commenter asked who receives the data required under Sec. 200.6(a)(4).
Another commenter expressed concern that reporting the data in Sec.
200.6(a)(4) could violate a student's right to privacy under the Family
Educational Rights and Privacy Act (FERPA) if there were small numbers
of students taking any of the assessments.
Discussion: Section 200.6(a)(4) pertains to the requirements in
part A of Title I for reporting data to the Secretary and ensures that
the data reported in
[[Page 17764]]
accordance with section 1111(h) of the ESEA include data on assessments
based on alternate academic achievement standards and modified academic
achievement standards. We have added language to Sec. 200.6(a)(4) to
make this clear. These data are also reported to Congress and,
therefore, we do not believe that an additional report to Congress is
necessary, as suggested by one commenter. With regard to the commenter
who expressed concern with the data reporting requirements and a
student's right to privacy, a State is not required to report data that
would violate FERPA (20 U.S.C. 1232g).
Changes: We have added ``to the Secretary'' following ``A State
must report separately'' to make clear that the assessment data
referred to in Sec. 200.6(a)(4) are reported separately to the
Secretary.
Comment: One commenter recommended requiring LEAs and SEAs to
collect data on the disability and race of students who are assessed
based on modified academic achievement standards.
Discussion: We believe that requiring LEAs and SEAs to collect data
on the disability and race of students who are assessed based on
modified academic achievement standards would place an unnecessary
burden on SEAs and LEAs and, therefore, decline to implement the
commenter's recommendation.
Changes: None.
Disaggregation of Data (Sec. 200.7)
Comment: Several commenters supported proposed Sec. 200.7(a)(2)
that would prohibit a State from establishing a different minimum
number (group size or ``n size'') of students for some subgroups,
regardless of whether a State chooses to implement modified academic
achievement standards. The commenters stated that having the same group
size for all subgroups would ensure transparency and greater
accountability.
However, one commenter stated that the same group size across all
subgroups should be required only for States that develop modified
academic achievement standards. The commenter also expressed concern
that requiring the same group size across all subgroups could reduce
the desire by some schools and districts to accept out-of-area students
due to concerns that adding more students in a subgroup would affect
their accountability status.
Discussion: Prior to the implementation of the final regulations on
alternate academic achievement standards for students with the most
significant cognitive disabilities and the announcement of the proposed
regulations on modified academic achievement standards, a State had
limited flexibility in measuring the achievement of students with
disabilities for AYP purposes. Because of ongoing concerns about how
accurately State assessments measure the achievement of a very
heterogeneous subgroup of students (many of whom were assessed with a
range of accommodations to the regular assessment), some States
requested permission to use a larger group size for their students with
disabilities and limited English proficient subgroups. In support of
their requests, States argued that a larger group size for these
subgroups of students would take into consideration the challenges of
measuring their achievement.
With the implementation of these final regulations on modified
academic achievement standards and the Title I regulations on
assessment and accountability for recently arrived and former limited
English proficient (LEP) students (71 FR 54187 (Sept. 13, 2006)), we
believe that States now have sufficient flexibility to measure the
achievement of students with disabilities and LEP students
appropriately and, therefore, no longer need a different group size for
these subgroups. In addition, all States now test in grades 3 through 8
and once in high school, as opposed to just once per grade span,
thereby decreasing the sampling error associated with smaller group
sizes. With these additional test scores to include in AYP
determinations, the argument for a larger group size for these two
subgroups is no longer statistically justified. Setting a different
subgroup size also may lead to unintended consequences, such as
manipulating the number of students with disabilities in a particular
school to ensure that the school will not be held accountable for those
students. We believe that, in order to ensure that schools are held
accountable for the achievement of students with disabilities (as well
as for students with limited English proficiency), the use of
differentiated subgroup sizes for purposes of measuring AYP must end.
Given the timing of these regulations, we do not expect States with
differentiated subgroup sizes to make this change for the 2006-07
school year. Therefore, we have added language to make clear that this
provision takes effect for AYP determinations based on assessments
administered in the 2007-08 school year.
Changes: We have added ``Beginning with AYP decisions that are
based on the assessments administered in the 2007-08 school year,'' at
the beginning of the sentence in Sec. 200.7(a)(2)(ii).
Comment: Some commenters recommended changing Sec. 200.7(a)(2)(ii)
to require a State to set group sizes consistent with the smallest of
its existing subgroups.
Discussion: States that need to adjust their group sizes in order
to comply with Sec. 200.7(a)(2)(ii) must do so by amending their
accountability plans with the approval of the Department. The
Department will consider each State's rationale for its proposed group
size (consistent across all groups). We do not believe it is
appropriate to mandate a particular group size or to require a specific
process by which a State establishes its group size and, therefore,
decline to make the recommended change.
Changes: None.
Comment: One commenter agreed with the decision to prohibit
different group sizes for subgroups, but did not agree that the group
size for the school as a whole should be the same as that of each
subgroup.
Discussion: Section 200.7(a)(2)(ii) was intended to require the
minimum group size for a school as a whole (the ``all students'' group)
to be the same as that of each subgroup. Therefore, we have changed
Sec. 200.7(a)(2)(ii) to make this clear.
There may be instances where the number of students in a school is
less then a State's minimum group size. A State must have a policy in
place to determine AYP for every school, even in these cases. Given
that requirement, a State may choose to have a minimum group size of
zero for the ``all students'' group. However, a State may not choose a
minimum group size for the ``all students'' group, other than zero,
that is different than that of its subgroups.
Changes: Section 200.7(a)(2)(ii) has been revised by adding ``or
for the school as a whole'' at the end of the sentence.
Adequate Yearly Progress in General (Sec. 200.13)
Comment: Many commenters stated that there is no extant research to
support establishing a 2.0 percent cap on the number of proficient and
advanced scores based on modified academic achievement standards that
may be included in AYP determinations. Many commenters stated that the
research cited in the NPRM excludes IDEA-eligible students, is base