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Monday,

April 9, 2007

Part IV

Department of
Education
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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17748 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

DEPARTMENT OF EDUCATION Individuals with disabilities may information to help these students
obtain this document in an alternative progress toward grade-level
34 CFR Parts 200 and 300 format (e.g., Braille, large print, achievement.
RIN 1810–AA98 audiotape, or computer diskette) on These regulations permit States to
request to one of the contact persons develop an assessment that is
Title I—Improving the Academic listed in the preceding paragraph. appropriately challenging for this group
Achievement of the Disadvantaged; SUPPLEMENTARY INFORMATION: These of students as part of their State
Individuals With Disabilities Education regulations amend regulations in 34 accountability and assessment systems
Act (IDEA)—Assistance to States for CFR part 200, implementing certain under Title I of the ESEA, as amended
the Education of Children With provisions of Title I, Part A of the ESEA, by NCLB. This assessment is based on
Disabilities as amended by NCLB, which are modified academic achievement
designed to help disadvantaged children standards that cover grade-level content.
AGENCY: Office of Elementary and The requirement that modified
Secondary Education; Office of Special meet high academic standards. They
also amend regulations in 34 CFR part academic achievement standards be
Education and Rehabilitative Services, aligned with grade-level content
U.S. Department of Education. 300, implementing programs for
students with disabilities under Part B standards is important—in order for
ACTION: Final regulations. these students to have an opportunity to
of the IDEA. On December 15, 2005, the
Secretary published a notice of achieve at grade level, they must have
SUMMARY: The Secretary amends the
access to, and instruction in, grade-level
regulations governing programs proposed rulemaking (NPRM) for these
content. The regulations include a
administered under Title I of the programs in the Federal Register (70 FR
number of safeguards to ensure that
Elementary and Secondary Education 74624).
students assessed based on modified
Act of 1965 (ESEA), as amended by the These regulations build upon
academic achievement standards have
No Child Left Behind Act of 2001 flexibility that currently is available
access to grade-level content so that
(NCLB) (referred to in these regulations under the Title I regulations in 34 CFR
they can work toward grade-level
as the Title I program) and the part 200 for measuring the achievement
achievement, such as the requirement
regulations governing programs under of students with the most significant
that their IEPs include goals that are
Part B of the Individuals with cognitive disabilities. Those Title I
based on grade-level content standards
Disabilities Education Act (IDEA) regulations permit a State to develop and provide for monitoring of the
(referred to in these regulations as the alternate academic achievement students’ progress in achieving those
IDEA program). These regulations standards for students with the most goals. In addition to ensuring that
provide States with additional significant cognitive disabilities and to students with disabilities are
flexibility regarding State, local include those students’ proficient and appropriately assessed, these
educational agency (LEA), and school advanced scores on alternate regulations also will give teachers and
accountability for the achievement of a assessments based on alternate schools credit for the work that they do
small group of students with disabilities academic achievement standards in with these students to help them
whose progress is such that, even after measuring adequate yearly progress progress toward grade-level
receiving appropriate instruction, (AYP), subject to a cap of 1.0 percent of achievement.
including special education and related all students assessed at the State and
services designed to address the district levels. Since those regulations Major Concepts Regarding Modified
students’ individual needs, the students’ were published, the experiences of Academic Achievement Standards in
individualized education program (IEP) many States, as well as recent research, These Regulations
teams (IEP Teams) are reasonably indicate that in addition to students What are modified academic
certain that the students will not with the most significant cognitive achievement standards? The NPRM
achieve grade-level proficiency within disabilities, there is a small group of described modified academic
the year covered by the students’ IEPs. students whose disability has precluded achievement standards as academic
DATES: These regulations are effective them from achieving grade-level achievement standards aligned with
May 9, 2007. proficiency and whose progress is such grade-level content standards, but
FOR FURTHER INFORMATION CONTACT: that they will not reach grade-level modified in such a manner that they
Regarding Part 200, Jacquelyn C. achievement standards in the same time reflect reduced breadth or depth of
Jackson, Ed.D., Director, Student frame as other students. Currently, these grade-level content. Based on the
Achievement and School Accountability students must take either a grade-level comments we received, it was clear that
Programs, Office of Elementary and assessment or an alternate assessment this language was confusing and did not
Secondary Education, U.S. Department based on alternate academic sufficiently convey our intent that only
of Education, 400 Maryland Avenue, achievement standards. Neither of these the academic achievement standards for
SW., room 3W202, FB–6, Washington, options provides an accurate assessment students are to be modified, not the
DC 20202–6132. Telephone: (202) 260– of what these students know and can content standards on which those
0826. Regarding Part 300, Alexa Posny, do. A grade-level assessment is too modified academic achievement
Ph.D., Director, Office of Special difficult and, therefore, does not provide standards are based. The final
Education Programs, Office of Special data about a student’s abilities or regulations make clear that modified
Education and Rehabilitative Services, information that would be helpful to academic achievement standards are
U.S. Department of Education, Potomac guide instruction. An alternate challenging for eligible students, but are
Center Plaza, 550 12th Street, SW., assessment based on alternate academic a less rigorous expectation of mastery of
Washington, DC 20202–2641. achievement standards is too easy and grade-level academic content standards.
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Telephone: (202) 245–7459, Ext. 3. is not intended to assess a student’s Notably, modified academic
If you use a telecommunications achievement across the full range of achievement standards must be based
device for the deaf (TDD), you may call grade-level content. Such an on a State’s grade-level academic
the Federal Relay Service (FRS) at 1– assessment, therefore, would not content standards for the grade in which
800–877–8339. provide teachers and parents with an eligible student with disabilities is

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17749

enrolled. In other words, a State’s regulations and replaced it with a that a student assessed based on
academic content standards are not requirement that if the IEPs of these modified academic achievement
what are modified. The expectations for students include goals for a subject standards has the opportunity to learn
whether a student has mastered those assessed under § 200.2, those goals must grade-level content. Specifically, the
standards, however, may be less be based on grade-level content final regulations in § 200.1(f)(2) require
difficult than grade-level academic standards. We believe this will help a State to (a) establish and monitor
achievement standards. ensure that students have access to implementation of clear and appropriate
The characteristics of modified grade-level content before they are guidelines for an IEP Team to apply in
academic achievement standards are the assessed based on modified academic developing and implementing the IEP of
same as those described in § 200.1(c) of achievement standards and that they a student assessed based on modified
the Title I regulations for grade-level receive instruction in grade-level academic achievement standards; (b)
academic achievement standards. That content after they are assessed based on ensure that a student who takes an
is, they must be aligned with a State’s modified academic achievement alternate assessment based on modified
academic content standards, describe at standards. Such an approach focuses the academic achievement standards has
least three levels of achievement, IEP Team and the student on grade-level access to the curriculum, including
include descriptions of the content standards and on the student’s instruction, for the grade in which the
competencies associated with each current achievement relative to those student is enrolled; and (c) ensure that
achievement level, and include standards. We believe that instruction in a student who takes an alternate
assessment scores (cut scores) that grade-level content is critical to ensure assessment based on modified academic
differentiate among the achievement that students who participate in achievement standards is not precluded
levels. A State must provide a alternate assessments based on modified from attempting to complete the
description of the rationale and academic achievement standards are requirements, as defined by the State,
procedures used to determine each prepared to demonstrate their mastery for a regular high school diploma.
achievement level as part of the of grade-level content and can move To help IEP Teams make appropriate
Department’s peer review of Statewide closer to grade-level achievement. The decisions and ensure that students are
assessment systems under Title I of the final regulations intentionally do not not inappropriately assessed based on
ESEA. prescribe which students with modified academic achievement
Which students with disabilities are disabilities are eligible to be assessed standards, § 200.1(f)(1)(iii) requires a
eligible to be assessed based on based on modified academic State to provide IEP Teams with a clear
modified academic achievement achievement standards; that is the explanation of the differences between
standards? The final regulations reflect determination of a student’s IEP Team, assessments based on grade-level
our intent that students assessed based which includes the student’s parents, academic achievement standards and
on modified academic achievement based on criteria developed by the State those based on modified or alternate
standards are not limited to students as part of the State’s guidelines for IEP academic achievement standards
with disabilities achieving close to Teams. Those criteria must include, but (including any effects of State and local
grade level, may be in any of the are not limited to, the following: policies on the student’s education
disability categories listed in the IDEA, (1) There must be objective evidence resulting from taking an alternate
and may represent a wide spectrum of demonstrating that the student’s assessment based on alternate or
abilities. The comments we received disability has precluded the student modified academic achievement
indicated that the proposed requirement from achieving grade-level proficiency standards). Under § 200.1(f)(1)(iv), a
that a student receive direct instruction in the content area assessed. Such State also must ensure that the parents
in grade-level content in order to be evidence may include the student’s of a student selected to be assessed
eligible for an alternate assessment performance on State assessments or based on alternate or modified academic
based on modified academic other assessments that can validly achievement standards are informed
achievement standards was mistakenly document academic achievement; that their child’s achievement will be
understood to mean that only students (2) The student’s progress to date in measured based on alternate or
achieving close to grade level could be response to appropriate instruction, modified academic achievement
assessed based on modified academic including special education and related standards.
achievement standards. That was not services designed to address the The assumption underlying these
our intent. We included this student’s individual needs, is such that, regulations is that many students
requirement because we believe that all even if significant growth occurs, the eligible to be assessed based on
students with disabilities, including IEP Team is reasonably certain that the modified academic achievement
students assessed based on modified student will not achieve grade-level standards are in regular classrooms with
academic achievement standards, proficiency within the year covered by children of the same chronological age
should have access to grade-level the student’s IEP. The IEP Team must and are receiving instruction in grade-
content. This is consistent with the use multiple valid measures of the level curriculum; however, because of
provisions in the IDEA that focus on student’s progress over time in making these students’ disabilities, their IEP
ensuring that all students with this determination; and Teams are reasonably certain they will
disabilities have access to the general (3) If the student’s IEP includes goals not achieve grade-level proficiency
curriculum (See, e.g., section for a subject assessed under § 200.2, within the year covered by their IEPs. In
614(d)(1)(A)(i)(II)(aa) and (IV)(bb)). those goals must be based on the most schools, students assessed based
However, in order to clarify the policy academic content standards for the on modified academic achievement
and limit further misunderstanding, we grade in which the student is enrolled. standards will represent a small portion
have removed the requirement that a In addition to requiring that the IEP of students with disabilities. The final
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student receive direct instruction in of a student assessed based on modified regulations in § 200.13(c)(2)(ii) provide
grade-level content in order to be academic achievement standards that up to 2.0 percent (approximately 20
eligible for an alternate assessment include goals that are based on percent of students with disabilities) of
based on modified academic academic content standards, the final the proficient and advanced scores from
achievement standards from the final regulations include safeguards to ensure alternate assessments based on modified

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17750 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

academic achievement standards may professional and technical standards) standards that meet the requirements of
be included in calculating AYP. and be based on modified academic these regulations.
What assessments measure achievement standards that have been Former students with disabilities. The
performance based on modified developed through a documented and final regulations in § 200.20(f)(2)
academic achievement standards? validated standards-setting process that provide additional flexibility in
Because a student eligible to be assessed includes broad stakeholder input, calculating AYP for the students with
based on modified academic consistent with new § 200.1(e)(1)(iv). disabilities subgroup. Under the final
achievement standards must have regulations, a State may include, for a
access to a curriculum based on the Other Provisions Addressed in These period of up to two years, the scores of
State’s academic content standards for Regulations students who were previously identified
the grade in which the student is These regulations also finalize several with a disability under the IDEA but
enrolled, that student must be assessed other provisions under Title I and the who no longer receive special education
with a measure that is also based on IDEA that were proposed in the NPRM, services. A State, however, would not be
those same grade-level academic including the following: able to include the scores of former
content standards, although the Minimum group size. The final Title students with disabilities as part of the
assessment may be less difficult than I regulations in § 200.7(a)(2)(ii) prohibit students with disabilities subgroup in
the State’s regular assessment. An out- a State, beginning in the 2007–08 school reporting any other information (e.g.,
of-level assessment cannot be used as an year, from establishing a different participation rates) under Title I.
alternate assessment based on modified minimum number (group size or ‘‘n Assessment of students with
academic achievement standards size’’) of students across the required disabilities under the IDEA. To ensure a
because, by definition, an out-of-level AYP subgroups for purposes of coordinated administration of the IDEA
assessment does not cover the same calculating AYP. This requirement and Title I programs, the final IDEA
content as an assessment based on applies to all States, not just those that regulations on assessment in § 300.160,
grade-level academic content standards. choose to develop and administer an which are included in this regulations
The final regulations in § 200.6(a)(3) alternate assessment based on modified package, incorporate provisions
make clear that a State may develop a academic achievement standards. regarding modified academic
new alternate assessment based on Multiple test administrations. With achievement standards that are
modified academic achievement the removal of current § 200.20(c)(3), consistent with the changes to the
standards or adapt its general States will now be permitted to regulations under Title I of the ESEA. In
assessment. Consistent with administer their State assessments addition, the final IDEA regulations
§ 200.6(a)(3)(ii), an alternate assessment (including regular and alternate provide that a State’s (or in the case of
based on modified academic assessments) more than once and a district-wide assessment, an LEA’s)
achievement standards must cover the include the student’s best score in guidelines must require each child to be
same grade-level content as the regular determining AYP. validly assessed and must identify, for
assessment. Beyond this essential Guidelines for IEP Teams. Title I each assessment, accommodations that
requirement, a State may employ a requires a State to administer would result in an invalid score.
variety of strategies to design an assessments that are valid and reliable Consistent with Title I, these final
alternate assessment based on modified for the purposes for which they are regulations also provide in
academic achievement standards. For used. Accordingly, students, including § 300.160(f)(1) that a student taking an
example, it might replace the most students with disabilities, who are assessment with an accommodation that
difficult items on a State’s general assessed with assessments that are not invalidates the score would not be
assessment with simpler items while valid and reliable are not ‘‘participants’’ reported as a participant under the
retaining coverage of the State’s for purposes of calculating participation IDEA. This coordination of the
academic content standards or modify rates in determining AYP. The final regulations for the IDEA and Title I
the same items that appear on the grade- IDEA regulations that are included in programs should avoid confusion
level assessment by eliminating one of these regulations provide that a State’s among parents, teachers, and
the incorrect answers in a multiple (or in the case of district-wide administrators, and reinforce IDEA’s
choice test. Alternatively, a State might assessments, an LEA’s) guidelines and Title I’s shared goal of high
choose to develop a unique assessment require each child to be validly assessed expectations and accountability for all
based on grade-level academic content and identify, for each assessment, any students.
standards that provides flexibility in the accommodations that would result in an
presentation of test items, for example, invalid score. Consistent with Title I, a Major Changes in the Regulations
by using technology to allow students to student with disabilities must receive a The following is a summary of the
access items via print, spoken, and valid score in order to be counted as a major substantive changes in these final
pictorial form. Or States may permit participant under the IDEA. regulations from the regulations
students to respond to test items by The final Title I regulations in proposed in the NRPM (the rationale for
dictating responses or using § 200.1(f) place responsibility on a State each of these changes is discussed in the
mathematics manipulatives to illustrate to develop guidelines for IEP Teams and Analysis of Comments and Changes
conceptual or procedural knowledge. in new § 200.20(c)(3) make clear that, to section elsewhere in this preamble).
Regardless of whether a State chooses to count a student who is assessed based
construct a unique assessment or to on alternate or modified academic PART 200—TITLE I—IMPROVING THE
adapt its general assessment, any achievement standards as a participant ACADEMIC ACHIEVEMENT OF THE
alternate assessment based on modified for purposes of meeting the 95 percent DISADVANTAGED
academic achievement standards must assessment participation requirement, a
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meet the requirements for high technical State must have guidelines for IEP State Responsibilities for Developing
quality set forth in §§ 200.2(b) and Teams to use to determine appropriately Challenging Academic Standards
200.3(a)(1) (including validity, which students should participate in (§ 200.1(a))
reliability, accessibility, objectivity, and alternate assessments based on alternate • Section 200.1(a)(1) and (a)(2) have
consistency with nationally recognized or modified academic achievement been revised to clarify that the same

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17751

academic content standards apply to all removed. A similar provision has been the 13 disability categories listed in the
public schools and all public school included in the requirements for State IDEA, has been removed. This provision
students and that the authority to guidelines in new § 200.1(f)(2)(iv). has been incorporated into the
develop alternate and modified (7) A new § 200.1(e)(1)(iv) has been requirements for State guidelines in new
academic achievement standards for added requiring modified academic § 200.1(f)(1)(ii).
eligible students with disabilities does achievement standards to be developed • Proposed § 200.1(e)(4), which
not apply to academic content through a documented and validated would have provided that a student
standards. Proposed paragraph (b)(1)(i) standards-setting process that includes could be assessed based on modified
is redundant with these changes and has broad stakeholder input, including academic achievement standards in one
been removed. persons knowledgeable about a State’s or more subjects for which assessments
academic content standards and are administered under Title I, has been
Modified Academic Achievement experienced in standards setting and removed. This provision has been
Standards (§ 200.1(e)) special educators who are most revised and incorporated into the
• Section 200.1(e)(1), which defines knowledgeable about children with requirements for State guidelines in new
modified academic achievement disabilities. § 200.1(f)(1)(i)(B) (proposed
standards for a State that chooses to • Section 200.1(e)(2), regarding the § 200.1(f)(1)(ii)).
develop such standards, has been criteria for IEP Teams to use in • Proposed § 200.1(e)(5), which
revised as follows: determining whether a student is would have required the decision to
(1) Paragraph (e)(1) of § 200.1, which eligible to be assessed based on assess a student based on modified
permits a State to develop modified modified academic achievement academic achievement standards to be
academic achievement standards for standards, has been revised to make the reviewed annually by a student’s IEP
students with disabilities, has been following changes: Team, has been removed. This
changed by deleting the reference to a (1) The introduction to § 200.1(e)(2) requirement has been revised and
documented and validated standards- has been changed to clarify that a State incorporated into the requirements for
setting process. The requirement for a may include criteria, in addition to State guidelines in new § 200.1(f)(2)(v).
State to use a documented and validated those listed in paragraphs (e)(2)(i)
through (e)(2)(iii), for IEP Teams to use State Guidelines (§ 200.1(f))
standards-setting process has been
clarified and expanded in new in determining whether a student • Proposed § 200.1(f), regarding the
§ 200.1(e)(1)(iv). should be assessed based on modified requirements for State guidelines, has
(2) Proposed paragraph (e)(1)(i) of academic achievement standards. been restructured into new paragraphs
§ 200.1, which requires modified (2) Paragraph (e)(2)(ii) of § 200.1, (f)(1) and (f)(2). New paragraph (f)(1)
academic achievement standards to be regarding the guidelines that a State includes the requirements for State
aligned with a State’s academic content must establish for IEP Teams, has been guidelines for students who are assessed
standards for the grade in which the changed by (A) removing the based on either alternate or modified
student is enrolled, would have requirement that IEP Teams consider a academic achievement standards. New
permitted modified academic student’s progress in response to high- paragraph (f)(2) includes additional
achievement standards to reflect quality instruction and replacing it with requirements for State guidelines for
reduced breadth or depth of grade level a requirement that IEP Teams consider students who are assessed based on
content. The requirement has been a student’s progress to date in response modified academic achievement
changed by deleting the reference to to appropriate instruction; and (B) standards.
reduced breadth or depth. removing the requirement that IEP • Proposed § 200.1(f)(1), which would
(3) A new paragraph (e)(1)(ii) has been Teams determine that a student is not have required a State to establish and
added to § 200.1 to specify that likely to achieve grade-level proficiency ensure implementation of clear and
modified academic achievement within the year covered by the student’s appropriate guidelines for IEP Teams to
standards must be challenging for IEP, and replacing it with a requirement determine if students are to be assessed
eligible students, but may be less that IEP Teams be reasonably certain based on alternate or modified academic
difficult than grade-level academic that, even if significant growth occurs, achievement standards, has been
achievement standards. the student will not achieve grade-level expanded to require a State to establish
(4) Proposed paragraph (e)(1)(ii) of proficiency within the year covered by and monitor implementation of clear
§ 200.1, which would have required the student’s IEP. and appropriate guidelines for IEP
modified academic achievement (3) A new paragraph (e)(2)(iii) has Teams. Proposed §§ 200.1(f)(1) and
standards to provide access to grade- been added to § 200.1 requiring that if 200.1(f)(1)(i) have been redesignated as
level curriculum, has been removed. a student assessed based on modified new §§ 200.1(f)(1)(i) and
This requirement has been incorporated academic achievement standards has an 200.1(f)(1)(i)(A), respectively.
into the requirements for State IEP that includes goals for a subject • Proposed § 200.1(f)(1)(ii), which
guidelines in new § 200.1(f)(2)(iii). In assessed under § 200.2, those goals must requires a State to establish guidelines
addition, we have clarified that grade- be based on the academic content for IEP Teams to use in determining if
level curriculum includes instruction. standards for the grade in which the students are to be assessed based on
(5) A new paragraph (e)(1)(iii) has student is enrolled. Proposed modified academic achievement
been added to §00.1 indicating that § 200.1(e)(2)(iii), which would have standards, has been revised to clarify
modified academic achievement required, as an eligibility condition, that that students may be assessed based on
standards, like grade-level academic a student be receiving instruction in the modified academic achievement
achievement standards, must include at grade-level curriculum for the subjects standards in one or more of the subjects
least three achievement levels. in which the student is assessed, has tested under Title I. Proposed
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(6) Proposed paragraph (e)(1)(iii) of been removed. § 200.1(f)(1)(ii) has been redesignated as
§ 200.1, which would have required that • Proposed § 200.1(e)(3), which new § 200.1(f)(1)(i)(B).
modified academic achievement would have permitted a student • A new § 200.1(f)(1)(ii) has been
standards not preclude a student from assessed based on modified academic added to require a State to inform IEP
earning a high school diploma, has been achievement standards to be in any of Teams that students eligible to be

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17752 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

assessed based on alternate or modified who takes an alternate assessment based academic achievement standards, as
academic achievement standards may on modified academic achievement new paragraph (a)(4)(iv). In addition,
be from any of the disability categories standards is not precluded from ‘‘to the Secretary’’ has been added to the
listed in the IDEA. attempting to complete the introductory sentence in § 200.6(a)(4) to
• A new § 200.1(f)(1)(iii) has been requirements, as defined by the State, clarify to whom States must report the
added to require a State to provide IEP for a regular high school diploma. data collected under section 1111(h)(4)
Teams with a clear explanation of the (5) New paragraph (f)(2)(v) in § 200.1 of the Act.
differences between assessments based ensures that each IEP Team reviews
on grade-level academic achievement annually for each subject its decision to Disaggregation of Data (§ 200.7)
standards and those based on modified assess a student based on modified
or alternate academic achievement academic achievement standards. • Section 200.7(a)(ii), providing that a
standards, including any effects of State State may not establish a different
and local policies on a student’s Inclusion of All Students (§ 200.6) minimum number of students for
education resulting from taking an • Section 200.6(a)(1)(ii)(A) has been separate subgroups, has been revised by
alternate assessment based on alternate revised to clarify that a State must clarifying that this provision also
or modified academic achievement develop, disseminate information on, applies to the school as a whole. In
standards (such as whether only and promote the use of appropriate addition, the final regulations make
satisfactory performance on a regular accommodations to increase the number clear that this provision takes effect for
assessment would qualify a student for of students who are tested against AYP determinations based on 2007–08
a regular high school diploma). academic achievement standards for the assessment data.
• Proposed § 200.1(f)(2), which would grade in which a student is enrolled.
have required that parents of a student • Section 200.6(a)(2)(iii), which Making Adequate Yearly Progress
selected to be assessed based on requires a State to document that a (§ 200.20(f))
alternate or modified academic student with the most significant
achievement standards are informed cognitive disabilities is, to the • Proposed § 200.20(f)(1), which
that their child’s achievement will be maximum extent possible, included in permits a State to include, for a period
measured based on alternate or the general curriculum, has been of up to two years, the scores of students
modified academic achievement changed by deleting the word who were previously identified with a
standards, has been redesignated as ‘‘maximum.’’ disability in AYP calculations, has been
§ 200.1(f)(1)(iv). • Section 200.6(a)(3), regarding incorporated into current § 200.20(f)(2),
• A new § 200.1(f)(2), regarding alternate assessments based on modified which codifies the final regulations on
requirements for State guidelines for a academic achievement standards, has accountability for former limited
student who is assessed based on been revised as follows: English proficient (LEP) students
modified academic achievement (1) The heading in § 200.6(a)(3) has published in the Federal Register on
standards, has been added and includes been changed to clarify that an September 13, 2006 (71 FR 54187).
the following: assessment based on modified academic
• Proposed § 200.20(f)(2) has been
(1) New paragraph (f)(2)(i) in § 200.1 achievement standards is an ‘‘alternate’’
requires a State to inform IEP Teams changed to clarify that if a State
assessment.
that a student may be assessed based on (2) Section 200.6(a)(3) has been includes the scores of former students
modified academic achievement revised by removing the regulatory with disabilities in calculating AYP, it
standards in one or more subjects for references to grade-level assessments must include the scores of all such
which assessments are administered and alternate assessments. students. Proposed § 200.20(f)(2) has
under Title I. (3) A new § 200.6(a)(3)(i) has been been incorporated into new
(2) New paragraph (f)(2)(ii) in § 200.1 added to clarify that a State may § 200.20(f)(2)(ii).
requires a State to establish and monitor develop a new alternate assessment or
Transition Provision Regarding
the implementation of clear and adapt a grade-level assessment to assess
Modified Academic Achievement
appropriate guidelines for an IEP Team a student based on modified academic
achievement standards. Standards (§ 200.20(g))
to apply in developing and
implementing an IEP for a student who (4) A new § 200.6(a)(3)(ii) has been • A new § 200.20(g) has been added
is assessed based on modified academic added to include the requirements for to make explicit that the Secretary may
achievement standards. New paragraph alternate assessments based on modified provide States flexibility in accounting
(f)(2)(ii)(A) and (B) requires that the IEP academic achievement standards.
for the achievement of some students
of a student assessed based on modified Proposed § 200.6(a)(3)(i) through
with disabilities in AYP determinations
academic achievement standards (a)(3)(iv), which included the
requirements for alternate assessments that are based on assessments
include IEP goals that are based on the
based on modified academic administered in 2007–08 and 2008–09.
academic content standards for the
achievement standards, has been States must demonstrate, for each year
grade in which the student is enrolled,
and be designed to monitor the redesignated as new § 200.6(a)(3)(ii)(A) for which flexibility is available, that
student’s progress in achieving the through (a)(3)(ii)(D). they are expeditiously moving to adopt
student’s standards-based goals. • Section 200.6(a)(4), regarding the and administer assessments based on
(3) New paragraph (f)(2)(iii) in § 200.1 reporting requirements under section modified academic achievement
requires a State to ensure that a student 1111(h)(4) of Title I, has been changed standards consistent with these
who is assessed based on modified by redesignating (A) proposed regulations and meet other criteria, as
academic achievement standards has paragraph (a)(4)(iv), regarding alternate the Secretary determines appropriate, in
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access to the curriculum, including assessments based on grade-level order to be considered for this
instruction, for the grade in which the academic achievement standards, as flexibility.
student is enrolled. new paragraph (a)(4)(iii); and (B)
(4) New paragraph (f)(2)(iv) in § 200.1 proposed paragraph (a)(4)(iii), regarding
requires a State to ensure that a student alternate assessments based on modified

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17753

PART 300—ASSISTANCE TO STATES education resulting from taking an report on the performance results of
FOR THE EDUCATION OF CHILDREN alternate assessment based on alternate children with disabilities on regular
WITH DISABILTIES or modified academic achievement assessments and on alternate
standards (such as whether only assessments, has been clarified by
Participation in Assessments (§ 300.160) satisfactory performance on a regular specifically identifying alternate
• Section 300.160(b)(2), regarding assessment would qualify a student for assessments based on grade-level
accommodation guidelines that a State a regular high school diploma). academic achievement standards;
must develop, has been revised to • A new paragraph (e) has been alternate assessments based on modified
clarify that the State guidelines must (A) added, requiring a State to ensure that academic achievement standards; and
identify the accommodations for each parents of a student selected to be alternate assessments based on alternate
assessment that do not invalidate the assessed based on alternate or modified academic achievement standards. It also
score; and (B) instruct IEP Teams to academic achievement standards are has been revised to require that
select, for each assessment, only those informed that their child’s achievement performance results for children with
accommodations that do not invalidate will be measured based on alternate or disabilities be compared to the
the score. modified academic achievement achievement of all students, including
• Proposed § 300.160(c), which standards. children with disabilities. Proposed
would have required a State that has • Proposed § 300.160(e), regarding § 300.160(e)(5) has been redesignated as
adopted modified academic reports on the assessment of students § 300.160(f)(5).
achievement standards to have with disabilities, has been redesignated • Proposed § 300.160(f), regarding
guidelines for the participation of as § 300.160(f) and changed as follows: universal design, has been redesignated
students with disabilities in assessments (1) Proposed paragraph (e)(1) in as § 300.160(g).
based on those standards, has been § 300.160, which requires a State to
report on the number of children with Analysis of Comments and Changes
removed. With the clarification in
§ 200.6(a)(3) that assessments based on disabilities participating in regular In response to the Secretary’s
modified academic achievement assessments, and the number of those invitation in the NPRM, more than 300
standards are alternate assessments, children who were provided parties submitted comments on the
proposed § 300.160(c) is redundant with accommodations that did not result in proposed regulations, many of which
new § 300.160(c) (proposed an invalid score, has been redesignated were substantially similar. An analysis
§ 300.160(d)). as § 300.160(f)(1). of the comments and changes in the
• Proposed § 300.160(d)(1), which (2) Proposed paragraph (e)(2) in regulations since publication of the
requires a State (or in the case of a § 300.160 has been redesignated as NPRM follows.
district-wide assessment, an LEA) to § 300.160(f)(2) and revised to require a We discuss substantive issues under
develop and implement alternate State to report on the number of the sections of the regulations to which
assessments and guidelines for children children participating in alternate they pertain. Generally, we do not
who cannot participate in regular assessments based on grade-level address technical or minor changes, and
assessments, even with academic achievement standards. suggested changes that we are not
accommodations, has been redesignated (3) Proposed paragraph (e)(3) in authorized to make under the law. We
as new § 300.160(c)(1). § 300.160, which requires a State to also do not address comments on Title
• Proposed § 300.160(d)(2)(ii), which report on the number of children with I or IDEA regulations that were not part
would have required a State to measure disabilities who are assessed based on of the NPRM published on December
the achievement of children based on alternate academic achievement 15, 2005 (70 FR 74624), such as
alternate academic achievement standards, has been changed to require comments concerning the regulations
standards if a State has adopted those a State to report on the number of regarding alternate academic
standards, has been changed by children with disabilities, if any, who achievement standards.
replacing ‘‘alternate academic are assessed based on modified
Interim Flexibility
achievement standards’’ with ‘‘modified academic achievement standards. The
academic achievement standards,’’ and regulatory reference to alternate Comment: Several commenters made
clarifying that modified academic assessments based on alternate recommendations regarding the
achievement standards are permitted for academic achievement standards has Department’s interim flexibility, which
children who meet the State’s criteria been deleted and proposed gave eligible States the flexibility to
under § 200.1(e)(2). Proposed § 300.160(e)(3) has been redesignated as provide credit to schools or districts that
§ 300.160(d)(2)(ii) has been redesignated § 300.160(f)(3). missed AYP solely because of the
as § 300.160(c)(2)(ii). (4) Proposed paragraph (e)(4) in achievement of the students with
• A new § 300.160(c)(2)(iii) has been § 300.160, which requires a State to disabilities subgroup. Some commenters
added, providing that, if a State has report on the number of children with opposed this flexibility; most others
adopted alternate academic disabilities who are assessed based on suggested extending the flexibility until
achievement standards, the State must modified academic achievement the final regulations on modified
measure the achievement of children standards, has been changed to require academic achievement standards are in
with the most significant cognitive a State to report on the number of effect or until States have had time to
disabilities against those standards. children with disabilities, if any, who develop modified academic
• A new paragraph (d) has been are assessed based on alternate achievement standards and aligned
added, requiring a State to provide IEP academic achievement standards. The alternate assessments. One commenter
Teams with a clear explanation of the regulatory reference to modified recommended that the interim
differences between assessments based academic achievement standards has flexibility be made permanent instead of
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on grade-level academic achievement been deleted and proposed the Department regulating to permit
standards and those based on modified § 300.160(e)(4) has been redesignated as States to establish modified academic
or alternate academic achievement § 300.160(f)(4). achievement standards. Finally, one
standards, including any effects of State (5) Proposed paragraph (e)(5) in commenter stated that offering interim
or local policies on the student’s § 300.160, which required a State to flexibility prior to rulemaking violated

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17754 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

Title I negotiated rulemaking To be eligible for this flexibility, a State participate in the standards-setting
requirements. must meet criteria, as the Secretary process, and include information about
Discussion: The Department determines appropriate, for each year how parents and specialists should be
permitted States that expressed interest for which the flexibility is available. involved.
in developing modified academic Discussion: We do not believe that it
achievement standards and assessments State Responsibilities for Developing is necessary to include the details of a
based on those standards to take Challenging Academic Standards validated standards-setting process in
advantage of interim flexibility while (§ 200.1) these regulations because the field
the Department drafted the proposed Comment: A few commenters generally agrees that the process should
regulations. This flexibility was granted recommended revising § 200.1(a)(1) to be consistent with the standards for
for the 2004–05 school year and then clarify when the regulation applies to educational and psychological testing
extended for a second year (2005–06) to academic content standards versus (1999).1 This process relies on both
cover the period of time when members academic achievement standards. The empirical data and the informed
of the public were commenting on the commenters noted that the authority to judgments of persons familiar with
proposed regulations and while the develop modified and alternate academic content as well as with the
Department developed the final academic achievement standards students with disabilities to be assessed.
regulations. The interim flexibility will appears erroneously also to apply to We agree with the commenters that the
be extended for the 2006–07 school year academic content standards. development of achievement standards
for States that can show evidence of a Discussion: We agree that the typically benefits from broad
commitment to develop modified regulation in § 200.1(a)(1) should be stakeholder involvement to ensure
academic achievement standards. more specific when referring to consensus regarding the knowledge and
We believe that the flexibility to academic standards. Therefore, we have skills essential for all students and have
develop modified academic clarified that the same academic content clarified this in the regulations. In
achievement standards provides a standards apply to all public schools response to the request to define who
means to assess appropriately some and all public school students in a State should be involved in the standards-
students with disabilities and include and that the authority to develop setting process for modified academic
them in State accountability systems. alternate academic achievement achievement standards, we believe that
Therefore, we do not believe the interim standards in paragraph (d) and modified the process should include persons who
flexibility should be used in lieu of academic achievement standards in are knowledgeable about the State’s
setting modified academic achievement paragraph (e) for eligible students with academic content standards and
standards, as recommended by one disabilities does not apply to academic experienced in standards setting, as well
commenter. content standards. We also have as special educators who are most
We do not believe that offering modified paragraph (a)(2) to be knowledgeable about the academic
interim flexibility prior to rulemaking consistent with these changes. Section abilities and achievement of students
violated negotiated rulemaking 200.1(b)(1)(i) is redundant with these with disabilities, and we have added
requirements. We understand the changes and has been removed. clarifying language in the regulations.
statutory requirements for negotiated Changes: We have made the following We decline to comment on how parents
rulemaking in section 1901 of the ESEA changes in § 200.1(a)(1): (1) Added and specialists should be involved in
to apply to Title I standards and ‘‘content and academic achievement’’ the process. These determinations are
assessment regulations required to be before ‘‘standards’; and (2) added best left to State and local officials.
implemented within one year of ‘‘which apply only to the State’s With regard to the commenter who
enactment of NCLB, not to subsequent academic achievement standards’’ at the requested that the regulations require a
regulatory amendments such as those end of the sentence in paragraph (a)(1). State to explain to the public how it
included in these regulations. Consistent with these changes, we have proposes to change its content standards
The Department recognizes that some revised paragraph (a)(2) to read, to coincide with modified academic
States may need time beyond the 2006– ‘‘Include the same knowledge and skills achievement standards, we note that a
07 school year to develop and expected of all students and the same State that intends to develop modified
implement alternate assessments based levels of achievement of all students, academic achievement standards
on modified academic achievement except as provided in paragraphs (d) consistent with these regulations would
standards. Therefore, we are adding a and (e) of this section.’’ We have not propose to change its academic
new § 200.20(g) providing that the removed § 200.1(b)(1)(i). content standards. As required in
Secretary may give flexibility for two Modified Academic Achievement § 200.1(e)(1), modified academic
additional years (through the 2008–09 Standards (§ 200.1(e)) achievement standards must be aligned
school year) to States that are Comment: Several commenters with the State’s academic content
developing alternate assessments based recommended that the regulations standards.
on modified academic achievement provide more detail on the essential Changes: We have removed the
standards consistent with these components of the documented and phrase ‘‘through a documented and
regulations. validated standards-setting process validated standards-setting process’’ in
Changes: We have added a new required in § 200.1(e)(1). These proposed § 200.1(e)(1) and have added a
§ 200.20(g) specifying that the Secretary commenters stated that the process new § 200.1(e)(1)(iv) to require that
may provide a State that is moving should include broad stakeholder input. modified academic achievement
expeditiously to adopt and administer One commenter requested that the standards be developed through a
alternate assessments based on modified regulations require a State to explain to
academic achievement standards the public how it proposes to change its
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1 AERA, APA, & NCME. (1999). (American

flexibility in accounting for the content standards to coincide with Educational Research Association, American
achievement of students with modified academic achievement Psychological Association, & National Council on
Measurement in Education) Joint Committee on
disabilities in AYP determinations that standards. A few commenters requested Standards for Educational and Psychological
are based on assessments administered that the regulations specify the persons Testing. Standards for educational and
in school years 2007–08 and 2008–09. who should define the standards and psychological testing. Washington, DC: AERA.

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17755

documented and validated standards- use would likely result in lowered achievement standards must be
setting process that includes broad expectations. challenging for eligible students, but
stakeholder input, including persons Changes: None. may be less difficult than grade-level
knowledgeable about the State’s Comment: Many commenters academic achievement standards. We
academic content standards and requested specific guidance on how a also have added a new § 200.1(e)(1)(iii)
experienced in standards setting and State could appropriately reduce the to require modified academic
special educators who are most breadth or depth of grade-level achievement standards to include at
knowledgeable about children with standards, as proposed in least three achievement levels.
disabilities. § 200.1(e)(1)(i). One commenter Comment: One commenter stated that
Comment: A number of commenters requested that the regulations clarify modified academic achievement
disagreed with the requirement in that reducing breadth or depth would standards should be designed to allow
§ 200.1(e)(1)(i) that modified academic permit the assessment of prerequisite a student, over time, to reach grade-level
achievement standards be aligned with skills that are needed to master grade- academic achievement standards. Many
the State’s academic content standards level content standards. commenters stated that the regulations
for the grade in which the student is Discussion: Modified academic should include protections so that the
enrolled. Several commenters stated achievement standards are intended to regulations do not result in lowered
that this requirement excludes students be challenging for a small group of expectations for students with
students whose disability has thus far disabilities.
who need to be assessed against a truly
prevented them from attaining grade- Discussion: We added a number of
modified set of learning standards.
level proficiency. However, while the safeguards to the safeguards that were
These commenters argued that modified
modified academic achievement already included in the proposed
academic achievement standards should
standards may be less demanding than regulations to ensure that a student with
be for students with learning goals that
grade-level academic achievement disabilities who is assessed based on
are substantively different from the
standards, these students must have modified academic achievement
general education standards, but not as
access to a curriculum based on grade- standards has access to grade-level
different as the learning goals for
level content standards so that they can content so that the student has the
students with the most significant
move closer to grade-level achievement. opportunity, over time, to reach grade-
cognitive disabilities who are assessed This means that an alternate assessment level academic achievement standards.
based on alternate academic based on modified academic The safeguards for students that are
achievement standards. achievement standards must cover the included in these final regulations
Several commenters stated that same grade-level content, but may include the following: § 200.1(e)(1)(i)
modified academic achievement include less difficult questions overall. requires that modified academic
standards should focus on the We agree that the phrase ‘‘breadth or achievement standards be aligned with
individual needs of a student with depth’’ in the context of developing a State’s academic content standards for
disabilities and be aligned with modified academic achievement the grade in which a student is enrolled;
standards that are appropriate for the standards is not clear and does not new § 200.1(e)(2)(iii) requires that a
student’s instructional level, not grade sufficiently convey that only the student’s IEP include goals that are
level. A few commenters stated that the academic achievement standards for based on the academic content
criteria for modified academic students, not the content on which they standards for the grade in which the
achievement standards are too are assessed, are to be modified. In student is enrolled and be designed to
prescriptive and that States should have addition, the terms ‘‘breadth’’ and monitor a student’s progress in
the flexibility to develop modified ‘‘depth’’ are descriptive, rather than achieving the student’s standards-based
academic achievement standards in technical, and do not have consistent goals; new § 200.1(f)(2)(ii) requires a
ways that meet their needs. meanings for the different stakeholders State to establish and monitor
Discussion: We disagree with the involved in developing and using implementation of clear and appropriate
commenters. Modified academic student assessments. Therefore, we have guidelines for an IEP Team to apply in
achievement standards are intended for removed the reference to reduced developing and implementing the IEP of
a small group of students who, by virtue breadth or depth from § 200.1(e)(1)(i). a student assessed based on modified
of their disability, are not likely to meet Section 200.1(e)(1)(i) continues to academic achievement standards; new
grade-level academic achievement require modified academic achievement § 200.1(f)(2)(iii) requires that a State’s
standards in the year covered by their standards to be aligned with the State’s guidelines for IEP Teams ensure that a
IEPs even with appropriate instruction. academic content standards for the student who is assessed based on
These students need the benefit of grade in which the student is enrolled. modified academic achievement
access to instruction in grade-level We have added a new paragraph standards has access to the curriculum,
content so that they can move closer to (e)(1)(ii) clarifying that modified including instruction, for the grade in
grade-level achievement. We believe academic achievement standards must which the student is enrolled; and new
that allowing modified academic be challenging for eligible students, but § 200.1(f)(2)(iv) requires a State to
achievement standards to focus on may be less difficult than grade-level ensure that a student who takes an
something other than grade-level academic achievement standards. alternate assessment based on modified
content standards (e.g., allowing them to Consistent with section 1111(b)(1)(D)(i) academic achievement standards is not
be based on a student’s instructional of the ESEA, we also have clarified that precluded from attempting to complete
level) would lower expectations and modified academic achievement the requirements, as defined by the
limit opportunities for these students to standards must include at least three State, for a regular high school diploma.
access grade-level content and meet achievement levels. Changes: None.
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grade-level achievement standards. We Changes: The phrase ‘‘reflect reduced Comment: We received several
also believe that allowing States to breadth or depth of grade level content’’ comments regarding proposed
develop modified academic has been removed from § 200.1(e)(1)(i). § 200.1(e)(1)(iii), which requires that
achievement standards without placing A new § 200.1(e)(1)(ii) has been added modified academic achievement
any parameters or restrictions on their specifying that modified academic standards not preclude a student from

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17756 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

earning a regular high school diploma. regarding the development of modified IDEA regulations already require public
Several commenters stated that it would academic achievement standards. agencies to include parents of children
be an intrusion into State graduation Discussion: The Department with disabilities in decisions regarding
standards if a State was required to recognizes the need to provide States their child’s special education,
diminish its standards for a regular with additional guidance on the including how the child will participate
diploma to include students who are development and implementation of in State and district-wide assessments.
assessed on modified academic modified academic achievement Section 300.321(a) of the IDEA
achievement standards. standards and will provide regulations requires public agencies to
Discussion: The intent of proposed nonregulatory guidance, along with include parents of children with
§ 200.1(e)(1)(iii) was not to require technical assistance and support to disabilities as members of the IEP Team.
States to alter their graduation States on modified academic If a child’s parent and the other
requirements or to provide a regular achievement standards following the members of the child’s IEP Team
high school diploma to a student who release of these final regulations. determine that the child will take an
scores proficient on an alternate Changes: None. alternate assessment based on alternate
assessment based on modified academic Criteria for Defining Eligible Students or modified academic achievement
achievement standards. Rather, we (§ 200.1(e)(2)) standards, § 300.320(a)(6)(i), consistent
wanted to ensure that a student is not with section 614(d)(1)(A)(i)(VI) of the
Comment: Several commenters IDEA, requires that the child’s IEP
automatically precluded from
recommended that the regulations include a statement of why the
attempting to earn a regular high school clearly state that a student’s IEP Team
diploma simply because the student was particular assessment is appropriate for
is responsible for determining whether the child.
assessed based on modified academic the student should be assessed based on
achievement standards. For example, if We agree with the commenters that it
modified academic achievement is important for parents to be informed
a State requires students to pass a State standards. One commenter added that
graduation test in order to obtain a of any effects on their child’s education
LEAs should not be able to unilaterally that may result from the child
regular high school diploma, we did not change an IEP Team’s decision. Many
want the fact that a student was participating in an alternate assessment
commenters recommended requiring based on modified or alternate academic
assessed based on modified academic that parents be included in this decision
achievement standards to automatically achievement standards. In addition to
and informed in writing of any potential parents, we believe it is important for all
prevent the student from attempting to consequences of such decisions. Several
pass the State’s graduation test. IEP Team members to have knowledge
commenters stated that the information about modified or alternate academic
An important requirement for should be provided to parents in the achievement standards and any effects
modified academic achievement parent’s native language and in language that may result from a child
standards is that they be aligned with that is easily understandable. participating in such assessments.
the State’s grade-level academic content Discussion: We agree that it would be Therefore, we have added language to
standards and provide access to grade- helpful to clarify that the State require States to provide IEP Teams,
level curriculum. Therefore, we believe guidelines are for IEP Teams to use in which include the parent, with a clear
it is reasonable that students assessed determining which students with explanation of the differences between
based on modified academic disabilities are eligible to be assessed assessments based on grade-level
achievement standards have the based on modified academic academic achievement standards and
opportunity to attempt to earn a regular achievement standards and have made those based on modified or alternate
high school diploma. We recognize that this change in § 200.1(e)(2) and academic achievement standards,
proposed § 200.1(e)(1)(iii) could be (e)(2)(ii)(A). Consistent with including any effects of State or local
misconstrued and, therefore, have § 200.1(f)(1)(i), States have an important policies on the student’s education
changed the language to make clear that role in providing clear and appropriate resulting from taking an alternate
States may not prevent a student from guidelines for IEP Teams to use in assessment based on alternate or
attempting to complete the determining who will be assessed based modified academic achievement
requirements, as defined by the State, on modified academic achievement standards, such as whether only
for a regular high school diploma standards and in monitoring the satisfactory performance on a regular
simply because the student participates implementation of these guidelines by assessment would qualify a student for
in an alternate assessment based on IEP Teams. We also agree that an LEA a regular high school diploma.
modified academic achievement cannot unilaterally change an IEP We do not believe, however, that it is
standards. Team’s decision regarding whether a necessary to require States to inform a
Changes: Proposed § 200.1(e)(1)(iii) child will be assessed based on parent in writing, in addition to the IEP
has been removed. A new modified academic achievement process, that his or her child will not be
§ 200.1(f)(2)(iv) has been added to standards. Section 300.320(a)(6), assessed based on the same academic
require a State to ensure that students consistent with section achievement standards as other
who take alternate assessments based on 614(d)(1)(A)(i)(VI) of the IDEA, already children. Parents are integral members
modified academic achievement provides that it is the child’s IEP Team, of the IEP Team and participate in the
standards are not precluded from not the LEA, that is responsible for decision regarding the type of
attempting to complete the determining how the child will assessment in which their child will
requirements, as defined by the State, participate in State and district-wide participate. We expect that, in the
for a regular high school diploma. assessments. course of determining the appropriate
Comment: Many commenters We do not believe it is necessary to assessment in which a student will
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requested additional guidance on the add language to the Title I regulations participate, there will be a discussion of
development of modified academic ensuring that parents are included in how alternate or modified academic
achievement standards. A few decisions regarding whether their child achievement standards differ from
commenters requested guidance on will be assessed based on modified grade-level academic achievement
addressing the technical issues academic achievement standards. The standards and any possible

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consequences of participating in disability has precluded the student education and related services if the
alternate assessments based on those from achieving grade-level proficiency determinant factor is lack of appropriate
standards. should not be based solely on a instruction in reading or mathematics.
Finally, we do not believe it is student’s performance on State Schools use current, data-based
necessary to add language to the Title I assessments because State assessments evidence to examine whether a student
regulations requiring public agencies to may not allow the accommodations a responds to appropriate instruction
provide explanations to parents in the student needs to demonstrate what the before determining that the student
parent’s native language and in language student knows and can do. The needs special education and related
that is easily understandable, as commenters recommended changing the services. State and local officials are
suggested by the commenters. Section ‘‘or’’ between paragraphs (e)(2)(i)(A) and responsible for determining what
300.322(e) of the IDEA regulations (e)(2)(i)(B) in § 200.1 to ‘‘and.’’ constitutes appropriate instruction. (See
already requires public agencies to take Discussion: We do not believe that the 71 FR 46646 (Aug. 14, 2006).) State and
whatever action is necessary to ensure determination of a student’s progress local officials, therefore, have
that parents understand the proceedings always must include consideration of a experience and knowledge in making
of IEP Team meetings, including student’s performance on State judgments about the instruction that a
arranging for an interpreter for parents assessments and, therefore, decline to student has received and whether it has
with deafness or whose native language make the change requested by the been appropriate. Accordingly, we have
is other than English. commenters. Other objective changed the language in
Changes: We have changed assessments may be necessary, for § 200.1(e)(2)(ii)(A) to ensure that
§ 200.1(e)(2) to require that the example, for students who are new to students are not identified for an
guidelines that a State establishes under the State or for younger students who alternate assessment based on modified
§ 200.1(f)(1) include criteria for IEP have not yet taken a State assessment. academic achievement standards if they
Teams to use in determining which What is important is that the IEP Team have not been receiving appropriate
students with disabilities are eligible to consider multiple measurements over a instruction.
be assessed based on modified academic period of time that are valid for the Changes: We have replaced ‘‘high-
achievement standards. We also have subjects being assessed, as specified in quality instruction’’ with ‘‘appropriate
rewritten paragraph (e)(2)(ii)(A) to state § 200.1(e)(2)(ii)(B). These measures may instruction’’ in § 200.1(e)(2)(ii)(A). We
that the IEP Team must be ‘‘reasonably include evidence from a State also have added ‘‘to date’’ following
certain’’ that the student will not assessment or other assessments that ‘‘progress’’ for clarity.
achieve grade-level proficiency within can validly document the student’s Comment: Several commenters
the year covered by the student’s IEP, achievement. recommended requiring instruction by
‘‘even if significant growth occurs.’’ Changes: None. highly qualified teachers, as defined in
We have added a new paragraph Comment: Several commenters the ESEA and the IDEA, before
(f)(1)(iii) to require the State guidelines requested a definition of ‘‘high-quality determining that a student should be
for IEP Teams to provide a clear instruction,’’ as used in proposed assessed based on modified academic
explanation of the differences between § 200.1(e)(2)(ii)(A), stating that, without achievement standards.
assessments based on grade-level a definition, the requirement that IEP Discussion: Both the ESEA and the
academic achievement standards and Teams consider the student’s response IDEA already require teachers to meet
those based on modified or alternate to high-quality instruction in the highly qualified teacher standards
academic achievement standards, determining whether the student should and we do not believe it is necessary to
including any effect of State and local be assessed based on modified academic reiterate this requirement in these
policies on the student’s education achievement standards is not regulations. Furthermore, while we
resulting from taking an alternate meaningful. One commenter stated that expect that the vast majority of students
assessment based on alternate or the proposed regulation assumes that will receive instruction from highly
modified academic achievement students with disabilities receive high- qualified teachers, we do not want a
standards (such as whether only quality instruction, but stated that this student who may not have received
satisfactory performance on a regular is not always the case. instruction from a highly qualified
assessment would qualify a student for Discussion: The purpose of teacher in the past to be precluded from
a regular high school diploma). § 200.1(e)(2)(ii)(A) is to ensure that being assessed based on modified
We also have reorganized paragraph students are not identified for an academic achievement standards if that
(f) regarding State guidelines into two alternate assessment based on modified alternate assessment is most appropriate
paragraphs: paragraph (f)(1) lists the academic achievement standards if they for that student.
requirements for students who are have not been receiving high-quality Changes: None.
assessed based on either alternate or instruction and services. We agree that Comment: One commenter asked if
modified academic achievement it is difficult to establish objective the number of years a student with
standards; and paragraph (f)(2) lists standards that could be used to disabilities’ performance was below
additional requirements for students determine whether this criterion has grade level could be used to identify the
who are assessed based on modified been met and will, therefore, remove student as eligible to be assessed based
academic achievement standards. With this requirement. However, we continue on modified academic achievement
this reorganization, proposed to believe that safeguards are needed to standards.
§ 200.1(e)(3), has been redesignated as ensure that IEP Teams consider whether Discussion: Section 200.1(e)(2)(ii)
new § 200.1(f)(1)(ii); proposed a student has had an opportunity to requires a student’s IEP Team to
§ 200.1(e)(5) has been rewritten and learn grade-level content before consider the student’s progress to date
redesignated as § 200.1(f)(2)(v); and determining that the student should be in response to appropriate instruction
rwilkins on PROD1PC63 with RULES_3

proposed § 200.1(e)(1)(ii) has been assessed based on modified academic and to be reasonably certain that, even
rewritten and redesignated as achievement standards. if significant growth occurs, the student
§ 200.1(f)(2)(iii). Under § 300.306(b) of the IDEA will not achieve grade-level proficiency
Comment: Several commenters stated regulations, a student may not be within the year covered by the student’s
that determining whether a student’s determined to be eligible for special IEP. Data documenting that a student

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17758 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

has been performing below grade level determine whether a student is making content before they are assessed based
for a number of years could be one progress. on modified academic achievement
factor in determining if a student should Changes: None. standards, and receive instruction in
be assessed based on modified academic Comment: Several commenters grade-level content after they are
achievement standards. supported the proposed requirement assessed based on modified academic
Changes: None. that a student be receiving instruction in achievement standards, is to require IEP
Comment: One commenter requested grade-level content in order to be Teams to include goals that are based on
examples of multiple measures over assessed based on modified academic grade-level content standards in the
time that may be used to determine a achievement standards and asked what IEPs of these students. Such an
student’s progress under documentation would be required to approach focuses the IEP Team and the
§ 200.1(e)(2)(ii)(B). Another commenter ensure that students with disabilities student on grade-level content and the
asked whether States are required to use have the opportunity to learn grade- student’s achievement level relative to
response to intervention procedures to level content. Other commenters stated those content standards. Therefore, we
demonstrate student progress over a that the proposed regulations did not have added a requirement that the IEP
period of time. address the broad continuum of of a student to be assessed based on
Discussion: In order to determine cognitive functioning and, instead, modified academic achievement
focused on the wrong group of students. standards include goals that are based
whether a student may be eligible for an
Many commenters stated that modified on the academic content standards for
alternate assessment based on modified
academic achievement standards should the grade in which the student is
academic achievement standards, an IEP
be for students who are closer in enrolled and that the IEP be designed to
Team may examine results from a
achievement to students with the most monitor a student’s progress in
variety of measures that indicate a
significant cognitive disabilities rather achieving the student’s standards-based
student’s progress over time. These may
than students who are close to grade- goals. To further emphasize the
be either criterion-referenced tests (i.e.,
level achievement. importance of ensuring that students
tests that assess skill mastery and Discussion: The requirement that a
compare a student’s performance to who participate in an alternate
student be receiving grade-level
curricular standards, such as State and assessment based on modified academic
instruction was intended to ensure that
district-wide tests) or norm-referenced achievement standards receive
students identified to be assessed based
tests (i.e., tests that compare a student’s instruction in grade-level content, we
on modified academic achievement
performance to that of students of the also make clear in new § 200.1(f)(2)(iii)
standards have access to grade-level
same age or grade). The format of the that States must ensure that these
content. We did not want students to be
multiple measures may include students have access to the curriculum,
assessed based on modified academic
performance assessments (i.e., an including instruction, for the grade in
achievement standards merely because
assessment that focuses on specific which the student is enrolled.
they did not have access to grade-level
objectives and enables the student to Incorporating State content standards
content or solely because their
actively demonstrate knowledge and achievement was one or two grades in IEP goals is not a new idea. Because
understanding, such as direct writing below their enrolled grade. However, the reauthorization of IDEA in 1997
and math assessments); portfolio based on the comments we received, we required States to provide students with
assessments (i.e., a collection of student believe this requirement was disabilities access to the general
work samples); curriculum-based misinterpreted to mean that only curriculum, the field has been working
measures (i.e., repeated measures from students achieving close to grade level toward incorporating State standards in
the student’s curriculum that assess the could potentially be assessed based on IEP goals. Some States already require
specific skills being taught in the modified academic achievement IEP Teams to select the grade-level
classroom and the effectiveness of standards. That was not our intent. content standards that the student has
instruction and instructional changes); Rather, we anticipated that students not yet mastered and to develop goals
and teacher-developed assessments (i.e., assessed based on modified academic on the basis of the skills and knowledge
assessments developed by individual achievement standards could include that the student needs to acquire in
teachers for use in their own students from any of the disability order to meet those standards. In
classrooms). categories under the IDEA and represent addition, some States have developed
Section 200.1(e)(2)(ii)(B) does not a fairly wide spectrum of abilities. extensive training materials and
require States to use response to Therefore, we have removed the professional development opportunities
intervention procedures; nor does it requirement in § 200.1(e)(2)(iii) that for staff to learn how to write IEP goals
specify the procedures or measures that students identified to be assessed based that are tied to State standards.2
must be used to determine a student’s on modified academic achievement We appreciate that States that have
progress over time. We believe that IEP standards be receiving grade-level not moved in this direction may need
Teams should have as much flexibility instruction. technical assistance and support to
as possible to use objective data to However, we continue to believe that institute this change for students who
determine whether a student is eligible it is critical to ensure that students who are assessed based on modified
for an alternate assessment based on participate in an alternate assessment academic achievement standards. The
modified academic achievement based on modified academic Department’s Office of Special
standards. The purpose of achievement standards receive Education Programs (OSEP) is preparing
§ 200.1(e)(2)(ii)(B) is to clarify that IEP instruction in grade-level content so that such technical assistance, which will be
Teams must not rely on a single they are prepared to demonstrate their disseminated and available upon
measure to determine whether it is mastery of grade-level content on an publication of these final regulations.
rwilkins on PROD1PC63 with RULES_3

appropriate to assess a student based on alternate assessment based on modified


2 Ahearn, E. (2006). Standards-based IEPs:
modified academic achievement academic achievement standards and
Implementation in Selected States. National
standards. So long as the measures are can move closer to grade-level Association of State Directors of Special Education,
objective and valid for the subjects achievement. One way to help ensure 1800 Diagonal Road, Suite 320, Alexandria, VA
being assessed, they may be used to that students have access to grade-level 22314.

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17759

We believe that requiring IEP Teams Changes: None. academic achievement standards in
to incorporate grade-level content Comment: One commenter stated that reading, for example, and a regular
standards in the IEP of a student who is another alternate assessment is needed assessment in mathematics. However,
assessed based on modified academic for students with mild cognitive we agree that the regulations should
achievement standards and to monitor impairments. Several commenters stated state more clearly that a student’s IEP
the student’s progress in achieving the that, because a student’s performance Team is responsible for making a
standards-based goals will focus IEP would not be based on grade-level determination for each subject assessed
Teams on identifying the educational academic achievement standards, the whether the student participates in an
supports and services that the student requirements for participation in an alternate assessment based on modified
needs to reach those standards. This alternate assessment based on modified academic achievement standards.
will align the student’s instruction with academic achievement standards should Therefore, we have added a new
the general education curriculum and be stricter to ensure that students are § 200.1(f)(2)(i) clarifying that States
the assessment that the IEP Team not inappropriately assessed. must inform IEP Teams that a student
determines is most appropriate for the Discussion: We do not believe that may be assessed based on modified
student. another alternate assessment is needed academic achievement standards in one
Changes: We have removed the for students with mild cognitive or more subjects. We also have added
requirement in § 200.1(e)(2)(iii) that a disabilities. These final regulations give language to new § 200.1(f)(1)(i)(B)
student be receiving grade-level States the flexibility to develop and (proposed § 200.1(f)(1)(ii)) and
instruction in order to be assessed based implement modified academic § 200.1(f)(2)(v) (proposed § 200.1(c)(5))
on modified academic achievement achievement standards in ways that fit to make this clear.
standards, and replaced it with a within their existing assessment Changes: We have added a new
requirement that, if a student identified systems, while ensuring that students § 200.1(f)(2)(i) requiring States to inform
for an alternate assessment based on with disabilities are not inappropriately IEP Teams that a student may be
modified academic achievement assessed based on modified academic assessed based on modified academic
standards has an IEP that includes goals achievement standards. We believe that achievement standards in one or more
for a subject assessed under § 200.2, the criteria for modified academic subjects for which assessments are
those goals must be based on the achievement standards in § 200.1(e), administered under § 200.2. We also
content standards for the grade in which along with the safeguards provided by have added ‘‘These students may be
the student is enrolled. We have added the requirements for State guidelines in assessed based on modified academic
‘‘the’’ before ‘‘curriculum’’ and § 200.1(f), are adequate to ensure that achievement standards in one or more
‘‘including instruction,’’ before ‘‘for the students are not inappropriately subjects for which assessments are
grade in which the students are assessed based on modified academic administered under § 200.2’’ at the end
enrolled’’ in § 200.1(f)(2)(iii). For achievement standards. Depending on of new § 200.1(f)(1)(i)(B) (proposed
consistency with these changes, we the nature of a State’s grade-level and § 200.1(f)(1)(ii)). With this addition,
have added this requirement as new alternate academic achievement proposed § 200.1(e)(4) is no longer
§ 200.1(f)(2)(ii)(A) to the list of standards, a State may wish to tailor its necessary and has been removed.
requirements for States to include in alternate assessment based on modified Finally, we have added ‘‘for each
their guidelines for IEP Teams. We also academic achievement standards to a subject’’ following ‘‘Ensure that each
have added § 200.1(f)(2)(ii)(B) to require more narrowly defined group of IEP Team reviews annually’’ in new
that a student’s IEP be designed to students. We, therefore, have made clear § 200.1(f)(2)(v) (proposed § 200.1(c)(5)).
monitor the student’s progress in that the criteria for students to be Comment: Several commenters
achieving the standards-based goals. assessed based on modified academic requested that the decision to assess a
Comment: Some commenters stated achievement standards in § 200.1(e)(2) student based on modified academic
that requiring a student to be receiving are only a minimum threshold and that achievement standards be reviewed
instruction in grade-level content in States may add additional criteria if annually.
order to be assessed based on modified they choose to do so. Discussion: New § 200.1(f)(2)(v)
academic achievement standards would Changes: We have added ‘‘Those (proposed § 200.1(e)(5)) already requires
encourage social promotion or retention. criteria must include, but are not that the decision to assess a student
Discussion: As noted above, we limited to, each of the following:’’ to the based on modified academic
removed the requirement that a student end of § 200.1(e)(2). achievement standards be reviewed
be receiving instruction in grade-level Comment: Several commenters annually for each subject by the
content in order to be assessed based on requested that the regulations clarify student’s IEP Team to ensure that those
modified academic achievement that an IEP Team must make a standards remain appropriate.
standards because it was misinterpreted determination of eligibility for each Changes: None.
to mean that only students achieving subject assessed. Other commenters Comment: One commenter stated that
close to grade-level could potentially be added that a student who has difficulty a student should not be eligible for an
assessed based on modified academic in only one subject area should be alternate assessment based on modified
achievement standards. However, we allowed to take an alternate assessment academic achievement standards unless
continue to believe that it is critical to in that one area and take a regular the student had been provided with all
ensure that students who participate in assessment in the other subject(s). the appropriate accommodations for the
an alternate assessment based on Discussion: If a State chooses to grade-level assessment.
modified academic achievement develop modified academic Discussion: We believe that a
standards receive instruction in grade- achievement standards, proposed student’s IEP Team is in the best
level content. We believe that students § 200.1(e)(4) would have required that a position to determine whether the
rwilkins on PROD1PC63 with RULES_3

who are not exposed to grade-level student be allowed to take an alternate student should be assessed on the
content will not learn the content, assessment based on modified academic regular assessment with
which will delay their learning and achievement standards in one or more accommodations before participating in
increase the likelihood of being retained subjects. Thus, a student could take an an alternate assessment based on
or socially promoted. alternate assessment based on modified modified academic achievement

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17760 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

standards and, therefore, decline to recommended that the regulations Inclusion of All Students (§ 200.6)
make the requested change. require the State to implement
Changes: None. Students Eligible Under IDEA and
requirements that are enforceable by Section 504 (§ 200.6(a))
State Guidelines (§ 200.1(f)) law.
Comment: One commenter
Comment: Several commenters Discussion: It is unnecessary to add a recommended that the regulations
recommended that the regulations regulation requiring States to implement permit students with disabilities to use
require a State to provide training to IEP requirements that are enforceable by law modifications, as well as
Teams so that the guidelines are because, regardless of the legal accommodations, in State assessments.
implemented in a manner that ensures mechanism a State uses to implement The commenter stated that an
that students can progress to grade-level guidelines for IEP Teams, those accommodation in one State (e.g., a
achievement standards. The guidelines must meet the requirements calculator) may be considered a
commenters also recommended of these regulations in order for the modification in another State and that
requiring a State to collect and review State to be in compliance with part A of this variation is unfair to students and
data from LEAs on how the guidelines Title I and to continue to receive funds schools.
are being implemented and investigate under this part. Discussion: A ‘‘modification’’ used in
LEAs when proficiency rates are higher an assessment is generally regarded as a
on alternate assessments than on the Changes: None.
change in test administration that alters
regular assessment. Comment: Several commenters stated what is being measured and, therefore,
Discussion: Proposed § 200.1(f)(1) that the regulations should include results in an invalid test score. Whether
already requires a State that defines additional guidelines to ensure that a particular support, such as use of a
alternate or modified academic States use similar criteria to identify calculator, is considered a modification
achievement standards to establish and students to be assessed based on or an accommodation can only be
ensure implementation of clear and modified academic achievement determined by considering the intended
appropriate guidelines for IEP Teams to standards. One commenter stated that purpose and content of an assessment.
apply in determining whether a student the guidelines should draw a ‘‘bright States vary in terms of the purposes and
will be assessed based on modified or line’’ between students with the most content of their assessments and,
alternate academic achievement significant cognitive disabilities and therefore, may vary in terms of whether
standards. Furthermore, the general a particular support provided to a
students assessed based on modified
supervision requirements in section student during an assessment is
academic achievement standards.
612(a)(11) of the IDEA require a State to considered a modification or an
monitor the implementation of State Specifically, the commenter
recommended clarifying that students accommodation. States determine
guidelines for the participation of whether a particular testing procedure
students with disabilities in State and with the most significant cognitive
disabilities are those who will never be or support, such as use of a calculator,
district-wide assessments. The specific invalidates the results. States must
ways in which a State conducts its able to demonstrate progress on grade-
provide evidence for the Department’s
monitoring are best left to the State to level academic achievement standards
peer review of Statewide assessment
determine based on State and local even if provided with the very best
systems under Title I of the ESEA that
needs. Therefore, we decline to require possible education and their State assessments are valid and
a State to investigate when proficiency accommodations. reliable for the purposes for which the
rates are higher on alternate assessments Discussion: Section 200.1(d), assessments are used, and are consistent
as compared with regular assessments. regarding alternate academic with relevant, nationally recognized
We also do not believe it is necessary to achievement standards, and § 200.1(e), professional and technical standards.
duplicate monitoring requirements regarding modified academic Therefore, we decline to make the
under Title I that would generate achievement standards, leave to each change requested by the commenter.
additional and unnecessary paperwork. State the responsibility to define the Changes: None.
However, we do believe that it is Comment: Several commenters
students with disabilities who may be
important to emphasize that a State is recommended that States develop and
assessed based on alternate or modified
responsible for monitoring, as well as disseminate information on, and
establishing and implementing State academic achievement standards. These
final regulations set certain parameters promote the use of, appropriate
guidelines, and have made this change accommodations for alternate
in the regulations. that a State must meet, but we do not
assessments based on modified and
Changes: We have changed ‘‘establish believe it is the proper role of the
alternate academic achievement
and ensure implementation of clear and Federal government to specifically set standards, in addition to assessments
appropriate guidelines’’ to ‘‘establish forth a ‘‘bright line’’ between the based on grade-level standards.
and monitor implementation of clear students who should participate in an Discussion: Section
and appropriate guidelines’’ in new alternate assessment based on alternate 1111(b)(3)(C)(ix)(II) of the ESEA and
§ 200.1(f)(1)(i) (proposed § 200.1(f)(1)). academic achievement standards versus section 612(a)(16) of the IDEA already
We also have added a new an alternate assessment based on require a State to provide appropriate
§ 200.1(f)(2)(ii), which reiterates the modified academic achievement accommodations for students to
responsibility of a State to establish and standards. Moreover, such a distinction participate in a State’s assessment
monitor implementation of clear and may vary from one State to the next system. This includes accommodations
appropriate guidelines for IEP Teams to depending on how States have for alternate assessments. Therefore, the
apply for students who are assessed organized their State content standards change recommended by the
rwilkins on PROD1PC63 with RULES_3

based on modified academic and established their academic commenters is unnecessary.


achievement standards. achievement standards. Changes: None.
Comment: One commenter argued Comment: None.
that a State’s guidelines for IEP Teams Changes: None. Discussion: In reviewing the proposed
would not have the force of law and regulations, we noted that

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§ 200.6(a)(1)(ii)(A) referred to ‘‘grade- administer assessments and use Therefore, we do not believe it is
level academic achievement standards.’’ appropriate accommodations. necessary to repeat this requirement in
We wanted to be clear that Discussion: Section 200.6(a)(1)(ii)(B) § 200.6(a)(2)(iii). However, in preparing
§ 200.6(a)(1)(ii)(A) refers to the already requires States to ensure that these final regulations, we noted an
academic achievement standards for the ‘‘other appropriate staff,’’ in addition to error in current § 200.6(a)(2)(iii) 3 in the
grade in which the student is enrolled. regular and special education teachers, NPRM. Current § 200.6(a)(2)(iii) requires
Therefore, we have made this change in know how to administer assessments that, if a State permits the use of
§ 200.6(a)(1)(ii)(A). and make appropriate use of alternate assessments based on alternate
Changes: Section 200.6(a)(1)(ii)(A) has accommodations. We believe State and academic achievement standards, the
been changed by adding ‘‘for the grade local authorities are in the best position State must document that students with
in which a student is enrolled’’ to determine the other appropriate staff, the most significant cognitive
following ‘‘academic achievement which could include related services disabilities are, to the extent possible,
standards’’ and removing ‘‘grade-level’’ providers, who must know how to included in the general curriculum. In
before ‘‘academic achievement administer assessments and make use of the NPRM for these final regulations on
standards.’’ appropriate accommodations. Therefore, modified academic achievement
Comment: One commenter we decline to make the change standards, ‘‘maximum’’ was
recommended requiring a State to (A) requested by the commenter. inadvertently added before ‘‘extent
develop assessments that are universally Changes: None. possible.’’ We have corrected this error
designed and valid for the widest Comment: A few commenters in the final regulations. It is important
possible range of students; (B) study the recommended requiring a State to to correct this error because the
effect of accommodations on the develop personnel standards and provision could be interpreted as
validity of the State’s assessment in provide professional development in extending authority beyond the IDEA,
order to identify which order to ensure that all educators are which requires each student’s IEP to
accommodations are valid for each skilled in administering assessments include a statement of the special
assessment; and (C) document the and providing appropriate education and related services and
extent to which universal design accommodations. supplementary aids and services to be
principles are not used. Discussion: Section 200.6(a)(1)(ii)(B) provided to the child to be involved in
Discussion: We decline to make the requires States to ensure that regular and make progress in the general
changes requested by the commenter. and special educators, as well as other education curriculum.4
The IDEA regulations already require a appropriate staff, know how to With regard to the comment that the
State (or in the case of a district-wide administer assessments and make use of regulations be changed to require
assessment, an LEA), to the extent appropriate accommodations. Whether a students with the most significant
feasible, to use universal design State ensures that this occurs through cognitive disabilities to be included in
principles in developing and developing personnel standards or assessments that are aligned to the
administering assessments. (See new professional development is best left for curriculum for the grade in which the
§ 300.160(g) (proposed § 300.160(f)) and each State to determine. student is enrolled, the Department’s
section 612(a)(16)(E) of the IDEA.) Changes: None. non-regulatory guidance on alternate
The Department’s peer review of Comment: One commenter
academic achievement standards for
Statewide assessment systems under recommended changing § 200.6(a)(2)(iii)
students with the most significant
Title I of the ESEA requires a State to to require that students with the most
cognitive disabilities states that, if a
provide evidence that its State significant cognitive disabilities be
State chooses to establish alternate
assessments are valid and reliable for involved in and make progress in the
academic achievement standards, such
the purposes for which they are used general curriculum, consistent with the
standards must be aligned with the
and are consistent with relevant, IDEA. The commenter also
State’s academic content standards for
nationally recognized professional and recommended that the regulations be
the grade in which the student is
technical standards. In order to ensure changed to require students with the
enrolled (or in the case of students in
that assessments are valid and reliable most significant cognitive disabilities to
un-graded classrooms, the grade level
and meet the technical quality be included in assessments that are
commensurate to the student’s age). (See
requirements of the peer review, a State aligned to the content standards for the
C–3 of the guidance.) 5
must study the effect of grade in which the student is enrolled. Substantive changes to existing
accommodations on the validity of the Discussion: Section 200.6(a)(2)(iii)
regulations cannot be made without
State’s assessment. already requires a State to document
publishing an NPRM and providing an
We believe that implementing the that students with the most significant
opportunity for the public to comment
commenter’s recommendation to require cognitive disabilities are included in the
on proposed regulations. The NPRM
States to document the extent to which general curriculum. Further, as the
published on December 15, 2005
universal design principles are not used commenter notes, the IDEA requires
regarding modified academic
(e.g., defining ‘‘universal design students with disabilities to be involved
achievement standards did not include
principles’’) would require significant in the general curriculum. Specifically,
the recommended change to the
resources and time and be a burden for section 614(d)(1)(A)(i)(IV)(bb) of the
regulations governing alternate
a State to report. Therefore, we decline IDEA requires each student’s IEP to
assessments based on alternate
to make the changes requested by the include a statement of the special
commenters. education and related services and 3 Current § 200.6(a)(2)(iii) was finalized in the
Changes: None. supplementary aids and services to be December 9, 2003 regulations for students with the
Comment: One commenter provided to the child to be involved in most significant cognitive disabilities (68 FR
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recommended changing and make progress in the general 68698).


4 See section 614(d)(1)(A)(i)(IV)(bb) of the IDEA.
§ 200.6(a)(1)(ii)(B) to require a State to education curriculum. This requirement 5 Alternate Achievement Standards for Students
ensure that related services providers, in applies to all students with disabilities, with the Most Significant Cognitive Disabilities
addition to regular and special including students with the most (August, 2005) is available at http://www.ed.gov/
education teachers, know how to significant cognitive disabilities. policy/elsec/guid/altguidance.doc.

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academic achievement standards. § 200.6(a)(3)(i)). One commenter An alternate assessment based on


Therefore, we cannot make the requested that the regulations include modified academic achievement
requested change in these final the criteria that will be used to standards should be aligned with grade-
regulations. determine whether there is sufficient level content standards in the same
Changes: We have deleted coverage of grade-level content manner as the general test, with the
‘‘maximum’’ before ‘‘extent possible’’ in standards. One commenter possible exception of a reduced level of
§ 200.6(a)(2)(iii). recommended requiring alternate cognitive demand, sometimes referred
Alternate Assessments that Measure assessments based on modified to as depth of knowledge. This is a
Performance Based on Modified academic achievement standards to critical difference between an alternate
Academic Achievement Standards assess the core objectives of a State’s assessment based on modified academic
grade-level academic content standards. achievement standards and an alternate
(§ 200.6)(a)(3))
Discussion: We decline to include a assessment based on alternate academic
Comment: Many commenters definition of ‘‘alignment’’ in these achievement standards, which is viewed
recommended requiring that an regulations because it is a term of art in as aligned with grade-level content
assessment based on modified academic the assessment field. However, the standards even though the content has
achievement standards be referred to as Department’s standards and assessment been simplified or represented as pre-
an alternate assessment. peer review guidance for Title I includes requisite skills that are an essential part
Discussion: We did not describe several characteristics of alignment that of the grade-level content.
assessments based on modified are considered by peer reviewers in The assumption underlying the
academic achievement standards as determining whether assessments are requirement for alignment is that many
alternate assessments in the NPRM aligned with content standards. First, students eligible for an alternate
because we wanted to distinguish such reviewers consider the range of content, assessment based on modified academic
assessments from alternate assessments meaning that all of the standards are achievement standards are in a regular
based on alternate academic represented in the assessment and that classroom with children of the same
achievement standards. However, we the assessment is as cognitively chronological age; they are receiving
agree with the commenter that it would challenging as the standards (depth/ instruction in the grade-level
be clearer to refer to such assessments difficulty). This is the single aspect of curriculum but because of their
as alternate assessments and have made alignment that may differ between the disability are not likely to meet grade-
this change in the regulations. regular grade-level assessment and an level academic achievement standards
Changes: Where appropriate, we have in the year covered by their IEPs. These
alternate assessment based on modified
inserted ‘‘alternate’’ before students may need a less difficult test in
academic achievement standards.
‘‘assessment’’ throughout the order to effectively demonstrate their
Second, reviewers look for evidence that
regulations to make clear that an knowledge of the grade-level content
the assessment represents both the
assessment based on modified academic standards.
content knowledge and the process
achievement standards is an alternate We do not agree with the
skills evident in the content standards.
assessment. recommendation that an alternate
Comment: Many commenters Third, reviewers consider whether the
assessment based on modified academic
suggested that terminology be clarified assessment reflects the same degree and
achievement standards be required to
to differentiate among various alternate pattern of emphasis as the content
assess only the ‘‘core objectives’’ of a
assessments using ‘‘modified standards (balance). Generally, an
State’s grade-level academic content
assessment’’ to refer to an assessment alternate assessment based on modified
standards. Modified academic
based on modified academic academic achievement standards should
achievement standards must represent
achievement standards and ‘‘adapted be aligned with grade-level content the full array of content standards,
assessment’’ to refer to an alternate standards in the same manner as the including factual knowledge and
assessment based on alternate academic regular assessment. That is, it should application of skills, with the same
achievement standards. represent the full array of content pattern of emphasis that is evident in
Discussion: Precise use of terminology standards, including factual knowledge the content standards. This is so,
to avoid confusion in the development and application skills, with the same regardless of how a State structures its
and use of alternate assessments for pattern of emphasis that is evident in academic content standards. The
students with disabilities is desirable. the content standards. The Department’s approach taken by a State to ensure the
However, the particular terms suggested peer review guidance further states ‘‘[i]f alignment of modified academic
by the commenters would not likely a State’s assessments do not adequately achievement standards to grade-level
accomplish this goal. In the measure the knowledge and skills content standards will depend on how
measurement community ‘‘modified specified in the State’s academic the State has structured its academic
assessment’’ has a restricted meaning content standards, or if they measure content standards. Content standards
that is not consistent with the intent of something other than what these may be grade specific or may cover
the assessment permitted under these standards specify, it will be difficult to more than one grade if grade-level
regulations, and we believe ‘‘adapted determine whether students have content expectations are provided for
assessment’’ does not accurately convey achieved the intended knowledge and each grade. Ultimately, a State that
that an alternate assessment is based on skills. As a result, it will be difficult to chooses to develop and implement
alternate academic achievement make appropriate policy, program, and modified academic achievement
standards. Therefore, we decline to instructional decisions meant to standards must demonstrate during the
make the changes recommended by the improve students’ achievement.’’ (page Department’s peer review of State
commenters. 41) 6 assessments that its alternate assessment
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Changes: None. based on modified academic


6 Standards and assessment peer review
Comment: Several commenters achievement standards is aligned with
guidance: Information and examples for meeting
requested that the regulations define requirements of the No Child Left Behind Act of
challenging grade-level academic
‘‘aligned,’’ as used in new 2001, (April 28, 2004). Available at http:// content standards in the same manner
§ 200.6(a)(3)(ii)(A) (proposed www.ed.gov/policy/elsec/guid/saaprguidance.doc. as is required for the approval of the

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17763

State’s regular assessment. The §§ 200.2(b) and 200.3(a)(1) make clear whether these accommodations are
Department acknowledges that that an alternate assessment based on helping students achieve.
measuring the academic achievement of modified academic achievement Discussion: Section 200.6(a)(4)
students with disabilities, particularly standards must meet the requirements already requires a State to report on the
those who will be eligible to be assessed for high technical quality, including number and percentage of students with
based on modified academic validity, reliability, accessibility, disabilities taking regular assessments;
achievement standards, is an area in objectivity, and consistency with regular assessments with
which there is much to learn and nationally recognized professional and accommodations; alternate assessments
improve. We welcome information from technical standards. Merely changing based on grade-level academic
States and others on ways to improve the cut-score on a regular assessment achievement standards; alternate
the assessment of students with would not be sufficient to meet these assessments based on modified
disabilities. As data and research on requirements. academic achievement standards; and
assessments for students with Changes: None. alternate assessments based on alternate
disabilities improve, the Department Comment: Many commenters academic achievement standards. We
may decide to issue additional requested additional guidance on believe that requiring a State to report
regulations or guidance. developing an alternate assessment the additional data requested by the
Changes: None. based on modified academic commenters would place a significant
Comment: Several commenters argued achievement standards. burden on the State. In addition, such
that the regulations should permit the data would not, by itself, provide
Discussion: Grade-level content
use of out-of-level assessments. Another information regarding whether students
standards serve as the foundation of an
commenter questioned whether out-of- are receiving appropriate
alternate assessment based on modified
level assessments would be as valid as accommodations and whether those
academic achievement standards.
alternate assessments based on modified accommodations are helping students
Beyond this essential requirement, a
academic achievement standards. achieve. Therefore, we decline to make
Discussion: Alternate assessments State may construct a unique
the change requested by the
based on modified academic assessment or adapt its regular
commenters.
achievement standards are intended for assessment. We have added this We have, however, changed the order
a small group of students who, by virtue language to the regulations to make this of the list of assessments in § 200.6(a)(4)
of their disability, are not likely to meet clear. In addition, the Department will so that ‘‘alternate assessments based on
grade-level achievement standards in be issuing nonregulatory guidance and the grade-level academic achievement
the year covered by their IEPs, despite providing technical assistance to assist standards’’ follows ‘‘regular assessments
appropriate instruction. These students States in developing alternate with accommodations.’’ This will
need the benefit of access to grade-level assessments based on modified appropriately keep the three types of
content so that they can move closer to academic achievement standards. assessments based on grade-level
grade-level achievement. Therefore, Changes: We have simplified academic achievement standards
alternate assessments based on modified proposed § 200.6(a)(3) by deleting together in the list, to be followed by
academic achievement standards must references to paragraphs (a)(1) and (a)(2) ‘‘alternate assessments based on the
be aligned with grade-level content and including a new paragraph (a)(3)(i) modified academic achievement
standards. to permit a State that chooses to assess standards,’’ and ‘‘alternate assessments
Out-of-level testing means assessing students with disabilities based on based on the alternate academic
students enrolled in a specific grade modified academic achievement achievement standards.’’
with tests designed for students at lower standards to develop a new alternate Changes: We have redesignated
grades. By definition, an out-of-level assessment or adapt an assessment proposed paragraph (a)(4)(iv), regarding
assessment does not cover the same based on grade-level academic alternate assessments based on grade-
content as an assessment based on achievement standards. We also have level academic achievement standards,
grade-level content standards. Out-of- added a new paragraph (a)(3)(ii) that as new paragraph (a)(4)(iii), and
level testing is often associated with lists the requirements for an alternate proposed (a)(4)(iii), regarding alternate
lower expectations for students with assessment based on modified academic assessments based on modified
disabilities, tracking such students into achievement standards. Proposed academic achievement standards, as
lower-level curricula with limited paragraphs (a)(3)(i) through (a)(3)(iv) new paragraph (a)(4)(iv).
opportunities. Therefore, an out-of-level have been redesignated as new Comment: One commenter
assessment cannot be used as an paragraphs (a)(3)(ii)(A) through recommended requiring the Department
alternate assessment based on modified (a)(3)(ii)(D), respectively. to provide an annual report to Congress
academic achievement standards. on the implementation of the
Reporting (§ 200.6(a)(4))
Changes: None. regulations regarding modified
Comment: One commenter Comment: Several commenters academic achievement standards. One
recommended requiring an alternate recommended requiring a State to report commenter asked who receives the data
assessment based on modified academic the number and percentage of students required under § 200.6(a)(4). Another
achievement standards to be using accommodations who take commenter expressed concern that
distinguished from the regular alternate assessments based on modified reporting the data in § 200.6(a)(4) could
assessment by more than a lower cut academic achievement standards, violate a student’s right to privacy under
score or a change in administration or alternate assessments based on grade- the Family Educational Rights and
format. level academic achievement standards, Privacy Act (FERPA) if there were small
Discussion: New § 200.1(e)(1)(iv) and alternate assessments based on numbers of students taking any of the
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makes clear that modified academic alternate academic achievement assessments.


achievement standards must be standards. The commenters stated that Discussion: Section 200.6(a)(4)
developed through a documented and these data are necessary to measure pertains to the requirements in part A of
validated standards setting process that whether students are receiving Title I for reporting data to the Secretary
includes broad stakeholder input, and appropriate accommodations and and ensures that the data reported in

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17764 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

accordance with section 1111(h) of the regulations on modified academic 2007–08 school year,’’ at the beginning
ESEA include data on assessments achievement standards, a State had of the sentence in § 200.7(a)(2)(ii).
based on alternate academic limited flexibility in measuring the Comment: Some commenters
achievement standards and modified achievement of students with recommended changing § 200.7(a)(2)(ii)
academic achievement standards. We disabilities for AYP purposes. Because to require a State to set group sizes
have added language to § 200.6(a)(4) to of ongoing concerns about how consistent with the smallest of its
make this clear. These data are also accurately State assessments measure existing subgroups.
reported to Congress and, therefore, we the achievement of a very heterogeneous Discussion: States that need to adjust
do not believe that an additional report subgroup of students (many of whom their group sizes in order to comply
to Congress is necessary, as suggested by were assessed with a range of with § 200.7(a)(2)(ii) must do so by
one commenter. With regard to the accommodations to the regular amending their accountability plans
commenter who expressed concern with assessment), some States requested with the approval of the Department.
the data reporting requirements and a permission to use a larger group size for The Department will consider each
student’s right to privacy, a State is not their students with disabilities and State’s rationale for its proposed group
required to report data that would limited English proficient subgroups. In size (consistent across all groups). We
violate FERPA (20 U.S.C. 1232g). support of their requests, States argued do not believe it is appropriate to
Changes: We have added ‘‘to the that a larger group size for these mandate a particular group size or to
Secretary’’ following ‘‘A State must subgroups of students would take into require a specific process by which a
report separately’’ to make clear that the consideration the challenges of State establishes its group size and,
assessment data referred to in measuring their achievement. therefore, decline to make the
§ 200.6(a)(4) are reported separately to With the implementation of these recommended change.
the Secretary. final regulations on modified academic Changes: None.
Comment: One commenter achievement standards and the Title I Comment: One commenter agreed
recommended requiring LEAs and SEAs regulations on assessment and
with the decision to prohibit different
to collect data on the disability and race accountability for recently arrived and
group sizes for subgroups, but did not
of students who are assessed based on former limited English proficient (LEP)
agree that the group size for the school
modified academic achievement students (71 FR 54187 (Sept. 13, 2006)),
as a whole should be the same as that
standards. we believe that States now have
of each subgroup.
Discussion: We believe that requiring sufficient flexibility to measure the
LEAs and SEAs to collect data on the achievement of students with Discussion: Section 200.7(a)(2)(ii) was
disability and race of students who are disabilities and LEP students intended to require the minimum group
assessed based on modified academic appropriately and, therefore, no longer size for a school as a whole (the ‘‘all
achievement standards would place an need a different group size for these students’’ group) to be the same as that
unnecessary burden on SEAs and LEAs subgroups. In addition, all States now of each subgroup. Therefore, we have
and, therefore, decline to implement the test in grades 3 through 8 and once in changed § 200.7(a)(2)(ii) to make this
commenter’s recommendation. high school, as opposed to just once per clear.
Changes: None. grade span, thereby decreasing the There may be instances where the
sampling error associated with smaller number of students in a school is less
Disaggregation of Data (§ 200.7) then a State’s minimum group size. A
group sizes. With these additional test
Comment: Several commenters scores to include in AYP State must have a policy in place to
supported proposed § 200.7(a)(2) that determinations, the argument for a determine AYP for every school, even in
would prohibit a State from establishing larger group size for these two these cases. Given that requirement, a
a different minimum number (group subgroups is no longer statistically State may choose to have a minimum
size or ‘‘n size’’) of students for some justified. Setting a different subgroup group size of zero for the ‘‘all students’’
subgroups, regardless of whether a State size also may lead to unintended group. However, a State may not choose
chooses to implement modified consequences, such as manipulating the a minimum group size for the ‘‘all
academic achievement standards. The number of students with disabilities in students’’ group, other than zero, that is
commenters stated that having the same a particular school to ensure that the different than that of its subgroups.
group size for all subgroups would school will not be held accountable for Changes: Section 200.7(a)(2)(ii) has
ensure transparency and greater those students. We believe that, in order been revised by adding ‘‘or for the
accountability. to ensure that schools are held school as a whole’’ at the end of the
However, one commenter stated that accountable for the achievement of sentence.
the same group size across all subgroups students with disabilities (as well as for Adequate Yearly Progress in General
should be required only for States that students with limited English (§ 200.13)
develop modified academic proficiency), the use of differentiated
achievement standards. The commenter subgroup sizes for purposes of Comment: Many commenters stated
also expressed concern that requiring measuring AYP must end. that there is no extant research to
the same group size across all subgroups Given the timing of these regulations, support establishing a 2.0 percent cap
could reduce the desire by some schools we do not expect States with on the number of proficient and
and districts to accept out-of-area differentiated subgroup sizes to make advanced scores based on modified
students due to concerns that adding this change for the 2006–07 school year. academic achievement standards that
more students in a subgroup would Therefore, we have added language to may be included in AYP
affect their accountability status. make clear that this provision takes determinations. Many commenters
Discussion: Prior to the effect for AYP determinations based on stated that the research cited in the
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implementation of the final regulations assessments administered in the 2007– NPRM excludes IDEA-eligible students,
on alternate academic achievement 08 school year. is based only on reading interventions
standards for students with the most Changes: We have added ‘‘Beginning for early elementary-age students, and
significant cognitive disabilities and the with AYP decisions that are based on does not include research on math or on
announcement of the proposed the assessments administered in the older students.

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17765

Some commenters stated that the 2.0 State of Kansas 8 referred to by the that 22 percent of the group remained
percent cap is too low. However, many commenters, recognizing that there may two standard deviations below average
commenters expressed concern that the be variability among States in the on an outcome reading assessment
cap is too high, stating that the 2.0 number of students who meet the following reading intervention.
percent cap on modified academic requirements to be assessed based on Torgensen et al. (2001) indicated that 15
achievement standards and the 1.0 modified academic achievement to 20 percent of students with severe
percent cap on alternate academic standards. We do not expect that every reading disabilities remained below
achievement standards translates to 3.0 State will use the full 2.0 percent cap. average in reading comprehension
percent of all students or 30 percent of Therefore, rather than relying on following intervention. Finally,
students with disabilities counted as incidence data or data from a single literature reviewed and reported by
proficient for AYP purposes on alternate State or study to establish the cap for Lyon et al. (in press) indicates that a 2.0
assessments that are not based on grade- modified academic achievement percent cap is appropriate, based on the
level academic achievement standards. standards, we relied on multiple sources percent of students who may not reach
A few commenters stated this is of data from research and State grade-level achievement standards
considerably higher than data reported experiences. We believe that these within the same time frame as other
by the National Center on Educational multiple sources of data, when students, even after receiving the best-
Outcomes (NCEO) in its report on the considered together, provide a sound designed instructional interventions
participation of students with and legitimate basis for establishing the from highly trained teachers.
disabilities in 2002–03 and the 2003 2.0 percent cap, while at the same time Ideally, we would have preferred to
data from the State of Kansas. protecting students from being base the 2.0 percent cap on a greater
inappropriately assigned to take an number of studies across a greater age
Discussion: To ensure that modified alternate assessment based on modified range and encompassing more math, as
academic achievement standards are academic achievement standards. well as reading, scores. However, we
used appropriately, these regulations set Because our major concern is holding believe that, given the available
a cap of 2.0 percent on the proficient students with disabilities to high evidence, and our desire to protect
and advanced scores of students who standards, we have taken a conservative students with disabilities from being
are assessed based on modified approach to estimating the cap. As a inappropriately assessed based on
academic achievement standards that matter of policy, we believe this to be modified academic achievement
may be included in AYP the right approach. standards, the 2.0 percent cap is
determinations. Together with the State The Department reviewed several appropriate, particularly considering
guidelines required in § 200.1(f), we studies that indicate 2.0 percent is an that the cap is not a limit on the number
believe that a numeric cap of 2.0 percent appropriate cap when States, districts, of students who may participate in an
will discourage schools from and schools work to ensure that alternate assessment based on modified
inappropriately holding students with students receive appropriate academic achievement standards, and
disabilities to lower standards. educational services and interventions. the numerous safeguards that we
We acknowledge that it is difficult to The studies cited in the preamble to the included in the regulations. However,
determine a numerical limit on the NPRM included students with the Department also desires to maintain
number of proficient and advanced disabilities, but excluded students with high standards and accountability for
scores based on modified academic the most severe cognitive impairments.9 the achievement of all students with
achievement standards to be included in For example, McMaster et al. (2005) disabilities and, therefore, welcomes
AYP determinations. Unlike the 1.0 defined a group of low-performing comments and data from States and
students who were persistent non- others about how the regulations are
percent cap on proficient and advanced
responders to reading interventions. The working and may consider revising the
scores based on alternate academic
group included both students identified regulations in the future should the
achievement standards for students with
as students with disabilities and comments indicate a need to do so. In
the most significant cognitive
students not identified to receive special addition, the Department intends to
disabilities, we cannot rely on disability
education services, but did not include issue a report on the implementation of
incidence rates because students who
students with the most severe cognitive these regulations after two years of
would be appropriately assessed based
disabilities. McMaster et al. reported implementation. As data and research
on modified academic achievement
on assessing students with disabilities
standards are less likely to be 8 Posny, A. (2004). Clash of the titans: No child improve, the Department may decide to
predominately from a few disability left behind and students with disabilities. Paper issue regulations or guidance on other
categories, as is the case with students presented at the Center on Education Policy’s forum related issues in the future.
with the most significant cognitive on ideas to improve the NCLB accountability
Changes: None.
disabilities. In fact, we anticipate that provisions for students with disabilities and English
language learners, September 14, 2004, Washington, Comment: A few commenters stated
students who are assessed based on DC. Available at: http://www.cep-c.org/pubs/ that the 2.0 percent cap violates the
modified academic achievement Forum14September2004/PochowskiPaper.pdf. IDEA requirement that students with
standards will be from most, if not all, 9 McMaster, K.L., Fuchs, D., Fuchs, L.S., &
disabilities receive a free appropriate
the different disability categories listed Compton, D.L. (2005). Responding to non-
responders: An experimental field trial of
public education (FAPE). The
in the IDEA. identification and intervention methods. commenters acknowledged that the cap
We also considered data from States, Exceptional Children, 71, 445–463; Torgensen, J.K., imposes a limit on the number of
including the data from NCEO 7 and the Alexander, A.W., Wagner, R.K., Rashotee, C.A., proficient and advanced scores that may
Voeller, K.K.S., & Conway, T. (2001). Intensive
remedial instruction for children with severe
be counted as proficient for purposes of
calculating AYP and is not a limit on
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7 Clapper, A.T., Morse, A.B., Lazarus, S.S., reading disabilities: Immediate and long-term
Thompson, S.J., & Thurlow, M.L. (2005). 2003 State outcomes from two instructional approaches. the number of students who may be
policies on assessment participation and Journal of Learning Disabilities, 34, 33–58; Lyon, assessed based on modified academic
accommodations for students with disabilities G.R., Fletcher, J.M., Fuchs, L.S., & Chhabra, V. (in
(Synthesis Report 56). Minneapolis, MN: University press). Learning Disabilities. In E. Mash & R.
achievement standards. However, the
of Minnesota, National Center on Educational Barkley (Eds.), Treatment of Childhood Disorders commenters stated that LEAs will put
Outcomes. (2nd ed.) New York: Guilford Press. pressure on IEP Teams to

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17766 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

inappropriately include students in the cannot make the change requested by cap or the 2.0 percent cap. Some
regular assessment when an LEA is the commenter. commenters stated that, by not allowing
close to reaching the 2.0 percent cap, With regard to the commenter’s exceptions, the Department was
which would be a violation of FAPE. second recommendation to give a State eliminating the distinction between
Discussion: Section 200.1(f) of these the authority to take corrective action to students with the most significant
final regulations requires States to prevent an LEA from exceeding the 1.0 cognitive disabilities and students for
establish and monitor guidelines for IEP percent and 2.0 percent caps, under whom modified academic achievement
Teams to apply in determining which § 200.13(c)(3), an LEA may exceed the standards are appropriate and asked
students with disabilities will be 2.0 percent cap only if the number of what would happen to the scores of
assessed based on alternate and proficient and advanced scores on the students in a State that had previously
modified academic achievement alternate assessment based on alternate received an exception to exceed the 1.0
standards. In addition, § 300.160(c), academic achievement standards is less percent cap. Commenters also were
consistent with section 612(a)(16) of the than 1.0 percent, and the number of concerned about rural States and the
IDEA, requires a State (or in the case of proficient and advanced scores based on need for exceptions for very small
a district-wide assessment, an LEA) to modified and alternate academic school districts. Other commenters
develop and implement alternate achievement standards combined does supported not allowing exceptions. One
assessments and guidelines for the not exceed 3.0 percent of all students commenter stated that there should be
participation of students who cannot assessed. Likewise, a State may grant an a lower cap, and that exceptions should
participate in the regular assessment exception to an LEA and permit the LEA be permitted based on a lower cap.
even with accommodations. These to exceed the 1.0 percent cap under the Discussion: The final regulations on
guidelines are intended to increase the conditions listed in § 200.13(c)(5). If an alternate academic achievement
options for IEP Teams regarding LEA does not abide by these provisions standards permitted a State to request
appropriate assessments. The and exceeds the 1.0 and 2.0 percent an exception to the 1.0 percent cap to
guidelines, however, cannot guarantee caps inappropriately, § 200.13(c)(7) account for extraordinary circumstances
that all IEP Team decisions are the most already requires a State to count as non- in the State that warranted an exception,
appropriate. proficient the proficient and advanced or for a rural State with small numbers
Under the general supervision scores that exceed the caps and of students. Since the final regulations
requirements in § 300.149, consistent determine which scores to count as non- were issued in December 2003, the
with section 612(a)(11) of the IDEA, we proficient in the schools and LEAs Department has granted exception
anticipate that a State will exercise its responsible for students who are requests to four States. Two requests
assessed based on alternate or modified were for statistical reasons due to the
authority to ensure that LEAs and IEP
academic achievement standards. rural nature of the State. The other two
Teams follow the State guidelines and
Changes: None. requests were for very small increments
give thoughtful, careful consideration to Comment: One commenter asked if a over 1.0 percent. In both of the latter
the assessment that is most appropriate State would be allowed to assess cases neither State has used the
for an individual student so that the students on alternate assessments based exception because less than 1.0 percent
situation described by the commenters on alternate academic achievement of students tested scored proficient or
does not occur. standards if the State chose not to assess advanced on the alternate assessment
Changes: None. students based on modified academic based on alternate academic
Comment: One commenter achievement standards. achievement standards.
recommended that the regulations allow Discussion: The development of Based on the requests submitted to
a State to determine the number of modified academic achievement date, we believe that there is no real
students in an LEA who may take an standards and assessments based on need to have an exception to the 1.0
alternate assessment based on alternate those standards is voluntary and does percent cap at the State level. When
or modified academic achievement not affect a State’s implementation of there are truly unique circumstances
standards. The commenter also alternate assessments based on alternate within an LEA, such as a hospital with
recommended giving a State the academic achievement standards. special services, the LEA exception
authority to take corrective action to Therefore, a State that already provides process should suffice. In addition, as
prevent an LEA from exceeding the 1.0 an alternate assessment based on we stated in the preamble to the
and 2.0 percent caps. alternate academic achievement proposed regulations on modified
Discussion: Permitting a State to standards may choose not to provide an academic achievement standards, we do
impose numeric limits on the number of alternate assessment based on modified not believe that it is appropriate or
students to whom an LEA may academic achievement standards. necessary to permit more than 3.0
administer alternate assessments, Changes: None. percent of proficient and advanced
thereby excluding a student whose IEP Comment: Several commenters scores on alternate assessments based
Team determines that an alternate opposed the prohibition on a State on alternate or modified academic
assessment is the most appropriate requesting an exception to the 1.0 achievement standards to be included in
assessment for the student, would be percent cap on the number of proficient AYP determinations.
inconsistent with the IDEA. Section and advanced scores on alternate We do not agree with the commenters
614(d)(1)(A)(i)(VI) of the IDEA gives a assessments based on alternate who proposed an absolute cap of 3.0
student’s IEP Team the authority to academic achievement standards that percent while allowing a State to exceed
determine how a student with a may be included in AYP the 1.0 or 2.0 percent caps. Section
disability will participate in State and determinations. Some commenters 200.13(c)(3) permits a State’s or LEA’s
district-wide assessments. IEP Team recommended permitting a State to number of proficient and advanced
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decisions should be consistent with exceed a combined total of 3.0 percent; scores based on modified academic
State guidelines, including guidelines other commenters supported a ‘‘dotted achievement standards to exceed the 2.0
for alternate assessments based on line’’ approach that would set an cap only if the number of proficient and
alternate or modified academic absolute cap of 3.0 percent, but would advanced scores based on alternate
achievement standards. Therefore, we permit a State to exceed the 1.0 percent academic achievement standards is less

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17767

than 1.0 percent. We believe that this of current § 200.20(c)(3) permits multiple administrations of an
may encourage the participation of multiple test administrations for all assessment will motivate students,
students who are currently assessed students. parents, schools, and States to continue
based on alternate academic Changes: None. working to attain grade-level
achievement standards to be assessed Comment: Most commenters achievement and thereby result in
based on the more challenging modified supported removing current greater student success.
academic achievement standards. A § 200.20(c)(3), which requires a State to Changes: None.
State may not exceed the 1.0 percent use a student’s results from the first Comment: A few commenters
cap when there are less than 2.0 percent administration of the State assessment recommended allowing a student’s IEP
of proficient and advanced scores on to determine AYP. However, a number Team to determine the number of times
modified academic achievement of commenters opposed this change and the student may retake an assessment.
standards because we do not want to requested that the regulations continue Discussion: The IEP Team is
create an incentive to identify more to require a State to use the results from responsible for determining how a
students for alternate assessments based the first administration of a test. A few student will participate in State and
on the less challenging alternate commenters stated that the results from district-wide assessments. (See
academic achievement standards. only the first administration of an § 300.320(a)(6) of the IDEA regulations.)
Changes: None. assessment should be used because Determining the number of times a
Comment: One commenter these scores provide a more accurate student retakes an assessment is not the
recommended changing measure of school accountability. The role of the IEP Team. IEP Teams do not
§ 200.13(c)(5)(i)(C) to require an LEA to commenters stated that accountability have the authority to override a State
document that it is ‘‘fully and determinations based on the first policy regarding the number of times a
effectively’’ implementing the State’s assessment administered reflect the student may take an assessment.
guidelines for IEP Teams before it is effectiveness of a school’s core academic Changes: None.
granted an exception to the 1.0 percent program, while scores from subsequent Including Scores of Students Previously
cap on proficient and advanced scores administrations improve a school’s AYP Identified Under IDEA in AYP
based on alternate academic and give credit for successful Calculations for the Students With
achievement standards. remediation. Disabilities Subgroup (§ 200.20(f))
Discussion: Section 200.13(c)(5) One commenter expressed concern
permits a State to grant an exception to that administering an assessment Comment: A number of commenters
an LEA to exceed the 1.0 percent cap on multiple times compromises the supported proposed § 200.20(f)(1),
proficient and advanced scores based on reliability of accountability which permits a State, in calculating
alternate academic achievement determinations because students learn AYP for the students with disabilities
standards if the LEA demonstrates that the test. Another commenter requested subgroup, to include, for up to two
the incidence of students with the most additional guidance regarding how years, the scores of students who were
significant cognitive disabilities exceeds many times a State may administer an previously identified under section
1.0 percent of all students in the assessment and whether different forms 602(3) of the IDEA but who no longer
combined grades assessed, and if the of the assessment must be used. Some receive special education services.
LEA explains why the incidence of such commenters suggested limiting retests to These commenters applauded this
students exceeds 1.0 percent of all one additional test administration each section as acknowledging students’
students in the combined grades year to avoid excessive testing and academic achievement and recognizing
assessed. delays in releasing AYP data. the positive impact of schools, teachers,
We do not believe it is necessary to One commenter suggested changing and parents in facilitating that success.
add the requirement suggested by the the regulations to prevent retesting a A number of other commenters,
commenter that an LEA demonstrate student with a different type of however, disagreed. These commenters
that it has fully and effectively assessment or in a different manner expressed concern that allowing a State
implemented the State’s guidelines. A (e.g., with an accommodation) for the to include former students with
State must seriously consider whether sole purpose of obtaining a proficient disabilities in the students with
to grant an exception to an LEA to score. Several commenters expressed disabilities subgroup would mask the
exceed the 1.0 percent cap because the concern that the removal of current true performance of students with
State may not exceed the 1.0 percent § 200.20(c)(3) would result in excessive disabilities and shift the focus away
cap. We believe that, in the course of testing. Other commenters stated that from improving instruction for those
determining whether to grant an allowing a State to use the best score students. One commenter stated that
exception to an LEA, a State will from multiple administrations of a test including former students with
consider whether the LEA has followed might result in teachers concentrating disabilities in the disabilities subgroup
the State’s guidelines and appropriately on test preparation instead of improving would ensure that the disability label
identified students to participate in an instruction. would continue to follow the students.
alternate assessment based on alternate Discussion: A State that permits Discussion: We recognize that the
academic achievement standards. multiple administrations of its students with disabilities subgroup is
Changes: None. assessment must ensure that the one whose membership can change
assessment continues to be reliable and from year to year as students who were
Making Adequate Yearly Progress valid and provides an accurate measure once identified as needing services and
(§ 200.20) of school accountability. an IEP exit the subgroup. Because these
Comment: One commenter stated that We understand that permitting students have exited the subgroup,
multiple assessment administrations multiple administrations of an school assessment results for the
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should be permitted for all students, not assessment may raise concerns about students with disabilities subgroup
just for students with disabilities. over-testing and focusing on test would not reflect the gains the exiting
Discussion: Current § 200.20(c)(3) preparation, rather than instruction. students have made in academic
applies to all students, not just students However, we continue to believe that achievement. Recognizing this situation,
with disabilities. Therefore, the removal allowing a State to use the best score of the final regulations allow a State to

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include ‘‘former students with to the State’s annual measurable students with disabilities subgroup,
disabilities’’ within the students with objective for AYP. For reporting AYP by respectively. We have not detailed all
disabilities subgroup in making AYP subgroup, former students with these changes in the discussion that
determinations for up to two AYP disabilities may be included in the follows because, while the structure of
determination cycles after they no students with disabilities subgroup. In new § 200.20(f)(2) differs from proposed
longer receive special education this way, a school’s and district’s § 200.20(f), the content regarding former
services. accountability status will reflect their students with disabilities is the same as
At the same time, however, we good work in successfully enabling proposed § 200.20(f), with one
recognize that it is important that students with disabilities to make exception, which is noted in the
parents and the public have a clear progress so that they no longer need ‘‘Changes’’ section in the next comment.
picture of the academic achievement of special education services while Changes: We have incorporated the
those students with disabilities who providing parents and the public clear provisions in proposed § 200.20(f) into
remain identified under section 602(3) information on how the subgroup of current § 200.20(f)(2). With these
of the IDEA. Thus, the final regulations students with disabilities who are still changes, proposed paragraphs (a)(1), (b),
distinguish between including former receiving services is performing. and (c)(1) are no longer needed and
students with disabilities in the We note, of course, that former have been removed.
subgroup for reporting assessment data students with disabilities, because they Comment: Several commenters noted
and including them in the subgroup are no longer receiving services under that the proposed regulations could
when reporting AYP on State and LEA section 602(3) of the IDEA, would not be permit a State to include only the scores
report cards. eligible to be assessed based on either of some students who have exited the
Under section 1111(h)(1)(C) and alternate or modified academic students with disabilities subgroup. The
section 1111(h)(2)(B) (as that section achievement standards. commenters recommended that the
applies to an LEA and each school With regard to the commenter who regulations be amended to clarify that
served by the LEA) of the ESEA, expressed concern that including the the scores of all former students with
information on subgroups is reported in scores of former students with disabilities must be included in
two distinct ways. Under section disabilities in the students with determining AYP if the scores of any
1111(h)(1)(C)(i), (iii), (iv), (v), and (vi) disabilities subgroup would ensure that former students with disabilities are
and section 1111(h)(2)(B) (as that the disability label would follow the included. The commenters reasoned
section applies to an LEA and each student, we do not agree. Students who that a State should not have the option
school served by the LEA) of the ESEA, no longer receive special education to include only the proficient and
information is reported for all students services are not ‘‘labeled’’ as such. The advanced scores of former students with
and the students in each subgroup, inclusion of their scores in the students disabilities in order to raise the
regardless of whether a student’s with disabilities subgroup is for AYP achievement level of the students with
achievement is used in determining if purposes only. disabilities subgroup.
the subgroup has made AYP (i.e., Since the publication of the NPRM on Discussion: We agree with the
reporting includes students who have modified academic achievement commenters. Whether to include the
not been enrolled for a full academic standards, the Department published scores of former students with
year, as defined by the State, and final regulations on the accountability disabilities in the students with
students in subgroups too small to meet for recently-arrived and former limited disabilities subgroup for up to two years
the State’s minimum group size for English proficient (LEP) students (71 FR is a discretionary decision of each State.
determining AYP). For reporting under 54187 (Sept. 13, 2006)) (referred to in However, if a State makes the decision
these provisions, former students with this notice as the LEP regulations). The to include the scores of former students
disabilities may not be included in the final LEP regulations permit a State, in with disabilities for AYP calculations, it
students with disabilities subgroup determining AYP for the subgroup of must include the scores of all such
because it is important that parents and LEP students, to include, for up to two students; it may not include just the
the public have a clear picture of the AYP determination cycles, the scores of scores of some students—for example,
academic achievement of students with students who were LEP, but who no those who scored proficient or
disabilities who are currently identified longer meet the State’s definition of advanced—and exclude the scores of
under section 602(3) of the IDEA and limited English proficiency. The final others. Of course, former students with
are receiving services. On the other regulations regarding including the disabilities must be included in each
hand, section 1111(h)(1)(C)(ii) and scores of former students with other subgroup to which they belong—
section 1111(h)(2)(B) (as that section disabilities in AYP determinations that e.g., economically disadvantaged,
applies to an LEA and each school are a part of this notice mirror the final Hispanic, etc. We have changed the
within the LEA) provide for a LEP regulations in current § 200.20(f)(2). regulations to require a State to use the
comparison between the achievement Therefore, we have incorporated the scores of all former students with
levels of subgroups and the State’s provisions from proposed § 200.20(f)(1), disabilities for AYP calculations if the
annual measurable achievement regarding former students with State decides to include the scores of
objectives for AYP in reading/language disabilities, into current § 200.20(f)(2). any former student with a disability.
arts and mathematics (for all students Incorporating these provisions into Changes: New § 200.20(f)(2)(ii) has
and disaggregated by race/ethnicity, current § 200.20(f)(2) has resulted in been changed by adding ‘‘must include
disability status, English proficiency, several changes to the structure of the scores of all such students, but’’ at
and status as economically current § 200.20(f)(2) and the provisions the end of the sentence.
disadvantaged). For this section of State in proposed § 200.20(f)(1). For example, Comment: One commenter
and LEA report cards, a State and its current § 200.20(f)(2) has been organized recommended that proposed
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LEAs are reporting on how students into paragraphs (f)(2)(i)(A) and § 200.20(f)(1) be amended to clarify that
whose assessment scores were used in (f)(2)(i)(B) to include provisions former students with disabilities also
determining AYP (i.e., students enrolled regarding the scores of former LEP may be included in calculating the
for a full academic year) for reading/ students and former students with participation rate for the students with
language arts and mathematics compare disabilities in the LEP subgroup and disabilities subgroup.

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17769

Discussion: We do not believe it is determining whether a school or LEA are included in State and district-wide
appropriate to permit a State to include has a sufficient number of students to assessment programs. Neither the IDEA
former students with disabilities in yield statistically reliable information nor these regulations permit categorical
calculating the participation rate for the under § 200.7(a) from doing so. exceptions to this requirement.
students with disabilities subgroup. Changes: None. Changes: None.
Those students will be counted as Comment: One commenter expressed
Definitions (§ 200.103)
participants in the ‘‘all students’’ group concern that LEAs would have difficulty
and in any other subgroup to which Comment: A few commenters developing alternate assessments for
they belong. These final regulations recommended including a definition of district-wide assessments and requested
permit a State to include the scores of ‘‘universal design’’ in these regulations. assistance in identifying ways for LEAs
former students with disabilities to Discussion: We do not believe it is to meet the requirements in section
determine AYP for the students with appropriate to include a definition of 612(a)(16)(A) of the IDEA.
disabilities subgroup so that a school ‘‘universal design’’ in these regulations Discussion: Section 612(a)(16)(A) of
and LEA receive the benefits of their because it is a term of art with different the IDEA is clear that all children must
efforts in providing special education meanings when applied to different participate in State as well as district-
and related services that enabled products and services. As applied to wide assessments. This has been a
students with disabilities to no longer assessments, universal design generally requirement since the 1997
need special education services. There means that assessments are developed reauthorization of the IDEA. LEAs that
is no similar justification for including to be accessible for the widest possible conduct district-wide assessments must
former students with disabilities in range of students. provide an alternate assessment for
calculating the participation rate of the Changes: None. children who cannot participate in the
students with disabilities subgroup. In Comment: A few commenters district-wide assessment even with
fact, it is important for the public to recommended defining ‘‘pupil services’’ accommodations. Identifying the
know the participation rate of just to mean ‘‘related services,’’ as defined in manner in which an LEA meets this
students with disabilities because section 602(26) of the IDEA. requirement, however, is a matter that is
historically they have been excluded Discussion: Equating ‘‘pupil services’’ best determined by State and local
from Statewide assessments. with ‘‘related services’’ would be officials.
Changes: None. inconsistent with the ESEA. Section
Comment: Several commenters Changes: None.
9101(36) of the ESEA already defines
recommended that proposed Comment: One commenter
‘‘pupil services’’ as including ‘‘related
§ 200.20(f)(2) be amended to require that recommended requiring benchmarks or
services.’’ Therefore, we decline to make
the number of former students with short-term objectives to be developed
the change requested by the commenter.
disabilities whose scores are used for for students with disabilities
Changes: None.
AYP must also be included in the participating in alternate assessments
subgroup size for all purposes for which Part 300—Assistance to States for the based on modified academic
the scores are used. The commenters Education of Children With Disabilities achievement standards.
reasoned that the only reason to permit Discussion: Section
This summary includes comments 614(d)(1)(A)(i)(I)(cc) of the IDEA
inclusion of the scores of former
made in response to the Title I NPRM requires benchmarks or short-term
students with disabilities in
published in the Federal Register on objectives to be included only in the
determining AYP without adding those
December 15, 2005 (70 FR 74624), as IEPs of children with disabilities who
students to the number of students who
well as comments made in response to participate in alternate assessments
make up the subgroup is to keep those
the proposed IDEA regulations based on alternate academic
students from increasing the subgroup
published in the Federal Register on achievement standards. Alternate
beyond the minimum group size and
thereby making it visible in AYP. June 21, 2005 (70 FR 35839) to assessments based on modified
Discussion: The regulations are implement the IDEA as reauthorized by academic achievement standards are not
designed to assist schools and LEAs that the Individuals with Disabilities alternate assessments based on alternate
have a students with disabilities Education Improvement Act of 2004, academic achievement standards.
subgroup of sufficient size (without Public Law No. 108–446, enacted on Therefore, we do not believe that
including former students with December 3, 2004, regarding the benchmarks or short-term objectives
disabilities) to yield statistically reliable inclusion of children with disabilities in should be required for children with
information to demonstrate their State and district-wide assessment disabilities who participate in alternate
progress with that subgroup by enabling systems in accordance with section assessments based on modified
those schools and LEAs to include the 612(a)(16) of the IDEA. academic achievement standards.
scores of former students with Participation in Assessments (§ 300.160) Congress specifically limited the
disabilities in AYP calculations for up requirement for benchmarks and short-
to two years after the students no longer General (§ 300.160) term objectives to the IEPs of children
need special education services. Comment: A few commenters with the most significant cognitive
Therefore, we decline to require a State requested that the regulations clearly disabilities who participate in alternate
or LEA that takes advantage of this state that all students must participate assessments based on alternate
flexibility also to include former in a State’s assessment program except academic achievement standards. As the
students with disabilities in for a child with a disability who is Senate Committee on Health, Education,
determining whether the students with medically fragile and cannot tolerate the Labor, and Pensions noted in Sen. Rep.
disabilities subgroup meets the State’s stress of participating in an assessment. No. 108–185 (p. 28), ‘‘Short-term
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minimum group size. Nothing in these Discussion: We cannot make the objectives and benchmarks can focus
regulations would prevent a State or requested change. Section 300.160(a), too much on minor details and distract
LEA that wishes to include former consistent with section 612(a)(16)(A) of from the real purpose of special
students with disabilities in the the IDEA, is clear that a State must education, which is to ensure that all
students with disabilities subgroup in ensure that all children with disabilities children and youth with disabilities

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17770 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

achieve high educational outcomes and Comment: One commenter number of students, and to ensure that
are prepared to participate fully in the recommended requiring States and accommodations are provided, when
social and economic fabric of their LEAs to have methodologies in place to necessary, to measure the academic
communities.’’ determine that the accommodations achievement of students with
We believe that students participating provided are valid and reliable and can disabilities.
in alternate assessments based on be objectively determined. A few Changes: Section 300.160(b)(2)(i) has
modified academic achievement commenters recommended requiring a been changed to require a State’s
standards will benefit more when IEP State to submit proposed guidelines (or in the case of a district-
Teams focus on goals that are based on accommodations for review and wide assessment, an LEA’s guidelines)
grade-level content standards, rather approval by a panel of peer reviewers. to identify the accommodations for each
than on short-term objectives or Discussion: The Department’s peer assessment that do not invalidate the
benchmarks. In the discussion of review of Statewide assessment systems score.
comments under § 200.1(e)(2)(iii) in this under Title I of the ESEA already Comment: One commenter noted that
notice, we explain why we are requiring requires a State to provide evidence that the regulations must continue to allow
that the IEPs of children taking alternate the State’s assessments are valid and IEP Teams to select accommodations
assessments based on modified reliable for the purposes for which the based on the needs of their students,
academic achievement standards assessments are used, and are consistent without regard to whether the
include goals based on the academic with relevant, nationally recognized accommodation could yield a valid
content standards for the grade in which professional and technical standards. A score.
State must also provide evidence that Discussion: Several sections of the
the student is enrolled and that the IEP
appropriate accommodations are IDEA must be considered to evaluate the
be designed to monitor the student’s
available to students with disabilities. proper role of a State in identifying
progress in achieving the student’s
For State and LEA assessments that accommodations that do not invalidate
standards-based goals.
are not part of a State’s assessment the scores of children with disabilities
Changes: None. (and result in children being counted as
system under Title I of the ESEA, a State
Accommodation Guidelines and its LEAs also have an obligation, nonparticipants) and the responsibility
(§ 300.160(b)) under the IDEA, to ensure that children of individual IEP Teams to select
with disabilities have available the accommodations for individual
Comment: A few commenters children. Under section 612(a)(16) of the
accommodations that are necessary to
requested that the regulations clarify IDEA, a State has a responsibility to
measure the academic achievement and
that accommodations that invalidate a ensure that all children with disabilities
functional performance of the child. In
score when used in an assessment may are included in State and district-wide
order to do this, States and LEAs need
continue to be used in classroom assessments. Under section
to determine, for each particular
instruction. Other commenters assessment, the accommodations that 614(d)(1)(A)(i)(VI) of the IDEA and
recommended that the regulations will not result in invalid scores and § 300.320(a)(6)(i) of the IDEA
clarify that the accommodation identify those accommodations in their regulations, a child’s IEP must include
guidelines are to be used by IEP Teams accommodation guidelines. We have the individual appropriate
to recommend necessary and reasonable revised § 300.160(b)(2)(i) to make this accommodations that are necessary to
accommodations to enable a student to clear. measure the academic achievement and
participate both in the instructional The IDEA does not dictate a specific functional performance of the child.
program and in the assessment. process to be followed in determining A State’s role in this regard is thus
Discussion: The requirements in allowable accommodations, and, twofold—it must ensure that children
§ 300.160(b) pertain to guidelines for the therefore, we decline to adopt the with disabilities are included in the
use of accommodations in assessments, recommendations that we do so at this assessments and that the
and do not speak to the use of time. We will continue to evaluate accommodations that are offered to
accommodations in the classroom. whether States are ensuring that individual children with disabilities are
However, there is nothing in the IDEA accommodations that would not result ones that allow a child’s academic
or these regulations that would prohibit in invalid scores are available and achievement to be measured. This
the use of accommodations in classroom revisit this decision if the need to do so carries with it, we believe, a
instruction that, if used in a State becomes apparent. responsibility for each State to clearly
assessment, would invalidate a The commenters who recommended identify for IEP Teams those
student’s score. Likewise, there is requiring a State to submit proposed accommodations that, if used, will not
nothing in the IDEA or these regulations accommodations for review and result in an invalid score, so that
that would prohibit a State from approval by a panel of peer reviewers children with disabilities will be
encouraging IEP Teams to use the seem to be proposing a review to appropriately included in assessments.
accommodation guidelines for determine the appropriateness of Therefore, as noted earlier, we have
assessments to determine the accommodations that would be changed § 300.160(b)(2)(i) to require
instructional supports to be provided in divorced from any review of the State and LEA guidelines to identify the
the classroom. Such instructional technical qualities of the State’s accommodations for each assessment
supports are generally referred to as assessments. Since decisions about that do not result in invalid scores. We
supplementary aids and services. whether a particular accommodation is also believe that, to meet its
Section 300.320(a)(4)(i), consistent with or is not allowed depend on how a test responsibility to ensure that children
section 614(d)(1)(A)(i)(IV)(aa) of the is constructed and validated, we are not with disabilities are included in
IDEA, requires the IEP Team to identify making the requested change. As assessments, a State needs to instruct
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the supplementary aids and services to required by §§ 200.2(b)(2) and IEP Teams to select only
be provided to a child to enable the 200.6(a)(1), a State already is under the accommodations that do not result in
child to advance appropriately toward obligation to ensure that its assessments invalid scores. The child’s IEP Team,
meeting the child’s annual IEP goals. under Title I of the ESEA are designed though, remains the primary
Changes: None. to be used by the widest possible decisionmaker for the accommodations

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that will be made available to the child. accommodations guidelines need to decision regarding a child’s
Therefore, we have changed include. participation in State and district-wide
§ 300.160(b)(2)(ii) to make clear that Changes: None. assessments; how parents will be
State and LEA guidelines must instruct Comment: One commenter requested notified when decisions regarding the
IEP Teams to select only that the regulations require a State and child’s participation in assessments will
accommodations that do not result in its LEAs to provide research-based be made; and when reports will be
invalid scores. decision-making tools for IEP Team distributed to parents and the public. A
Changes: We have changed members to determine appropriate few commenters requested that the
§ 300.160(b)(2)(ii) to require that State testing accommodations. A few regulations require the IEP to include
and LEA guidelines instruct IEP Teams commenters recommended that the the accommodations to be provided to
to select, for each assessment, only Department provide guidance regarding a child.
those accommodations that do not accommodations for children with Discussion: The requirements
invalidate a score. disabilities and require States and LEAs recommended by the commenters are
Comment: Several commenters stated to provide professional development to already addressed in these and other
that a State’s accommodation guidelines school personnel regarding the existing regulations. Section 300.160(a),
should focus on ‘‘appropriate participation of students with consistent with section 612(a)(16) of the
accommodations’’ and not require disabilities in State and district-wide IDEA, requires each State to have in
‘‘valid accommodations.’’ These assessments. effect policies and procedures to ensure
commenters stated that the focus should Discussion: We do not believe that that all children with disabilities in the
be on universally-designed assessments additional regulations are necessary to State are included in State and district-
that allow many more accommodations, address the commenters’ concerns. wide assessments, with appropriate
rather then denying children with Section 300.160(b) already requires each accommodations and alternate
disabilities the right to use the State (or in the case of a district-wide assessments where necessary. Section
accommodations that are necessary to assessment, an LEA) to develop 300.320(a)(6), consistent with section
meet the child’s needs. Another guidelines for IEP Teams to use 614(d)(1)(A)(i)(VI) of the IDEA, requires
commenter recommended defining regarding the provision of appropriate a child’s IEP Team, which includes the
‘‘appropriate accommodations’’ and accommodations. Section parent, to include in the IEP any
‘‘individually appropriate 200.6(a)(1)(ii)(B) of the Title I individual appropriate accommodations
accommodations’’ as accommodations regulations also requires each State to that are necessary to measure the
that are needed to meet a child’s unique ensure that regular and special academic achievement and functional
needs that maintain and preserve test education teachers, and other performance of the child on State and
validity, reliability, and technical appropriate staff know how to district-wide assessments. If the IEP
testing standards. administer assessments, including Team determines that a child will take
Discussion: Tests administered with making appropriate use of an alternate assessment, the IEP Team
accommodations that do not maintain accommodations for students with must explain why the child cannot
test validity are not measuring academic disabilities. participate in the regular assessment
achievement and functional The Department has devoted and why the particular alternate
performance. Therefore, providing these considerable resources to provide assessment selected is appropriate for
accommodations would be inconsistent technical assistance to States regarding the child. Section 300.322(b) requires
with § 300.320(a)(6)(i) and section the appropriate use of accommodations that the notice to the parent regarding
614(d)(1)(A)(i)(VI)(aa) of the IDEA, for children with disabilities. For an IEP Team meeting indicate the
which require each IEP to include the example, the Office of Special purpose of the meeting, in addition to
appropriate accommodations that are Education Programs supports the the time and location of the meeting.
necessary to measure the academic and National Center on Educational Finally, new § 300.160(f) (proposed
functional performance of a child on Outcomes (See http:// § 300.160(e)) requires that reports on the
State and district-wide assessments. www.education.umn.edu/nceo/) and the performance of children with
With regard to the recommendation that Office of Elementary and Secondary disabilities on State and district-wide
a State focus on universally designed Education supports a Comprehensive assessments be available to the public
assessments, new § 300.160(g) Center on Accountability and with the same frequency and in the
(proposed § 300.160(f)) already Assessments (See http:// same detail as reports on the assessment
incorporates the requirement in section www.aacompcenter.org/). In addition, of nondisabled children.
612(a)(16)(E) of the IDEA that a State, in the Department’s Institute of Education Changes: None.
the case of Statewide assessments, and Sciences supports research to address Comment: One commenter stated that
an LEA, in the case of district-wide questions of how assessments for the requirement for valid
assessments, to the extent possible, use accountability can best be designed and accommodations will lead to increased
universal design in developing and used to capture and represent litigation because it violates section
implementing assessments. Moreover, proficiency and growth for children 607(a) and (b) of the IDEA.
§ 200.2(b)(2) of the Title I regulations with disabilities (See http://ies.ed.gov/ Discussion: We disagree with the
requires a State’s assessment system to ncser/). commenter. Section 607(a) of the IDEA
‘‘[b]e designed to be valid and accessible Changes: None. states that the Secretary shall issue
for use by the widest possible range of Comment: One commenter regulations only to the extent that such
students, including students with recommended requiring a State to have regulations are necessary to ensure
disabilities.’’ in effect policies and procedures that compliance with the specific
It is not necessary to provide specific explain how children with disabilities requirements of the IDEA. Section
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definitions of the terms ‘‘appropriate are included in assessments. The 607(b) of the IDEA provides that the
accommodations’’ and ‘‘individually commenter stated that the policies and Secretary cannot publish final
appropriate accommodations’’ because procedures related to assessments must regulations that would procedurally or
we have revised the provisions in include a clear statement that the IEP substantively lessen the protections
§ 300.160(b) to clarify what the Team, including the parent, makes the provided to children with disabilities in

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the regulations that were in effect on saaguidance03.doc. We do not believe be based on grade-level academic
July 20, 1983, except to the extent that additional clarification is needed in achievement standards, modified
such regulations reflect the clear and these regulations. academic achievement standards, or
unequivocal intent of Congress in Changes: None. alternate academic achievement
legislation. We believe that § 300.160(a) Comment: Several commenters standards. Modified academic
is necessary to ensure that the requested that definitions of achievement standards under § 200.1(e)
requirements in sections 612(a)(16) and ‘‘accommodations’’ and ‘‘modifications’’ and alternate academic achievement
614(d)(1)(A)(i)(VI)(aa) of the IDEA are be included in these regulations because standards under § 200.1(d) are optional.
met, does not lessen protections for definitions of these two terms vary However, having an alternate
children with disabilities that were in across States. assessment is not optional if there are
regulations in effect in 1983 (the 1983 Discussion: The terms children with disabilities who cannot be
regulations did not address ‘‘accommodations’’ and ‘‘modifications’’ appropriately assessed with the regular
assessments), and reflects the clear and are terms of art and have different assessment. Therefore, if a State chooses
unequivocal intent of Congress. Section meanings depending on the context in not to develop an alternate assessment
614(d)(1)(A)(i)(VI)(aa) of the IDEA which they are used. The terms are used based on modified or alternate academic
requires each IEP Team to include in an in a number of ways, for example, to achievement standards, the State must
IEP the appropriate accommodations refer to changes to a test or testing have an alternate assessment based on
that are necessary to measure the environment, or to adaptations to an grade-level academic achievement
academic and functional performance of educational environment, the standards, unless all children with
a child on State and district-wide presentation of educational material, the disabilities can be appropriately
assessments. Tests administered with method of response, or the educational assessed using the regular assessment.
accommodations that do not maintain content. We do not believe it is Section 612(a)(16)(A) of the IDEA and
test validity are not measuring academic appropriate to define such terms of art § 300.160(a) of these regulations require
achievement. Moreover, the importance in these regulations. We also note that a State to ensure that all children with
of identifying valid accommodations the term ‘‘modifications’’ is not used in disabilities are included in general State
was recognized on page 97 of the House the IDEA amendments of 2004 or the and district-wide assessments. Section
Committee Report No. 108–77 (2003): ESEA, as amended by NCLB. 612(a)(16)(C)(i) of the IDEA and new
Changes: None. § 300.160(c) (proposed § 300.160(d))
* * * States have an affirmative obligation
to determine what types of accommodations
Comment: One commenter stated that further require that a State (or in the
can be made to assessments while special accommodations should be case of a district-wide assessment, an
maintaining their reliability and validity given for children with the most LEA) develop and implement alternate
* * *. The Committee is intent on ensuring significant cognitive disabilities. assessments and guidelines for children
that each child with a disability receives Discussion: Section with disabilities who cannot participate
appropriate accommodations, but is equally 1111(b)(3)(C)(ix)(II) of the ESEA and in regular assessments even with
intent that these accommodations not section 612(a)(16) of the IDEA already accommodations. Under §§ 200.1(e) and
invalidate the particular assessment. require a State to provide appropriate 200.6(a)(3) of the Title I regulations
Similarly, the Senate Committee accommodations for students with published in this notice and new
Report No. 108–185 (2003) on page 30 disabilities to participate in State § 300.160(c), a State has the option of
acknowledges that appropriate assessment systems. This includes developing alternate assessments based
accommodations will not affect the accommodations for alternate on modified academic achievement
test’s validity. Accordingly, we disagree assessments. standards. For clarity, we have
that the validation requirement violates Changes: None. redesignated proposed § 300.160(c) as
section 607(a) or (b) of the IDEA. Alternate Assessments (New new § 300.160(c)(2)(ii) so that it is clear
Changes: None. that an assessment based on modified
Comment: One commenter requested § 300.160(c)) (Proposed § 300.160(d))
academic achievement standards is an
a definition of ‘‘valid.’’ Another Comment: One commenter stated that alternate assessment.
commenter stated that the regulations the regulations must specify that States Because a State has options regarding
should make clear that accommodations and LEAs are required to develop two the type of alternate assessments that it
that alter the construct being assessed alternate assessments—one measuring will provide for students with
are not allowed. the same academic achievement disabilities, a State would not
Discussion: As used in § 300.160(a), a standards as all other students and the necessarily report on the number of
‘‘valid’’ accommodation is an other based on alternate academic students who participated in each of the
accommodation that does not alter the achievement standards for students with alternate assessments. To acknowledge
construct that the test is intended to the most significant cognitive this and for clarity, we have made clear
measure. Accommodations that affect disabilities. A few commenters in new § 300.160(f)(2) through (f)(4)
test validity do not measure a child’s requested clarification as to whether (proposed § 300.160(e)(2) through (e)(4))
academic achievement. We believe the alternate assessments are based on high that a State must report the number of
requirement for valid accommodations academic achievement standards or children with disabilities, if any, who
is sufficient to guide IEP Teams and, alternate academic achievement are assessed, using an Alternate
therefore, decline to add the suggested standards. One commenter stated that a assessment based on grade-level,
language to the regulation. State should be required to provide a modified, or alternate academic
The Department’s nonregulatory definition of what constitutes an achievement standards, respectively.
guidance on standards and assessment alternate assessment. We also have removed the regulatory
defines validity (See question F–4.) and Discussion: Section 612(a)(16)(C)(i) of citations for the different academic
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further clarifies a State’s responsibilities the IDEA is clear that a State must achievement standards (e.g., ‘‘described
for the validity and reliability of develop and implement alternate in paragraph (d)(2)(i)’’) and added the
assessments under Title I. This assessments and guidelines for children name of the particular achievement
document can be found at http:// with disabilities, but does not specify standard to which we are referring (e.g.,
www.ed.gov/policy/elsec/guid/ whether the alternate assessments must ‘‘grade-level’’) in new § 300.160(f)(2)

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through (f)(4) (proposed § 300.160(e)(2) achievement standards. We also believe resulting from taking an alternate
through (e)(4)). that it is important that parents, as well assessment based on alternate or
With regard to the request to clarify as other IEP Team members, are modified academic achievement
whether alternate assessments are based informed about any effects of State or standards (such as whether only
on high achievement standards or local policies on their student’s satisfactory performance on a regular
alternate academic achievement education that may result from taking an assessment would qualify the student
standards, this will depend on the type alternate assessment based on alternate for a regular high school diploma). We
of alternate assessment. We believe that or modified academic achievement also have added a new paragraph (e)
the regulations are clear that there are standards. As the commenters point out, requiring a State to ensure that parents
three types of alternate assessments this information is particularly of students selected to be assessed based
permitted under Title I and the IDEA: important in a State where students on alternate or modified academic
alternate assessments based on grade- must pass a particular assessment to be achievement standards are informed
level academic achievement standards; eligible to receive a regular high school that their child’s achievement will be
Alternate assessments based on diploma. Therefore, we have added a measured based on alternate or
modified academic achievement regulation requiring a State to provide modified academic achievement
standards; and alternate assessments IEP Teams, which include the parent, standards. The subsequent paragraph
based on alternate academic with a clear explanation of the has been redesignated as new paragraph
achievement standards. differences between assessments based (f).
We do not believe it is necessary for on grade-level academic achievement
a State to provide a definition of what Reports (New § 300.160(f)) (Proposed
standards and those based on modified
constitutes an alternate assessment, as § 300.160(e))
or alternate academic achievement
requested by one commenter. New standards, including any effects of State Comment: One commenter strongly
§ 300.160(c)(2) (proposed or local policies on the student’s disagreed with reporting on the number
§ 300.160(d)(2)) clearly lays out that education resulting from taking an of students with disabilities who receive
alternate assessments under Title I of alternate assessment based on alternate accommodations. The commenter stated
the ESEA must be aligned with a State’s or modified academic achievement that, since accommodations do not
challenging academic content standards standards (such as whether only change the outcome or alter the
and challenging academic achievement satisfactory performance on a regular knowledge measured by the test, it is
standards and, if a State has adopted assessment would qualify a student for inappropriate to maintain this
modified academic achievement a regular high school diploma). We also information.
standards or alternate academic have required a State to ensure that Discussion: This is a statutory
achievement standards, measure student parents of students selected to be requirement and therefore cannot be
achievement against those standards. assessed based on alternate or modified deleted. Section 612(a)(16)(D)(i) of the
Changes: We have (1) redesignated academic achievement standards are IDEA requires a State (or in the case of
proposed § 300.160(c) as new informed that their child’s achievement a district-wide assessment, an LEA) to
§ 300.160(c)(2)(ii) and renumbered the will be measured based those standards. make available to the public information
subsequent paragraph; (2) added ‘‘if This also is consistent with on the number of children with
any’’ following ‘‘number of children § 200.1(f)(1)(iii) and (iv) of the Title I disabilities participating in regular
with disabilities’’ in new paragraphs regulations. assessments and the number of these
(f)(2) through (f)(4) (proposed We do not believe it is necessary to children who were provided
paragraphs (e)(2) through (e)(4)); and (3) add an additional requirement that such accommodations in order to participate
replaced the regulatory citation in new parental notification be provided in in those assessments.
paragraphs (f)(2) through (f)(4) writing, as suggested by several Changes: None.
(proposed (e)(2) through (e)(4)) with the commenters. Parents are integral Comment: A few commenters stated
name of the particular academic members of the IEP Team and, as such, that accommodations that invalidate a
achievement standards to which we are are involved in decisions about how test score should not be used and,
referring. their child will participate in the therefore, it is unnecessary to qualify in
Comment: Several commenters Statewide assessment system. Section new § 300.160(f)(1) (proposed
recommended requiring public agencies 300.320(a)(6)(ii) of the IDEA regulations § 300.160(e)(1)) that the number of
to notify parents in writing when a already provides that, if an IEP Team children participating in regular
child’s IEP Team determines that the determines that a child will not assessments who were provided with
child will participate in an alternate participate in a particular regular State accommodations refers to the number of
assessment. A few commenters or district-wide assessment, the child’s children participating in regular
recommended requiring parents to be IEP must include a statement of why the assessments who were provided with
informed in writing of the consequences child cannot participate in the regular accommodations ‘‘that did not result in
of their child taking an alternate assessment and how that child will be an invalid score.’’
assessment, including any effect on the assessed. Under § 300.322(f), a copy of Discussion: We agree that
child’s eligibility for graduation with a the child’s IEP must be provided to the accommodations that invalidate a test
regular high school diploma. The parents. score should not be used. However,
commenters stated that providing this Changes: We have added new given the lack of consistency in the field
information to parents is particularly paragraph (d) to § 300.160 requiring a regarding the use of the term
important in a State that requires State to provide IEP Teams with a clear ‘‘accommodations,’’ we believe it is
students to pass a State exam in order explanation of the differences between important to be clear and to qualify in
to receive a regular high school assessments based on grade-level new § 300.160(f)(1) (proposed
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diploma. academic achievement standards and § 300.160(e)(1)) that reports on the


Discussion: We agree that it is those based on modified or alternate assessment of children with disabilities
important for parents to be informed academic achievement standards, who participate in regular assessments
that their child will be assessed based including any effects of State or local with accommodations include only
on alternate or modified academic policies on the student’s education those children who were provided with

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accommodations that did not result in § 300.160(e)(5)) to separately identify therefore subject to the requirements of
an invalid score. For clarity, we also regular assessments, alternate the Executive Order and subject to
have reordered the sequence in which assessments based on grade-level review by OMB. Section 3(f) of
the alternate assessments are listed in academic achievement standards, Executive Order 12866 defines a
new paragraph (f) (proposed paragraph alternate assessments based on modified ‘‘significant regulatory action’’ as an
(e)) to be consistent with the order in academic achievement standards, and action likely to result in a rule that may
new § 300.160(c)(2) (proposed alternate assessments based on alternate (1) have an annual effect on the
§ 300.160(d)(2)). academic achievement standards. We economy of $100 million or more, or
Changes: We have redesignated also have added an introductory phrase adversely affect a sector of the economy,
proposed § 300.160(e)(3), regarding requiring comparison with assessment productivity, competition, jobs, the
alternate academic achievement results for all children, including environment, public health or safety, or
standards, as new § 300.160(f)(4) and children with disabilities. State, local, or tribal governments or
redesignated proposed § 300.160(e)(4)), Comment: One commenter communities in a material way (also
regarding modified academic recommended requiring a State to referred to as an ‘‘economically
achievement standards, as new widely distribute information about the significant’’ rule); (2) create serious
§ 300.160(f)(3). reports required in new § 300.160(f) inconsistency or otherwise interfere
Comment: A few commenters (proposed § 300.160(e)) by posting the with an action taken or planned by
recommended requiring a State to report reports on Web sites, making the reports another agency; (3) materially alter the
on the number of children with available in schools and libraries, and budgetary impacts of entitlement grants,
disabilities who participated in the providing parents with notices that the user fees, or loan programs or the rights
regular assessment with information is available. and obligations of recipients thereof; or
accommodations that invalidated their Discussion: New § 300.160(f) (4) raise novel legal or policy issues
test scores. One commenter (proposed § 300.160(e)), consistent with arising out of legal mandates, the
recommended requiring a State to report section 612(a)(16)(D)(i) of the IDEA, President’s priorities, or the principles
on the number of children who received requires a State (or in the case of a set forth in the Executive order. The
accommodations that invalidated their district-wide assessment, an LEA) to Secretary has determined that this
test scores on alternate assessments make available to the public, and report regulatory action is significant under
based on alternate academic to the public, with the same frequency section 3(f)(4) of the Executive Order.
achievement standards and alternate and in the same detail as it reports on
assessments based on modified 1. Costs and Benefits
the assessment of nondisabled children,
academic achievement standards. the information outlined in new Under Executive Order 12866, we
Discussion: Children taking an § 300.160(f) (proposed § 300.160(e)) have assessed the potential costs and
assessment with accommodations that regarding the participation and benefits of this regulatory action.
invalidate their score should not be performance of children with Summary of Public Comments:
reported as participants. We specify in disabilities on State and district-wide Several commenters suggested that the
§ 300.160(b)(2)(ii) that a State must assessments. The manner in which the cost of implementing an alternate
instruct IEP Teams to select only those information is provided to the public assessment based on modified academic
accommodations for each assessment (e.g., via Web sites, parent notices) is a achievement standards would be
that do not result in invalid scores. matter that is best left to State and local significant and that the Federal
Therefore, we decline to make the officials to determine. government should fund new
changes requested by the commenters. Changes: None. assessments, including universally
Changes: None. designed assessments. Some
Comment: One commenter requested Universal Design (New § 300.160(g)) commenters disagreed with the figures
that a State be required to report on the (Proposed § 300.160(f)) from a study by the Government
performance of children with Comment: One commenter Accountability Office (GAO) cited in the
disabilities for each assessment, not just recommended requiring a State to NPRM, regarding the amount of funds
for regular assessments and alternate document where universal design spent on assessments in several States.
assessments. principles are not used. These comments were considered in
Discussion: We agree that the Discussion: New 300.160(g) (proposed conducting the analysis of the costs and
regulation would be clearer if it § 300.160(f)), consistent with section benefits of the final regulations. The
identified separately alternate 612(a)(16)(E) of the IDEA, requires a Department’s estimates and
assessments based on grade-level State (or in the case of a district-wide assumptions on which they are based
academic achievement standards, assessment, an LEA), to the extent are described below.
alternate assessments based on modified feasible, to use universal design
academic achievement standards, and Summary of Potential Costs and
principles in developing and Benefits
alternate assessments based on alternate administering assessments. We believe
academic achievement standards. We that implementing the commenter’s These regulations provide States with
have made this change in new recommendation (e.g., documenting additional flexibility in implementing
§ 300.160(f)(5) (proposed ‘‘universal design principles’’) would the accountability requirements in Title
§ 300.160(e)(5)). In addition, we have require significant resources and time I and the IDEA with respect to students
added the language inadvertently and be a burden for a State to report. with disabilities. Specifically, the final
omitted requiring the performance Therefore, we decline to make the regulations permit States to develop and
results for children with disabilities to change requested by the commenter. implement alternate assessments based
be compared to the achievement of all Changes: None. on modified academic achievement
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children, including children with standards for the group of students with
disabilities, as specified in section Executive Order 12866 disabilities, for whom, according to
612(a)(16)(D)(iv) of the Act. Under Executive Order 12866, the recent research and the experience of
Changes: We have changed Secretary must determine whether this many States, these alternate assessments
§ 300.160(f)(5) (proposed regulatory action is ‘‘significant’’ and are appropriate, and then to use their

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results in making AYP determinations. are to be assessed based on modified If we assume that GAO’s category of
Implementation of these alternate academic achievement standards have ongoing development, which includes
assessments and standards would be a access to grade-level content so that question writing and review, involves
component of State and local efforts to they can work toward grade-level the kinds of activities that States would
improve educational outcomes for this achievement. The Secretary has undertake in developing alternate
group of students, consistent with the concluded that the educational benefits assessments based on modified
principles and objectives of NCLB. of assessing a large number of students academic achievement standards, the
The primary impact of the regulations whose disabilities have prevented them GAO data can be used as a basis for
is on the students with disabilities who from achieving grade-level proficiency projecting the possible costs of
are eligible to be assessed based on using more appropriate assessments and developing assessments based on
modified academic achievement standards will outweigh any potential modified academic achievement
standards. The regulations provide harm associated with assessing children standards. For example, we can estimate
educational benefits to students by based on modified academic an upper limit on the total costs of
permitting States and LEAs to assess achievement standards who might have developing these alternate
eligible students with disabilities using been able to reach grade-level assessments—$169 million—by using
assessments that are appropriately proficiency in the same time frame as the GAO data reported for
challenging but better designed to other students. In addition to these Massachusetts 13 and assuming that 52
measure their educational strengths and benefits to children, these regulations jurisdictions would choose to develop
weaknesses and evaluate their will give teachers and schools credit for alternate assessments based on modified
achievement of grade-level content, and work that they do with these students to academic achievement standards for
to provide information that would be help them progress toward grade-level each of the 17 assessments required by
helpful to teachers to guide instruction achievement, even if they are unable to Title I to be administered in 2008–2009.
to meet the academic needs of these reach grade-level proficiency. Although this upper-bound estimate
students so they can work toward grade- Although States are not required to represents the best information available
level achievement. Based on an actual take advantage of the flexibility to us at this point in time, we believe
enrollment of 26.3 million students 10 in provided in these regulations, States it may significantly overstate the costs
grades 3 through 8 and 10 in school year may elect to do so, and, as a result, may of developing these alternate
2004–2005, we estimate that as many as incur additional administrative costs assessments insofar as the estimate GAO
530,000 children with disabilities could associated with the development of included for Massachusetts, which was
be affected by, and benefit from, this modified academic achievement more than 2.4 times as large as the
change in the assessment and standards and assessments based on estimates included for 5 of the other
accountability structure in school year those standards. However, little States, may not be indicative of the costs
2008–2009. information is available for estimating of assessment development in other
The potential costs to students would these costs; we have used the limited States using different types of questions
be the harm associated with including information available to us to develop a or approaches to assessment.
the ‘‘wrong’’ children in the group to be rough estimate of the development costs In addition, this estimate does not
assessed based on modified academic for States that choose to take advantage reflect the reduced costs for the 4 States
achievement standards. Given the of this flexibility. that already have alternate assessments
history of inappropriately low This analysis is based on a 2003 based on modified academic
expectations for children with report, issued by the GAO, ‘‘Title I: achievement standards in place under
disabilities, the potential harm relates to Characteristics of Tests Will Influence the interim flexibility policy. States that
finding students to be eligible for Expenses: Information Sharing May adopted alternate assessments based on
alternate assessments based on modified Help States Realize Efficiencies,’’ that modified academic achievement
academic achievement standards who, examined the costs of developing standards under the interim flexibility
in fact, with appropriate instruction and assessments based on grade-level policy would still be required to
high quality special education services, academic achievement standards and undergo peer review once the final
might be able to achieve at the same provides estimates for the ongoing regulations are in effect. However, if the
high level as their non-disabled peers. development expenditures for existing peer review determines that no
The risk is that low expectations could assessments for 7 States.11 We have adjustments are needed to any of the
impede the ability of these students to some concerns about the accuracy of assessments in these States, the
perform to their potential. The Secretary this information, its generalizibility, and estimated cost of producing alternate
believes that the risk of including the its direct relevance to estimating the assessments in the other 48 jurisdictions
‘‘wrong’’ students in the group to be costs of developing alternate would be reduced to $155 million.
assessed based on modified academic assessments based on modified In addition, we do not know the
achievement standards is not high academic achievement standards. With extent to which States would elect to
because of the central role that IEP those caveats, we believe the report does develop alternate assessments based on
Teams play in determining how provide some indication of the variation modified academic achievement
individual children will be assessed. in costs among States in developing standards for each grade and subject,
Moreover, any harm would be minimal assessments and represents the best since States that choose to take
because the regulations require the information available to us at this point advantage of the flexibility are not
assessment determinations to be made in time.12 required to develop modified academic
on an annual basis by the IEP Team and achievement standards in every grade or
they also include a number of
11 U.S. Government Accountability Office, Report every subject. However, in light of what
03–389, pg. 17. we know about the performance of
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safeguards to ensure that students who 12 We received a comment from one State
students with disabilities on State
indicating that the cost of developing its
10 Common Core of Data (CCD), ‘‘State Nonfiscal assessments was approximately $250,000. However, assessments and AYP determinations,
Survey of Public Elementary/Secondary Education, we do not have any information about how that
2004–05 v.1c, National Center for Education figure was derived and have, therefore, declined to 13 GAO reported test development expenditures

Statistics, U.S. Department of Education. use that estimate in this analysis. of $190,870 for the State of Massachusetts.

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we think it is highly unlikely that all State has implemented assessments appropriation for IDEA Grants to States
States would elect to develop alternate based on alternate academic is $10.8 billion, and States could reserve
assessments based on modified achievement standards and whether the more than $900 million for such
academic achievement standards for all assessments are adaptable to a wide activities as the development and
of the required 17 assessments. If we range of abilities, and the extent to provision of appropriate
assume that typically States would which students with disabilities are able accommodations and assessments of
develop only 8 assessments (e.g., to participate appropriately in the children with disabilities under Title I.
reading/language arts and mathematics State’s general assessments. It also will For State Assessment Grants, the
assessments for grades 6, 7, 8, and a depend, in part, on the extent to which appropriation is $408 million. The
high school grade), which may be a the scores for the 2.0 percent of students Department believes that the regulations
more accurate estimate of the impact of affected by these regulations increase will not impose a financial burden that
the rule based on the available enough to meet the AYP goals for States and LEAs will have to meet from
information, the total costs would be schools currently in need of non-Federal sources.
estimated to be $79 million for 52 improvement. Testing data for the 2003– For purposes of the Unfunded
jurisdictions and $73 million for 48 2004 school year for 33 States for the Mandates Reform Act of 1995, these
jurisdictions. Department’s ‘‘Study of State regulations do not include a Federal
Since the regulations would not Implementation of Accountability and mandate that might result in increased
require that States adopt separate test Teacher Quality Under NCLB,’’ expenditures by State, local, and tribal
administration or scoring procedures, published in the ‘‘National Assessment governments, or increased expenditures
we assume that no additional costs of Title I Interim Report: Volume I; by the private sector of more than $100
would be incurred in administering Implementation of Title I,’’ indicates million in any one year.
assessments based on modified that 13.0 percent of schools missed AYP
academic achievement standards. In solely due to the achievement of the Regulatory Flexibility Act Certification
addition, although many States choose students with disabilities subgroup. The Secretary certifies that these
to create new assessments or revise Under Title I, LEAs are required to regulations will not have a significant
parts of assessments at regular intervals, spend an amount equal to 20.0 percent economic impact on a substantial
this is not required by these regulations of their Title I allocations to fund number of small entities. These
so these estimates assume that supplemental services and choice-
development costs are nonrecurring. provisions require States and LEAs to
related transportation in schools that take certain actions only if States choose
States that elect to develop modified fail to make AYP for two or more
academic achievement standards would to implement the flexibility these
consecutive years and are identified for regulations afford. The Department
also incur minimal costs for the improvement. LEAs will have greater
development and implementation of believes that these activities will be
flexibility in the use of their Title I financed through the appropriations for
guidelines for IEP Teams to apply in
allocations if fewer schools miss AYP Title I and the IDEA and that the
determining whether these modified
goals and are subject to consequences as responsibilities encompassed in these
academic achievement standards are
a school in need of improvement. laws and regulations will not impose a
appropriate for particular students with
disabilities. The Department will States that decide to adopt modified financial burden that States and LEAs
provide non-regulatory guidance academic achievement standards and will have to meet from non-Federal
regarding alternate assessments and implement alternate assessments based sources.
modified academic achievement on those standards will be able to use Paperwork Reduction Act of 1995
standards that States can use in funds from Title I, Title VI State
developing their IEP Team guidelines. Assessment Grants, and IDEA programs There are several sections of the
We assume States that elect to take to finance those activities. The costs of revised Title I regulations (§§ 200.1,
advantage of this new flexibility to use developing and implementing 200.6, and 200.20) and one section of
modified academic achievement assessments vary considerably but are the revised IDEA regulations (§ 300.160)
standards and assessments based on modest when compared to the amounts that require collection of information
these standards will do so because they available under Federal programs that under the Paperwork Reduction Act.
believe they will realize net benefits, States can draw on for test development The following chart describes those
primarily because of the benefits to and implementation. The fiscal year regulatory sections, the information
students of being more appropriately 2007 appropriation for Title I Grants to being collected, and the collections the
assessed and, secondarily, because of Local Educational Agencies is Department will submit to the Office of
the effect on AYP determinations. The approximately $12.8 billion, and States Management and Budget for approval
benefits to States from adopting could reserve approximately 1 percent and public comment. Separate notices
assessments based on modified of this amount for administrative will be published in the Federal
academic achievement standards expenses, including paying the costs of Register requesting comment on these
depend on such factors as whether the developing assessments. The collections.

Regulatory section Collection information Collection

§ 200.1(f) ............................................................ Requires SEAs opting for the flexibility offered Information collection 1810–0576, ‘‘Consoli-
by these regulations to develop and monitor dated State Application.’’
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the implementation of clear guidelines for


IEP Teams to apply in determining students
who will be assessed based on modified
academic achievement standards.

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Regulatory section Collection information Collection

§ 200.6(a)(4) and § 300.160(f)(3) ....................... Requires SEAs to report in their annual State Information collection 1875–0240, ‘‘Annual
performance reports the total number and Mandatory Collection of Elementary and
percentage of students tested in math and Secondary Education Data for EDFacts.’’
reading with alternate assessments based
on modified academic achievement stand-
ards.
§ 200.20 ............................................................. Permits SEAs and LEAs to include the scores Information collection 1810–0581, ‘‘State Edu-
of former students with disabilities in the cational Agency and Local Educational
students with disabilities subgroup when re- Agency and School Data Collection and Re-
porting AYP on SEA and LEA report cards. porting under ESEA, Title I, Part A.’’

Federalism would be an intrusion into State commenters with respect to Executive


Executive Order 13132 requires us to graduation standards if a State was Order 13132.
ensure meaningful and timely input by required to diminish its standards for a Electronic Access to This Document
State and local elected officials in the regular diploma to include students
who are assessed based on modified You may view this document, as well
development of regulatory policies that
academic achievement standards. As we as all other Department of Education
have Federalism implications.
have stated elsewhere in this preamble, documents published in the Federal
‘‘Federalism implications’’ means
the intent of proposed § 200.1(e)(1)(iii) Register, in text or Adobe Portable
substantial direct effects on the States,
was not to require States to alter their Document Format (PDF) on the Internet
on the relationship between the
graduation requirements or to provide a at the following site: http://www.ed.gov/
National Government and the States, or
regular high school diploma to a student news/fedregister.
on the distribution of power and To use PDF, you must have Adobe
responsibilities among the various who scores proficient on an alternate
Acrobat Reader, which is available free
levels of government. assessment based on modified academic
at this site. If you have questions about
The need for the NPRM was raised to achievement standards. Rather, we
using PDF, call the U.S. Government
the Department by State and LEA wanted to ensure that a student is not
Printing Office (GPO), toll free, at 1–
assessment professionals who were automatically precluded from 888–293–6498; or in the Washington,
concerned that the assessment attempting to earn a regular high school DC, area at (202) 512–1530.
alternatives contemplated in the diploma simply because the student was
existing Title I regulations (regular assessed based on modified academic Note: The official version of this document
is the document published in the Federal
assessments based on grade-level achievement standards. To clarify our Register. Free Internet access to the official
academic achievement standards and intent, we have removed proposed edition of the Federal Register and the Code
alternate assessments for students with § 200.1(e)(1)(iii) and replaced it with of Federal Regulations is available on GPO
the most significant cognitive § 200.1(f)(2)(iv), which requires a State Access at: http://www.gpoaccess.gov/nara/
disabilities), and reflected in the IDEA, to ensure that students who take index.html.
did not recognize that there was a group alternate assessments based on modified (Catalog of Federal Domestic Assistance
of students with disabilities who were academic achievement standards are not Numbers: 84.010 Improving Programs
not the most significantly cognitively precluded from attempting to complete Operated by Local Educational Agencies;
disabled, but who could not achieve to the requirements, as defined by the 84.027 Assistance to States for the Education
grade-level academic achievement State, for a regular high school diploma. of Children with Disabilities).
standards. Based on the concerns raised, Second, a few commenters stated that List of Subjects
the Department convened several the criteria we proposed for modified
meetings with State and LEA officials, 34 CFR Part 200
academic achievement standards were
parents of students with disabilities, Administrative practice and
too prescriptive and that States should
and researchers to learn more about the procedure, Adult education, Children,
have the flexibility to develop modified
issues involved in assessing students Education of children with disabilities,
academic achievement standards in
with disabilities, the concerns of parents Education of disadvantaged children,
ways that meet their needs. As we stated
and advocates for ensuring that all Elementary and secondary education,
elsewhere in this preamble, we do not
students with disabilities be held to Eligibility, Family-centered education,
agree with these commenters. We
high academic achievement standards, Grant programs—education, Indians—
believe that allowing States to develop
and about how some States were education, Institutions of higher
modified academic achievement
designing assessments for students with education, Local educational agencies,
standards without placing any
disabilities. In issuing the NPRM, Nonprofit private agencies, Private
however, we did not believe that the parameters or restrictions on their use
would likely result in lowered schools, Public agencies, Reporting and
proposed regulations had Federalism recordkeeping requirements, State-
implications as defined in the Executive expectations for this group of students
and limit opportunities for these administered programs, State
order. educational agencies.
We received several comments on students to access grade-level content
Federalism issues. First, several and meet grade-level achievement 34 CFR Part 300
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commenters stated that proposed standards. Administrative practice and


§ 200.1(e)(1)(iii), which would require Taking into account these comments, procedure, Education of individuals
that modified academic achievement and these final regulations, we believe with disabilities, Elementary and
standards not preclude a student from that we have sufficiently addressed any secondary education, Equal educational
earning a regular high school diploma, Federalism concerns raised by the opportunity, Grant programs—

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17778 Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations

education, Privacy, Private Schools, (iv) Are developed through a (B) Students with disabilities who
Reporting and recordkeeping documented and validated standards- meet the criteria in paragraph (e)(2) of
requirements. setting process that includes broad this section who will be assessed based
Dated: April 2, 2007. stakeholder input, including persons on modified academic achievement
Margaret Spellings,
knowledgeable about the State’s standards. These students may be
academic content standards and assessed based on modified academic
Secretary of Education.
experienced in standards setting and achievement standards in one or more
■ For the reasons discussed in the special educators who are most subjects for which assessments are
preamble, the Secretary amends parts knowledgeable about students with administered under § 200.2;
200 and 300 of title 34 of the Code of disabilities. (ii) Inform IEP teams that students
Federal Regulations as follows: (2) In the guidelines that a State eligible to be assessed based on alternate
establishes under paragraph (f)(1) of this or modified academic achievement
PART 200—TITLE I—IMPROVING THE section, the State must include criteria standards may be from any of the
ACADEMIC ACHIEVEMENT OF THE for IEP teams to use in determining disability categories listed in the IDEA;
DISADVANTAGED which students with disabilities are (iii) Provide to IEP teams a clear
■ 1. The authority citation for part 200 eligible to be assessed based on explanation of the differences between
continues to read as follows: modified academic achievement assessments based on grade-level
standards. Those criteria must include, academic achievement standards and
Authority: 20 U.S.C. 6301 through 6578, those based on modified or alternate
unless otherwise noted. but are not limited to, each of the
following: academic achievement standards,
■ 2. Section 200.1 is amended by: including any effects of State and local
(i) The student’s disability has
■ A. Revising paragraphs (a)(1) and policies on the student’s education
precluded the student from achieving
(a)(2). resulting from taking an alternate
grade-level proficiency, as demonstrated
■ B. Redesignating paragraphs (e) and (f) assessment based on alternate or
by such objective evidence as the
as paragraphs (g) and (h), respectively. modified academic achievement
■ C. Adding new paragraphs (e) and (f).
student’s performance on—
(A) The State’s assessments described standards (such as whether only
The revisions and additions read as satisfactory performance on a regular
follows: in § 200.2; or
(B) Other assessments that can validly assessment would qualify a student for
§ 200.1 State responsibilities for document academic achievement. a regular high school diploma); and
developing challenging academic (ii)(A) The student’s progress to date (iv) Ensure that parents of students
standards. in response to appropriate instruction, selected to be assessed based on
(a) * * * including special education and related alternate or modified academic
(1) Be the same academic content and services designed to address the achievement standards under the State’s
academic achievement standards that student’s individual needs, is such that, guidelines in this paragraph are
the State applies to all public schools even if significant growth occurs, the informed that their child’s achievement
and public school students in the State, IEP team is reasonably certain that the will be measured based on alternate or
including the public schools and public student will not achieve grade-level modified academic achievement
school students served under subpart A proficiency within the year covered by standards.
of this part, except as provided in the student’s IEP. (2) For students who are assessed
paragraphs (d) and (e) of this section, (B) The determination of the student’s based on modified academic
which apply only to the State’s progress must be based on multiple achievement standards, the State must—
(i) Inform IEP teams that a student
academic achievement standards; measurements, over a period of time,
(2) Include the same knowledge and may be assessed based on modified
that are valid for the subjects being
skills expected of all students and the academic achievement standards in one
assessed.
same levels of achievement expected of or more subjects for which assessments
(iii) If the student’s IEP includes goals
all students, except as provided in are administered under § 200.2;
for a subject assessed under § 200.2, (ii) Establish and monitor
paragraphs (d) and (e) of this section; those goals must be based on the implementation of clear and appropriate
and academic content standards for the guidelines for IEP teams to apply in
* * * * * grade in which the student is enrolled, developing and implementing IEPs for
(e) Modified academic achievement consistent with paragraph (f)(2) of this students who are assessed based on
standards. (1) For students with section. modified academic achievement
disabilities under section 602(3) of the (f) State guidelines. If a State defines standards. These students’ IEPs must—
Individuals with Disabilities Education alternate or modified academic (A) Include IEP goals that are based
Act (IDEA) who meet the State’s criteria achievement standards under paragraph on the academic content standards for
under paragraph (e)(2) of this section, a (d) or (e) of this section, the State must the grade in which a student is enrolled;
State may define modified academic do the following— and
achievement standards, provided those (1) For students who are assessed (B) Be designed to monitor a student’s
standards— based on either alternate or modified progress in achieving the student’s
(i) Are aligned with the State’s academic achievement standards, the standards-based goals;
academic content standards for the State must— (iii) Ensure that students who are
grade in which the student is enrolled; (i) Establish and monitor assessed based on modified academic
(ii) Are challenging for eligible implementation of clear and appropriate achievement standards have access to
students, but may be less difficult than guidelines for IEP teams to apply in the curriculum, including instruction,
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the grade-level academic achievement determining— for the grade in which the students are
standards under paragraph (c) of this (A) Students with the most significant enrolled;
section; cognitive disabilities who will be (iv) Ensure that students who take
(iii) Include at least three achievement assessed based on alternate academic alternate assessments based on modified
levels; and achievement standards; and academic achievement standards are not

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17779

precluded from attempting to complete achievement standards, the State must ■ A. Revising paragraph (c).
the requirements, as defined by the document that students with the most ■ B. Adding an appendix at the end of
State, for a regular high school diploma; significant cognitive disabilities are, to the section.
and the extent possible, included in the The revisions and addition read as
(v) Ensure that each IEP team reviews general curriculum. follows:
annually for each subject, according to (3) Alternate assessments that are
the criteria in paragraph (e)(2) of this based on modified academic § 200.13 Adequate yearly progress in
section, its decision to assess a student achievement standards. (i) To assess general.
based on modified academic students with disabilities based on * * * * *
achievement standards to ensure that modified academic achievement (c)(1) In calculating AYP for schools,
those standards remain appropriate. standards, a State may develop a new LEAs, and the State, a State must,
* * * * * alternate assessment or adapt an consistent with § 200.7(a), include the
assessment based on grade-level scores of all students with disabilities.
■ 3. Section 200.6 is amended by:
academic achievement standards. (2) With respect to scores based on
■ A. Revising paragraph (a)(1) and
(ii) An alternate assessment under alternate or modified academic
(a)(2)(iii).
paragraph (a)(3)(i) of this section must— achievement standards, a State may
■ B. Adding paragraphs (a)(3) and (a)(4).
(A) Be aligned with the State’s grade- include—
The revisions and additions read as
level academic content standards; (i) The proficient and advanced scores
follows:
(B) Yield results that measure the of students with the most significant
§ 200.6 Inclusion of all students. achievement of those students cognitive disabilities based on the
* * * * * separately in reading/language arts and alternate academic achievement
(a) Students eligible under IDEA and mathematics relative to the modified standards described in § 200.1(d),
Section 504—(1) Appropriate academic achievement standards; provided that the number of those
accommodations. (i) A State’s academic (C) Meet the requirements in §§ 200.2 scores at the LEA and at the State levels,
assessment system must provide— and 200.3, including the requirements separately, does not exceed 1.0 percent
(A) For each student with a disability, relating to validity, reliability, and high of all students in the grades assessed in
as defined under section 602(3) of the technical quality; and reading/language arts and in
IDEA, appropriate accommodations that (D) Fit coherently in the State’s mathematics; and
the student’s IEP team determines are overall assessment system under (ii) The proficient and advanced
necessary to measure the academic § 200.2. scores of students with disabilities
achievement of the student relative to (4) Reporting. A State must report based on the modified academic
the State’s academic content and separately to the Secretary, under achievement standards described in
academic achievement standards for the section 1111(h)(4) of the Act, the § 200.1(e)(1), provided that the number
grade in which the student is enrolled, number and percentage of students with of those scores at the LEA and at the
consistent with § 200.1(b)(2), (b)(3), and disabilities taking— State levels, separately, does not exceed
(c); and (i) Regular assessments described in 2.0 percent of all students in the grades
(B) For each student covered under § 200.2; assessed in reading/language arts and in
section 504 of the Rehabilitation Act of (ii) Regular assessments with mathematics.
1973, as amended (Section 504), accommodations; (3) A State’s or LEA’s number of
(iii) Alternate assessments based on proficient and advanced scores of
appropriate accommodations that the
the grade-level academic achievement students with disabilities based on the
student’s placement team determines
standards described in § 200.1(c); modified academic achievement
are necessary to measure the academic
(iv) Alternate assessments based on standards described in § 200.1(e)(1) may
achievement of the student relative to
the modified academic achievement exceed 2.0 percent of all students in the
the State’s academic content and
standards described in § 200.1(e); and grades assessed if the number of
academic achievement standards for the
(v) Alternate assessments based on the proficient and advanced scores based on
grade in which the student is enrolled,
alternate academic achievement the alternate academic achievement
consistent with § 200.1(b)(2), (b)(3), and
standards described in § 200.1(d). standards described in § 200.1(d) is less
(c).
(ii) A State must— * * * * * than 1.0 percent, provided the number
(A) Develop, disseminate information ■ 4. Section 200.7 is amended by of proficient and advanced scores based
on, and promote the use of appropriate redesignating paragraph (a)(2) as (a)(2)(i) on modified and alternate academic
accommodations to increase the number and adding a new paragraph (a)(2)(ii) to achievement standards combined does
of students with disabilities who are read as follows: not exceed 3.0 percent of all students in
tested against academic achievement the grades assessed.
§ 200.7 Disaggregation of data.
standards for the grade in which a (4) A State may not request from the
student is enrolled; and (a) * * * Secretary an exception permitting it to
(B) Ensure that regular and special (2)(i) * * * exceed the caps on proficient and
education teachers and other (ii) Beginning with AYP decisions advanced scores based on alternate or
appropriate staff know how to that are based on the assessments modified academic achievement
administer assessments, including administered in the 2007–08 school standards under paragraph (c)(2) and (3)
making appropriate use of year, a State may not establish a of this section.
accommodations, for students with different minimum number of students (5)(i) A State may grant an exception
disabilities and students covered under under paragraph (a)(2)(i) of this section to an LEA permitting it to exceed the 1.0
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Section 504. for separate subgroups under percent cap on proficient and advanced
(2) * * * § 200.13(b)(7)(ii) or for the school as a scores based on the alternate academic
(iii) If a State permits the use of whole. achievement standards described in
alternate assessments that yield results * * * * * paragraph (c)(2)(i) of this section only
based on alternate academic ■ 5. Section 200.13 is amended by: if—

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(A) The LEA demonstrates that the (6) A State may not grant an exception proficient in schools and LEAs
incidence of students with the most to an LEA to exceed the 2.0 percent cap responsible for students who are
significant cognitive disabilities exceeds on proficient and advanced scores based assessed based on alternate or modified
1.0 percent of all students in the on modified academic achievement academic achievement standards.
combined grades assessed; standards under paragraph (c)(2)(ii) of
(iv) Include non-proficient scores that
(B) The LEA explains why the this section, except as provided in
exceed the caps in paragraph (c) of this
incidence of such students exceeds 1.0 paragraph (c)(3) of this section.
(7) In calculating AYP, if the section in each applicable subgroup at
percent of all students in the combined the school, LEA, and State level.
grades assessed, such as school, percentage of proficient and advanced
community, or health programs in the scores based on alternate or modified (v) Ensure that parents of a child who
LEA that have drawn large numbers of academic achievement standards under is assessed based on alternate or
families of students with the most § 200.1(d) or (e) exceeds the caps in modified academic achievement
significant cognitive disabilities, or that paragraph (c) of this section at the State standards are informed of the actual
the LEA has such a small overall or LEA level, the State must do the academic achievement levels of their
student population that it would take following: child.
(i) Consistent with § 200.7(a), include
only a few students with such * * * * *
all scores based on alternate and
disabilities to exceed the 1.0 percent
modified academic achievement Appendix to § 200.13—When May a
cap; and
standards. State or LEA Exceed the 1% and 2%
(C) The LEA documents that it is (ii) Count as non-proficient the
implementing the State’s guidelines Caps?
proficient and advanced scores that
under § 200.1(f). exceed the caps in paragraph (c) of this The following table provides a summary of
(ii) The State must review regularly section. the circumstances in which a State or LEA
whether an LEA’s exception to the 1.0 (iii) Determine which proficient and may exceed the 1% and 2% caps described
percent cap is still warranted. advanced scores to count as non- in § 200.13.

WHEN MAY A STATE OR LEA EXCEED THE 1% AND 2% CAPS?


Alternate academic achievement Modified academic achievement Alternate and modified academic
standards—1% cap standards—2% cap achievement standards—3%

State ................................. Not permitted ..................................... Only if State is below 1% cap, but Not permitted.
cannot exceed 3%.
LEA .................................. Only if granted an exception by the Only if LEA is below 1% cap, but Only if granted an exception to the
SEA. cannot exceed 3%. 1% cap by the SEA, and only by
the amount of the exception.

■ 6. Section 200.20 is amended by: (B) Students who were previously students and former students with
■ A. Revising paragraph (c)(3). identified under section 602(3) of the disabilities as part of the limited English
■ B. Revising paragraph (f)(2). IDEA but who no longer receive special proficient and students with disabilities
■ C. Adding a new paragraph (g). education services. subgroups, respectively, for the purpose
The revisions and addition read as (ii) If a State, in determining AYP for of reporting AYP at the State level under
follows: the subgroup of limited English section 1111(h)(1)(C)(ii) of the Act;
proficient students and the subgroup of (B) An LEA may include the scores of
§ 200.20 Making adequate yearly progress. students with disabilities, includes the former limited English proficient
* * * * * scores of the students described in students and former students with
(c) * * * paragraph (f)(2)(i) of this section, the disabilities as part of the limited English
(3) To count a student who is assessed State must include the scores of all such proficient and students with disabilities
based on alternate or modified academic students, but is not required to— subgroups, respectively, for the purpose
achievement standards described in (A) Include those students in the of reporting AYP at the LEA and school
§ 200.1(d) or (e) as a participant for limited English proficient subgroup or levels under section 1111(h)(2)(B) of the
purposes of meeting the requirements of in the students with disabilities Act; but
subgroup in determining if the number (C) A State or LEA may not include
this paragraph, the State must have, and
of limited English proficient students or the scores of former limited English
ensure that its LEAs adhere to,
students with disabilities, respectively, proficient students or former students
guidelines that meet the requirements of
is sufficient to yield statistically reliable with disabilities as part of the limited
§ 200.1(f).
information under § 200.7(a); or English proficient or students with
* * * * * (B) With respect to students who are disabilities subgroup, respectively, in
(f) * * * no longer limited English proficient— reporting any other information under
(2)(i) In determining AYP for the (1) Assess those students’ English section 1111(h) of the Act.
subgroup of limited English proficient language proficiency under (g) Transition provision regarding
students and the subgroup of students § 200.6(b)(3); or modified academic achievement
with disabilities, a State may include, (2) Provide English language services standards. The Secretary may provide a
for up to two AYP determination cycles, to those students. State that is moving expeditiously to
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the scores of— (iii) For the purpose of reporting adopt and administer alternate
(A) Students who were limited information on report cards under assessments based on modified
English proficient but who no longer section 1111(h) of the Act— academic achievement standards
meet the State’s definition of limited (A) A State may include the scores of flexibility in accounting for the
English proficiency; and former limited English proficient achievement of students with

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Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules and Regulations 17781

disabilities in AYP determinations that children with disabilities in alternate (f) Reports. An SEA (or, in the case of
are based on assessments administered assessments for those children who a district-wide assessment, an LEA)
in 2007–08 and 2008–09. To be eligible cannot participate in regular must make available to the public, and
for this flexibility, a State must meet assessments, even with report to the public with the same
criteria, as the Secretary determines accommodations, as indicated in their frequency and in the same detail as it
appropriate, for each year for which the respective IEPs, as provided in reports on the assessment of
flexibility is available. paragraph (a) of this section. nondisabled children, the following:
■ 7. Section 200.103 is amended by (2) For assessing the academic (1) The number of children with
adding a new paragraph (c) to read as progress of students with disabilities disabilities participating in regular
follows: under Title I of the ESEA, the alternate assessments, and the number of those
assessments and guidelines in children who were provided
§ 200.103 Definitions. paragraph (c)(1) of this section must accommodations (that did not result in
* * * * * provide for alternate assessments that— an invalid score) in order to participate
(c) Student with a disability means (i) Are aligned with the State’s in those assessments.
child with a disability, as defined in challenging academic content standards
section 602(3) of the IDEA. and challenging student academic (2) The number of children with
achievement standards; disabilities, if any, participating in
PART 300—ASSISTANCE TO STATES (ii) If the State has adopted modified alternate assessments based on grade-
FOR THE EDUCATION OF CHILDREN academic achievement standards level academic achievement standards.
WITH DISABILITIES permitted in 34 CFR 200.1(e), measure (3) The number of children with
the achievement of children with disabilities, if any, participating in
■ 8. The authority citation for part 300
disabilities meeting the State’s criteria alternate assessments based on modified
is revised to read as follows:
under § 200.1(e)(2) against those academic achievement standards.
Authority: 20 U.S.C. 1221e–3, 1406, 1411– standards; and
1419, unless otherwise noted. (4) The number of children with
(iii) If the State has adopted alternate disabilities, if any, participating in
■ 9. A new § 300.160 is added to read academic achievement standards alternate assessments based on alternate
as follows: permitted in 34 CFR 200.1(d), measure academic achievement standards.
§ 300.160 Participation in assessments. the achievement of children with the (5) Compared with the achievement of
(a) General. A State must ensure that most significant cognitive disabilities all children, including children with
all children with disabilities are against those standards. disabilities, the performance results of
included in all general State and (d) Explanation to IEP Teams. A State children with disabilities on regular
district-wide assessment programs, (or in the case of a district-wide assessments, alternate assessments
including assessments described under assessment, an LEA) must provide IEP based on grade-level academic
section 1111 of the ESEA, 20 U.S.C. Teams with a clear explanation of the achievement standards, alternate
6311, with appropriate accommodations differences between assessments based assessments based on modified
and alternate assessments, if necessary, on grade-level academic achievement academic achievement standards, and
as indicated in their respective IEPs. standards and those based on modified alternate assessments based on alternate
(b) Accommodation guidelines. (1) A or alternate academic achievement academic achievement standards if—
State (or, in the case of a district-wide standards, including any effects of State
or local policies on the student’s (i) The number of children
assessment, an LEA) must develop participating in those assessments is
guidelines for the provision of education resulting from taking an
alternate assessment based on alternate sufficient to yield statistically reliable
appropriate accommodations. information; and
(2) The State’s (or, in the case of a or modified academic achievement
district-wide assessment, the LEA’s) standards (such as whether only (ii) Reporting that information will
guidelines must— satisfactory performance on a regular not reveal personally identifiable
(i) Identify only those assessment would qualify a student for information about an individual student
accommodations for each assessment a regular high school diploma). on those assessments.
that do not invalidate the score; and (e) Inform parents. A State (or in the (g) Universal design. An SEA (or, in
(ii) Instruct IEP Teams to select, for case of a district-wide assessment, an the case of a district-wide assessment,
each assessment, only those LEA) must ensure that parents of an LEA) must, to the extent possible,
accommodations that do not invalidate students selected to be assessed based use universal design principles in
the score. on alternate or modified academic developing and administering any
(c) Alternate assessments. (1) A State achievement standards are informed assessments under this section.
(or, in the case of a district-wide that their child’s achievement will be
(Authority: 20 U.S.C. 1412(a)(16))
assessment, an LEA) must develop and measured based on alternate or
implement alternate assessments and modified academic achievement [FR Doc. 07–1700 Filed 4–4–07; 8:45 am]
guidelines for the participation of standards. BILLING CODE 4000–01–P
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