Every Student Succeeds-Innovative Assessment Demonstration Authority, 88940-88972 [2016-29126]
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Federal Register / Vol. 81, No. 236 / Thursday, December 8, 2016 / Rules and Regulations
DEPARTMENT OF EDUCATION
34 CFR Part 200
[Docket ID ED–2016–OESE–0047]
RIN 1810–AB31
Every Student Succeeds—Innovative
Assessment Demonstration Authority
Office of Elementary and
Secondary Education, Department of
Education.
ACTION: Final regulations.
AGENCY:
The Secretary issues final
regulations under title I, part B of the
Elementary and Secondary Education
Act of 1965 (ESEA) to implement
changes made to the ESEA by the Every
Student Succeeds Act (ESSA) enacted
on December 10, 2015, including the
ability of the Secretary to provide
demonstration authority to a State
educational agency (SEA) to pilot an
innovative assessment and use it for
accountability and reporting purposes
under title I, part A of the ESEA before
scaling such an assessment statewide.
DATES: These regulations are effective
January 9, 2017.
FOR FURTHER INFORMATION CONTACT:
Jessica McKinney, U.S. Department of
Education, 400 Maryland Avenue SW.,
Room 3W107, Washington, DC 20202–
2800.
Telephone: (202) 401–1960 or by
email: jessica.mckinney@ed.gov.
If you use a telecommunications
device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay
Service (FRS), toll free, at 1–800–877–
8339.
SUPPLEMENTARY INFORMATION:
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SUMMARY:
Executive Summary
Purpose of This Regulatory Action:
On December 10, 2015, President Barack
Obama signed the ESSA into law. The
ESSA reauthorizes the ESEA, which
provides Federal funds to improve
elementary and secondary education in
the Nation’s public schools. Through
the reauthorization, the ESSA made
significant changes to the ESEA for the
first time since the ESEA was
reauthorized through the No Child Left
Behind Act of 2001 (NCLB), including
significant changes to title I. In
particular, the ESSA includes in title I,
part B of the ESEA a new demonstration
authority under which an SEA or
consortium of SEAs that meets certain
application requirements may establish,
operate, and evaluate an innovative
assessment system, including for use in
the statewide accountability system,
with the goal of using the innovative
assessment system after the
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demonstration authority ends to meet
the academic assessment and statewide
accountability system requirements
under title I, part A of the ESEA.
Aligned with President Obama’s Testing
Action Plan, released in October 2015,
the demonstration authority seeks to
help States interested in fostering and
scaling high-quality, innovative
assessments.1 An SEA would require
this demonstration authority under title
I, part B, if the SEA is proposing to
develop an innovative assessment in
any required grade or subject and
administer the assessment, initially, to
students in only a subset of its local
educational agencies (LEAs) or schools
without also continuing administration
of its current statewide assessment in
that grade or subject to all students in
those LEAs or schools, including for
school accountability and reporting
purposes under title I, part A, as it
scales the innovative assessment
statewide. Unless otherwise noted,
references in this document to the ESEA
refer to the ESEA as amended by the
ESSA.
On July 11, 2016, the Secretary
published a notice of proposed
rulemaking (NPRM) for the title I, part
B regulations pertaining to the
innovative assessment demonstration
authority in the Federal Register (81 FR
44958). We issue these regulations to
provide clarity to SEAs regarding the
requirements for applying for and
implementing innovative assessment
demonstration authority. These
regulations will also help to ensure that
SEAs provided this authority can
develop and administer high-quality,
valid, and reliable assessments that
measure student mastery of challenging
State academic standards, improve the
design and delivery of large-scale
assessments, and better inform
classroom instruction, ultimately
leading to improved academic outcomes
for all students.
Summary of the Major Provisions of
This Regulatory Action: The following is
a summary of the major substantive
changes in these final regulations from
the regulations proposed in the NPRM.
(The rationale for each of these changes
is discussed in the Analysis of
Comments and Changes section
elsewhere in this preamble.)
• The Department has renumbered
the proposed regulatory sections, as
follows, in the final regulations:
1 For more information regarding President
Obama’s Testing Action Plan, please see: https://
www2.ed.gov/admins/lead/account/saa.html; see
also: www.ed.gov/news/press-releases/fact-sheettesting-action-plan.
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—New section 200.104 (proposed
§ 200.76) entitled ‘‘Innovative
assessment demonstration authority.’’
—New section 200.105 (proposed
§ 200.77) entitled ‘‘Demonstration
authority application requirements.’’
—New section 200.106 (proposed
§ 200.78) entitled ‘‘Innovative
assessment selection criteria.’’
—New section 200.107 (proposed
§ 200.79) entitled ‘‘Transition to
statewide use.’’
—New section 200.108 (proposed
§ 200.80) entitled ‘‘Extensions,
waivers, and withdrawal of
authority.’’
• The Department has made a number
of changes to new § 200.104 (proposed
§ 200.76), which provides definitions
and describes general requirements for
SEAs and consortia of SEAs applying
for and implementing the innovative
assessment demonstration authority:
—Section 200.104(b)(1) has been added
to define an ‘‘affiliate member of a
consortium’’ to be an SEA that is
formally associated with a consortium
of SEAs that is implementing the
innovative assessment demonstration
authority, but is not yet a full member
of the consortium because it is not
proposing to use the consortium’s
innovative assessment system under
the demonstration authority.
—Section 200.104(b)(3) has been revised
to clarify the definition of ‘‘innovative
assessment system’’ to indicate that
an innovative assessment system:
• Produces an annual summative
determination of each student’s mastery
of grade-level content standards aligned
to the challenging State academic
standards under section 1111(b)(1) of
the ESEA.
• In the case of a student with the
most significant cognitive disabilities
assessed with an alternate assessment
aligned with alternate academic
achievement standards (AA–AAAS)
under section 1111(b)(1)(E) of the ESEA
and aligned with the State’s academic
content standards for the grade in which
the student is enrolled, produces an
annual summative determination
relative to such alternate academic
achievement standards for each such
student;
• May include any combination of
general assessments or AA–AAAS in
reading/language arts, mathematics, or
science; and
• May, in any required grade or
subject, include one or more types of
assessments listed in § 200.104(b)(3)(ii).
—Section 200.104(b)(4) has been added
to define a ‘‘participating LEA’’ as an
LEA in the State with at least one
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school participating in the innovative
demonstration authority.
—Section 200.104(b)(5) has been added
to define ‘‘participating school’’ as a
public school in the State in which
the innovative assessment system is
administered under the innovative
assessment demonstration authority
instead of the statewide assessment
and where the results of the school’s
students on the innovative assessment
system are used by its State and LEA
for purposes of accountability and
reporting.
• The Department made a number of
changes to § 200.105 (proposed
§ 200.77), which sets forth the
application requirements that an SEA or
consortium of SEAs must meet in order
to receive approval to implement
demonstration authority:
—Section 200.105(a) has been revised to
require collaboration with
representatives of Indian tribes
located in the State and to clarify that
in consulting parents, States must
consult parents of children with
disabilities, English learners and other
subgroups under section 1111(c)(2) of
the ESEA.
—Section 200.105(b) has been revised to
clarify that the innovative assessment
system may be administered to a
subset of LEAs or schools within an
LEA, and must be administered to all
students within the participating LEA
or schools within the LEA, except that
an LEA may continue to administer
an AA–AAAS that is not part of the
innovative assessment system to
students with the most significant
cognitive disabilities, consistent with
section 1111(b)(1)(E) of the ESEA.
—Section 200.105(b)(2) has been revised
to clarify that the innovative
assessment must align with the
challenging State academic content
standards for the grade in which the
student is enrolled. In addition,
§ 200.105(b)(2)(ii) clarifies that the
innovative assessment may include
items above or below a student’s
grade level so long as the State
measures each student’s academic
proficiency based on the challenging
State academic standards for the grade
in which the student is enrolled.
—Section 200.105(b)(4) has been revised
to clarify that determinations of the
comparability between the innovative
and statewide assessment system
must be based on results, including
annual summative determinations, as
defined in § 200.105(b)(7), that are
generated for all students and for each
subgroup of students.
—Section 200.105(b)(4)(i)(C) has been
revised to clarify that States may
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include, as a significant portion of the
innovative assessment system in each
required grade and subject in which
both an innovative and statewide
assessment is administered, items or
performance tasks from the statewide
assessment system that, at a
minimum, have been previously pilot
tested or field tested for use in the
statewide assessment system.
—Section § 200.105(b)(4)(i)(D) has been
added to clarify that States may
include, as a significant portion of the
statewide assessment system in each
required grade and subject in which
both an innovative and statewide
assessment is administered, items or
performance tasks from the innovative
assessment system that, at a
minimum, have been previously pilot
tested or field tested for use in the
innovative assessment system.
—Section § 200.105(b)(4)(ii) has been
added to require that States’
innovative assessment systems
generate results, including annual
summative determinations, that are
valid, reliable, and comparable for all
students and for each subgroup of
students among participating schools
and LEAs, which an SEA must
annually determine as part of its
evaluation plan described in
§ 200.106(e) (proposed § 200.78(e)).
—Section 200.105(b)(7) has been revised
to require that the innovative
assessment produce an annual
summative determination of
achievement for each student that
describes—
• The student’s mastery of the
challenging State academic
standards (i.e., both the State’s
academic content and achievement
standards) for the grade in which
the student is enrolled; and
• In the case of a student with the
most significant cognitive
disabilities assessed with an AA–
AAAS under section 1111(b)(1)(E)
of the ESEA, the student’s mastery
of those alternate academic
achievement standards.
—Section 200.105(d)(4) has been
revised to require that each
participating LEA inform parents of
all students in participating schools
about the innovative assessment and
that information shared with parents
include the grades and subjects in
which the innovative assessment will
be administered.
—Section 200.105(f)(2) has been added
to clarify that a consortium must
submit a revised application to the
Secretary in order for an affiliate
member to become a full member of
the consortium and use the
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consortium’s innovative assessment
system under the demonstration
authority.
• The Department made a number of
changes to § 200.106 (proposed
§ 200.78), which describes the selection
criteria the Secretary will use to
evaluate an application for
demonstration authority:
—Section 200.106(a)(3)(iii) has been
revised to clarify that the baseline for
setting annual benchmarks toward
high-quality and consistent
implementation across schools that
are demographically similar to the
State as a whole is the demographics
of participating schools, not
participating LEAs.
—Section 200.106(d) has been revised to
clarify that each SEA or consortium’s
application must include a plan for
delivering supports to educators that
can be consistently provided at scale;
will be evaluated on the extent to
which training for LEA and school
staff will develop teacher capacity to
provide instruction that is informed
by the innovative assessment system
results; and should describe strategies
and safeguards to support educators
and staff in developing and scoring
the innovative assessment, including
how the strategies and safeguards are
sufficient to ensure objective and
unbiased scoring of innovative
assessments. Section 200.106(d) has
also been revised to provide for the
SEA or consortium to include
supports for parents, in addition to
educators and students, and require
States to describe their strategies to
familiarize parents as well as students
with the innovative assessment
system.
• The Department has revised
§ 200.107 (proposed § 200.79) to clarify
that the baseline year used for purposes
of evaluating the innovative assessment
to determine if a State may administer
the assessment statewide is the first year
the innovative assessment is
administered by a participating LEA
under the demonstration authority.
Costs and Benefits: The Department
believes that the benefits of this
regulatory action outweigh any
associated costs to a participating SEA,
which may be supported with Federal
grant funds. These benefits include the
administration of assessments that more
effectively measure student mastery of
challenging State academic standards
and better inform classroom instruction
and student supports, ultimately leading
to improved academic outcomes for all
students. Please refer to the Regulatory
Impact Analysis section of this
document for a more detailed
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discussion of costs and benefits.
Consistent with Executive Order 12866,
the Office of Management and Budget
(OMB) has determined that this action
is significant and, thus, is subject to
review by OMB under the Executive
order.
Public Comment: In response to our
invitation to comment in the NPRM, 89
parties submitted comments on the
proposed regulations.
We discuss substantive issues under
the sections of the proposed regulations
to which they pertain, except for a
number of cross-cutting issues, which
are discussed together under the
heading ‘‘Cross-cutting issues.’’
Generally, we do not address technical
and other minor changes, or suggested
changes the law does not authorize us
to make under the applicable statutory
authority. In addition, we do not
address general comments that raised
concerns not directly related to the
proposed regulations or that were
otherwise outside the scope of the
regulations, including comments that
raised concerns pertaining to
instructional curriculum, particular sets
of academic standards or assessments or
the Department’s authority to require a
State to adopt a particular set of
academic standards or assessments, as
well as comments pertaining to the
Department’s regulations on statewide
accountability systems, data reporting,
and State plans.
Tribal Consultation: The Department
held four tribal consultation sessions on
April 24, April 28, May 12, and June 27,
2016, pursuant to Executive Order
13175 (‘‘Consultation and Coordination
with Indian Tribal Governments’’). The
purpose of these tribal consultation
sessions was to solicit tribal input on
the ESEA, including input on several
changes that the ESSA made to the
ESEA that directly affect Indian
students and tribal communities. The
Department specifically sought input
on: The new grant program for Native
language Immersion schools and
projects; the report on Native American
language medium education; and the
report on responses to Indian student
suicides. The Department announced
the tribal consultation sessions via
listserv emails and Web site postings on
https://www.edtribalconsultations.org/.
The Department considered the input
provided during the consultation
sessions in developing the proposed
requirements.
Analysis of Comments and Changes:
An analysis of the comments and of any
changes in the regulations since
publication of the NPRM follows.
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Cross-Cutting Issues
Reorganization and Renumbering of the
Proposed Regulations
Comments: None.
Discussion: The NPRM included
proposed regulatory sections to
implement the innovative assessment
demonstration authority in §§ 200.75
through 200.80. However, some of these
sections contain existing regulations
that have not yet been removed and
reserved. Accordingly, we are revising
the final regulations by renumbering the
proposed sections, as follows:
• New § 200.104 (proposed § 200.76)
entitled ‘‘Innovative assessment
demonstration authority.’’
• New § 200.105 (proposed § 200.77)
entitled ‘‘Demonstration authority
application requirements.’’
• New § 200.106 (proposed § 200.78)
entitled ‘‘Innovative assessment
selection criteria.’’
• New § 200.107 (proposed § 200.79)
entitled ‘‘Transition to statewide use.’’
• New § 200.108 (proposed § 200.80)
entitled ‘‘Extensions, waivers, and
withdrawal of authority.’’
Changes: We have revised the final
regulations by renumbering the
regulatory sections, as proposed. As a
result, we have added §§ 200.104
through 200.108 in the final regulations,
which describe the demonstration
authority, in general; application
requirements; selection criteria;
transition to statewide use; and
extensions, waivers, and withdrawal of
authority.
Overtesting
Comments: A few commenters raised
concerns that the proposed
requirements impose new testing
requirements. Of these commenters, a
few expressed concern that the
assessments would serve to punish
teachers who work with children who
are struggling academically. Others were
concerned that the assessments would
be inappropriately used for high stakes
decisions.
Discussion: Neither section 1204 of
the ESEA nor the proposed regulations
impose new assessment requirements
beyond those required by title I, part A
of the ESEA. Accurate and reliable
measurement of student achievement
based on annual State assessments in
reading/language arts and mathematics
remains a core component of State
assessment and accountability systems
under the ESSA. In support of these
goals, section 1111(b)(2)(B)(v)(I) of the
ESEA requires annual assessments in
reading/language arts and mathematics
to be administered to all students in
each of grades 3 through 8, and at least
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once between grades 9 and 12. Section
1204 allows a State to pilot new
innovative assessments under a
demonstration authority, but requires
that each State assess all students on the
applicable assessments, using either the
innovative assessment in participating
LEAs and schools or the statewide
assessment in non-participating LEAs
and schools. No State is required to
participate in the innovative assessment
demonstration authority. Finally, while
States are required to use the results of
State assessments in statewide
accountability systems, consistent with
sections 1111(c) and 1111(d) of the
ESEA, there are no further requirements
for how assessment results are used,
including for teacher evaluation or
student advancement and promotion
decisions. Decisions about the use of
test results for those purposes remain a
State and local decision.
Changes: None.
Comments: One commenter
commended the Department for
allowing States the option to pilot a new
assessment in a subset of schools rather
than the entire State, but stressed that
true innovation is needed to reduce the
unnecessary and high stakes associated
with assessments in the United States.
The commenter encouraged the
Department to look for opportunities to
reduce testing, particularly for high
stakes purposes. Another commenter
noted that districts are already required
to track student growth through
Response to Intervention in
kindergarten through grade 5 (K–5), so
having State assessments in grades 3–5
is duplicative testing.
Discussion: Section 1111(b)(2)(B)(v)(I)
of the ESEA requires that each State
administer reading/language arts and
mathematics assessments in each of
grades 3 through 8 and at least once in
grades 9 through 12; while some schools
may be required by their LEA or State
to use Response to Intervention in
grades K–5, there is no Federal
requirement to do so. We believe that
while the ESEA maintains this core
requirement for annual assessment, it
also presents States with opportunities
to streamline low-quality or duplicative
testing. Each State, in coordination with
its LEAs, should continue to consider
additional action it may take to reduce
burdensome and unnecessary testing.
We know that annual assessments, as
required by the ESSA, are tools for
learning and promoting equity when
they are done well and thoughtfully.
When assessments are done poorly, in
excess, or without a clear purpose, they
take time away from teaching and
learning. The President’s Testing Action
Plan provides a set of principles and
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actions that the Department put forward
to help protect the vital role that good
assessments play in guiding progress for
students, advancing equity for all, and
evaluating schools, while providing
help in reducing practices that have
burdened classroom time or not served
students or educators well. We plan to
issue further non-regulatory guidance to
help States and LEAs use the provisions
of the ESEA to take actions aligned with
the Testing Action Plan to improve
assessment quality and reduce the
burden of unnecessary and duplicative
testing.
Changes: None.
Parental Rights
Comments: One commenter noted the
importance of parental involvement in
issues pertaining to State assessments
under the ESEA, including test design,
reporting, and use of test results, and
voiced support for parents’ rights to
make decisions around their child’s
participation in assessments. Another
commenter was supportive of expecting
students to take assessments, but
concerned—given the decisions some
parents make to opt their children out
of taking assessments—about requiring
that a 95 percent participation rate
among students and subgroups of
students be a factor for school
accountability purposes. The
commenter suggested that the final
regulations make 95 percent
participation a goal, rather than a
requirement, and expect States to
review participation rates in schools
that fail to assess at least 95 percent of
their students.
Discussion: We agree with
commenters that it is important to seek
and consider input from parents when
designing and implementing State
assessment systems and policies.
Accurate and reliable measurement of
student achievement based on annual
State assessments in reading/language
arts and mathematics remains a core
component of State assessment and
accountability systems under the ESEA.
In support of these goals, section
1111(b)(2)(B)(i) and (v)(I) of the ESEA
requires annual assessments in reading/
language arts and mathematics to be
administered to all students in each of
grades 3 through 8, and at least once
between grades 9 and 12. Section
1111(c)(4)(E) of the ESEA also requires
that States hold schools accountable for
assessing at least 95 percent of their
students. The statute reiterates these
critical requirements for holding
participating schools in the innovative
assessment demonstration authority
accountable, as described in sections
1204(e)(2)(ix) and 1204(j)(1)(B)(v)(II),
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which both reference the requirements
in section 1111(c) in the application
requirements and requirements for
transitioning to using the innovative
assessment system statewide. All States,
regardless of their participation in
innovative assessment demonstration
authority, are responsible for ensuring
that all students participate in the
State’s annual assessments and that all
schools meet the statutory and
applicable regulatory requirements to
hold schools accountable for the 95
percent participation rate requirement.
The final regulations for the innovative
assessment demonstration authority,
like the proposed regulations, are
designed to assist States in fulfilling this
responsibility.
Changes: None.
Comments: A few commenters raised
concerns that the proposed regulations
will impose new data collection
requirements that might lead to data
mining. These commenters were
particularly concerned about student
privacy and the right of parents to
protect their students’ data from being
collected.
Discussion: We agree with the
commenters’ concern that it is
paramount to protect student privacy.
New § 200.105(b)(8) (proposed
§ 200.77(b)(8)) requires that each State
and LEA report student results on the
innovative assessment, consistent with
sections 1111(b)(2)(B) and 1111(h) of the
ESEA, including section
1111(b)(2)(B)(xi), which provides that in
reporting disaggregated results, the
State, LEA, and school may not reveal
personally identifiable information
about an individual student. Further,
new § 200.105(d)(3)(ii) (proposed
§ 200.77(d)(3)(ii)) requires that any data
submitted to the Secretary regarding the
State’s implementation of the innovative
assessment demonstration authority
may not reveal any personally
identifiable information. We disagree
with the commenters that this
regulation requires new student-level
data to be publicly reported beyond
those requirements in the statute; rather,
it requires that any State choosing to
participate in the innovative assessment
demonstration authority continue to
meet the reporting requirements of
sections 1111(b)(2)(B) and 1111(h) of the
ESEA.
Changes: None.
Stakeholder Engagement
Comments: Multiple commenters
supported the proposed regulations for
prioritizing meaningful consultation
with stakeholders in various phases of
the innovative assessment
demonstration authority, such as in
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developing States’ applications and
plans for innovative assessment
demonstration authority in proposed
§ 200.77(a)(2) and in requiring ongoing
feedback from stakeholders on
implementation in proposed
§ 200.77(d)(3)(iv). These commenters
appreciated that the proposed
regulations emphasized a meaningful
role for assessment experts; parents and
parent organizations; teachers,
principals and other school leaders, and
local teacher organizations (including
labor organizations); local school
boards; groups representing the interests
of particular subgroups of students,
including English learners, children
with disabilities, and other subgroups
included under section 1111(c)(2) of the
ESEA; and community organizations
and intermediaries.
Discussion: We appreciate the support
for these provisions and agree that
meaningful, timely, and ongoing
consultation with a diverse group of
stakeholders at all phases of the
innovative assessment demonstration
authority is essential to ensure effective
implementation and development of a
high-quality innovative assessment
system. We strongly encourage States to
engage in substantial outreach with
stakeholders in developing and
implementing an innovative assessment
system under the ESSA.2
Changes: None.
Comments: Several commenters
suggested that evidence of consultation
with stakeholders at the time a State is
seeking demonstration authority in
proposed § 200.77(a) be submitted
directly from stakeholders, rather than
from the State.
Discussion: We believe the
commenters’ concern that evidence of
meaningful consultation under new
§ 200.105(a) (proposed § 200.77(a)) is
submitted from the State, rather than
from required groups, is mitigated by
the selection criterion under new
§ 200.106(b)(3) (proposed
§ 200.78(b)(3)), which requires a State to
submit signatures directly from groups
and individuals supporting the
application, many of whom overlap
with those who must be consulted
under new § 200.105(a). As a result, we
believe that adding to the provisions for
consultation by requiring States to
gather and submit further information
from organizations and individuals
directly would add burden to the
application process without providing
2 The Department has issued non-regulatory
guidance on consultation under the ESEA,
including suggestions and examples of best
practices for meaningful stakeholder engagement.
See: https://www2.ed.gov/policy/elsec/guid/
secletter/160622.html.
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substantially new information that
would aid in the external peer review of
a State’s application.
Changes: None.
Comments: A few commenters
requested that the Department add
specific groups of stakeholders to the
list of those with which the State must
consult in developing its innovative
assessment system and application
under proposed § 200.77(a)(2).
Commenters suggested adding groups
such as specialized instructional
support personnel, representatives of
community-based organizations, and
organizations and parents who advocate
for the interests of particular subgroups
of children or are experts in working
with these subgroups. In addition, one
commenter representing tribal
organizations suggested that tribal
leaders be included as a required group
for consultation under proposed
§ 200.77(a)(2). Stakeholders supported
including these groups under proposed
§ 200.77(a)(2) because States would then
be required to regularly solicit ongoing
feedback from these additional groups
under proposed § 200.77(d)(3)(iv) and
during the transition to statewide use of
the innovative assessment system under
proposed § 200.79(b)(3).
Discussion: The list of stakeholders
that are part of required consultation
under new § 200.105(a)(2) (proposed
§ 200.77(a)(2)) comes directly from
section 1204(e)(2)(A)(v)(I) of the ESEA.
The Department added students to the
list of required stakeholders, given the
substantial and direct impact of
implementing a new innovative
assessment on the teaching and
instruction students will receive and to
reinforce related statutory requirements
for ensuring students are acclimated to
the innovative assessments, as described
in section 1204(e)(2)(B)(vi) of the ESEA.
While we recognize that the additional
groups suggested by commenters for
inclusion in the regulations may also
provide valuable input in developing
the innovative assessment, we believe
that the current list, as proposed,
already includes broad categories to
ensure diverse input, such as
‘‘educators’’ and those ‘‘representing the
interests of children with disabilities,
English learners, and other subgroups.’’
We note that a State may always
consult with additional groups beyond
those required in the regulations in
developing its innovative assessment
system, and we strongly encourage
States to ensure meaningful and ongoing
engagement with a diverse group of
stakeholders. The Department has
issued non-regulatory guidance,
generally, on conducting effective
outreach with stakeholders in
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implementing the ESSA, with
suggestions and examples of best
practices for meaningful stakeholder
engagement.3
We agree that it would be helpful to
emphasize that parents of particular
subgroups of students, as well as
organizations representing these
students, must be consulted, and are
revising the final regulations
accordingly. The State must consider
the appropriate services to ensure
meaningful communication for parents
with limited English proficiency and
parents with disabilities.
In addition, we agree that it would be
beneficial to add representatives of
Indian tribes to the list of required
stakeholders, as some LEAs have a high
percentage of their student population
who are American Indian or Alaska
Native, and these LEAs will be expected
to implement the innovative assessment
by the time the State transitions to
statewide use of the innovative
assessment system. This requirement is
consistent with the new requirement in
title I, part A for States to consult with
representatives of Tribes prior to
submitting a State plan (section
1111(a)(1) of the ESEA), and the new
requirement that certain LEAs consult
with Tribes prior to submitting a plan or
application for covered programs
(section 8538 of the ESEA).
Changes: We have added new
§ 200.105(a)(2)(iv) to require State
collaboration with representatives of
Indian tribes and § 200.105(a)(2)(v) to
specify that parents who are consulted
must include parents of children in
subgroups described in § 200.105(a)(2)(i)
(proposed § 200.77(a)(2)(i)).
Comments: Several commenters
suggested that particular groups or
individuals be added to the list of
entities for which a State submits
signatures under the selection criterion
demonstrating stakeholder support for
innovative assessment demonstration
authority in proposed § 200.78(b)(3)(iv).
Commenters suggested that disability
rights organizations, community-based
organizations, and statewide
organizations representing
superintendents or school board
members also be added. Some of these
commenters felt that signatures from
other stakeholders listed in proposed
§ 200.78(b)(3)(iv) should be required,
believing these organizations’ views
were considered as less important than
groups representing local leaders,
administrators, and teachers. Another
commenter recommended that we
3 For more information regarding stakeholder
engagement, please see: https://www2.ed.gov/policy/
elsec/guid/secletter/160622.html.
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require teacher signatures where local
teacher organizations do not exist to
ensure that States have support from
teachers in the development and
implementation of the innovative
assessment system.
Discussion: In proposed
§ 200.78(b)(3), the Department
prioritized requiring signatures from
those individuals and organizations that
are most directly involved in the
implementation of innovative
assessments at the local level, such as
superintendents, school boards, and
teacher organizations, as these are the
individuals who will be charged
(depending on the State’s innovative
assessment system design) with
developing, administering, or scoring
the assessments; thus, their input and
support are essential to the successful
implementation of the innovative
assessment system. We agree with
commenters that signatures of support
from other individuals, however, can be
beneficial and note that while the
selection criterion in new
§ 200.106(b)(3)(i)–(ii) (proposed
§ 200.78(b)(3)(i)–(ii)) specifically
references signatures from
superintendents and school boards in
participating districts, this does not
preclude a State from requesting and
including signatures and letters of
support from State organizations
representing superintendents and
school boards, as such groups may be
included under ‘‘other affected
stakeholders’’ as described in new
§ 200.106(b)(3)(iv) (proposed
§ 200.77(b)(3)(iv)). Signatures from
disability and community-based
organizations may also be included
under new § 200.106(b)(3)(iv).
Moreover, because these signatures are
part of the selection criteria, if a State
were to include signatures from a wide
range of individuals—including those
that are not required, but may be
included, as described in new
§ 200.106(b)(3)(iv)—it would strengthen
this component of the State’s
application. In this way, we believe the
requirements, as proposed, provide a
strong incentive for a State to seek input
and support from a diverse group of
stakeholders, and organizations
representing those stakeholders in
developing its application, without
adding burden to the process for States
by including additional required
signatures from groups who may not be
directly involved in implementation of
the innovative assessment system.
Similarly, while signatures from
individual teachers in participating
districts could be a powerful
demonstration of support from
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educators in participating districts, we
believe such a requirement would add
a significant burden for LEAs and SEAs.
A State may choose to collect teacher
signatures, but we also recognize it may
be more efficient and feasible for SEAs
and LEAs to collect signatures from
organizations that represent teachers.
Changes: None.
Comments: One commenter
recommended that the final regulations
require ongoing collaboration with
stakeholders, including parents and
organizations that advocate on behalf of
students, in addition to consultation on
the development of the innovative
assessment system at the time of the
State’s application as described in
proposed § 200.77(a).
Discussion: New § 200.105(d)(3)(iv)
(proposed § 200.77(d)(3)(iv)) requires
each State to submit an assurance in its
application that it will annually report
to the Secretary on implementation of
its innovative assessment system,
including ongoing feedback from
teachers, principals, other school
leaders, students and parents, and other
stakeholders consulted under new
§ 200.105(a)(2) (proposed § 200.77(a)(2))
from participating schools and LEAs. As
States must collect and report on this
stakeholder feedback each year, and the
Department will use it to inform
ongoing technical assistance and
monitoring of participating States, we
believe no further requirements related
to ongoing consultation are necessary.
Changes: None.
Comments: One commenter
supported the provisions for States to
include the prior experience of external
partners as part of the selection criterion
in proposed § 200.78(b), but suggested
that we revise the final regulations in
proposed § 200.78(d) to include
community-based organizations so as to
emphasize the need for States to partner
with external organizations to provide
training to staff and to familiarize
parents and students with the
innovative assessment.
Discussion: SEAs and consortia of
SEAs must submit evidence under new
§ 200.105(a)(1) (proposed § 200.77(a)(1))
of collaboration in developing the
innovative assessment system,
including experts in the planning,
development, implementation, and
evaluation of innovative assessment
systems, many of whom could be part
of external partnerships the SEA or
consortium has established. We are
revising the regulations in new
§ 200.105(a)(1) to more clearly describe
that external partners may be included
as collaborators. The commenter is
correct that the selection criterion in
new § 200.106(b) (proposed § 200.78(b))
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provides for States to describe the prior
experience of their external partners, if
any. Further, we presume the role of
external partners in executing a State’s
plan for demonstration authority will be
fully described, if applicable, in each
relevant selection criterion, and do not
feel it is necessary to explicitly note that
a State may work with external partners
in each and every area, as we believe
States are best positioned to determine
the areas in which their work could
benefit from external partnerships,
based on their innovative assessment
system design. A high-quality plan for
supporting educators and students, for
example, would include sufficient detail
on any external partnerships and
resources to accomplish this work, if the
State has determined such partnerships
are necessary.
Changes: We have added new
§ 200.105(a)(1) (proposed § 200.77(a)(1))
to clarify that experts in the planning,
development, implementation, and
evaluation of innovative assessment
systems with whom SEAs collaborate to
develop the innovative assessment
system may include external partners.
Comments: One commenter
encouraged the Department and States
to engage local school boards in the
process to identify participating districts
and schools for the innovative
assessment pilot.
Discussion: SEAs and consortia of
SEAs must consult with school leaders
during the application process under
new § 200.105(a)(2)(ii) (proposed
§ 200.77(a)(2)(ii)). The selection
criterion provides for SEAs to submit
signatures from LEA superintendents
and local school boards participating in
the demonstration authority, consistent
with new § 200.106(b)(3)(i)–(ii)
(proposed § 200.78(b)(3)(i)–(ii)), as a
showing of support for the innovative
assessment demonstration authority. We
believe that these requirements and
selection criterion provide opportunities
for SEAs to speak with local school
leaders, including local school boards,
about their plans for and support of
innovative assessments. These
conversations will also be the time for
SEAs to discuss district or school
participation with local leaders,
including school boards. Given these
provisions, we do not think further
changes to the regulations are necessary.
Changes: None.
200.104 Innovative Assessment
Demonstration Authority
General
Comments: Many of the commenters
supported the innovative assessment
demonstration authority as an
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opportunity to move toward more
innovative and meaningful systems for
assessing student learning, beyond
traditional multiple choice exams. In
particular, some commenters supported
the inclusion of performance- and
competency-based assessments. One
commenter advocated for a regulation
that encourages new ways to assess
under an existing system (e.g.,
embedding technology-enhanced items),
different strategies to do what current
assessments intend to do but fail to do
(e.g., assessing higher-order thinking
skills), or new ways to assess student
competencies beyond what current
assessments can do (e.g., assessing in
individualized or real world settings).
One commenter appreciated the
opportunity to use the advances in
assessment to better measure student
learning, but asked the Department to
ensure that this focus on innovation
does not jeopardize assessment rigor
and comparability. Multiple
commenters felt that the regulations
provided appropriate flexibility with
protections to ensure that assessments
are high-quality, valid, and reliable
measurements consistent with the
provisions of ESEA.
Discussion: We appreciate
commenters’ support of the innovative
assessment demonstration authority and
believe that this authority can enhance
State efforts to measure student mastery
of challenging State academic standards
and will lead to improved academic
outcomes for all students. We also agree
that it is essential, even as States are
piloting more innovative assessments,
that all students, including students
with the most significant cognitive
disabilities, be held to challenging
content standards, and that all
assessments be of high quality,
producing valid, reliable, and
comparable determinations of student
achievement, except for alternate
assessments for students with the most
significant cognitive disabilities, as
defined by a State under § 200.6(d)(1)
and section 1111(b)(2)(D) of the ESEA,
who may be assessed with alternate
assessments aligned with alternate
academic achievement standards
consistent with section 1111(b)(1)(E) of
the ESEA.
In developing these regulations, we
worked carefully to balance the
flexibility offered to States under this
authority and the need to provide room
for innovation with the responsibility to
ensure that States continue to meet the
requirements of title I of the ESEA. As
long as States meet the requirements of
title I of the ESEA, they may explore
new ways to assess students beyond
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what is possible with the current
assessments.
Changes: None.
Comments: Several commenters
expressed general disagreement with
providing States innovative assessment
demonstration authority, claiming that
the authority would not support
students or their learning. Other
commenters expressed concern that the
regulations, as proposed, require too
many assurances and documentation,
create too many prescriptive
requirements, and impede States’ ability
to create truly innovative assessment
systems.
Discussion: The innovative
assessment demonstration authority
provides flexibility to States to develop
and administer a new system of
assessments that may include different
types of assessments, such as
instructionally embedded assessments
or performance-based tasks, that provide
useful and timely information for
educators to guide instruction and
identify appropriate instructional
supports. Under the demonstration
authority, States may develop new
innovative assessments that meet the
needs of their teachers and that provide
better measures for learning. However,
section 1204(e)(2)(A)(vi) of the ESEA
requires that assessments be developed
so that they are accessible to all
students, including English learners and
students with disabilities; are fair, valid,
and reliable; and hold all students to the
same high standards.
We disagree that the requirements are
unnecessarily burdensome or too
prescriptive. Under section 1204 of the
ESEA, the demonstration authority is for
those States interested in piloting new
innovative assessments and
administering the innovative
assessments in a subset of schools for
the purposes of accountability and
reporting instead of the statewide
assessment, until a State fully scales use
of the innovative assessment among all
LEAs and schools. If a State wants to
create an innovative assessment outside
of the demonstration authority while
continuing to use the statewide
assessment in all schools and LEAs, the
State may do so. Section 1204 of the
ESEA further establishes the application
requirements for States seeking
innovative assessment demonstration
authority. The regulations clarify and
organize those statutory requirements in
new §§ 200.105 and 200.106 (proposed
§§ 200.77 and 200.78). Given that the
demonstration authority is initially
limited to seven States, we particularly
believe the selection criteria outlined in
new § 200.106 will provide the chance
for peer reviewers to distinguish high-
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quality applications consistent with the
requirements of the statute. Moreover,
section 1601(a) of the ESEA provides
that the Secretary ‘‘may issue . . . such
regulations as are necessary to
reasonably ensure that there is
compliance’’ with the law. The
Department also has rulemaking
authority under section 410 of the
General Education Provisions Act
(GEPA), 20 U.S.C. 1221e–3, and section
414 of the Department of Education
Organization Act (DEOA), 20 U.S.C.
3474. These regulations are necessary
and appropriate to assist States in
developing new, innovative assessments
while maintaining high expectations,
validity, and rigor; further, they are
consistent and specifically intended to
ensure compliance with section 1204 of
the ESEA.
Changes: None.
Comments: One commenter suggested
the Department ask States to indicate
their interest in the innovative
assessment demonstration authority
when they submit their consolidated
State plan. The commenter noted that
under this recommendation a State
would share its vision for an innovative
assessment without submitting a
binding application, allowing the
Department to provide targeted
technical assistance to interested States.
Discussion: Title I, part B is not one
of the programs included in the
definition of ‘‘covered program’’ in
section 8101(11) of the ESEA as it
applies to the consolidated State plan.
Accordingly, we do not believe it is
necessary to include a requirement for
States to indicate their interest in the
demonstration authority in the
consolidated State plan.
Changes: None.
Comments: None.
Discussion: In reviewing the proposed
regulations, the Department believes it
would be helpful to establish definitions
of ‘‘participating LEA’’ and
‘‘participating school.’’ At some points
during implementation, States may have
both participating and non-participating
LEAs and schools, and this change
provides clarity about what it means for
an LEA or school to be participating in
the demonstration authority.
Changes: We have added
§ 200.104(b)(4) to define a ‘‘participating
LEA’’ as an LEA in the State with at
least one school participating in the
innovative demonstration authority. We
also have added § 200.104(b)(5) to
define ‘‘participating school’’ as a public
school in the State where the innovative
assessment system is administered
under the innovative assessment
demonstration authority instead of the
statewide assessment under section
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1111(b)(2) of the ESEA and where the
results of the school’s students on the
innovative assessment system are used
by its State and LEA for purposes of
accountability and reporting under
section 1111(c) and 1111(h) of the
ESEA. We have made conforming edits
in new §§ 200.105 and 200.106.
Defining Innovative Assessment
Comments: Many commenters
requested clarity concerning which
parts of the innovative assessment
system need to meet the requirements of
section 1111(b)(2) of the ESEA.
Specifically, commenters asked the
Department to be clear that it is the
innovative assessment system that must
meet the requirements, not each
individual innovative assessment. The
commenters noted that a grade-level
innovative assessment may be
comprised of multiple parts, each of
which may be a stand-alone assessment
(e.g., an interim assessment, a
performance-based assessment, or a
competency-based assessment), which
sum to an annual, summative gradelevel determination of how a student
performed against the challenging State
academic standards. Commenters
suggested that individual assessments
should not be required to meet the
requirements of peer review or section
1111(b)(2) individually.
Discussion: The Department believes
there may have been some confusion
about the meaning of innovative
assessments in the context of an
innovative assessment ‘‘system.’’ The
Department considers an assessment
system to be inclusive of all required
assessments under the ESEA, such as
the general assessments in all grade
levels in reading/language arts,
mathematics, and science, and the AA–
AAAS. A grade-level innovative
assessment, on the other hand, refers to
the full suite of items, performance
tasks, or other parts that sum to the
annual, summative determination.
The Department, through its peer
review process, will review the
innovative assessment system overall,
including a review of documentation
and evidence provided for the
innovative assessment at each grade
level that comprises the innovative
assessment system. The provision in
new § 200.107(b) (proposed § 200.79(b)),
which requires an innovative
assessment to meet all of the
requirements of section 1111(b)(2) of the
ESEA, does not mean that each part of
a grade-level innovative assessment
(e.g., an interim assessment, a
performance-based assessment, a
competency-based assessment) must
meet those requirements. Accordingly,
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the Department will not review each
part of the grade-level innovative
assessment (e.g., a single performance
task that makes up part of the State’s
innovative 4th-grade mathematics test)
to ensure that it meets the requirements
in § 200.2(b) and, therefore, the peer
review will not result in a determination
that a single grade-level assessment does
or does not meet the requirements of
peer review. We do note, however, that,
as a component of the peer review, a
State must submit grade-specific
documentation, such as alignment
evidence, test blueprints, or
documentation outlining the
development of performance tasks or
other components, and documentation
about the validity of the inferences
about the student.
To provide further clarity, we are
revising the definition of ‘‘innovative
assessment system’’ in new
§ 200.104(b)(3) (proposed § 200.76(b)(2))
to specify that an ‘‘innovative
assessment system’’ produces an annual
summative determination of each
student’s mastery of grade-level content
standards aligned to the challenging
State academic standards under section
1111(b)(1) of the ESEA, or, in the case
of a student with the most significant
cognitive disabilities assessed with an
AA–AAAS under section 1111(b)(1)(E)
of the ESEA and aligned with the State’s
academic content standards for the
grade in which the student is enrolled,
an annual summative determination
relative to such alternate academic
achievement standards for each such
student. We also are revising the
definition of ‘‘innovative assessment
system’’ to specify that an innovative
assessment may include, in any
required grade or subject, one or more
types of assessments, such as
cumulative year-end assessments,
competency-based assessments,
instructionally embedded assessments,
interim assessments, or performancebased assessments.
Changes: We have added a revised
definition of ‘‘innovative assessment
system’’ in new § 200.104(b)(3)
(proposed § 200.76(b)(2)) to clarify the
definition of ‘‘innovative assessment
system’’ to indicate that an innovative
assessment system:
• Produces an annual summative
determination of each student’s mastery
of grade-level content standards aligned
to the challenging State academic
standards under section 1111(b)(1) of
the ESEA, or, in the case of a student
with the most significant cognitive
disabilities assessed with an alternate
assessment aligned with alternate
academic achievement standards under
section 1111(b)(1)(E) of the ESEA and
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aligned with the State’s academic
content standards for the grade in which
the student is enrolled, an annual
summative determination relative to
such alternate academic achievement
standards for each such student;
• May include any combination of
general assessments or alternate
assessments aligned to alternate
academic achievement standards (AA–
AAAS) in reading/language arts,
mathematics, or science; and
• May, in any required grade or
subject, include one or more types of
assessments listed in new
§ 200.104(b)(3)(ii).
Comments: Two commenters asked
the Department to be more explicit in
the regulations that the innovative
assessment could be an innovative
general assessment, an innovative AA–
AAAS, or both.
Discussion: As we stated in the
preamble of the NPRM, an SEA or
consortium of SEAs may propose an
innovative general assessment in
reading/language arts, mathematics, or
science; an innovative AA–AAAS for
students with the most significant
cognitive disabilities, as defined by a
State under section 1111(b)(2)(D) of the
ESEA and § 200.6; or both. The
definition of ‘‘innovative assessment
system’’ in new § 200.104(b)(3)
(proposed § 200.76(b)(2)) also specifies
that a State’s innovative assessment
system may include assessments that
produce an annual summative
determination aligned with alternate
academic achievement standards for
students with the most significant
cognitive disabilities. In such cases, a
State’s application would demonstrate
that an innovative AA–AAAS has or
will meet all requirements, including for
technical quality, validity, and
reliability, that are included under
section 1111(b)(2)(B) of the ESEA. We
are further revising new § 200.104(b)(3)
to clarify that the innovative assessment
system may include any combination of
general assessments or AA–AAAS in
any required grade or subject.
Changes: We have added new
§ 200.104(b)(3) (proposed § 200.76(b)(2))
to specify that the innovative
assessment system may include any
combination of general assessments or
AA–AAAS in reading/language arts,
mathematics, or science that are
administered in at least one required
grade under section 1111(b)(2)(B)(v) of
the ESEA.
Defining Types of Innovative
Assessments
Comments: Multiple commenters
asserted that the terms used in proposed
§ 200.76(b)(2) to define an innovative
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88947
assessment, such as competency-based
assessments, instructionally embedded
assessments, and performance-based
assessments, are too open to
interpretation and may, in fact, limit
assessment options. Commenters
recommended that proposed
§ 200.76(b)(2) provide more specific
examples, such as essays, research
papers, science experiments, and highlevel mathematical problems.
Discussion: The definition of
‘‘innovative assessment system’’ in new
§ 200.104(b)(3) (proposed § 200.76(b)(2))
is consistent with the definition in
section 1204(a)(1) of the ESEA. We note
that essays, research papers, science
experiments, and high-level
mathematical problems may be
examples of performance-based
assessments, competency-based
assessments, or instructionally
embedded assessments. However, we do
not believe it is necessary to provide
that level of specificity in the
regulations. We think that this kind of
detailed clarification can be more
effectively provided in non-regulatory
guidance.
Changes: None.
Demonstration Authority Period
Comments: Multiple commenters
agreed with the proposed regulation as
written and believe that a requirement
for immediate implementation of the
innovative assessment system will
ensure that States receiving authority
commit time and resources to develop a
successful innovative assessment
system.
Discussion: We appreciate the support
of commenters for innovative
assessments and for the timeline for
implementation. States only need
demonstration authority when they are
ready to use the innovative assessment,
including for accountability and
reporting purposes, in at least one
school and at least one required grade
or subject instead of the statewide
assessment; prior to that, States have
discretion to consider and test different
innovative models to subsequently
propose under this authority.
Changes: None.
Comments: Numerous commenters
expressed concern about the
requirement that States be ready, upon
receiving demonstration authority, to
immediately implement a new
innovative assessment in at least one
school. Commenters believe States may
be unwilling or unable to commit time
and resources to the development of an
innovative assessment system without
an assurance that the Department would
consider their approach to an innovative
assessment system. These commenters
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suggested the Department consider a
two-stage application process in which
applicants may receive conditional
approval that would allow time for
planning prior to administration of the
innovative assessment system in at least
one school. One commenter noted that
this would be an opportunity for States
to work directly with the Department
and receive feedback and technical
assistance.
One commenter stated that, were the
Department to consider a conditional
approval process, it might risk
exceeding the seven-State limitation
during the initial demonstration
authority period if the Department
receives more than seven high-quality
applications that meet all of the
application requirements and selection
criteria. The commenter proposes a
contingency plan to rank the
applications in the event that the
number of applications exceeds the cap.
Several commenters suggested that
this requirement means the Department
drafted the proposed rule to
accommodate specific States or may
favor the participation of specific States.
One of these commenters recommended
the Department commit to granting
demonstration authority so that States
may pursue assessment innovation
without the burden of sanctions or the
threat of losing funds.
Discussion: We recognize that many
States need time to develop and
implement an innovative assessment
system. However, a State does not need
demonstration authority to plan for,
develop, or pilot an innovative
assessment system. The authority is
only needed once the State is ready to
administer an innovative assessment in
at least one school and will administer
the innovative assessment in place of
the statewide assessment, including for
purposes of accountability and reporting
under title I, part A.
If the Department grants
demonstration authority, even on a
conditional basis, to seven States in the
first year, there would be no additional
opportunities for other States to pursue
authority until the initial demonstration
period ends. The Department is
concerned that providing conditional
approval to States that are not ready to
implement an innovative assessment
system in at least one school may, as a
result, take an opportunity away from a
State that is close to being ready but
waits to submit an application to the
Department, even though that second
State may ultimately be ready to begin
implementing its innovative assessment
system sooner than the first State. In
addition, because we know there is a
tremendous amount of work involved in
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developing an innovative assessment
system, we think that it is possible that
a State with conditional approval may
subsequently encounter unanticipated
delays, challenges, or the need for
substantial redesign. If this were to
happen, it could negatively affect the
Department’s ability to evaluate the
initial demonstration authority before
determining to expand the innovative
demonstration authority, as required by
section 1204(c)(3) of the ESEA.
We encourage States to consider
several options for how they may
develop, implement, and scale an
innovative assessment. If a State plans
to pursue demonstration authority
immediately, a State might choose to
partner with an LEA or a school that
already has an innovative assessment
model in place at the local level. The
State could choose to partner with that
LEA or school using an innovative
assessment model to begin piloting this
model and using it for accountability
and reporting purposes under the ESEA
in that LEA or school, with the intention
of moving statewide, once the State is
granted innovative assessment
demonstration authority. Alternatively,
a State may choose to start small with
a focus on a single grade and content
area, like 8th-grade science. If the
Department does not receive and grant
demonstration authority to seven States
in the first year, we anticipate that there
will be additional opportunities for
States to apply for demonstration
authority until seven States have been
approved.
Finally, the regulations are not
designed to favor the participation of
certain States. We will hold all
applicants to the same high
expectations, outlined in new
§§ 200.105 and 200.106 (proposed
§§ 200.77 and 200.78), based on external
peer review of applications, before
granting innovative assessment
demonstration authority.
Changes: None.
Comments: Several commenters
objected to proposed § 200.76(b)(1),
which would require States to use the
innovative assessment system for
purposes of accountability during the
demonstration authority period. These
commenters cited section 1204(h) of the
ESEA which provides that States may
use the innovative assessment system
for accountability during the
demonstration authority. The
commenters believe that requiring
immediate use for accountability will
limit innovation and may discourage
States from applying until they are
ready.
Discussion: Schools and LEAs in a
State that are participating in an
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innovative assessment must continue to
be included in the State’s accountability
system to ensure transparency to
educators, parents, and the public about
school performance. Section
1204(e)(2)(C)(iii) requires an SEA’s plan
for innovative assessment
demonstration authority to include a
description of how the SEA will hold all
participating schools accountable for
meeting the State’s expectations for
student achievement. The manner in
which an SEA holds schools
accountable for meeting the State’s
expectations for student achievement is
through the statewide accountability
system under section 1111(c) of the
ESEA. A State may elect, pursuant to
section 1204(e)(2)(B)(i) of the ESEA, to
use the statewide academic assessments
required under section 1111(b)(2) of the
ESEA in the participating schools and
participating LEAs for accountability
purposes while piloting the innovative
assessment system. In the alternative,
the State may use its innovative
assessments, instead of the statewide
academic assessments, in reading/
language arts, mathematics, or science
for accountability purposes under the
demonstration authority if the
innovative assessment meets all of the
statutory requirements.
If a State does not wish to use an
innovative assessment for accountability
and reporting purposes, it does not need
demonstration authority to pilot its
innovative assessments. Only those
States that wish to use the innovative
assessment in place of the statewide
assessment, including for the purposes
of accountability and reporting under
title I, part A, in at least one school,
require innovative assessment
demonstration authority.
Changes: None.
Comments: Several commenters
strongly supported the option in
proposed § 200.77(b)(1) for SEAs to use
the statewide academic assessments for
accountability should they choose not to
use the innovative assessments for such
purposes.
Discussion: We appreciate the
commenters’ support.
Changes: None.
Community of Practice
Comments: Multiple commenters
expressed support for a process that
encourages States to undergo careful
planning, gather technical expertise,
and engage stakeholders before piloting
an innovative assessment. One
commenter supported the idea of having
a community of practice to provide
feedback and support to States in their
planning for an innovative assessment
system. However, the commenter noted
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that the lack of funding for the
community of practice does not indicate
a high level of support for States in the
development of an innovative
assessment system.
Discussion: We appreciate the support
of commenters for planning time and a
community of practice that provides
technical assistance in the planning and
development of an innovative
assessment system. We agree that a
community of practice would provide
an opportunity for States that are not yet
ready to apply for demonstration
authority an opportunity to work
together and with the Department and
experts in assessment and
accountability, to share information on
challenges faced, lessons learned, and
promising and best practices to support
continuous learning in ways to
strengthen student assessments. The
Department will strive to work
collaboratively with States and other
interested parties to provide technical
assistance and support to all interested
States.
Changes: None.
Peer Review of Applications
Comments: Commenters
recommended that teachers be included
in the list of peer reviewers on the basis
that teachers have experience
developing and implementing
innovative item types and may be
implementing the innovative
assessment systems that will be under
consideration in peer review. In
addition, commenters suggested that
principals and parents also be
considered as peer reviewers.
Discussion: We agree with
commenters that educators, including
teachers and principals, should be
considered as external peer reviewers.
The experience of principals and
teachers, especially of those already
implementing innovative assessments in
their schools and classrooms, is
valuable in the peer review process to
evaluate the strength of the application
and its supporting evidence. In new
§ 200.104(c)(2) (proposed § 200.76(c)(2)),
the Department specifies that peer
review teams will consist of individuals
with expertise in developing and
implementing innovative assessments,
such as psychometricians, researchers,
State and local assessment directors,
and educators—which includes teachers
and principals. Therefore, this is already
addressed in the regulations.
We do not agree that parents in
general should be added to the list of
peer reviewers in new § 200.104(c)(2).
The very technical nature of these
reviews requires that peer reviewers
have the experience and expertise to
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evaluate an SEA’s application, with an
emphasis on knowledge of and
experience with the development and
implementation of innovative
assessments and assessment technical
requirements such as test design,
comparability, and accessibility.
Certainly, if a parent meets these
requirements, including the level of
expertise expected in the development
and implementation of innovative
assessments, that person would be
considered to serve as a peer reviewer
for the innovative assessment
demonstration authority.
Changes: None.
Comments: One commenter
recommended that tribal representatives
be included in the list of peer reviewers
of State applications for demonstration
authority.
Discussion: As stated above, peer
reviewers will be selected based on the
individual’s experience and expertise,
with an emphasis on knowledge of and
experience with the development and
implementation of innovative
assessments. Peer reviewers may also be
individuals with past experience
developing innovative assessment
systems that support all students,
including English learners, children
with disabilities, and disadvantaged
students (ESEA section 1204(f)(2)). Prior
to selecting peer reviewers, the
Department will publish a notice
seeking peer reviewers and will reach
out to a wide variety of stakeholders
with such experience. We encourage
tribal representatives with the
experience and expertise in the
development and implementation of
innovative assessments to apply to be a
peer reviewer.
Changes: None.
Granting Demonstration Authority
Comments: Commenters expressed
concern that proposed § 200.76(d),
which stated that the Secretary may
award demonstration authority to ‘‘at
least one’’ State, suggests that the
Secretary might reject eligible
applicants or limit the pilot to fewer
States than the seven-State limit set
forth in the statute during the initial
demonstration period. Commenters
asked that § 200.76(d), and other
sections of the regulations, as
appropriate, be changed to clarify that
any State that meets the eligibility
criteria will receive demonstration
authority, not to exceed the seven-State
limit.
Discussion: We intended new
§ 200.104(d) (proposed § 200.76(d)) to
provide that the initial demonstration
period is the three years beginning with
the first year in which the Secretary
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88949
awards at least one State or consortium
demonstration authority under section
1204 of the ESEA. This is important to
clarify because, during the initial
demonstration authority period, the
Secretary may not grant demonstration
authority to more than seven States,
including States participating in a
consortium. We do not believe
additional clarification is needed in the
regulation as the Department references
‘‘at least one State’’ to indicate when the
initial demonstration authority period
begins (i.e., it is when at least one State
is granted the authority and begins
implementing in at least one school; not
when a full cadre of seven States have
been granted the authority).
Each State that applies for the
demonstration authority will undergo
peer review, as identified in the statute
and regulations. The peers will review
the strength of the State’s application
and evidence against the application
requirements and selection criteria
before providing recommendations to
the Secretary.
Changes: None.
Developing Innovative Assessments
Comments: One commenter
recommended that the Department
include a requirement that SEAs or
consortia of SEAs use competitive
bidding to identify and select
developers for innovative assessments
under the innovative assessment
demonstration authority. The
commenter asserted that such a
requirement would ensure that SEAs or
consortia of SEAs consider the expertise
of a wide range of entities experienced
in the design and development of
assessments, including the types of
assessments likely to be included as part
of an innovative assessment system.
Finally, the commenter noted that this
requirement would not be burdensome
as many State procurement laws
specifically require this type of process.
Discussion: We believe it is important
that each SEA or consortia of SEAs
consider the expertise and experience of
both LEAs within the State and any
external entities that will be supporting
the development and implementation of
innovative assessments. As noted by the
commenter, many State procurement
laws already govern the process that
States must use to identify and select
external partners. We do not believe it
is necessary or within the scope of these
regulations for the Department to
require specific procurement processes.
Therefore, the Department declines to
include additional requirements.
Changes: None.
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Consortia
Comments: One commenter
recommended that tribes be allowed to
apply for innovative assessment
demonstration authority, and that tribes
be allowed to participate in a
consortium of SEAs without counting
against the four-State limitation on
consortium membership. The
commenter also requested that tribes be
considered and included in State
innovative assessment pilots.
Discussion: Under section 1204 of the
ESEA, the Secretary may provide an
SEA, or a consortium of SEAs,
innovative assessment demonstration
authority. An SEA is defined as ‘‘the
agency primarily responsible for the
State supervision of public elementary
schools and secondary schools’’ (section
8101(49) of the ESEA), and ‘‘State’’ is
defined for purposes of title I, part B as
the 50 States, the District of Columbia,
and the Commonwealth of Puerto Rico
(section 1203(c) of the ESEA). The law
does not provide for separate eligibility
for tribes so we are unable to make that
change in these regulations. We note
that these regulations only govern States
and their school districts, and not
schools funded by the Bureau of Indian
Education (BIE) or by tribes. We also
note, however, that title I, part B does
provide a specific set-aside of funds for
the BIE for assessments (section
1203(a)(1) of the ESEA), and nothing in
the law prohibits those funds from being
distributed to tribes for the development
of assessments.
For the many State-funded public
school districts serving substantial
populations of American Indian/Alaska
Native students, and for individual
State-funded public schools operated by
a tribe (as in the case of some charter
schools), such public schools in a State
granted the demonstration authority
would be eligible to participate in the
innovative assessment system. We agree
that, in such States, collaboration with
tribal communities is essential.
Therefore, we strongly encourage
interested States to work closely with
any tribes located in their State when
developing and administering
innovative assessments. To prioritize
this collaboration, and as previously
described, we are requiring, in new
§ 200.105(a)(2) (proposed § 200.77(a)(2)),
State collaboration with representatives
of Indian tribes located in the State in
the development of the innovative
assessment.
Changes: None.
Comments: One commenter
appreciated the allowance in proposed
§ 200.76(d)(2), which provides that an
SEA that is affiliated with a consortium
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but not planning on using its innovative
assessment under the demonstration
authority would not count toward the
four-State limit on consortium size. The
commenter believed that this would
create an opportunity for some States to
receive technical assistance and
additional time for planning prior to
implementation of an innovative
assessment system. The commenter
suggested the final regulations include
information about how affiliate
members transition to become full,
participating members in a consortium,
including requiring these members to
receive approval through the
Department’s peer review process before
implementing innovative assessment
systems for accountability purposes.
Discussion: An SEA may be affiliated
with a consortium in order to
participate in the planning and
development of the innovative
assessment, but is not considered a full
member of the consortium unless the
SEA is using the innovative assessment
system in at least one LEA for the
purposes of accountability and reporting
under title I, part A of the ESEA instead
of the statewide assessment. Affiliate
members do not need to be included in
the application for demonstration
authority, nor do they count toward the
four-State limitation on consortium size.
The Department believes that it is the
responsibility of the consortium of
States and the affiliate State to
determine when the affiliate State is
ready to transition to full membership
in the consortium and begin using the
innovative assessment system,
consistent with the innovative
assessment demonstration authority
requirements. At that point, the
consortium, in partnership with the
State seeking to transition from
affiliated to full-member status, must
apply for and receive authority from the
Secretary to use the innovative
assessment system for accountability
and reporting purposes in place of the
statewide assessment system in
participating LEAs.
The Department believes it would be
helpful to establish a definition of
‘‘affiliate member of a consortium.’’ A
consortium of States may have both full
members and affiliate members, and we
believe it is necessary to clarify that a
State is not a full member of a
consortium unless it is proposing to use
the consortium’s innovative assessment
system. In addition, we agree with
commenters that it is necessary to
provide detail on how an affiliate
member of a consortium becomes a full
member with authority to administer
the consortium’s innovative assessment
system under demonstration authority.
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Changes: We have added
§ 200.104(b)(1) to include a definition of
‘‘affiliate member of a consortium’’ to be
an SEA that is formally associated with
a consortium of SEAs that is
implementing the innovative
assessment demonstration authority, but
is not yet a full member of the
consortium because it is not proposing
to use the consortium’s innovative
assessment system under the
demonstration authority. We have made
corresponding edits to new
§ 200.105(f)(1)(i) (proposed
§ 200.77(f)(1)(i)). We also have added
§ 200.105(f)(2) to clarify that the
consortium must submit a revised
application to the Secretary in order for
an affiliate member to become a full
member of the consortium and use the
consortium’s innovative assessment
system under the demonstration
authority.
200.105 Demonstration Authority
Application Requirements
General
Comments: One commenter suggested
that the innovative assessment system
incorporate expanded learning time or
other strategies that emphasize out-ofschool time as part of a coordinated
effort to provide students the
opportunity to demonstrate mastery
anytime, anywhere, including new
requirements for SEAs and consortium
of SEAs throughout proposed
§§ 200.77(b) and 200.78(a) to
incorporate after school and expanded
learning time programs.
Discussion: This regulation is
intended to support States as they apply
for and implement innovative
assessment demonstration authority
under section 1204 of the ESEA, which
includes the development and
expansion of an innovative assessment
system that can, at the conclusion of the
demonstration authority period, meet
requirements for statewide assessment
and accountability systems under title I,
part A. As there are no requirements
regarding instructional programming or
learning opportunities for students
outside of the school day related to
assessments and accountability systems
under title I, part A, nor in section 1204
of the ESEA, we believe that decisions
related to how extended learning time
may support implementation of the
innovative assessment system are best
left to SEAs and LEAs.
Changes: None.
Comments: None.
Discussion: The Department believes
it would be helpful for States interested
in innovative assessment demonstration
authority to reiterate in the regulations
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the statutory requirement in section
1204(e) of the ESEA that an SEA or
consortium’s application for
demonstration authority must be
submitted to the Secretary ‘‘at such
time’’ and ‘‘in such manner’’ as the
Secretary reasonably requires. Given
that the innovative assessment
demonstration authority is a new
flexibility permitted under the ESEA,
and that commenters, as previously
described, and stakeholders have asked
questions and requested greater
specificity on the application process,
we believe this revision would better
align the final regulations to the statute
and provide further clarity for States,
LEAs, and interested stakeholders.
Changes: We have added to the
introductory paragraph of new § 200.105
(proposed § 200.77) to clarify that
applications for innovative assessment
demonstration authority must be
submitted to the Secretary at such time
and in such manner as the Secretary
may reasonably require.
Comments: None.
Discussion: In reviewing the proposed
regulations, the Department believes it
will improve consistency with the
application requirements in new
§ 200.105(b) (proposed § 200.77(b)),
which requires that each application
demonstrate how the innovative
assessment system does or will meet
certain requirements for alignment,
validity, reliability, and quality, to add
to new § 200.104(c)(2) (proposed
§ 200.76(c)(2)) to state that the external
peer review process will evaluate how
the SEA’s application ‘‘meets or will
meet’’ each of these requirements in
new § 200.105.
Changes: We have added
§ 200.104(c)(2) (proposed § 200.76(c)(2))
to specify that the peer review of SEA
applications will be used to determine
if an application ‘‘meets or will meet’’
each of the requirements in § 200.105.
Comments: None.
Discussion: We further believe it is
necessary to clarify certain application
requirements pertaining to the
assurances a State must include relating
to annual reporting of information on
the demonstration authority. First, we
believe it would be helpful to clarify in
new § 200.105(d)(3) (proposed
§ 200.77(d)(3)) that States must provide
this information in a time and manner
as reasonably required by the
Secretary—which is consistent with the
requirement in new § 200.104(c) for the
submission of applications. Second,
because new schools within
participating LEAs and new LEAs may
join the demonstration authority
annually, we believe it would be helpful
to clarify in new § 200.105(e)(2)
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(proposed § 200.77(e)(2)) that LEAs
must annually assure they will follow
all requirements in § 200.105 and add to
new § 200.105(d)(3)(i)(B) (proposed
§ 200.77(d)(3)(i)(B)) that the State must
include these updated assurances in its
annual reporting to the Secretary.
Finally, in order to ensure consistent
reporting between participating and
non-participating schools, we believe
States should annually report data on
student achievement on the innovative
assessment system to the Secretary in a
way that is consistent with requirements
for State and LEA report cards required
under section 1111(h) of the ESEA,
which includes reporting on student
achievement and progress toward
meeting long-term goals. We are revising
§ 200.105(d)(3)(ii) accordingly.
Changes: We have added to new
§ 200.105(d)(3) (proposed § 200.77(d)(3))
to specify that annual reporting is
required at such time and in such
manner as the Secretary may reasonably
require. We have further added to new
§§ 200.105(d)(3)(i)(B) and 200.105(e)(2)
(proposed § 200.77(e)(2)) to require
States to include updated assurances
from each participating LEA annually
that the participating LEA will meet all
requirements in new § 200.105. Finally,
we have added to new
§ 200.105(d)(3)(ii) to specify that
reporting on the performance of all
students in participating schools must
be consistent with reporting student
achievement and participation data on
State and LEA report cards under
section 1111(h) of the ESEA.
Innovative Assessment Design and
Alignment
Comments: One commenter expressed
support for proposed § 200.77(b)(1),
which would allow States flexibility in
selecting specific grades or subject areas
to administer innovative assessments,
rather than assessments in all required
grades or subject areas.
Discussion: We appreciate the support
for providing flexibility for States to
propose an innovative assessment
system in any, or all, required grades
and subjects under section
1111(b)(2)(B)(v) of the ESEA as it
enables States to develop the innovative
demonstration authority at a scope to
meet their needs and priorities.
Changes: None.
Comments: A few commenters
encouraged the Department to clarify in
proposed § 200.77(b)(1) that the
innovative assessment must be
administered to all students and all
student subgroups within participating
schools, believing that it is critical to
emphasize that all students in each
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school are expected to participate in the
innovative assessment.
Discussion: We agree with
commenters that it is important for all
students, including all students within
particular subgroups, to be administered
the innovative assessment in each
participating school, and the intent of
proposed § 200.77(b)(1) was to require
all students in each participating school
to take the innovative assessment, if an
innovative assessment was developed
for a subject or grade in which they
were enrolled under the demonstration
authority. Given the concerns of the
commenters, we are revising the
regulations to more clearly state that all
students in each participating school
must take the innovative assessment in
each grade and subject in which an
innovative assessment is being piloted.
However, we note that, taken together,
final § 200.105(b)(1)(i) and (ii) (proposed
§ 200.77(b)(1)(i) and (ii)) do not require
States to develop an innovative AA–
AAAS for students with the most
significant cognitive disabilities for each
innovative general assessment; a State
only developing an innovative general
assessment would be required to
continue administering its statewide
AA–AAAS to students with the most
significant cognitive disabilities,
consistent with applicable statutory and
regulatory requirements under title I,
part A. All children with disabilities
ineligible for the AA–AAAS in the
participating school in the grade and
subject for which the State has an
innovative assessment should
participate in the innovative
assessment.
Changes: We have added to new
§ 200.105(b)(1)(i) (proposed
§ 200.77(b)(1)(i)) to clarify that the
innovative assessment must be
administered to all students in a subset
of participating LEAs or a subset of
participating schools within a
participating LEA.
Comments: One commenter
recommended that proposed
§ 200.77(b)(1)(i), which exempts States
from administering the same assessment
to all elementary and secondary
students in the State once it has been
granted demonstration authority, be
clarified, as it suggests States may
simultaneously pilot multiple
innovative assessments even within the
same grade or content area. If that was
the Department’s intent, the commenter
suggested that multiple innovative
assessments should each meet all
applicable regulatory requirements.
Discussion: We appreciate the
commenter’s suggestion for clarification
in this area. The Department intends for
the demonstration authority to be used
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to pilot a single innovative assessment
system, which—if successful—will
replace the current statewide
assessment. It was not meant to allow
for a State to try out multiple different
innovative assessment systems
simultaneously; accordingly, we are
adding to new § 200.105(b)(1)(i)
(proposed § 200.77(b)(1)(i)) to clarify
that a State with demonstration
authority may implement a single
innovative assessment system, rather
than ‘‘innovative assessments,’’ and that
the requirement to administer the same
assessment to all public school students
in the State does not apply during the
demonstration authority period,
extension period, or waiver period, but
does apply once the innovative
assessment system is used statewide
consistent with new § 200.107
(proposed § 200.79).
Changes: We have added to new
§ 200.105(b)(1)(i) (proposed
§ 200.77(b)(1)(i)) to specify that a State
with demonstration authority may
implement an ‘‘innovative assessment
system’’ initially in a subset of LEAs, or
a subset of schools within an LEA,
during the demonstration authority
period, extension period, or waiver
period, but must administer the same
assessment to all public school students
upon transition to statewide use
consistent with new § 200.107
(proposed § 200.79).
Comments: One commenter suggested
that proposed § 200.77(b)(2) be modified
to more clearly specify that all
innovative assessments, including an
innovative AA–AAAS for students with
the most significant cognitive
disabilities, align with challenging
academic content standards for the
grade in which the student is enrolled,
similar to proposed requirements for
statewide assessments under part A of
title I of the ESEA.
Discussion: The regulations in new
§ 200.105(b)(1) (proposed § 200.77(b)(1))
require that the innovative assessment
system meet the requirements of section
1111(b)(2)(B) of the ESEA, including
demonstrating that it is aligned with the
challenging State academic standards
and provides information about student
attainment of such standards and
whether the student is performing at the
student’s grade level. The requirement
in new § 200.105(b)(2)(i) (proposed
§ 200.77(b)(2)) applies to any innovative
assessment developed under the
demonstration authority, including an
innovative AA–AAAS for students with
the most significant cognitive
disabilities.
We agree with the commenter that it
is critical for requirements related to
alignment of assessments with academic
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content standards to be the same for the
innovative assessment demonstration
authority under part B of title I as they
are for statewide assessments under part
A of title I; like statewide assessments,
all innovative assessments must be
aligned with the breadth and depth of
the challenging State academic content
standards. To improve consistency
between these regulations and
requirements for State assessment
systems under title I, part A and to
reiterate uniform expectations for
alignment, we are revising these
regulations by adding ‘‘challenging’’ to
the reference to the State’s academic
content standards and removing ‘‘full’’
modifying depth and breadth of State
academic content standards. We also
agree with commenters that it would be
helpful to clarify that these standards
apply to the grade in which a student is
enrolled, which also improves
alignment of these requirements with
those in section 1111(b)(2)(B) of the
ESEA.
Changes: We have added
§ 200.105(b)(2)(i) to clarify that the
innovative assessment must align to the
challenging State academic content
standards under section 1111(b)(1) of
the ESEA, including their depth and
breadth, for the grade in which a
student is enrolled.
Comments: One commenter
appreciated the clarification and the
flexibility in the proposed regulations to
allow implementation of the innovative
assessment pilot in a subset of LEAs or
schools in one or more LEAs. Another
commenter, however, objected to this
flexibility, believing that participating
LEAs should be required to administer
the same assessment in all schools in
the LEA each year. The commenter was
concerned the requirement would set a
precedent for incomparable assessment
results and different expectations among
schools in a single school district.
Discussion: We appreciate
commenters’ feedback, but continue to
believe that it is helpful to provide
States and LEAs with flexibility to
determine whether it is best to pilot the
innovative assessment system in all
schools within an LEA in the same year,
or whether an LEA would be able to
better support high-quality
implementation if it has multiple years
to expand the pilot within the LEA to
all schools. In particular, we believe this
flexibility will benefit especially large
LEAs that will need to support
hundreds of schools in implementing a
new—and potentially quite different—
system, which will require shifts in
instruction, new professional
development, and other significant
investments of time and resources.
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Further, we believe that the statutory
and regulatory requirements that ensure
valid, reliable, and comparable annual
summative determinations, based on the
State’s academic standards, between the
innovative assessment system and the
statewide assessment, particularly in
new § 200.105(b)(2)–(4), allay the
commenter’s concern that this flexibility
will result in incomparable data and
disparate expectations for students in
participating and non-participating
schools. To that end, we are adding to
new § 200.105(b)(3) (proposed
§ 200.77(b)(3)) to clarify that the
innovative assessment system must
express student results ‘‘consistent
with’’ the ‘‘challenging’’ State academic
achievement standards; we are making
these changes given that, as proposed,
the provision to express results ‘‘in
terms consistent with’’ the State’s
academic achievement standards could
have been misinterpreted to only
require that the same labels be used to
describe student achievement on the
innovative assessment as are used to
describe student achievement on the
statewide assessment—even if those
labels carried very different meaning in
terms of students’ mastery of the
challenging State academic achievement
standards. We believe that removing ‘‘in
terms’’ and adding ‘‘challenging’’ to new
§ 200.105(b)(3) helps clarify that the
academic achievement standards must
be consistent and comparable between
the innovative and statewide assessment
systems. This requirement is also
reiterated in new § 200.105(b)(4)(ii), as
discussed in response to comments on
comparability of the two assessment
systems.
Changes: We have added
§ 200.105(b)(3) (proposed § 200.77(b)(3))
to clarify that the innovative assessment
system must express student results or
competencies ‘‘consistent with’’ the
‘‘challenging’’ State academic
achievement standards.
Comments: One commenter suggested
the Department require SEAs to include
demographically diverse LEAs or
schools in the innovative assessment
pilot from the very beginning of the
demonstration authority period, as
opposed to the requirement in the
proposed regulations under which SEAs
must ensure they are moving toward
including demographically diverse
LEAs over the course of the
demonstration authority. The
commenter pointed out that the
inclusion of different types of LEAs
from the outset, such as urban,
suburban, and rural LEAs, will ensure
that SEAs understand the needs of
different types of districts and schools
as they implement an innovative
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assessment system. Another commenter
supported the intent of proposed
§§ 200.77(d)(3)(ii) and 200.78(a)(3)(iii),
but suggested the final rule strengthen
the selection criterion so that a State
must use the demographic composition
of its public school students, rather than
its initially participating LEAs, as the
baseline to measure progress toward a
more demographically representative
subset of schools participating in the
innovative assessment system.
Discussion: The Department shares a
commitment to ensuring that SEAs
include demographically diverse LEAs
and schools in their innovative
assessment systems over time, but we
continue to believe that it is necessary
to provide States with reasonable
flexibility in how they scale their
innovative assessment system statewide
during the demonstration authority
period. While it is critically important
for States to implement and pilot their
new assessment systems in
demographically diverse LEAs and
schools as soon as possible in order to
make sure the assessment system is
viable and effective in a wide range of
contexts, requiring implementation in
demographically representative LEAs
and schools in the first year could result
in rushed implementation in LEAs and
schools that are not fully prepared for
the significant changes an innovative
assessment system may require. With
gradual implementation, SEAs may be
better able to recruit districts and
schools that are willing and prepared to
try the innovative assessment system
first, which can serve as proof points for
other districts and help set the entire
State and its schools up for success.
Nonetheless, all participating States
must demonstrate in their application
under new § 200.105(b)(5) (proposed
§ 200.77(b)(5)) that the innovative
assessment system will provide for the
participation of, and be accessible to, all
students, including children with
disabilities and English learners, and
provide appropriate accommodations
consistent with section 1111(b)(2) of the
ESEA.
Further, we believe that States will be
most likely to succeed in scaling their
innovative assessment if they can
develop rigorous criteria for
determining when to add new LEAs or
schools, with a plan that includes
annual benchmarks, as described in new
§ 200.106(a)(3)(iii) (proposed
§ 200.78(a)(3)(iii)), to achieve
implementation in demographically
diverse settings over time. We are,
however, revising new
§ 200.106(a)(3)(iii) to clarify that the
benchmarks are intended to achieve
high-quality and consistent
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implementation across all participating
schools that are similar demographically
to the State as a whole during the
demonstration authority period, using
the demographics of participating
schools as the baseline. Our intent in
specifying that the demographics of
initially participating schools must
serve as the baseline in setting these
benchmarks is to signal that the
demographics of initial participants,
which may be a subset of schools with
an LEA, are the starting point—while
the demographics of all students and
schools in the State serve as the end
point for these benchmarks.
Changes: We have added to new
§ 200.106(a)(3)(iii) (proposed
§ 200.78(a)(3)(iii)) to clarify that the
baseline for setting annual benchmarks
toward high-quality and consistent
implementation across schools that are
demographically similar to the State as
a whole is the demographics of
participating schools, not LEAs.
Comments: One commenter requested
that the Department require innovative
assessments to include items and tasks
that are the same across all participating
LEAs and schools. The commenter
argued that administering identical
assessments is a critical equity lever to
ensure that all students are receiving
rigorous instruction, and that schools
are being held accountable for the
performance of all students on highquality assessments.
Discussion: Under new
§ 200.105(b)(1) (proposed
§ 200.77(b)(1)), the innovative
assessments included within a State’s
innovative assessment system under the
demonstration authority must meet the
requirements of section 1111(b)(2)(B) of
the ESEA. As section 1111(b)(2)(B) and
corresponding regulations do not
require a State to use the same items or
tasks on an assessment administered
statewide under part A of title I and
allow for multiple forms of the
statewide assessment, we believe it
would be inappropriate, and counter to
the purpose of encouraging assessment
innovation and flexibility, to include
such a requirement for assessments
developed under the innovative
assessment demonstration authority. In
addition, we note that the requirements
for valid, reliable, and comparable
annual summative determinations,
based on the State’s academic standards,
between the innovative assessment
system and the statewide assessment,
particularly as set forth in new
§ 200.105(b)(2)–(4), (proposed
§ 200.77(b)(2)–(4)) help ensure that
accountability and data reporting will
be consistent between participating and
non-participating schools and help to
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protect equitable expectations for all
students.
Changes: None.
Comments: A few commenters
recommended that the regulations
explicitly require that a State be able to
calculate student growth from its
innovative assessment system. Another
commenter suggested that the peer
review process should be used to make
a determination on whether the
innovative assessment system may be
used to calculate student growth.
Discussion: The Department
appreciates the commenters’ views on
the use of innovative assessments to
estimate student growth, and
encourages States to strongly consider if
it will be beneficial for the innovative
assessment to measure student growth
when designing the system. However,
the Department believes it is more
consistent with both the requirements
for State assessments under section
1111(b)(2)(B)(vi) of the ESEA, and the
prohibition in section
1111(e)(1)(B)(iii)(III) of the ESEA, for the
innovative assessment demonstration
authority to not include a requirement
for innovative assessments to measure
student growth or for peer reviewers to
make a determination of whether the
innovative assessment system may be
used to measure student growth.
Changes: None.
Comparability
Comments: Several commenters
supported the requirement in proposed
§ 200.77(b)(4) that States demonstrate
comparability of the innovative
assessment results to the statewide
academic assessment. One commenter,
while providing general support for the
requirement, also encouraged the
Department to avoid adding burden
with overly prescriptive requirements
for comparability and for the design and
implementation of an innovative
assessment system. Another commenter
did not agree with the requirement that
the innovative assessment must provide
comparable, valid, and reliable results
to the statewide assessment.
Discussion: The Department agrees
that comparability is key to the
development of a valid and reliable
innovative assessment system that
meets the statutory requirements for
innovative assessment demonstration
authority. Additionally, the Department
solicited feedback from the public
during the notice and comment period
of the NPRM to gather additional ideas
on how the Department can ensure
comparability between existing
statewide assessments and innovative
assessments a State may pilot. Section
1204(e)(2)(A)(iv) of the ESEA requires
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that a State’s innovative assessment
system generate ‘‘results that are valid
and reliable, and comparable, for all
students and for each subgroup of
students’’ compared to the results for
those students on the statewide
assessment under title I, part A. Section
1601(a) of the ESEA provides that the
Secretary ‘‘may issue . . . such
regulations as are necessary to
reasonably ensure that there is
compliance’’ with the law. The
Department also has rulemaking
authority under section 410 of the
GEPA, 20 U.S.C. 1221e-3, and section
414 of the DEOA, 20 U.S.C. 3474.
We firmly believe that the
requirements for comparability are
necessary to reasonably ensure that
States meet the requirement in section
1204(e)(2)(A)(iv) as well as other
statutory requirements under section
1204(e)(2)(A)(xi) of the ESEA, such as
the requirement ‘‘to validly and reliably
aggregate data from the innovative
assessment system’’ for purposes of
school accountability and data reporting
under title I, part A. Thus, these
regulations are consistent and
specifically intended to ensure
compliance with section 1204 of the
ESEA.
The Department acknowledges that
the requirements for comparability for
innovative assessment systems are
rigorous in these regulations, but
believes they are reasonable because
setting clear expectations for
comparability will lead to stronger
evidence of validity and reliability from
States. While the Department
appreciates the need to allow States
flexibility in designing innovative
assessments, this flexibility must be
balanced with the imperative that States
meet all of the statutory provisions and
ensure their innovative assessment
systems are valid, reliable, fair, and of
high-quality. In addition, by providing
multiple paths to demonstrating
comparability, including a Statedetermined method, we believe we are
providing sufficient flexibility to States
in how they may demonstrate
comparability.
Changes: None.
Comments: One commenter urged the
Department to ensure that the
comparability requirements in proposed
§ 200.77(b)(4) provide for the evaluation
of new innovative assessments in terms
of their ability to allow for the
comparison of student performance
against the challenging State academic
standards across districts and among
subgroups of students.
Discussion: The Department agrees
that it is important to establish
comparability of student performance
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on the innovative assessment systems
with statewide assessments, and believe
the regulations sufficiently address the
commenter’s concern. New
§ 200.105(b)(2)–(3) (proposed
§ 200.77(b)(2)–(3)) requires the
innovative assessment system to be
aligned with the same academic content
and achievement standards with which
the statewide assessment is aligned, and
as previously described, we are revising
new § 200.105(b)(2)–(3) to further clarify
these expectations. In addition, new
§ 200.105(b)(4)(i) (proposed
§ 200.77(b)(4)) will ensure that States
plan, as described further in the
selection criterion related to evaluation
and continuous improvement in new
§ 200.106(e) (proposed § 200.78(e)), for
how they will demonstrate that the
annual summative determinations for
students (which are based on the
challenging State academic standards)
are comparable between the two
assessment systems, including for all
students and for each subgroup of
students under section 1111(b)(2)(B)(xi)
of the ESEA.
Changes: None.
Comments: Many commenters
requested that the Department make
explicit that the requirement for
comparability is based on the annual
summative determinations of student
proficiency on the innovative
assessment as compared to the results
(i.e., the academic achievement levels)
on the statewide assessment.
Discussion: The Department agrees
with these commenters that
comparability of the innovative
assessment to the statewide assessment
should be based on annual summative
determinations of student proficiency
on the innovative assessment system.
While the two assessment systems must
be aligned to the same challenging State
academic content and achievement
standards and produce student results
that are valid, reliable, and
comparable—as described in section
1204(e)(2)(A)(ii)–(iv) of the ESEA—we
did not intend to imply that the raw
scores or scale score levels must be
directly comparable, and we are adding
to new § 200.105(b)(4)(i) (proposed
§ 200.77(b)(4)) to clarify that the
requirement for comparability between
the two assessment systems is based on
results, including annual summative
determinations, generated for all
students and for each subgroup of
students.
Changes: We have added to new
§ 200.105(b)(4)(i) (proposed
§ 200.77(b)(4)) to clarify that
determinations of the comparability
between the innovative and statewide
assessment systems must be based on
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results, including the annual summative
determinations, as defined in new
§ 200.105(b)(7) (proposed
§ 200.77(b)(7)), that are generated for all
students and for each subgroup of
students and have made a conforming
change to new § 200.106(b)(1)(ii)(C)
(proposed § 200.78(b)(1)(ii)(C)).
Comments: A number of commenters
urged the Department not to define
comparability so narrowly that it would
stifle innovation and generally advised
the Department not to list specific
methodologies for establishing
comparability in regulation, but instead
provide examples of various approaches
in non-regulatory guidance. These
commenters also recommended that the
Department allow a State to develop an
evaluation methodology for establishing
comparability that is consistent with the
design and context of its innovative
assessment system. Similarly, some
commenters advised that States should
consider multiple approaches to
comparability evaluations to provide a
more complete picture of the degree of
comparability.
Discussion: The Department agrees
with commenters that States may need
flexibility in establishing the
comparability of their innovative
assessment system with their statewide
assessment system, and that it is
important for a State to select a
comparability methodology that is best
aligned with the design and context of
its innovative assessment system. To
support these goals, new
§ 200.105(b)(4)(i)(E) (proposed
§ 200.77(b)(4)(iv)) allows for a Statedesigned comparability methodology
should the State not wish to pursue one
of the other four methods in the
regulations; States may propose an
alternate methodology that provides for
an equally rigorous and statistically
valid comparison between student
performance on the innovative
assessment and the statewide
assessment.
However, we also believe that
demonstrating comparability between
the two assessment systems, as required
by section 1204(e)(2)(A)(iv) of the ESEA
is a critical safeguard for fairness and
equity during the demonstration
authority period, when both assessment
systems will be in use throughout the
State for school accountability and data
reporting purposes under title I, part A
for a period of five years, or more. If the
data from the innovative assessment
system are not comparable to the
statewide assessment during this time,
the integrity and validity of the school
accountability system will be
jeopardized; schools and students
requiring additional supports may go
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unidentified and not receive the extra
resources they deserve; and parents,
educators, and community members
will lack transparent and clear data
about student performance. Because the
comparability requirement is paramount
to consistently measuring student
progress against the challenging State
academic standards throughout the
State, and recognizing that
demonstrating comparability may be
technically challenging for States, the
regulations include examples of four
methods a State may use to demonstrate
comparability, in addition to providing
the option for a State-designed
methodology. We believe providing
these examples in the regulations,
which were developed based on public
comment and recommendations from
researchers and assessment experts,
States and other stakeholders, will be
helpful to States interested in the
demonstration authority for several
reasons. Having these examples in the
regulation will help States in evaluating
and adopting rigorous and wellestablished methods to meet the
statutory requirement for comparable
assessment systems; can support States
in immediate planning for the activities
and strategies that will be part of an
innovative assessment pilot prior to the
release of any Notice Inviting
Applicants (NIA), peer review guidance,
or additional non-regulatory guidance;
and provides context and a helpful
comparison if States decide to pursue
their own State-designed method to
demonstrate comparability. Because a
State-designed method for
demonstrating comparability between
the two assessments is also permitted,
we believe the regulations balance the
requirement that States must
sufficiently demonstrate comparability,
as described in section 1204(e)(2)(A)(iv)
of the ESEA, with the desire to provide
States with flexibility and promote
innovation in designing innovative
assessment systems.
Changes: None.
Comments: Several commenters
provided technical advice to the
Department regarding the
methodologies for demonstrating
comparability. These commenters urged
the Department to make judgments on
the strength of the theory and evidence
provided by States to support
comparability for each innovative
assessment system and avoid an overly
prescriptive approach, offering a
detailed list of considerations and
decision points States could use in
selecting a comparability method.
Finally, while agreeing with the
technical soundness of the
methodologies provided in the
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regulations, these commenters described
a dozen specific research approaches for
evaluating comparability under
proposed § 200.77(b)(4), such as
propensity score matching. These
commenters encouraged the Department
to not include any specific
methodologies in regulation but provide
a multitude of methodologies in
guidance.
Discussion: The Department
appreciates these commenters’ analysis
and recommendations, but as previously
discussed, continues to believe that new
§ 200.105(b)(4)(i) (proposed
§ 200.77(b)(4)) should include examples
of methods that we believe a State could
use in order to meet the requirement in
section 1204(e)(2)(A)(iv) of the ESEA to
generate results that are valid, reliable,
and comparable between the two
assessment systems—including a Statedesigned methodology—as a way to
help States develop strong proposals
and to clarify what the expectations of
the peer reviewers will be, among other
reasons. These examples were not
intended to be the only methodologies
the Department would consider for a
State to demonstrate comparability. The
Department agrees that there are a
number of technically sound
methodologies that, if well-designed,
could support a State’s demonstration of
comparability for its innovative
assessment system beyond those
specified in new § 200.105(b)(4)(i)(A)–
(D) (proposed § 200.77(b)(4)(i) through
(iii)) and provide for an equally rigorous
and statistically valid comparison.
Further, we note that several of the
specific suggestions (e.g., propensity
score matching) from the commenters
could be used to evaluate comparability
as part of any of the methods included
in new § 200.105(b)(4)(i), as these
methods consider how a State may use
its innovative and statewide assessment
systems during the demonstration
authority in order to establish
comparability between the two systems
but do not specify a particular research
or evaluation approach. We believe that
States should administer the innovative
and statewide assessments in
participating schools and LEAs in a way
that works best for the design of their
innovative assessment system, and
select an approach and research
methodology for demonstrating
comparability that is appropriate to that
design. We believe that the regulations
provide sufficient flexibility for States to
do so—including by allowing for a
State-determined method beyond the
options described in new
§ 200.105(b)(4)(i)(A)–(D). We will
consider providing additional examples
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in any technical assistance the
Department may provide to States and
in guidance for peer reviewers.
In response to the additional
proposed methodologies that included a
suggestion to allow States to administer
items from the innovative assessment to
students taking the statewide
assessment, we are clarifying in new
§ 200.105(b)(4)(i)(C) and (D) that States
may include items ‘‘or performance
tasks’’ from the innovative assessment
on the statewide assessment, and vice
versa, if their inclusion constitutes a
significant portion of the assessment
and is appropriate for the research
design to demonstrate comparability
proposed by the State.
Changes: We have added to new
§ 200.105(b)(4)(i)(C) to clarify that States
may include, as a significant portion of
the innovative assessment system in
each required grade and subject in
which both an innovative and statewide
assessment is administered, items or
performance tasks from the statewide
assessment system that, at a minimum,
have been previously pilot tested or
field tested for use in the statewide
assessment system.
We have also added
§ 200.105(b)(4)(i)(D) to clarify that States
may include, as a significant portion of
the statewide assessment system in each
required grade and subject in which
both an innovative and statewide
assessment is administered, items or
performance tasks from the innovative
assessment system that, at a minimum,
have been previously pilot tested or
field tested for use in the innovative
assessment system.
Comments: Some commenters noted
that as an innovative assessment system
is taken to scale statewide,
comparability with the statewide
assessment systems becomes less
important than the comparability of
results among LEAs and schools using
the innovative system of assessments.
These commenters urged the
Department to modify the regulations to
not require an annual comparability
evaluation between the statewide and
innovative assessment systems; they
argued that if the evidence for
comparability across the two systems of
assessment is strong, comparability of
the innovative assessment with the
statewide assessment need not be reevaluated every year.
Discussion: The Department agrees
that as the innovative assessment
system scales into wider use among
LEAs and schools, comparability among
the LEAs and schools administering the
innovative assessment system will
become more important than in the
beginning of the demonstration
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authority period. Further, we note that
the comparability, validity, reliability,
and technical quality of innovative
assessments across participating LEAs
and schools will be one critical
component of the peer review required
to transition to statewide use of the
innovative assessment for purposes of
part A of title I, as described further in
new § 200.107 (proposed § 200.79).
Given these comments, the Department
is also concerned that the requirement
for comparable results within the
innovative assessment system was
unclear in the regulations, as proposed.
As the innovative assessment system
will be used during the demonstration
authority period for purposes of school
accountability and reporting, it is
imperative for States to have plans and
procedures in place to ensure the
quality, validity, reliability, and
consistency of assessment blueprints,
items or tasks, test administration,
scoring, and other components across
participating LEAs and schools. To
clarify that comparability between LEAs
and schools participating in the
innovative assessment is required and
reinforce that States should take this
into account as they develop and
implement their innovative assessment
system, we are adding new
§ 200.105(b)(4)(ii) to specify that States
must annually determine the
comparability of the innovative
assessment system, including annual
summative determinations that are
valid, reliable, and comparable for all
students and each subgroup of students,
among participating schools and LEAs.
This will also be part of a State’s plan
for evaluation and continuous
improvement as described in new
§ 200.106(e) (proposed § 200.78(e)).
We disagree that an annual
demonstration of comparability between
the innovative and statewide assessment
systems is unnecessary or overly
burdensome as States focus on scaling
their innovative systems. As provided in
section 1601(a) of ESEA, ‘‘[t]he
Secretary may issue . . . such
regulations as are necessary to
reasonably ensure that there is
compliance’’ with the statute. Also, the
Department has rulemaking authority
under section 410 of the GEPA, 20
U.S.C. 1221e–3, and section 414 of the
DEOA, 20 U.S.C. 3474. Section
1204(e)(2)(A)(iv) requires that the
innovative assessment system generates
valid, reliable, and comparable results
relative to the statewide assessment
during the demonstration authority
period. We believe that as an innovative
assessment system goes to scale, the
regulations related to statewide
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assessment will remain a valuable
reference to monitor effective
implementation across the increasing
number of LEAs and schools that adopt
the innovative assessment. Further,
annual information on comparability
will enable the Department to better
support and work with States to make
needed adjustments over time to
maintain a high level of comparability
between the two assessment systems,
which is not only required by the
statute, but also critical to maintain fair
and valid school accountability
determinations and transparent data
reporting while both assessment
systems are in operation during the
demonstration authority period. Finally,
these final regulations are consistent
and specifically intended to ensure
compliance with section 1204 of the
ESEA.
For example, the evidence a State will
provide to demonstrate that its
statewide and innovative assessment
systems are comparable may need to
change little from one year to next,
particularly in any year of the
demonstration authority period where
the innovative assessment has not
expanded to a large number of new
schools or where implementation has
been relatively stable—in such cases,
providing this information will result in
minimal work for SEAs and will assure
the Department that the SEA continues
to comply with the minimal
requirements for demonstration
authority. However, there are many
cases where implementation from one
year to the next will not be as stable,
leading to variation in the results
between the two assessments over time.
For instance, comparability could be
strengthened in later years if the State
makes adjustments to modify its
performance tasks to better align with
the State’s academic content standards
or to improve the inter-rater reliability
and training of evaluators. However,
comparability could decline in later
years of the demonstration authority
period if the initial participating LEAs
had greater prior experience with the
innovative assessment system, and
newly added LEAs struggle to
implement the innovative assessment
system with the same fidelity as early
adopters. Similarly, if initially
participating schools are not
demographically representative of the
State as a whole, the comparability of
the innovative assessment system
results to the statewide assessment
could change as greater numbers of
students take the innovative assessment,
including children with disabilities and
English learners. Without annual
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information on comparability between
the statewide and innovative assessment
systems, the Department would not be
able to provide the necessary technical
assistance to States that see these
fluctuations over time and would not
have essential information to ensure
compliance with the statutory
requirements in section 1204 for the
demonstration authority.
Changes: We have added
§ 200.105(b)(4)(ii) to require that States’
innovative assessment systems generate
results, including annual summative
determinations, that are valid, reliable,
and comparable for all students and for
each subgroup of students among
participating schools and LEAs, which
an SEA must annually determine as part
of its evaluation plan described in
§ 200.106(e).
Accessibility
Comments: A few commenters
supported proposed § 200.77(b)(5),
which would require SEAs to ensure
that the innovative assessment systems
provide for the participation of, and are
accessible to, all students, including
students with disabilities and English
learners. One commenter also expressed
support for the provision that the
innovative assessment system may
incorporate, as appropriate, the
principles of universal design for
learning (UDL), noting that UDL
includes principles for flexible
approaches and accommodations in
assessment. However, another
recommended that the words ‘‘as
appropriate’’ be removed, in order to
require the use of the principles of UDL
in the development of innovative
assessments, which they believed would
be more consistent with the
requirements of section 1204(e) of the
ESEA.
Discussion: We appreciate the support
of commenters for ensuring innovative
assessments are accessible to all
students, and share their belief that
innovative assessments should be
accessible to all students. We agree that
the language should encourage States to
incorporate the principles of UDL. We
also believe this language should be
consistent with how principles of UDL
are included in § 200.2(b)(2)(ii) with
respect to the requirements for
statewide assessments under part A of
title I. This will help to reiterate for
States that they should develop
innovative assessment systems that will
be able to meet the title I, part A
requirements when the States seek to
transition to statewide use of the
innovative assessment and undergo peer
review under title I, part A, as described
in § 200.107 (proposed § 200.79).
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We are therefore adding to new
§ 200.105(b)(5) (proposed § 200.77(b)(5))
to state that the principles of UDL
should be incorporated ‘‘to the extent
practicable’’ instead of ‘‘as appropriate’’
consistent with section
1111(b)(2)(B)(xiii) of the ESEA.
Changes: We have added to new
§ 200.105(b)(5) to make clearer the three
concepts contained in that section
include: Participation of all students;
accessibility by incorporating principles
of UDL; and accommodations. We have
also specified in § 200.105(b)(5)(ii) that
the principles of UDL should be
incorporated ‘‘to the extent practicable.’’
Comments: Multiple commenters
advocated amending proposed
§ 200.77(b)(5) to require specific
accessibility standards for digital
content, such as Web Content
Accessibility Guidelines (WCAG) 2.0, as
part of an innovative assessment system.
Discussion: Section 1204(e)(2)(A)(vi)
of the ESEA requires all innovative
assessment systems to be accessible to
all students, such as by incorporating
the principles of UDL. The requirement
that assessment systems be accessible to
individuals with disabilities is also
based on the Federal civil rights
requirements of section 504 of the
Rehabilitation Act, 29 U.S.C. 794, title II
of the Americans with Disabilities Act,
42 U.S.C. 12131 et seq., and their
implementing regulations, all of which
are enforced by the Department’s Office
for Civil Rights (OCR). In OCR’s
enforcement experience, where an SEA
collects information through electronic
and information technology, such as
student assessment, it is difficult to
ensure compliance with accessibility
requirements without adherence to
modern standards, such as the WCAG
2.0 Level AA standard. However, we do
not think further requirements regarding
digital content are appropriate here
since the assessment models that States
pilot could be quite different depending
on a State’s specific priorities and
goals—some innovative assessments
may be heavily dependent on digital
content, while another innovative
assessment system could use very little
digital content. Regardless, the baseline
requirement under both ESEA and
Federal civil rights laws remains that
the innovative assessment system must
be accessible for all students, including
all children with disabilities. In
addition, we note that any innovative
assessment system developed under the
demonstration authority must, prior to
transition to statewide use, undergo a
second peer review as described in new
§ 200.107 (proposed § 200.79) to
determine if the system meets the
requirements for State assessments and
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accountability under part A, of title I,
which includes a regulatory
requirement related to accessibility and
nationally recognized accessibility
standards under § 200.2. Thus, it is clear
that SEAs’ innovative assessment
systems will, when implemented at
scale, also be subject to these same
requirements to incorporate the
principles of UDL to the extent
practicable.
Changes: None.
Participation Rates
Comments: One commenter opposed
the requirement in proposed
§ 200.77(b)(6) that, for purposes of the
State accountability system, the
innovative assessment system must
annually measure the achievement of at
least 95 percent of all students, and 95
percent of students in each subgroup.
The commenter believes that this
provision would impose an additional
requirement taken from section
1111(c)(4)(E)(iii) of the ESEA on
participating schools and additional
consequences on such schools for not
assessing 95 percent of students,
contrary to congressional intent. The
commenter recommended requiring
innovative assessment participation in
schools participating in the
demonstration authority at a rate that is
no less than the participation rate of
students in the statewide assessment
system. In particular, the commenter
does not believe that demonstration
authority should be placed at risk
because of assessment participation
requirements.
Discussion: We believe the
commenter’s concerns may be
addressed by further clarifying the
intent of new § 200.105(b)(6) (proposed
§ 200.77(b)(6)) and related requirements.
The commenter is correct that section
1111(c)(4)(E)(iii) of the ESEA requires
States to factor 95 percent participation
in State assessments into their
accountability systems. However,
section 1111(c)(4)(E)(i)–(ii) also includes
specific requirements for the
measurement of academic achievement
based on State assessments, including
(1) a requirement that States annually
measure, for school accountability, the
progress of at least 95 percent of all
students and 95 percent of students in
each subgroup on the State’s reading/
language arts and mathematics
assessments, and (2) a requirement that,
for purposes of measuring, calculating,
and reporting on the Academic
Achievement indicator, the
denominator must always include either
the number of students with valid
assessment scores or 95 percent of
students enrolled in the school,
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whichever is greater. New
§ 200.105(b)(6) (proposed § 200.77(b)(6))
and related requirements for 95 percent
assessment participation in the final
regulations for innovative assessment
demonstration authority were intended
to clarify how these statutory
requirements for measurement of
academic achievement related to school
accountability apply to participating
schools in the demonstration authority.
Section 1204(e)(2)(A)(ix) of the ESEA
requires that the innovative assessment
system annually measure the progress of
‘‘not less than the same percentage’’ of
all students and students in each
subgroup in participating schools as
were assessed by schools administering
the statewide assessments and ‘‘as
measured under section 1111(c)(4)(E)’’
(emphasis added). As explained
previously, the percentage of all
students and students in each subgroup
whose performance on assessments
must be measured for accountability
under section 1111(c)(4)(E)(i) of the
ESEA is 95 percent of students and 95
percent of students in each subgroup;
the requirements in section
1111(c)(4)(E)(ii) of the ESEA reinforce
this further by requiring that at least 95
percent of all students and students in
each subgroup be included in
calculating the Academic Achievement
indicator. As a result, ‘‘not less than the
same percentage’’ will always be 95
percent, because the Academic
Achievement indicator—‘‘as measured
under ESEA section 1111(c)(4)(E)’’—
will always measure the performance of
95 percent of all students and 95
percent of students in each subgroup
enrolled in a school.
New § 200.105(b)(6) does not
prescribe how each State will factor
participation rates into its
accountability system for all public
schools, as required under section
1111(c)(4)(E)(iii) of the ESEA. This
requirement would still apply to all
schools in the State, including schools
participating in the innovative
assessment demonstration authority,
because of requirements in section
1204(e)(2)(A)(xi) and (C)(iii) of the ESEA
to maintain consistent, valid, and
reliable accountability for all schools,
but the actions for holding schools
accountable for improving school
participation rates are determined by
the State as described in the statutory
requirements for statewide
accountability systems. While the
commenter is correct that the Secretary
may withdraw demonstration authority
for a number of reasons, including when
a State cannot provide evidence that it
is meeting the requirements under new
§ 200.105, this does not mean low
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assessment participation in a school or
LEA will automatically result in
withdrawal of demonstration authority.
In order for a State to meet the
requirement under new § 200.105(b)(6),
the State would need to hold
participating schools accountable for 95
percent participation in assessments in
the same way as it does for all public
schools, including the calculation of the
Academic Achievement indicator and
the way the State determines it will
factor the 95 percent participation
requirement into its overall
accountability system consistent with
section 1111(c)(4)(E) of the ESEA. We
believe the requirements in new
§ 200.105(b)(6) help clarify the statutory
language and ensure fairness and
consistency in accountability
determinations between participating
and non-participating schools, without
creating any new requirements for
participating schools.
Changes: None.
sradovich on DSK3GMQ082PROD with RULES6
Annual Summative Determinations for
Students
Comments: Several commenters
supported requirements in proposed
§ 200.77(b)(7) regarding annual
summative determinations for student
performance on the innovative
assessment. These commenters noted
the importance of providing students
and families an indicator of grade-level
mastery of the State’s academic content
standards and making sure that all
students are held to the same academic
standards. One commenter also noted
this requirement will help ensure
comparability in student results
between the statewide annual
assessment and the innovative
assessment. A few commenters
requested further clarification in
proposed §§ 200.76(b)(2) and
200.77(b)(1) that innovative assessments
may assess a student on content that is
above or below the content standards for
the grade in which the student is
enrolled, citing section 1111(b)(2)(J) of
the ESEA, which allows computeradaptive assessments to include items
above or below grade level. These
commenters believe that innovative
assessments should be able to use a
different approach for measuring
student academic proficiency, while
maintaining an annual grade-level
determination of proficiency. Another
commenter was concerned that the
proposed requirements to produce an
annual grade-level determination would
mean innovative assessments would not
also produce a valid result for a
student’s performance above or below
that standard.
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Discussion: Given that the assessment
requirements in title I, part A of the
ESEA focus on the alignment of the
assessment system to the challenging
State academic standards and these
academic standards also apply to
innovative assessments as described in
section 1204(e)(2)(A)(ii)–(iii) of the
ESEA, we believe it is both consistent
with the statute and critically important
to continue this focus within the
demonstration authority. While we
support the need for better and more
valid assessments of student knowledge,
we do not think that these assessments
should set a different or lower
expectation for student achievement. In
addition, it is vital that the innovative
assessment system provide valid,
reliable, comparable, and fair
determinations of student achievement
against the challenging State academic
standards for the student’s grade,
because the innovative assessments (1)
will be used in place of the statewide
assessments that are administered to
meet the requirements in section
1111(b)(2)(B) of the ESEA; (2) will be
required to meet these same
requirements as described in section
1204(e)(2)(A)(i) of the ESEA; and (3)
will be used in the State’s accountability
system for participating LEAs and
schools.
There is nothing in these regulations
that would preclude a State from
including additional content to measure
a student’s mastery of content other
than the content for the grade in which
the student is enrolled, and we are
revising the final regulations to make
this clear. A State is able to include
such content, whether through a
computer-adaptive design or some other
innovative design, provided the
innovative assessment system meets the
statutory and regulatory requirements,
including by producing an annual
summative determination that describes
the student’s mastery of the State’s
grade-level academic content standards
based on the State’s aligned academic
achievement standards.
Changes: We have added new
§ 200.105(b)(2)(ii) (proposed
§ 200.77(b)(2)) to clarify that innovative
assessments may include items above or
below the State’s academic content
standards for the grade level in which
a student is enrolled, so long as, for
purposes of reporting and school
accountability consistent with new
§ 200.105(b)(3) and (7)–(9), the State
measures a student’s academic
proficiency based on the challenging
State academic standards for the grade
in which a student is enrolled.
Comments: One commenter
recommended that the regulations
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clarify more specifically that the annual
summative determination under
proposed § 200.77(b)(7) be based on the
State’s academic achievement standards
that are aligned to grade-level academic
content standards. One commenter
specifically recommended that
proposed § 200.77(b)(7) be modified to
state that the achievement standards
must be ‘‘aligned’’ to the State’s gradelevel academic content standards,
believing such an addition was
especially critical if a State adopts an
innovative AA–AAAS.
Discussion: The Department agrees
that any innovative assessment
(including an innovative AA–AAAS)
must produce an annual summative
determination for each student that
describes the students’ mastery of gradelevel academic content standards, using
either the State’s academic achievement
standards or, for students with the most
significant cognitive disabilities, the
State’s alternate academic achievement
standards. Section 1111(b)(1) of the
ESEA requires that challenging State
academic standards include academic
content standards and aligned academic
achievement standards, and these
requirements apply whether or not a
State applies for or receives innovative
assessment demonstration authority. To
clarify this in the final regulations, we
are adding to new § 200.105(b)(7) to
specify that (1) the annual summative
determination of achievement for a
student on the innovative assessment
describes the student’s achievement of
the challenging State academic
standards (i.e., both the State’s academic
content and achievement standards) for
the grade in which the student is
enrolled; and (2) in the case of a student
with the most significant cognitive
disabilities assessed with an innovative
AA–AAAS aligned with the challenging
State academic content standards for the
grade in which the student is enrolled,
the innovative AA–AAAS must provide
an annual summative determination of
to the student’s mastery of the alternate
academic achievement standards for
each such student.
Changes: We have added to new
§ 200.105(b)(7) (proposed § 200.77(b)(7))
to require that the innovative
assessment produce an annual
summative determination of
achievement for each student that
describes the student’s mastery of the
challenging State academic standards
(i.e., both the State’s academic content
and achievement standards) for the
grade in which the student is enrolled,
or, in the case of a student with the most
significant cognitive disabilities
assessed with an alternate assessment
aligned with alternate academic
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achievement standards under section
1111(b)(1)(E) of the ESEA, the student’s
mastery of those standards.
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Reporting to Parents
Comments: Multiple commenters
expressed strong support for the
requirements in proposed § 200.77(d)(4).
This section would require an SEA to
provide an assurance that it will ensure
each LEA provides information to
parents in a timely, uniform, and
understandable format. In particular,
commenters asserted the importance of
providing assessment information for
non-English speaking parents in their
native language. While appreciating the
requirement to provide oral translations
to parents with limited English
proficiency when written translations
are not practicable, one commenter
suggested the regulations require LEAs
to secure written translations for the
most populous language spoken, other
than English, by participating students.
Another commenter, however,
recommended removing altogether
requirements related to written and oral
translations and to alternate formats in
proposed § 200.77(d)(4)(ii)–(iii),
expressing concern about the financial
burden placed on large urban districts
with students and families who speak
many different languages.
Discussion: We appreciate the strong
support for proposed § 200.77(d)(4) and
agree these regulations are critical to
ensure that a parent receives needed
information about a child’s academic
progress on State assessments. Section
1111(b)(2)(B)(x) of the ESEA requires a
State to provide information to parents
in an understandable and uniform
format, and to the extent practicable, in
a language that parents can understand.
These requirements also apply to
innovative assessment systems
developed under the demonstration
authority, consistent with section
1204(e)(2)(A)(i) of the ESEA and new
§ 200.105(b)(1) (proposed
§ 200.77(b)(1)). In addition, the statute
includes these same requirements for
accessibility of notices to parents under
section 1112(e) of the ESEA, which
requires LEAs to provide certain
information to parents each year,
including information pertaining to
testing transparency. We believe the
clarifications provided by new
§ 200.105(d)(4) (proposed § 200.77(d)(4))
will help parents take an active role in
supporting their children’s education,
improve transparency and
understanding of the innovative
assessment system, and provide
consistency among the statutory
requirements, regulations, and
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applicable civil rights laws, as
explained below.
We disagree with commenters that we
should require written or oral
translations and alternate formats only
to the extent practicable. Parents with
disabilities or parents who are limited
English proficient have the right to
request notification in accessible
formats. Whenever practicable, written
translations of printed information must
be provided to parents with limited
English proficiency in a language they
understand, and the term ‘‘language’’
includes all languages, including Native
American languages. However, if
written translations are not practicable
for a State or LEA to provide, it is
permissible to provide information to
limited English proficient parents orally
in a language that they understand
instead of a written translation. This
requirement is consistent with Title VI
of the Civil Rights Act of 1964 (Title VI),
as amended, and its implementing
regulations. Under Title VI, recipients of
Federal financial assistance have a
responsibility to ensure meaningful
access to their programs and activities
by persons with limited English
proficiency. It is also consistent with
Department policy under Title VI and
Executive Order 13166 (Improving
Access to Services for Persons with
Limited English Proficiency).
We decline to further define the term
‘‘to the extent practicable’’ under these
regulations, but remind States and LEAs
of their Title VI obligation to take
reasonable steps to communicate the
information required by ESEA to
parents with limited English proficiency
in a meaningful way.4 We also remind
States and LEAs of their concurrent
obligations under Section 504 and title
II of the ADA, which require covered
entities to provide persons with
disabilities with effective
communication and reasonable
accommodations necessary to avoid
discrimination unless it would result in
a fundamental alteration in the nature of
a program or activity or in undue
financial and administrative burdens.
Nothing in the ESSA or these
regulations modifies those independent
and separate obligations. Compliance
with the ESEA, as amended by the
ESSA, does not ensure compliance with
Title VI, Section 504 or title II.
Changes: None.
Comments: Some commenters
suggested that if an LEA begins to
4 For more information on agencies’ civil rights
obligations to parents with limited English
proficiency, see the Joint Dear Colleague Letter of
Jan. 7, 2015, at Section J. (https://www2.ed.gov/
about/offices/list/ocr/letters/colleague-el201501.pdf).
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administer a general innovative
assessment in some or all schools under
the demonstration authority, the LEA
should be required to notify parents of
students with significant cognitive
disabilities that their child will be
assessed using an assessment other than
the innovative assessment system and
provide detail on that assessment.
Discussion: Section 1112(e) of the
ESEA requires each LEA to provide
annually to parents information on
assessments required in their LEA,
which would include, in the case of an
LEA administering an innovative
general assessment and the statewide
AA–AAAS, details on the purpose of
both assessments, the grades and
subjects in which they are administered,
and other information. In addition,
section 1111(b)(2)(D)(i)(II) and related
regulations require that parents of
students assessed using an AA–AAAS
receive information about that
assessment. Accordingly, we believe
that new § 200.105(d)(4) (proposed
§ 200.77(d)(4)) ensures that parents in
participating schools will receive
transparent information about all
required assessments administered to
students in the school; however, we are
adding to new § 200.105(d)(4) in the
final regulations to specify that this
information must be sent to ‘‘all’’
parents of students in participating
schools and include the grades and
subjects in which the innovative
assessment will be administered, to
further clarify that an LEA must (1)
include all parents in these notices,
even if their student is not being
assessed using an innovative assessment
in the upcoming school year, and (2)
provide information on any required
statewide assessments that are still
being given in other grades and subjects,
including an AA–AAAS for students
with the most significant cognitive
disabilities.
Changes: We have added to new
§ 200.105(d)(4) to clarify that notices
must be sent to parents of all students,
including in a manner accessible to
parents and families with limited
English proficiency and those with
disabilities, in participating schools and
include specific information on the
innovative assessment in each required
grade and subject in which it is being
administered.
200.106 Demonstration Authority
Selection Criteria
General
Comments: One commenter
supported the general depth of the
selection criteria in the proposed
regulations and believes the criteria,
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particularly for a timeline and budget,
hold States accountable for their
financial capacity and technical
expertise to develop an innovative
assessment system. The commenter
further encouraged the Department to
provide sufficient notice of application
requirements and selection criteria so
that States can undergo extensive
planning. Another commenter
expressed general support for holding
States to a high bar prior to awarding
demonstration authority (including a
rigorous evaluation and peer review of
applications) and expressed strong
support for the selection criteria,
especially prior experience, capacity,
and stakeholder support.
Discussion: We share the commenters’
views that States should be held to
rigorous expectations in the
development of a valid, reliable, and
comparable innovative assessment
system and that the requirements and
selection criteria—which will be
outlined in any future NIA—will both
support States in planning and
developing strong, thorough proposals,
as well as the Department and peers in
reviewing and approving applications
that are likely to be successful.
Changes: None.
Comments: Due to the small scale
nature of the pilot, the limited number
of test items available, and the cost of
developing innovative items, one
commenter stated that testing
irregularities and breaches of test
security pose a greater risk to innovative
assessment pilots, and requested
additional emphasis on test security
measures. The commenter suggested an
additional selection criterion outlining
an SEA’s or consortium’s plans for test
security, including a description of the
security measures used to protect test
content and ensure test validity and
reliability.
Discussion: We appreciate the
commenter’s concern about the
increased frequency of testing
irregularities and security breaches.
However, we do not believe it is
necessary to add additional selection
criterion for SEAs or consortia of SEAs
with respect to test security measures.
We believe that SEAs are aware of the
test security risks, and will develop
their implementation plans accordingly.
In addition, SEAs are required to submit
evidence of test security and monitoring
practices, as described in the
Department’s current State assessment
peer review guidance, to meet the
requirements for State assessments in
section 1111(b)(2)(B) of the ESEA.
Because SEAs are aware that their
innovative assessment systems will be
subject to these requirements when
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transitioning to statewide use as
described in new § 200.107 (proposed
§ 200.79), we believe there is sufficient
incentive in the regulations, as
proposed, to develop an innovative
assessment system that considers and
accounts for test security and necessary
protocols. We strongly encourage SEAs
and consortia to consider these peer
review criteria when developing their
innovative assessments under the
demonstration authority.
Changes: None.
Prior Experience
Comments: Several commenters
expressed strong support for proposed
§ 200.78(b)(1)(ii)(A), which creates a
selection criterion for prior experience,
and specifically any experience the SEA
or its LEA has in developing or using
effective supports and appropriate
accommodations for administering
innovative assessments to all students,
including English learners and children
with disabilities.
Discussion: We appreciate the support
of these commenters, and agree that an
important criterion for evaluating the
strength of an application from an SEA
or consortium of SEAs, and its ability to
effectively implement and scale up a
high-quality innovative assessment
system, will be ensuring that
appropriate accommodations are
provided on the assessments so that all
students may participate.
Changes: None.
Comments: One commenter
recommended we revise proposed
§ 200.78(b)(1)(ii)(C) to require
independent reviewers to provide an
unbiased judgment of the validity,
reliability, and comparability of scoring
rubrics.
Discussion: We disagree that it is
necessary to revise this selection
criterion to provide for evaluation by an
independent reviewer under new
§ 200.106(b)(1)(ii)(C) (proposed
§ 200.78(b)(1)(ii)(C)). Because all of the
information pertaining to each selection
criterion is submitted as part of the SEA
or consortium’s application for the
demonstration authority (see
§ 200.105(c)) and because the
application is subject to external peer
review as part of the approval process
(see § 200.104(c)), the recommended
addition of an independent review
requirement in new § 200.106(b)(1)(ii) is
redundant. Any prior experience with
developing or using scoring rubrics
would be evaluated by independent,
unbiased teams of external peer
reviewers who will examine the
evidence submitted by States that
documents validity, reliability, and
comparability of student determinations
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using standardized and calibrated
scoring rubrics.
Changes: None.
Supports for Educators
Comments: Multiple commenters
supported the proposed selection
criterion in proposed § 200.78(d), which
provides for an SEA to describe
available supports for educators to help
them understand and become familiar
with the innovative assessment system.
Some of these commenters further
requested that the selection criterion be
revised to provide for SEAs to include
in their applications a detailed
professional development plan to
support the implementation of the
innovative assessment system.
According to the commenters, this plan
should address how the State will,
among other things: Scale its system of
professional development to more LEAs
over time; provide sufficient time for
teachers and school leaders to
participate in professional development;
partner with educator preparation
programs to ensure pre-service and inservice training is sufficiently preparing
educators to implement and use data
from the innovative assessment system
to inform instruction; and use Federal
funding under title II, and other public
sources of funds, to provide supports for
educators described in its plan. These
commenters also suggested the
Department issue additional nonregulatory guidance that could be
beneficial to support effective
professional development for educators
as part of the demonstration authority.
Similarly, other commenters requested
that the Department add a requirement
that SEAs include a description of the
State’s efforts to increase teacher and
principal assessment literacy and
provide incentives to teachers
participating in professional
development on the innovative
assessment system.
Discussion: We appreciate the
feedback on ways to clarify and
strengthen the supports an SEA or
consortium must provide to educators
who will be implementing the
innovative assessment demonstration
authority and agree that this will be a
critical component in effectively scaling
a State’s innovative assessment system.
As proposed, the selection criterion
would allow States to provide this type
of information. However, we are adding
to new § 200.106(d) (proposed
§ 200.78(d)) to clarify that each SEA or
consortium’s application must include a
plan for delivering supports to
educators that can be consistently
provided at scale, recognizing the
commenter’s suggestion that successful
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implementation will require a
comprehensive plan for professional
development and that States consider
whether their plan can feasibly be
delivered in all LEAs during the
demonstration authority period, even if
only a few LEAs are initially
participating. We also are adding to new
§ 200.106(d)(1) to provide for
applications to be evaluated on the
extent to which an SEA or consortium’s
training for LEA and school staff will
develop teacher capacity to provide
instruction that is informed by the
innovative assessment system and to
use the results the system produces.
Further, we are adding to new
§ 200.106(d)(4) to provide for SEAs to
describe their strategies to support
teachers and staff in carrying out their
responsibilities under the State’s chosen
innovative assessment model, which
may include developing, designing,
implementing, and ‘‘validly and
reliably’’ scoring the assessment results.
We also note that the information in
each application under the selection
criteria for timeline and budget and
evaluation and continuous
improvement described in new
§ 200.106(c) and (e) (proposed
§ 200.78(c) and (e)), respectively, will
include how the SEA or consortium
plans to fund and support any
evaluation of its professional
development plans and activities, so it
is unnecessary to add these elements to
the selection criterion in § 200.106(d).
Finally, we appreciate commenters’
suggestions for additional nonregulatory guidance in this area and will
take them into consideration as the
Department moves forward with
implementation of the innovative
assessment demonstration authority.
Changes: We have added to the
selection criterion in new § 200.106(d)
to:
• Provide for each SEA or
consortium’s application to include a
plan for delivering supports to
educators that can be consistently
provided at scale;
• Clarify that the SEA’s or
consortium’s application will be
evaluated on the extent to which
training for LEA and school staff will
develop teacher capacity to provide
instruction that is informed by the
innovative assessment system and to
use the system’s results; and
• Clarify that SEAs or consortia
should describe strategies that will
engage teachers and staff in carrying out
their responsibilities under the State’s
chosen innovative assessment model,
which may include ‘‘designing’’,
‘‘implementing,’’ and ‘‘validly and
reliably’’ scoring the assessment
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results—not just in developing and
scoring them, in general.
Comments: One commenter objected
to the reference in proposed
§ 200.78(d)(4) regarding teachers
developing and scoring innovative
assessments administered in their
school. The commenter was concerned
about potential conflicts of interest and
the validity and reliability of the
resulting scores if educators providing
instruction are also developing and
scoring the assessments for the students
they teach. The commenter suggested
revising §§ 200.105 and 200.106 to
restrict teacher involvement in item
development and scoring.
Discussion: We believe that teachers
play a critical role in the development
of assessments and should be involved
throughout test development. This is
true in all test development, but may be
especially relevant with respect to
innovative assessment systems, given
changes in test design and delivery with
an innovative assessment that may
necessitate changes in instruction and
additional or new responsibilities for
educators. In addition, restricting
teacher involvement in the development
of the innovative assessment system or
scoring such innovative assessments
would place an additional restriction on
the development of these assessments
beyond what is required of State
assessment systems in section
1111(b)(2) of the ESEA—the
requirements these innovative
assessment systems will need to meet in
order to be used for statewide use at the
end of the demonstration authority
period.
We agree, however, with the
commenter that States should establish
reasonable safeguards within their
assessment systems, including any
innovative assessment system. For
example, teachers, in general, should
not be permitted to score the
assessments taken by students for which
the teacher is considered the teacher of
record or the assessments taken by
students in a school in which the
teacher is employed, as this could affect
the reliability of the scores and create
incentives for improper behavior given
that the results will be used in the
State’s accountability system. We
believe that States should have
flexibility to design and develop a truly
innovative assessment system and do
not want to restrict innovation by
placing extensive restrictions on the
development and scoring of these new
assessments. We do want to ensure that
States are considering proper safeguards
(e.g., quality control procedures, interrater reliability checks, audit plans) to
avoid any conflicts, or the appearance of
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conflict, of interest and note that the
innovative assessment system will
undergo a peer review process prior to
a State receiving demonstration
authority and following the statewide
transition of the innovative assessment
system, and are clarifying final
§ 200.106(d)(4) (proposed § 200.78(d)(4))
to require States to describe in their
applications any ‘‘safeguards’’ they are
using when teachers are involved in
developing or scoring assessments and
how they are sufficient to ensure
objective and unbiased scoring of
innovative assessments. Further, the
Department’s external peer review of
State assessment systems under title I,
part A of the ESEA, which is based on
the APA’s Standards for Psychological
and Educational Testing, includes
specific criteria related to sections on
the State’s plans for scoring assessments
and for demonstrating the reliability of
the assessment scores. To meet these
criteria, States need to ensure adequate
training, calibration, and monitoring for
all scoring conducted within their
assessment system. We believe these
criteria will serve to mitigate the
commenter’s concern.
Changes: We have added language to
new § 200.106(d)(4) (proposed
§ 200.78(d)(4)) to include both strategies
and safeguards related to the
development and scoring of innovative
assessments by teachers and other
school staff and to require States to
describe in their applications how the
strategies and safeguards are sufficient
to ensure objective and unbiased scoring
of innovative assessments.
Comments: One commenter requested
the inclusion of specialized
instructional support personnel among
the list of school staff in proposed
§ 200.78(d) for which the SEA must
demonstrate a plan for training and
support, noting the important role that
specialized instructional support
personnel, such as audiologists and
speech-language pathologists, play in
providing curriculum and instructional
supports for students.
Discussion: The selection criterion in
new § 200.106(d) (proposed § 200.78(d))
is intended to ensure that States
applying for demonstration authority
have carefully considered how they will
support LEA and school staff in
participating schools during
implementation of the innovative
assessment system. While the proposed
regulations specifically mention that
these staff must include ‘‘teachers,
principals, and other school leaders,’’ an
SEA could certainly respond to this
selection criterion by including other
LEA and school staff, including
specialized instructional support
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personnel, paraprofessionals, and
district administrators, in their plans to
support LEA and school personnel in
effective implementation—which could
likely improve the strength of the SEA’s
application in this area as it is evaluated
by peers. However, we decline to
modify the selection criterion to
specifically list examples of other LEA
and school staff, as enumerating
‘‘teachers, principals, and other school
leaders’’ is more consistent with the
statutory requirements for
demonstration authority, which only
reference teachers, principals, and other
school leaders.5
Changes: None.
Supports for Parents
Comments: Several commenters
supported the selection criterion in
proposed § 200.78(d) providing for
States to detail their strategies to
support students in the transition to a
new innovative assessment system,
believing that these strategies will be
critical to ensure a successful transition
to a new assessment system. One
commenter recommended that the final
regulations also require States to
describe strategies to acquaint parents
with the innovative assessment system,
including additional expectations for
SEAs and consortia to describe plans to
better communicate and explain
assessment results to parents and
families of students in participating
LEAs and schools so that they, too, can
play a critical role in using those results
to improve academic outcomes for their
children.
Discussion: We agree with
commenters and appreciate the support
for including a selection criterion
related to supports for students that will
familiarize them with the innovative
assessment system. We further agree
that States, in order to effectively
implement and scale their innovative
assessment systems, will need strategies
to familiarize parents and families with
the new assessments. We are revising
the regulations in new § 200.106 to this
effect in order to reinforce requirements
elsewhere in the regulations for
collaborating with parents in the
development of the innovative
assessment system, soliciting their
feedback and input regularly on
implementation, and providing annual
information to parents about the
innovative assessments and the results
for their children, as required in other
sections of the regulations.
5 For example, see the following sections of the
ESEA: Section 1204(c)(2)(A)(i)–(ii); section
1204(e)(2)(A)(v)(II), (vii), and (viii); section
1204(e)(2)(B)(v), (ix), and (x)(III); and section
1204(j)(1)(B)(iv).
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Changes: We have added to the
introductory paragraph of new
§ 200.106(d) (proposed § 200.78) to
include references to supports for
parents, in addition to educators and
students, and § 200.106(d)(2) to provide
for States to describe their strategies to
familiarize parents, as well as students,
with the innovative assessment system.
200.107
Transition to Statewide Use
General
Comments: One commenter stated
that the requirement for a full, statewide
transition at the end of the pilot makes
assumptions about the finality and
success of the pilot.
Discussion: The Department
appreciates the concern about the
requirement for transition to statewide
use. However, the Department disagrees
that such a requirement presumes that
statewide implementation of the
innovative assessment system will be
successful. The requirements of new
§ 200.105 (proposed § 200.77) must be
met in order for a State to implement
the innovative assessment statewide.
The Department is establishing these
requirements in part to ensure a higher
likelihood of successful
implementation, but the Department
does not believe that success is a
forgone conclusion.
The regulations in new § 200.107(a)
and (b) (proposed § 200.79(a) and (b))
represent another significant set of
criteria that the innovative assessment
must meet in order to achieve
acceptance as a statewide assessment.
Additionally, new § 200.108 (proposed
§ 200.80) provides that the Department
may withdraw the innovative
assessment authority from a State when
it cannot produce a high-quality plan for
transition or evidence that the
innovative assessment systems meets
specific conditions. Given these
provisions, we disagree that these
regulations collectively presume that an
innovative assessment system which
achieves statewide implementation
status will automatically be deemed
final or successful.
Changes: None.
Comments: One commenter suggested
that the Department include additional
steps in the transition to statewide use
of the innovative assessment to
strengthen the transparency and ensure
the quality of the system to be
implemented. First, the commenter
suggested that an SEA be required to
affirmatively notify the Secretary and
the LEAs in the State of its intention to
move forward with the innovative
assessment, replacing the statewide
assessment. Second, the commenter
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recommended that the State receive
validation that the innovative
assessment meets peer review before the
State makes the transition, instead of
after, as in proposed § 200.79(a)(1).
Discussion: The Department
appreciates the concerns voiced by this
commenter. The Department believes
that the requirements in new §§ 200.105
and 200.106 (proposed §§ 200.77 and
200.78) collectively address the
concerns of the commenter regarding
LEA notification and transparency. The
application requirements in new
§ 200.105(d)(3), requiring an annual
update on the SEA’s progress in scaling
the innovative assessment system
statewide, are sufficient to ensure that
the Secretary will be notified when the
State begins implementing the
innovative assessment system statewide.
Specifically, the annual report must
include a timeline for and an update on
progress toward full statewide
implementation of the innovative
assessment system. In addition,
consistent with final §§ 200.105(d)(3)
and 200.106(e), the annual report must
include the results of the comparability
determination required under final
§ 200.105(b)(4).
Finally, the requirements for peer
review of the innovative assessment
system in new § 200.107(a)(1) (proposed
§ 200.79(a)(1)) that is required for
transitioning out of the demonstration
authority are the same requirements for
peer review that apply to all statewide
assessments used to meet the
requirements under title I, part A, that
is, the peer review is conducted after the
first administration of a new statewide
assessment, which ensures that all
necessary evidence will be available for
submission to the Department.
Changes: None.
Comments: One commenter asked the
Department to provide greater clarity on
what steps the State will need to take if
the innovative assessment system does
not meet the requirements of proposed
§ 200.79(b). That section outlines the
requirements the assessment system
must meet before it can be used for
purposes of both academic assessments
and accountability under section 1111
of the ESEA. The commenter
recommended that in such situations, a
State be granted an extension under
proposed § 200.80 or be required to
return immediately to the previous
statewide academic assessment.
Discussion: The Department agrees
that States need to follow a clearly
defined process in the event that the
innovative assessment system does not
meet the requirements of new
§ 200.107(b) (proposed § 200.79(b)). The
Department believes, however, that the
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regulations in new § 200.108(a)–(b)
(proposed § 200.80(a)–(b)) provide such
a clearly defined process both in the
case of granting an extension, and for a
withdrawal and return to a statewide
assessment, and declines to make
further changes.
Changes: None.
Flexibility in Scaling Statewide
Comments: Multiple commenters
requested that States be permitted to
administer multiple assessments as part
of the innovative assessment system.
Commenters recommended that States
should not be required to scale a single
innovative assessment.
Discussion: The Department believes
that the intent of the statute is to
provide States the ability to implement
an innovative assessment system as
defined in final § 200.104(b)(3)
(proposed § 200.76(b)(2)). States have
broad flexibility to develop and design
their system within the parameters of
this definition, which allows for
multiple assessments to be given in a
single grade, including performance
tasks, instructionally embedded
assessments, and interim assessments.
Changes: None.
Comments: One commenter requested
that States receive flexibility such that
at the end of the innovative assessment
demonstration authority, once the
innovative assessment system has been
successfully piloted, peer reviewed, and
approved, the State could keep both its
statewide assessment system and its
innovative assessment system and allow
LEAs to choose one for purposes of
accountability and reporting.
Discussion: The purpose of innovative
assessment demonstration authority
under section 1204 of the ESEA is to
provide States the flexibility to pilot an
innovative assessment system with the
purpose of scaling the innovative
assessment system to statewide use.
Once the State transitions to statewide
use, the innovative assessment system
must meet the requirements of section
1111(b)(2) of the ESEA. Under section
1111(b)(2)(B), a State must use the same
academic assessment system to measure
the achievement of all students and
evaluate their achievement against the
same challenging State academic
achievement standards. To meet the
requirement under section
1111(b)(2)(B), the State must select
either its statewide assessment system
or the innovative assessment system; it
cannot offer a choice to LEAs. Finally,
we note that section 1204(i) of the ESEA
grants the Secretary authority to
withdraw demonstration authority if the
State cannot provide a high-quality plan
for transition to full statewide use of the
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innovative assessment system. Thus, we
believe allowing States to offer a choice
to LEAs would be inconsistent with this
statutory provision as well.
Changes: None.
Evaluation of Demonstration Authority
Comments: One commenter expressed
concern about how the proposed
regulations define a baseline year for
purposes of evaluating the innovative
assessment system. Since States may
pilot their innovative assessment
systems prior to receiving
demonstration authority, the first year of
innovative demonstration authority may
not be the first year the test is
administered, but may be the first year
the test is administered for
accountability purposes.
Discussion: The Department
appreciates the commenter’s request for
clarification. We are adding to new
§ 200.107(c) (proposed § 200.79(c)) to
clarify that the baseline year for an
evaluation of the innovative assessment
system is the first year the innovative
assessment system is administered in an
LEA under the demonstration authority.
Changes: We have added to
§ 200.107(c) to clarify that the baseline
year is the first year the innovative
assessment system is administered in an
LEA under the demonstration authority.
Comments: Several commenters
supported proposed § 200.79(b)(2),
which would require that the SEA
evaluate the statistical relationship
between student performance on the
innovative assessment and other
measures of success. The commenters
proposed a clarification to allow for the
Department, peer reviewers, and States
to take into account measures other than
student performance. They strongly
encouraged the Department to clarify
that student performance should not be
the only criterion used to determine that
the innovative assessment system is of
high quality, can replace the statewide
assessments, and can be used for both
accountability and reporting.
Discussion: The Department
appreciates the commenters’ concerns.
The requirement to provide evidence of
the statistical relationship between
student performance on the innovative
assessment and student performance on
other measures of success is just one
requirement in final § 200.107
(proposed § 200.79) for States to
demonstrate that their innovative
assessments are of ‘‘high quality’’ and
may be used for purposes of State
assessments and accountability under
section 1111 of the ESEA. The
relationship of student performance on
the innovative assessment for each
grade and subject to other measures
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88963
must consider the relationship between
the innovative assessment and the
measures used in the remaining
accountability indicators that do not
rely on data from the State’s academic
content assessments (e.g., the
Graduation Rate indicator, Progress in
Achieving English Language Proficiency
indicator, a School Quality or Student
Success indicator), and may also
examine the relationship of student
performance on the innovative
assessment to student performance on
other assessments like NAEP, TIMMS,
or college entrance exams, or measures
other than test scores like college
enrollment rates or success in related
entry-level, college credit-bearing
courses. This analysis provides validity
evidence and is considered in the
Department’s peer review of State
assessments under section 1111(a)(4) of
the ESEA, as well as final
§ 200.107(b)(2). Additional evidence is
required in peer review and will be
considered in the determination that an
innovative assessment system is of high
quality. Since other measures would be
included in peer review, as reflected in
final § 200.107, to evaluate whether an
innovative assessment is of high quality,
we do not believe it is necessary to
clarify that measures other than student
performance can be taken into account.
Changes: None.
200.108 Extension, Waivers, and
Withdrawal of Authority
Withdrawal of Authority
Comments: One commenter urged the
Department to clearly articulate the
Secretary’s ability to withdraw
innovative assessment authority if a
State cannot demonstrate comparability
or sufficient quality in order to ensure
the innovative assessment system is an
objective measure of student
performance.
Discussion: Under section 1204 of the
law, the Secretary must withdraw a
State’s authority to implement an
innovative assessment system if, at any
time during the initial demonstration
period or an extension period, the State
cannot meet certain requirements,
including requirements pertaining to
comparability to statewide assessments
(section 1204(i)(5) of the ESEA) and
system quality (section 1204(j)(1)(A) of
the ESEA).
Changes: None.
Extension
Comments: One commenter
supported proposed § 200.80(a)(1)(iii)
requiring SEAs requesting an extension
to address the capacity of all LEAs to
full implement the innovative
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assessment system by the end of the
extension period.
Discussion: The Department agrees
with the commenter that SEAs must
consider the readiness and capacity of
all LEAs in planning for statewide
implementation of the innovative
assessment system. The regulations in
this section help ensure that States are
on track to implement the innovative
assessment system statewide before
receiving an extension.
Changes: None.
Waivers
Comments: Several commenters
agreed with proposed § 200.80(c)(2),
under which the Secretary may grant a
one-year waiver to a State to delay
withdrawal of the demonstration
authority at the end of the extension
period if a State’s innovative assessment
system has not yet met peer review
requirements described in proposed
§ 200.79. One commenter supported the
one-year cap on this waiver because, it
asserted, States should not be given
unlimited time to transition to statewide
use of the innovative assessment
system. Another commenter supported
this requirement because it would
ensure that States cannot operate two
separate assessment systems for an
extended period of time.
Several commenters requested that
the Department remove the provision in
proposed § 200.80(c)(2) because they
opposed a one-year limitation on such
waivers and asserted that this timeline
was inconsistent with section 1204(j)(3)
of the ESEA, which provides the
Secretary with the authority to grant a
waiver to delay withdrawal of authority
in order to provide the State the time
necessary to fully implement the
innovative assessment system statewide.
Commenters asserted that the variation
in structure, design, and complexity of
innovative assessment systems requires
flexibility for States, and that the
Department should not apply a standard
expectation to all States and innovative
assessment systems.
Discussion: We appreciate that
innovative assessment systems will vary
in complexity, and that some States may
require more time than others to
implement the innovative assessment
system statewide. However, under the
regulations, States have five years
within the initial demonstration
authority period to implement
innovative assessments statewide. Then,
States can request up to two years of
extensions beyond that five year period.
Given that States requesting the waiver
would be in their eighth year of
implementing the innovative
assessments, we believe that a one-year
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limitation on the waiver is reasonable
and appropriate to ensure that States
move forward in implementing
statewide assessment systems,
consistent with the requirements of title
I. The purpose of the innovative
demonstration authority is to scale
innovative assessments statewide, not to
indefinitely allow States to administer
two assessments. In the unlikely
scenario that a State needs more than
eight years to implement its innovative
assessment system statewide, including
having such a system peer reviewed, the
Secretary maintains authority under
section 8401 of the ESEA to waive
requirements of the ESEA.
Changes: None.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, OMB
must determine whether this regulatory
action is significant and, therefore,
subject to the requirements of the
Executive order and to review by OMB.
Section 3(f) of Executive Order 12866
defines a ‘‘significant regulatory action’’
as an action likely to result in a rule that
may—
(1) Have an annual effect on the
economy of $100 million or more, or
adversely affect a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities in a material way (also
referred to as an ‘‘economically
significant’’ rule);
(2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impacts of entitlement grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
stated in the Executive order.
This final regulatory action is
significant and is subject to review by
OMB under section 3(f) of Executive
Order 12866.
We have also reviewed these
regulations under Executive Order
13563, which supplements and
explicitly reaffirms the principles,
structures, and definitions governing
regulatory review established in
Executive Order 12866. To the extent
permitted by law, Executive Order
13563 requires that an agency—
(1) Propose or adopt regulations only
upon a reasoned determination that
their benefits justify their costs
(recognizing that some benefits and
costs are difficult to quantify);
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(2) Tailor its regulations to impose the
least burden on society, consistent with
obtaining regulatory objectives and
taking into account, among other things
and to the extent practicable, the costs
of cumulative regulations;
(3) In choosing among alternative
regulatory approaches, select those
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety,
and other advantages; distributive
impacts; and equity);
(4) To the extent feasible, specify
performance objectives, rather than the
behavior or manner of compliance a
regulated entity must adopt; and
(5) Identify and assess available
alternatives to direct regulation,
including economic incentives such as
user fees or marketable permits, to
encourage the desired behavior, or
provide information that enables the
public to make choices.
Executive Order 13563 also requires
an agency ‘‘to use the best available
techniques to quantify anticipated
present and future benefits and costs as
accurately as possible.’’ The Office of
Information and Regulatory Affairs of
OMB has emphasized that these
techniques may include ‘‘identifying
changing future compliance costs that
might result from technological
innovation or anticipated behavioral
changes.’’
We are issuing these final regulations
only on a reasoned determination that
their benefits justify their costs. In
choosing among alternative regulatory
approaches, we selected those
approaches that maximize net benefits.
Based on the analysis that follows, the
Department believes that these final
regulations are consistent with the
principles in Executive Order 13563.
We also have determined that this
regulatory action would not unduly
interfere with State, local, and tribal
governments in the exercise of their
governmental functions.
In accordance with both Executive
orders, the Department has assessed the
potential costs and benefits, both
quantitative and qualitative, of this
regulatory action. The potential costs
associated with this regulatory action
are those resulting from statutory
requirements and those we have
determined as necessary for
administering the Department’s
programs and activities.
In this regulatory impact analysis we
discuss the need for regulatory action
and the potential costs and benefits.
Elsewhere in this section under
Paperwork Reduction Act of 1995, we
discuss burdens associated with
information collection requirements.
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Need for Regulatory Action
The Department believes that
regulatory action is needed to ensure
effective implementation of section
1204 of the ESEA, which permits the
Secretary to provide an SEA or
consortium of SEAs that meets the
application requirements with authority
to establish, operate, and evaluate a
system of innovative assessments.
Crucially, and as discussed elsewhere in
this document in response to concerns
expressed by commenters that the
regulations are overly prescriptive or
might limit innovation, the Department
believes that regulatory action is needed
to ensure that these assessments
ultimately can meet requirements for
academic assessments and be used in
statewide accountability systems under
section 1111 of the ESEA, including
requirements for assessment validity,
reliability, technical quality, and
alignment to challenging State academic
standards. Absent regulatory action,
SEAs implementing innovative
assessment authority run a greater risk
of developing assessments that are
inappropriate or inadequate for these
purposes, which could hinder State and
local efforts to provide all children
significant opportunity to receive a fair,
equitable, and high-quality education
and to close educational achievement
gaps consistent with the purpose of title
I of the ESEA.
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Discussion of Potential Costs and
Benefits
The primary benefit of these
regulations is the administration of
statewide assessments that more
effectively measure student mastery of
challenging State academic standards
and better inform classroom instruction
and student supports, ultimately leading
to improved academic outcomes for all
students. We believe that this benefit
outweighs associated costs to an SEA,
which may use funds received under
the Grants for State Assessments and
Related Activities program and funds
reserved for State administration under
part A of title I to participate in the
demonstration authority. In addition,
high-quality, innovative assessment
models developed by participating SEAs
under the demonstration authority can
benefit other SEAs by providing
examples of new assessment strategies
for those SEAs to consider.
Participation in the innovative
assessment demonstration authority is
voluntary and limited during the initial
demonstration period to seven SEAs. In
light of the initial limits on
participation, the number and rigor of
the statutory application requirements,
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and the high degree of technical
complexity involved in establishing,
operating, and evaluating innovative
assessment systems, we anticipate that
few SEAs will seek to participate. Based
on currently available information, we
estimate that, initially, up to five SEAs
will apply.
For those SEAs that apply and are
provided demonstration authority
(consistent with the final regulations),
implementation costs may vary
considerably based on a multitude of
factors, including: The number and
type(s) of assessments the SEA elects to
include in its system; the differences
between those assessments and the
SEA’s current statewide assessments,
including with respect to assessment
type, use of assessment items, and
coverage of State academic content
standards; the number of grades and
subjects in which the SEA elects to
administer those assessments; whether
the SEA will implement its system
statewide upon receiving demonstration
authority and, if not, the SEA’s process
and timeline for scaling the system up
to statewide implementation; and
whether the SEA is part of a consortium
(and thus may share certain costs with
other consortium members). Because of
the potential wide variation in
innovative assessment systems along
factors such as these, we did not
provide estimates of the potential cost to
implement innovative assessment
demonstration authority for the typical
SEA participant in the NPRM, stating
that we believed such estimates would
not be reliable or useful. We continue to
believe that is the case, and note that we
received no comments from SEAs
providing specific anticipated costs that
could inform our production of
estimates.
That said, we received several
comments expressing general concern
about the potential cost of implementing
innovative assessment demonstration
authority, including concerns about
additional costs to SEAs of
implementing innovative assessments
while also administering current State
assessments in non-participating LEAs.
Although we appreciate these general
concerns, we remind the commenters
that participation in innovative
assessment demonstration authority is
voluntary and that no SEA is required
to develop and implement innovative
assessments under this authority.
Moreover, an SEA that chooses to
participate has considerable flexibility
in determining the number, types, and
breadth of innovative assessments to
include in its system. In selecting its
assessments, such an SEA should
accordingly be mindful of development
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and implementation costs, including the
extent to which those costs can be
supported with Federal grant funds not
needed for other assessment purposes.
Regulatory Flexibility Act Certification
The Secretary certifies that these final
requirements will not have a significant
economic impact on a substantial
number of small entities. Under the U.S.
Small Business Administration’s Size
Standards, small entities include small
governmental jurisdictions such as
cities, towns, or school districts (LEAs)
with a population of less than 50,000.
Although the majority of LEAs that
receive ESEA funds qualify as small
entities under this definition, these
regulations will not have a significant
economic impact on these small LEAs
because few SEAs are expected to
participate in this voluntary innovative
assessment demonstration authority and
the costs of participation will be borne
largely by SEAs and can be supported
with Federal grant funds. We believe the
benefits provided under this regulatory
action outweigh any associated costs for
these small LEAs. In particular, the final
regulations will help ensure that the
LEAs can implement assessments that
measure student mastery of challenging
State academic standards more
effectively and better inform classroom
instruction and student supports,
ultimately leading to improved
academic outcomes for all students.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995
does not require you to respond to a
collection of information unless it
displays a valid OMB control number.
We display the valid OMB control
numbers assigned to the collections of
information in these final regulations at
the end of the affected sections of the
regulations.
Sections 200.104(c), 200.105, and
200.106 of the final regulations contain
information collection requirements.
The Department will develop an
Information Collection Request based
upon these final regulations, and will
submit a copy of these sections and the
information collection instrument to
OMB for its review before requiring the
submission of any information based
upon these regulations.
Intergovernmental Review
This program is not subject to
Executive Order 12372 and the
regulations in 34 CFR part 79.
Assessment of Educational Impact
In the NPRM we requested comments
on whether the proposed regulations
would require transmission of
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information that any other agency or
authority of the United States gathers or
makes available.
Based on the response to the NPRM
and on our review, we have determined
that these final regulations do not
require transmission of information that
any other agency or authority of the
United States gathers or makes
available.
Accessible Format: Individuals with
disabilities can obtain this document in
an accessible format (e.g., braille, large
print, or electronic format) on request to
the person listed under FOR FURTHER
INFORMATION CONTACT.
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. Free Internet access to the
official edition of the Federal Register
and the Code of Federal Regulations is
available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you
can view this document, as well as all
other documents of this Department
published in the Federal Register, in
text or Adobe Portable Document
Format (PDF). To use PDF you must
have Adobe Acrobat Reader, which is
available free at the site.
You may also access documents of the
Department published in the Federal
Register by using the article search
feature at: www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department. (Catalog of Federal
Domestic Assistance Number does not
apply.)
List of Subjects in 34 CFR Part 200
Elementary and secondary education,
Grant programs—education, Indians—
education, Infants and children,
Juvenile delinquency, Migrant labor,
Private schools, Reporting and
recordkeeping requirements.
Dated: November 30, 2016.
John B. King, Jr.,
Secretary of Education.
For the reasons discussed in the
preamble, the Department of Education
amends part 200 of title 34 of the Code
of Federal Regulations as follows:
sradovich on DSK3GMQ082PROD with RULES6
PART 200—TITLE I—IMPROVING THE
ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
1. The authority citation for part 200
continues to read as follows:
■
Authority: 20 U.S.C 6301–6576, unless
otherwise noted.
2. Add a new undesignated center
heading following § 200.103 to read as
follows:
■
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Innovative Assessment Demonstration
Authority
■
3. Add § 200.104 to read as follows:
§ 200.104 Innovative assessment
demonstration authority.
(a) In general. (1) The Secretary may
provide a State educational agency
(SEA), or consortium of SEAs, with
authority to establish and operate an
innovative assessment system in its
public schools (hereinafter referred to as
‘‘innovative assessment demonstration
authority’’).
(2) An SEA or consortium of SEAs
may implement the innovative
assessment demonstration authority
during its demonstration authority
period and, if applicable, extension or
waiver period described in § 200.108(a)
and (c), after which the Secretary will
either approve the system for statewide
use consistent with § 200.107 or
withdraw the authority consistent with
§ 200.108(b).
(b) Definitions. For purposes of
§§ 200.104 through 200.108—
(1) Affiliate member of a consortium
means an SEA that is formally
associated with a consortium of SEAs
that is implementing the innovative
assessment demonstration authority, but
is not yet a full member of the
consortium because it is not proposing
to use the consortium’s innovative
assessment system under the
demonstration authority, instead of, or
in addition to, its statewide assessment
under section 1111(b)(2) of the
Elementary and Secondary Education
Act of 1965, as amended by the Every
Student Succeeds Act (hereinafter ‘‘the
Act’’) for purposes of accountability and
reporting under sections 1111(c) and
1111(h) of the Act.
(2) Demonstration authority period
refers to the period of time over which
an SEA, or consortium of SEAs, is
authorized to implement the innovative
assessment demonstration authority,
which may not exceed five years and
does not include the extension or
waiver period under § 200.108. An SEA
must use its innovative assessment
system in all participating schools
instead of, or in addition to, the
statewide assessment under section
1111(b)(2) of the Act for purposes of
accountability and reporting under
section 1111(c) and 1111(h) of the Act
in each year of the demonstration
authority period.
(3) Innovative assessment system
means a system of assessments, which
may include any combination of general
assessments or alternate assessments
aligned with alternate academic
achievement standards, in reading/
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language arts, mathematics, or science
administered in at least one required
grade under § 200.5(a)(1) and section
1111(b)(2)(B)(v) of the Act that—
(i) Produces—
(A) An annual summative
determination of each student’s mastery
of grade-level content standards aligned
to the challenging State academic
standards under section 1111(b)(1) of
the Act; or
(B) In the case of a student with the
most significant cognitive disabilities
assessed with an alternate assessment
aligned with alternate academic
achievement standards under section
1111(b)(1)(E) of the Act and aligned
with the State’s academic content
standards for the grade in which the
student is enrolled, an annual
summative determination relative to
such alternate academic achievement
standards for each such student; and
(ii) May, in any required grade or
subject, include one or more of the
following types of assessments:
(A) Cumulative year-end assessments.
(B) Competency-based assessments.
(C) Instructionally embedded
assessments.
(D) Interim assessments.
(E) Performance-based assessments.
(F) Another innovative assessment
design that meets the requirements
under § 200.105(b).
(4) Participating LEA means a local
educational agency (LEA) in the State
with at least one school participating in
the innovative assessment
demonstration authority.
(5) Participating school means a
public school in the State in which the
innovative assessment system is
administered under the innovative
assessment demonstration authority
instead of, or in addition to, the
statewide assessment under section
1111(b)(2) of the Act and where the
results of the school’s students on the
innovative assessment system are used
by its State and LEA for purposes of
accountability and reporting under
section 1111(c) and 1111(h) of the Act.
(c) Peer review of applications. (1) An
SEA or consortium of SEAs seeking
innovative assessment demonstration
authority under paragraph (a) of this
section must submit an application to
the Secretary that demonstrates how the
applicant meets all application
requirements under § 200.105 and that
addresses all selection criteria under
§ 200.106.
(2) The Secretary uses a peer review
process, including a review of the SEA’s
application to determine that it meets or
will meet each of the requirements
under § 200.105 and sufficiently
addresses each of the selection criteria
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under § 200.106, to inform the
Secretary’s decision of whether to award
the innovative assessment
demonstration authority to an SEA or
consortium of SEAs. Peer review teams
consist of experts and State and local
practitioners who are knowledgeable
about innovative assessment systems,
including—
(i) Individuals with past experience
developing innovative assessment and
accountability systems that support all
students and subgroups of students
described in section 1111(c)(2) of the
Act (e.g., psychometricians,
measurement experts, researchers); and
(ii) Individuals with experience
implementing such innovative
assessment and accountability systems
(e.g., State and local assessment
directors, educators).
(3)(i) If points or weights are assigned
to the selection criteria under § 200.106,
the Secretary will inform applicants in
the application package or a notice
published in the Federal Register of—
(A) The total possible score for all of
the selection criteria under § 200.106;
and
(B) The assigned weight or the
maximum possible score for each
criterion or factor under that criterion.
(ii) If no points or weights are
assigned to the selection criteria and
selected factors under § 200.106, the
Secretary will evaluate each criterion
equally and, within each criterion, each
factor equally.
(d) Initial demonstration period. (1)
The initial demonstration period is the
first three years in which the Secretary
awards at least one SEA, or consortium
of SEAs, innovative assessment
demonstration authority, concluding
with publication of the progress report
described in section 1204(c) of the Act.
During the initial demonstration period,
the Secretary may provide innovative
assessment demonstration authority
to—
(i) No more than seven SEAs in total,
including those SEAs participating in
consortia; and
(ii) Consortia that include no more
than four SEAs.
(2) An SEA that is an affiliate member
of a consortium is not included in the
application under paragraph (c) of this
section or counted toward the limitation
in consortia size under paragraph
(d)(1)(ii) of this section.
(Authority: 20 U.S.C. 1221e–3, 3474, 6364,
6571)
■
4. Add § 200.105 to read as follows:
§ 200.105 Demonstration authority
application requirements.
An SEA or consortium of SEAs
seeking the innovative assessment
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demonstration authority must submit to
the Secretary, at such time and in such
manner as the Secretary may reasonably
require, an application that includes the
following:
(a) Consultation. Evidence that the
SEA or consortium has developed an
innovative assessment system in
collaboration with—
(1) Experts in the planning,
development, implementation, and
evaluation of innovative assessment
systems, which may include external
partners; and
(2) Affected stakeholders in the State,
or in each State in the consortium,
including—
(i) Those representing the interests of
children with disabilities, English
learners, and other subgroups of
students described in section 1111(c)(2)
of the Act;
(ii) Teachers, principals, and other
school leaders;
(iii) LEAs;
(iv) Representatives of Indian tribes
located in the State;
(v) Students and parents, including
parents of children described in
paragraph (a)(2)(i) of this section; and
(vi) Civil rights organizations.
(b) Innovative assessment system. A
demonstration that the innovative
assessment system does or will—
(1) Meet the requirements of section
1111(b)(2)(B) of the Act, except that an
innovative assessment—
(i) Need not be the same assessment
administered to all public elementary
and secondary school students in the
State during the demonstration
authority period described in
§ 200.104(b)(2) or extension period
described in § 200.108 and prior to
statewide use consistent with § 200.107,
if the innovative assessment system will
be administered initially to all students
in participating schools within a
participating LEA, provided that the
statewide academic assessments under
§ 200.2(a)(1) and section 1111(b)(2) of
the Act are administered to all students
in any non-participating LEA or any
non-participating school within a
participating LEA; and
(ii) Need not be administered
annually in each of grades 3–8 and at
least once in grades 9–12 in the case of
reading/language arts and mathematics
assessments, and at least once in grades
3–5, 6–9, and 10–12 in the case of
science assessments, so long as the
statewide academic assessments under
§ 200.2(a)(1) and section 1111(b)(2) of
the Act are administered in any required
grade and subject under § 200.5(a)(1) in
which the SEA does not choose to
implement an innovative assessment;
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(2)(i) Align with the challenging State
academic content standards under
section 1111(b)(1) of the Act, including
the depth and breadth of such
standards, for the grade in which a
student is enrolled; and
(ii) May measure a student’s academic
proficiency and growth using items
above or below the student’s grade level
so long as, for purposes of meeting the
requirements for reporting and school
accountability under sections 1111(c)
and 1111(h) of the Act and paragraphs
(b)(3) and (b)(7)–(9) of this section, the
State measures each student’s academic
proficiency based on the challenging
State academic standards for the grade
in which the student is enrolled;
(3) Express student results or
competencies consistent with the
challenging State academic achievement
standards under section 1111(b)(1) of
the Act and identify which students are
not making sufficient progress toward,
and attaining, grade-level proficiency on
such standards;
(4)(i) Generate results, including
annual summative determinations as
defined in paragraph (b)(7) of this
section, that are valid, reliable, and
comparable for all students and for each
subgroup of students described in
§ 200.2(b)(11)(i)(A)–(I) and sections
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of
the Act, to the results generated by the
State academic assessments described in
§ 200.2(a)(1) and section 1111(b)(2) of
the Act for such students. Consistent
with the SEA’s or consortium’s
evaluation plan under § 200.106(e), the
SEA must plan to annually determine
comparability during each year of its
demonstration authority period in one
of the following ways:
(A) Administering full assessments
from both the innovative and statewide
assessment systems to all students
enrolled in participating schools, such
that at least once in any grade span (i.e.,
3–5, 6–8, or 9–12) and subject for which
there is an innovative assessment, a
statewide assessment in the same
subject would also be administered to
all such students. As part of this
determination, the innovative
assessment and statewide assessment
need not be administered to an
individual student in the same school
year.
(B) Administering full assessments
from both the innovative and statewide
assessment systems to a
demographically representative sample
of all students and subgroups of
students described in section 1111(c)(2)
of the Act, from among those students
enrolled in participating schools, such
that at least once in any grade span (i.e.,
3–5, 6–8, or 9–12) and subject for which
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there is an innovative assessment, a
statewide assessment in the same
subject would also be administered in
the same school year to all students
included in the sample.
(C) Including, as a significant portion
of the innovative assessment system in
each required grade and subject in
which both an innovative and statewide
assessment are administered, items or
performance tasks from the statewide
assessment system that, at a minimum,
have been previously pilot tested or
field tested for use in the statewide
assessment system.
(D) Including, as a significant portion
of the statewide assessment system in
each required grade and subject in
which both an innovative and statewide
assessment are administered, items or
performance tasks from the innovative
assessment system that, at a minimum,
have been previously pilot tested or
field tested for use in the innovative
assessment system.
(E) An alternative method for
demonstrating comparability that an
SEA can demonstrate will provide for
an equally rigorous and statistically
valid comparison between student
performance on the innovative
assessment and the statewide
assessment, including for each subgroup
of students described in
§ 200.2(b)(11)(i)(A)–(I) and sections
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of
the Act; and
(ii) Generate results, including annual
summative determinations as defined in
paragraph (b)(7) of this section, that are
valid, reliable, and comparable, for all
students and for each subgroup of
students described in
§ 200.2(b)(11)(i)(A)–(I) and sections
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of
the Act, among participating schools
and LEAs in the innovative assessment
demonstration authority. Consistent
with the SEA’s or consortium’s
evaluation plan under § 200.106(e), the
SEA must plan to annually determine
comparability during each year of its
demonstration authority period;
(5)(i) Provide for the participation of
all students, including children with
disabilities and English learners;
(ii) Be accessible to all students by
incorporating the principles of universal
design for learning, to the extent
practicable, consistent with
§ 200.2(b)(2)(ii); and
(iii) Provide appropriate
accommodations consistent with
§ 200.6(b) and (f)(1)(i) and section
1111(b)(2)(B)(vii) of the Act;
(6) For purposes of the State
accountability system consistent with
section 1111(c)(4)(E) of the Act,
annually measure in each participating
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school progress on the Academic
Achievement indicator under section
1111(c)(4)(B) of the Act of at least 95
percent of all students, and 95 percent
of students in each subgroup of students
described in section 1111(c)(2) of the
Act, who are required to take such
assessments consistent with paragraph
(b)(1)(ii) of this section;
(7) Generate an annual summative
determination of achievement, using the
annual data from the innovative
assessment, for each student in a
participating school in the
demonstration authority that
describes—
(i) The student’s mastery of the
challenging State academic standards
under section 1111(b)(1) of the Act for
the grade in which the student is
enrolled; or
(ii) In the case of a student with the
most significant cognitive disabilities
assessed with an alternate assessment
aligned with alternate academic
achievement standards under section
1111(b)(1)(E) of the Act, the student’s
mastery of those standards;
(8) Provide disaggregated results by
each subgroup of students described in
§ 200.2(b)(11)(i)(A)–(I) and sections
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of
the Act, including timely data for
teachers, principals and other school
leaders, students, and parents consistent
with § 200.8 and section 1111(b)(2)(B)(x)
and (xii) and section 1111(h) of the Act,
and provide results to parents in a
manner consistent with paragraph
(b)(4)(i) of this section and § 200.2(e);
and
(9) Provide an unbiased, rational, and
consistent determination of progress
toward the State’s long-term goals for
academic achievement under section
1111(c)(4)(A) of the Act for all students
and each subgroup of students
described in section 1111(c)(2) of the
Act and a comparable measure of
student performance on the Academic
Achievement indicator under section
1111(c)(4)(B) of the Act for participating
schools relative to non-participating
schools so that the SEA may validly and
reliably aggregate data from the system
for purposes of meeting requirements
for—
(i) Accountability under sections 1003
and 1111(c) and (d) of the Act,
including how the SEA will identify
participating and non-participating
schools in a consistent manner for
comprehensive and targeted support
and improvement under section
1111(c)(4)(D) of the Act; and
(ii) Reporting on State and LEA report
cards under section 1111(h) of the Act.
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(c) Selection criteria. Information that
addresses each of the selection criteria
under § 200.106.
(d) Assurances. Assurances that the
SEA, or each SEA in a consortium,
will—
(1) Continue use of the statewide
academic assessments in reading/
language arts, mathematics, and science
required under § 200.2(a)(1) and section
1111(b)(2) of the Act—
(i) In all non-participating schools;
and
(ii) In all participating schools for
which such assessments will be used in
addition to innovative assessments for
accountability purposes under section
1111(c) of the Act consistent with
paragraph (b)(1)(ii) of this section or for
evaluation purposes consistent with
§ 200.106(e) during the demonstration
authority period;
(2) Ensure that all students and each
subgroup of students described in
section 1111(c)(2) of the Act in
participating schools are held to the
same challenging State academic
standards under section 1111(b)(1) of
the Act as all other students, except that
students with the most significant
cognitive disabilities may be assessed
with alternate assessments aligned with
alternate academic achievement
standards consistent with § 200.6 and
section 1111(b)(1)(E) and (b)(2)(D) of the
Act, and receive the instructional
support needed to meet such standards;
(3) Report the following annually to
the Secretary, at such time and in such
manner as the Secretary may reasonably
require:
(i) An update on implementation of
the innovative assessment
demonstration authority, including—
(A) The SEA’s progress against its
timeline under § 200.106(c) and any
outcomes or results from its evaluation
and continuous improvement process
under § 200.106(e); and
(B) If the innovative assessment
system is not yet implemented
statewide consistent with
§ 200.104(a)(2), a description of the
SEA’s progress in scaling up the system
to additional LEAs or schools consistent
with its strategies under
§ 200.106(a)(3)(i), including updated
assurances from participating LEAs
consistent with paragraph (e)(2) of this
section.
(ii) The performance of students in
participating schools at the State, LEA,
and school level, for all students and
disaggregated for each subgroup of
students described in section 1111(c)(2)
of the Act, on the innovative
assessment, including academic
achievement and participation data
required to be reported consistent with
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section 1111(h) of the Act, except that
such data may not reveal any personally
identifiable information.
(iii) If the innovative assessment
system is not yet implemented
statewide, school demographic
information, including enrollment and
student achievement information, for
the subgroups of students described in
section 1111(c)(2) of the Act, among
participating schools and LEAs and for
any schools or LEAs that will
participate for the first time in the
following year, and a description of how
the participation of any additional
schools or LEAs in that year contributed
to progress toward achieving highquality and consistent implementation
across demographically diverse LEAs in
the State consistent with the SEA’s
benchmarks described in
§ 200.106(a)(3)(iii).
(iv) Feedback from teachers,
principals and other school leaders, and
other stakeholders consulted under
paragraph (a)(2) of this section,
including parents and students, from
participating schools and LEAs about
their satisfaction with the innovative
assessment system;
(4) Ensure that each participating LEA
informs parents of all students in
participating schools about the
innovative assessment, including the
grades and subjects in which the
innovative assessment will be
administered, and, consistent with
section 1112(e)(2)(B) of the Act, at the
beginning of each school year during
which an innovative assessment will be
implemented. Such information must
be—
(i) In an understandable and uniform
format;
(ii) To the extent practicable, written
in a language that parents can
understand or, if it is not practicable to
provide written translations to a parent
with limited English proficiency, be
orally translated for such parent; and
(iii) Upon request by a parent who is
an individual with a disability as
defined by the Americans with
Disabilities Act, provided in an
alternative format accessible to that
parent; and
(5) Coordinate with and provide
information to, as applicable, the
Institute of Education Sciences for
purposes of the progress report
described in section 1204(c) of the Act
and ongoing dissemination of
information under section 1204(m) of
the Act.
(e) Initial implementation in a subset
of LEAs or schools. If the innovative
assessment system will initially be
administered in a subset of LEAs or
schools in a State—
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(1) A description of each LEA, and
each of its participating schools, that
will initially participate, including
demographic information and its most
recent LEA report card under section
1111(h)(2) of the Act; and
(2) An assurance from each
participating LEA, for each year that the
LEA is participating, that the LEA will
comply with all requirements of this
section.
(f) Application from a consortium of
SEAs. If an application for the
innovative assessment demonstration
authority is submitted by a consortium
of SEAs—
(1) A description of the governance
structure of the consortium, including—
(i) The roles and responsibilities of
each member SEA, which may include
a description of affiliate members, if
applicable, and must include a
description of financial responsibilities
of member SEAs;
(ii) How the member SEAs will
manage and, at their discretion, share
intellectual property developed by the
consortium as a group; and
(iii) How the member SEAs will
consider requests from SEAs to join or
leave the consortium and ensure that
changes in membership do not affect the
consortium’s ability to implement the
innovative assessment demonstration
authority consistent with the
requirements and selection criteria in
this section and § 200.106.
(2) While the terms of the association
with affiliate members are defined by
each consortium, consistent with
§ 200.104(b)(1) and paragraph (f)(1)(i) of
this section, for an affiliate member to
become a full member of the consortium
and to use the consortium’s innovative
assessment system under the
demonstration authority, the consortium
must submit a revised application to the
Secretary for approval, consistent with
the requirements of this section and
§ 200.106 and subject to the limitation
under § 200.104(d).
(Authority: 20 U.S.C. 1221e–3, 3474, 6364,
6571; 29 U.S.C. 794; 42 U.S.C. 2000d–1; 42
U.S.C. 12101; 42 U.S.C. 12102)
■
5. Add § 200.106 to read as follows:
§ 200.106 Demonstration authority
selection criteria.
The Secretary reviews an application
by an SEA or consortium of SEAs
seeking innovative assessment
demonstration authority consistent with
§ 200.104(c) based on the following
selection criteria:
(a) Project narrative. The quality of
the SEA’s or consortium’s plan for
implementing the innovative
assessment demonstration authority. In
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determining the quality of the plan, the
Secretary considers—
(1) The rationale for developing or
selecting the particular innovative
assessment system to be implemented
under the demonstration authority,
including—
(i) The distinct purpose of each
assessment that is part of the innovative
assessment system and how the system
will advance the design and delivery of
large-scale, statewide academic
assessments in innovative ways; and
(ii) The extent to which the
innovative assessment system as a
whole will promote high-quality
instruction, mastery of challenging State
academic standards, and improved
student outcomes, including for each
subgroup of students described in
section 1111(c)(2) of the Act;
(2) The plan the SEA or consortium,
in consultation with any external
partners, if applicable, has to—
(i) Develop and use standardized and
calibrated tools, rubrics, methods, or
other strategies for scoring innovative
assessments throughout the
demonstration authority period,
consistent with relevant nationally
recognized professional and technical
standards, to ensure inter-rater
reliability and comparability of
innovative assessment results consistent
with § 200.105(b)(4)(ii), which may
include evidence of inter-rater
reliability; and
(ii) Train evaluators to use such
strategies, if applicable; and
(3) If the system will initially be
administered in a subset of schools or
LEAs in a State—
(i) The strategies the SEA, including
each SEA in a consortium, will use to
scale the innovative assessment to all
schools statewide, with a rationale for
selecting those strategies;
(ii) The strength of the SEA’s or
consortium’s criteria that will be used to
determine LEAs and schools that will
initially participate and when to
approve additional LEAs and schools, if
applicable, to participate during the
requested demonstration authority
period; and
(iii) The SEA’s plan, including each
SEA in a consortium, for how it will
ensure that, during the demonstration
authority period, the inclusion of
additional LEAs and schools continues
to reflect high-quality and consistent
implementation across demographically
diverse LEAs and schools, or
contributes to progress toward achieving
such implementation across
demographically diverse LEAs and
schools, including diversity based on
enrollment of subgroups of students
described in section 1111(c)(2) of the
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Act and student achievement. The plan
must also include annual benchmarks
toward achieving high-quality and
consistent implementation across
participating schools that are, as a
group, demographically similar to the
State as a whole during the
demonstration authority period, using
the demographics of initially
participating schools as a baseline.
(b) Prior experience, capacity, and
stakeholder support. (1) The extent and
depth of prior experience that the SEA,
including each SEA in a consortium,
and its LEAs have in developing and
implementing the components of the
innovative assessment system. An SEA
may also describe the prior experience
of any external partners that will be
participating in or supporting its
demonstration authority in
implementing those components. In
evaluating the extent and depth of prior
experience, the Secretary considers—
(i) The success and track record of
efforts to implement innovative
assessments or innovative assessment
items aligned to the challenging State
academic standards under section
1111(b)(1) of the Act in LEAs planning
to participate; and
(ii) The SEA’s or LEA’s development
or use of—
(A) Effective supports and appropriate
accommodations consistent with
§ 200.6(b) and (f)(1)(i) and section
1111(b)(2)(B)(vii) of the Act for
administering innovative assessments to
all students, including English learners
and children with disabilities, which
must include professional development
for school staff on providing such
accommodations;
(B) Effective and high-quality
supports for school staff to implement
innovative assessments and innovative
assessment items, including
professional development; and
(C) Standardized and calibrated tools,
rubrics, methods, or other strategies for
scoring innovative assessments, with
documented evidence of the validity,
reliability, and comparability of annual
summative determinations of
achievement, consistent with
§ 200.105(b)(4) and (7).
(2) The extent and depth of SEA,
including each SEA in a consortium,
and LEA capacity to implement the
innovative assessment system
considering the availability of
technological infrastructure; State and
local laws; dedicated and sufficient
staff, expertise, and resources; and other
relevant factors. An SEA or consortium
may also describe how it plans to
enhance its capacity by collaborating
with external partners that will be
participating in or supporting its
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demonstration authority. In evaluating
the extent and depth of capacity, the
Secretary considers—
(i) The SEA’s analysis of how capacity
influenced the success of prior efforts to
develop and implement innovative
assessments or innovative assessment
items; and
(ii) The strategies the SEA is using, or
will use, to mitigate risks, including
those identified in its analysis, and
support successful implementation of
the innovative assessment.
(3) The extent and depth of State and
local support for the application for
demonstration authority in each SEA,
including each SEA in a consortium, as
demonstrated by signatures from the
following:
(i) Superintendents (or equivalent) of
LEAs, including participating LEAs in
the first year of the demonstration
authority period.
(ii) Presidents of local school boards
(or equivalent, where applicable),
including within participating LEAs in
the first year of the demonstration
authority.
(iii) Local teacher organizations
(including labor organizations, where
applicable), including within
participating LEAs in the first year of
the demonstration authority.
(iv) Other affected stakeholders, such
as parent organizations, civil rights
organizations, and business
organizations.
(c) Timeline and budget. The quality
of the SEA’s or consortium’s timeline
and budget for implementing the
innovative assessment demonstration
authority. In determining the quality of
the timeline and budget, the Secretary
considers—
(1) The extent to which the timeline
reasonably demonstrates that each SEA
will implement the system statewide by
the end of the requested demonstration
authority period, including a
description of—
(i) The activities to occur in each year
of the requested demonstration
authority period;
(ii) The parties responsible for each
activity; and
(iii) If applicable, how a consortium’s
member SEAs will implement activities
at different paces and how the
consortium will implement
interdependent activities, so long as
each non-affiliate member SEA begins
using the innovative assessment in the
same school year consistent with
§ 200.104(b)(2); and
(2) The adequacy of the project budget
for the duration of the requested
demonstration authority period,
including Federal, State, local, and nonpublic sources of funds to support and
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sustain, as applicable, the activities in
the timeline under paragraph (c)(1) of
this section, including—
(i) How the budget will be sufficient
to meet the expected costs at each phase
of the SEA’s planned expansion of its
innovative assessment system; and
(ii) The degree to which funding in
the project budget is contingent upon
future appropriations at the State or
local level or additional commitments
from non-public sources of funds.
(d) Supports for educators, students,
and parents. The quality of the SEA or
consortium’s plan to provide supports
that can be delivered consistently at
scale to educators, students, and parents
to enable successful implementation of
the innovative assessment system and
improve instruction and student
outcomes. In determining the quality of
supports, the Secretary considers—
(1) The extent to which the SEA or
consortium has developed, provided,
and will continue to provide training to
LEA and school staff, including
teachers, principals, and other school
leaders, that will familiarize them with
the innovative assessment system and
develop teacher capacity to implement
instruction that is informed by the
innovative assessment system and its
results;
(2) The strategies the SEA or
consortium has developed and will use
to familiarize students and parents with
the innovative assessment system;
(3) The strategies the SEA will use to
ensure that all students and each
subgroup of students under section
1111(c)(2) of the Act in participating
schools receive the support, including
appropriate accommodations consistent
with § 200.6(b) and (f)(1)(i) and section
1111(b)(2)(B)(vii) of the Act, needed to
meet the challenging State academic
standards under section 1111(b)(1) of
the Act; and
(4) If the system includes assessment
items that are locally developed or
locally scored, the strategies and
safeguards (e.g., test blueprints, item
and task specifications, rubrics, scoring
tools, documentation of quality control
procedures, inter-rater reliability
checks, audit plans) the SEA or
consortium has developed, or plans to
develop, to validly and reliably score
such items, including how the strategies
engage and support teachers and other
staff in designing, developing,
implementing, and validly and reliably
scoring high-quality assessments; how
the safeguards are sufficient to ensure
unbiased, objective scoring of
assessment items; and how the SEA will
use effective professional development
to aid in these efforts.
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(e) Evaluation and continuous
improvement. The quality of the SEA’s
or consortium’s plan to annually
evaluate its implementation of
innovative assessment demonstration
authority. In determining the quality of
the evaluation, the Secretary
considers—
(1) The strength of the proposed
evaluation of the innovative assessment
system included in the application,
including whether the evaluation will
be conducted by an independent,
experienced third party, and the
likelihood that the evaluation will
sufficiently determine the system’s
validity, reliability, and comparability
to the statewide assessment system
consistent with the requirements of
§ 200.105(b)(4) and (9); and
(2) The SEA’s or consortium’s plan for
continuous improvement of the
innovative assessment system,
including its process for—
(i) Using data, feedback, evaluation
results, and other information from
participating LEAs and schools to make
changes to improve the quality of the
innovative assessment; and
(ii) Evaluating and monitoring
implementation of the innovative
assessment system in participating LEAs
and schools annually.
(Authority: 20 U.S.C. 1221e–3, 3474, 6364,
6571)
■
6. Add § 200.107 to read as follows:
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§ 200.107
Transition to statewide use.
(a)(1) After an SEA has scaled its
innovative assessment system to operate
statewide in all schools and LEAs in the
State, the SEA must submit evidence for
peer review under section 1111(a)(4) of
the Act and § 200.2(d) to determine
whether the system may be used for
purposes of both academic assessments
and the State accountability system
under sections 1111(b)(2), (c), and (d)
and 1003 of the Act.
(2) An SEA may only use the
innovative assessment system for the
purposes described in paragraph (a)(1)
of this section if the Secretary
determines that the system is of high
quality consistent with paragraph (b) of
this section.
(b) Through the peer review process
of State assessments and accountability
systems under section 1111(a)(4) of the
Act and § 200.2(d), the Secretary
determines that the innovative
assessment system is of high quality if—
(1) An innovative assessment
developed in any grade or subject under
§ 200.5(a)(1) and section 1111(b)(2)(B)(v)
of the Act—
(i) Meets all of the requirements under
section 1111(b)(2) of the Act and
§ 200.105(b) and (c);
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(ii) Provides coherent and timely
information about student achievement
based on the challenging State academic
standards under section 1111(b)(1) of
the Act;
(iii) Includes objective measurements
of academic achievement, knowledge,
and skills; and
(iv) Is valid, reliable, and consistent
with relevant, nationally recognized
professional and technical standards;
(2) The SEA provides satisfactory
evidence that it has examined the
statistical relationship between student
performance on the innovative
assessment in each subject area and
student performance on other measures
of success, including the measures used
for each relevant grade-span within the
remaining indicators (i.e., indicators
besides Academic Achievement) in the
statewide accountability system under
section 1111(c)(4)(B)(ii)–(v) of the Act,
and how the inclusion of the innovative
assessment in its Academic
Achievement indicator under section
1111(c)(4)(B)(i) of the Act affects the
annual meaningful differentiation of
schools under section 1111(c)(4)(C) of
the Act;
(3) The SEA has solicited information,
consistent with the requirements under
§ 200.105(d)(3)(iv), and taken into
account feedback from teachers,
principals, other school leaders, parents,
and other stakeholders under
§ 200.105(a)(2) about their satisfaction
with the innovative assessment system;
and
(4) The SEA has demonstrated that
the same innovative assessment system
was used to measure—
(i) The achievement of all students
and each subgroup of students
described in section 1111(c)(2) of the
Act, and that appropriate
accommodations were provided
consistent with § 200.6(b) and (f)(1)(i)
under section 1111(b)(2)(B)(vii) of the
Act; and
(ii) For purposes of the State
accountability system consistent with
section 1111(c)(4)(E) of the Act, progress
on the Academic Achievement indicator
under section 1111(c)(4)(B)(i) of the Act
of at least 95 percent of all students, and
95 percent of students in each subgroup
of students described in section
1111(c)(2) of the Act.
(c) With respect to the evidence
submitted to the Secretary to make the
determination described in paragraph
(b)(2) of this section, the baseline year
for any evaluation is the first year that
a participating LEA in the State
administered the innovative assessment
system under the demonstration
authority.
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(d) In the case of a consortium of
SEAs, evidence may be submitted for
the consortium as a whole so long as the
evidence demonstrates how each
member SEA meets each requirement of
paragraph (b) of this section applicable
to an SEA.
(Authority: 20 U.S.C. 1221e–3, 3474, 6311(a),
6364, 6571)
■
7. Add § 200.108 to read as follows:
§ 200.108 Extension, waivers, and
withdrawal of authority.
(a) Extension. (1) The Secretary may
extend an SEA’s demonstration
authority period for no more than two
years if the SEA submits to the
Secretary—
(i) Evidence that its innovative
assessment system continues to meet
the requirements under § 200.105 and
the SEA continues to implement the
plan described in its application in
response to the selection criteria in
§ 200.106 in all participating schools
and LEAs;
(ii) A high-quality plan, including
input from stakeholders under
§ 200.105(a)(2), for transitioning to
statewide use of the innovative
assessment system by the end of the
extension period; and
(iii) A demonstration that the SEA
and all LEAs that are not yet fully
implementing the innovative
assessment system have sufficient
capacity to support use of the system
statewide by the end of the extension
period.
(2) In the case of a consortium of
SEAs, the Secretary may extend the
demonstration authority period for the
consortium as a whole or for an
individual member SEA.
(b) Withdrawal of demonstration
authority. (1) The Secretary may
withdraw the innovative assessment
demonstration authority provided to an
SEA, including an individual SEA
member of a consortium, if at any time
during the approved demonstration
authority period or extension period,
the Secretary requests, and the SEA
does not present in a timely manner—
(i) A high-quality plan, including
input from stakeholders under
§ 200.105(a)(2), to transition to full
statewide use of the innovative
assessment system by the end of its
approved demonstration authority
period or extension period, as
applicable; or
(ii) Evidence that—
(A) The innovative assessment system
meets all requirements under § 200.105,
including a demonstration that the
innovative assessment system has met
the requirements under § 200.105(b);
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(B) The SEA continues to implement
the plan described in its application in
response to the selection criteria in
§ 200.106;
(C) The innovative assessment system
includes and is used to assess all
students attending participating schools
in the demonstration authority,
consistent with the requirements under
section 1111(b)(2) of the Act to provide
for participation in State assessments,
including among each subgroup of
students described in section 1111(c)(2)
of the Act, and for appropriate
accommodations consistent with
§ 200.6(b) and (f)(1)(i) and section
1111(b)(2)(B)(vii) of the Act;
(D) The innovative assessment system
provides an unbiased, rational, and
consistent determination of progress
toward the State’s long-term goals and
measurements of interim progress for
academic achievement under section
1111(c)(4)(A) of the Act for all students
and subgroups of students described in
section 1111(c)(2) of the Act and a
comparable measure of student
performance on the Academic
Achievement indicator under section
1111(c)(4)(B)(i) of the Act for
participating schools relative to nonparticipating schools; or
(E) The innovative assessment system
demonstrates comparability to the
statewide assessments under section
1111(b)(2) of the Act in content
coverage, difficulty, and quality.
(2)(i) In the case of a consortium of
SEAs, the Secretary may withdraw
innovative assessment demonstration
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authority for the consortium as a whole
at any time during its demonstration
authority period or extension period if
the Secretary requests, and no member
of the consortium provides, the
information under paragraph (b)(1)(i) or
(ii) of this section.
(ii) If innovative assessment
demonstration authority for one or more
SEAs in a consortium is withdrawn, the
consortium may continue to implement
the authority if it can demonstrate, in an
amended application to the Secretary
that, as a group, the remaining SEAs
continue to meet all requirements and
selection criteria in §§ 200.105 and
200.106.
(c) Waiver authority. (1) At the end of
the extension period, an SEA that is not
yet approved consistent with § 200.107
to implement its innovative assessment
system statewide may request a waiver
from the Secretary consistent with
section 8401 of the Act to delay the
withdrawal of authority under
paragraph (b) of this section for the
purpose of providing the SEA with the
time necessary to receive approval to
transition to use of the innovative
assessment system statewide under
§ 200.107(b).
(2) The Secretary may grant an SEA a
one-year waiver to continue the
innovative assessment demonstration
authority, if the SEA submits, in its
request under paragraph (c)(1) of this
section, evidence satisfactory to the
Secretary that it—
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(i) Has met all of the requirements
under paragraph (b)(1) of this section
and of §§ 200.105 and 200.106; and
(ii) Has a high-quality plan, including
input from stakeholders under
§ 200.105(a)(2), for transition to
statewide use of the innovative
assessment system, including peer
review consistent with § 200.107, in a
reasonable period of time.
(3) In the case of a consortium of
SEAs, the Secretary may grant a oneyear waiver consistent with paragraph
(c)(1) of this section for the consortium
as a whole or for individual member
SEAs, as necessary.
(d) Return to the statewide assessment
system. If the Secretary withdraws
innovative assessment demonstration
authority consistent with paragraph (b)
of this section, or if an SEA voluntarily
terminates use of its innovative
assessment system prior to the end of its
demonstration authority, extension, or
waiver period under paragraph (c) of
this section, as applicable, the SEA
must—
(1) Return to using, in all LEAs and
schools in the State, a statewide
assessment that meets the requirements
of section 1111(b)(2) of the Act; and
(2) Provide timely notice to all
participating LEAs and schools of the
withdrawal of authority and the SEA’s
plan for transition back to use of a
statewide assessment.
(AUTHORITY: 20 U.S.C. 1221e–3, 3474, 6364,
6571)
[FR Doc. 2016–29126 Filed 12–7–16; 8:45 am]
BILLING CODE 4000–01–P
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Agencies
[Federal Register Volume 81, Number 236 (Thursday, December 8, 2016)]
[Rules and Regulations]
[Pages 88940-88972]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29126]
[[Page 88939]]
Vol. 81
Thursday,
No. 236
December 8, 2016
Part VII
Department of Education
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34 CFR Part 200
Every Student Succeeds--Innovative Assessment Demonstration Authority;
Final Rule
Federal Register / Vol. 81 , No. 236 / Thursday, December 8, 2016 /
Rules and Regulations
[[Page 88940]]
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DEPARTMENT OF EDUCATION
34 CFR Part 200
[Docket ID ED-2016-OESE-0047]
RIN 1810-AB31
Every Student Succeeds--Innovative Assessment Demonstration
Authority
AGENCY: Office of Elementary and Secondary Education, Department of
Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary issues final regulations under title I, part B
of the Elementary and Secondary Education Act of 1965 (ESEA) to
implement changes made to the ESEA by the Every Student Succeeds Act
(ESSA) enacted on December 10, 2015, including the ability of the
Secretary to provide demonstration authority to a State educational
agency (SEA) to pilot an innovative assessment and use it for
accountability and reporting purposes under title I, part A of the ESEA
before scaling such an assessment statewide.
DATES: These regulations are effective January 9, 2017.
FOR FURTHER INFORMATION CONTACT: Jessica McKinney, U.S. Department of
Education, 400 Maryland Avenue SW., Room 3W107, Washington, DC 20202-
2800.
Telephone: (202) 401-1960 or by email: jessica.mckinney@ed.gov.
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Executive Summary
Purpose of This Regulatory Action: On December 10, 2015, President
Barack Obama signed the ESSA into law. The ESSA reauthorizes the ESEA,
which provides Federal funds to improve elementary and secondary
education in the Nation's public schools. Through the reauthorization,
the ESSA made significant changes to the ESEA for the first time since
the ESEA was reauthorized through the No Child Left Behind Act of 2001
(NCLB), including significant changes to title I. In particular, the
ESSA includes in title I, part B of the ESEA a new demonstration
authority under which an SEA or consortium of SEAs that meets certain
application requirements may establish, operate, and evaluate an
innovative assessment system, including for use in the statewide
accountability system, with the goal of using the innovative assessment
system after the demonstration authority ends to meet the academic
assessment and statewide accountability system requirements under title
I, part A of the ESEA. Aligned with President Obama's Testing Action
Plan, released in October 2015, the demonstration authority seeks to
help States interested in fostering and scaling high-quality,
innovative assessments.\1\ An SEA would require this demonstration
authority under title I, part B, if the SEA is proposing to develop an
innovative assessment in any required grade or subject and administer
the assessment, initially, to students in only a subset of its local
educational agencies (LEAs) or schools without also continuing
administration of its current statewide assessment in that grade or
subject to all students in those LEAs or schools, including for school
accountability and reporting purposes under title I, part A, as it
scales the innovative assessment statewide. Unless otherwise noted,
references in this document to the ESEA refer to the ESEA as amended by
the ESSA.
---------------------------------------------------------------------------
\1\ For more information regarding President Obama's Testing
Action Plan, please see: https://www2.ed.gov/admins/lead/account/saa.html; see also: www.ed.gov/news/press-releases/fact-sheet-testing-action-plan.
---------------------------------------------------------------------------
On July 11, 2016, the Secretary published a notice of proposed
rulemaking (NPRM) for the title I, part B regulations pertaining to the
innovative assessment demonstration authority in the Federal Register
(81 FR 44958). We issue these regulations to provide clarity to SEAs
regarding the requirements for applying for and implementing innovative
assessment demonstration authority. These regulations will also help to
ensure that SEAs provided this authority can develop and administer
high-quality, valid, and reliable assessments that measure student
mastery of challenging State academic standards, improve the design and
delivery of large-scale assessments, and better inform classroom
instruction, ultimately leading to improved academic outcomes for all
students.
Summary of the Major Provisions of This Regulatory Action: The
following is a summary of the major substantive changes in these final
regulations from the regulations proposed in the NPRM. (The rationale
for each of these changes is discussed in the Analysis of Comments and
Changes section elsewhere in this preamble.)
The Department has renumbered the proposed regulatory
sections, as follows, in the final regulations:
--New section 200.104 (proposed Sec. 200.76) entitled ``Innovative
assessment demonstration authority.''
--New section 200.105 (proposed Sec. 200.77) entitled ``Demonstration
authority application requirements.''
--New section 200.106 (proposed Sec. 200.78) entitled ``Innovative
assessment selection criteria.''
--New section 200.107 (proposed Sec. 200.79) entitled ``Transition to
statewide use.''
--New section 200.108 (proposed Sec. 200.80) entitled ``Extensions,
waivers, and withdrawal of authority.''
The Department has made a number of changes to new Sec.
200.104 (proposed Sec. 200.76), which provides definitions and
describes general requirements for SEAs and consortia of SEAs applying
for and implementing the innovative assessment demonstration authority:
--Section 200.104(b)(1) has been added to define an ``affiliate member
of a consortium'' to be an SEA that is formally associated with a
consortium of SEAs that is implementing the innovative assessment
demonstration authority, but is not yet a full member of the consortium
because it is not proposing to use the consortium's innovative
assessment system under the demonstration authority.
--Section 200.104(b)(3) has been revised to clarify the definition of
``innovative assessment system'' to indicate that an innovative
assessment system:
Produces an annual summative determination of each
student's mastery of grade-level content standards aligned to the
challenging State academic standards under section 1111(b)(1) of the
ESEA.
In the case of a student with the most significant
cognitive disabilities assessed with an alternate assessment aligned
with alternate academic achievement standards (AA-AAAS) under section
1111(b)(1)(E) of the ESEA and aligned with the State's academic content
standards for the grade in which the student is enrolled, produces an
annual summative determination relative to such alternate academic
achievement standards for each such student;
May include any combination of general assessments or AA-
AAAS in reading/language arts, mathematics, or science; and
May, in any required grade or subject, include one or more
types of assessments listed in Sec. 200.104(b)(3)(ii).
--Section 200.104(b)(4) has been added to define a ``participating
LEA'' as an LEA in the State with at least one
[[Page 88941]]
school participating in the innovative demonstration authority.
--Section 200.104(b)(5) has been added to define ``participating
school'' as a public school in the State in which the innovative
assessment system is administered under the innovative assessment
demonstration authority instead of the statewide assessment and where
the results of the school's students on the innovative assessment
system are used by its State and LEA for purposes of accountability and
reporting.
The Department made a number of changes to Sec. 200.105
(proposed Sec. 200.77), which sets forth the application requirements
that an SEA or consortium of SEAs must meet in order to receive
approval to implement demonstration authority:
--Section 200.105(a) has been revised to require collaboration with
representatives of Indian tribes located in the State and to clarify
that in consulting parents, States must consult parents of children
with disabilities, English learners and other subgroups under section
1111(c)(2) of the ESEA.
--Section 200.105(b) has been revised to clarify that the innovative
assessment system may be administered to a subset of LEAs or schools
within an LEA, and must be administered to all students within the
participating LEA or schools within the LEA, except that an LEA may
continue to administer an AA-AAAS that is not part of the innovative
assessment system to students with the most significant cognitive
disabilities, consistent with section 1111(b)(1)(E) of the ESEA.
--Section 200.105(b)(2) has been revised to clarify that the innovative
assessment must align with the challenging State academic content
standards for the grade in which the student is enrolled. In addition,
Sec. 200.105(b)(2)(ii) clarifies that the innovative assessment may
include items above or below a student's grade level so long as the
State measures each student's academic proficiency based on the
challenging State academic standards for the grade in which the student
is enrolled.
--Section 200.105(b)(4) has been revised to clarify that determinations
of the comparability between the innovative and statewide assessment
system must be based on results, including annual summative
determinations, as defined in Sec. 200.105(b)(7), that are generated
for all students and for each subgroup of students.
--Section 200.105(b)(4)(i)(C) has been revised to clarify that States
may include, as a significant portion of the innovative assessment
system in each required grade and subject in which both an innovative
and statewide assessment is administered, items or performance tasks
from the statewide assessment system that, at a minimum, have been
previously pilot tested or field tested for use in the statewide
assessment system.
--Section Sec. 200.105(b)(4)(i)(D) has been added to clarify that
States may include, as a significant portion of the statewide
assessment system in each required grade and subject in which both an
innovative and statewide assessment is administered, items or
performance tasks from the innovative assessment system that, at a
minimum, have been previously pilot tested or field tested for use in
the innovative assessment system.
--Section Sec. 200.105(b)(4)(ii) has been added to require that
States' innovative assessment systems generate results, including
annual summative determinations, that are valid, reliable, and
comparable for all students and for each subgroup of students among
participating schools and LEAs, which an SEA must annually determine as
part of its evaluation plan described in Sec. 200.106(e) (proposed
Sec. 200.78(e)).
--Section 200.105(b)(7) has been revised to require that the innovative
assessment produce an annual summative determination of achievement for
each student that describes--
The student's mastery of the challenging State academic
standards (i.e., both the State's academic content and achievement
standards) for the grade in which the student is enrolled; and
In the case of a student with the most significant
cognitive disabilities assessed with an AA-AAAS under section
1111(b)(1)(E) of the ESEA, the student's mastery of those alternate
academic achievement standards.
--Section 200.105(d)(4) has been revised to require that each
participating LEA inform parents of all students in participating
schools about the innovative assessment and that information shared
with parents include the grades and subjects in which the innovative
assessment will be administered.
--Section 200.105(f)(2) has been added to clarify that a consortium
must submit a revised application to the Secretary in order for an
affiliate member to become a full member of the consortium and use the
consortium's innovative assessment system under the demonstration
authority.
The Department made a number of changes to Sec. 200.106
(proposed Sec. 200.78), which describes the selection criteria the
Secretary will use to evaluate an application for demonstration
authority:
--Section 200.106(a)(3)(iii) has been revised to clarify that the
baseline for setting annual benchmarks toward high-quality and
consistent implementation across schools that are demographically
similar to the State as a whole is the demographics of participating
schools, not participating LEAs.
--Section 200.106(d) has been revised to clarify that each SEA or
consortium's application must include a plan for delivering supports to
educators that can be consistently provided at scale; will be evaluated
on the extent to which training for LEA and school staff will develop
teacher capacity to provide instruction that is informed by the
innovative assessment system results; and should describe strategies
and safeguards to support educators and staff in developing and scoring
the innovative assessment, including how the strategies and safeguards
are sufficient to ensure objective and unbiased scoring of innovative
assessments. Section 200.106(d) has also been revised to provide for
the SEA or consortium to include supports for parents, in addition to
educators and students, and require States to describe their strategies
to familiarize parents as well as students with the innovative
assessment system.
The Department has revised Sec. 200.107 (proposed Sec.
200.79) to clarify that the baseline year used for purposes of
evaluating the innovative assessment to determine if a State may
administer the assessment statewide is the first year the innovative
assessment is administered by a participating LEA under the
demonstration authority.
Costs and Benefits: The Department believes that the benefits of
this regulatory action outweigh any associated costs to a participating
SEA, which may be supported with Federal grant funds. These benefits
include the administration of assessments that more effectively measure
student mastery of challenging State academic standards and better
inform classroom instruction and student supports, ultimately leading
to improved academic outcomes for all students. Please refer to the
Regulatory Impact Analysis section of this document for a more detailed
[[Page 88942]]
discussion of costs and benefits. Consistent with Executive Order
12866, the Office of Management and Budget (OMB) has determined that
this action is significant and, thus, is subject to review by OMB under
the Executive order.
Public Comment: In response to our invitation to comment in the
NPRM, 89 parties submitted comments on the proposed regulations.
We discuss substantive issues under the sections of the proposed
regulations to which they pertain, except for a number of cross-cutting
issues, which are discussed together under the heading ``Cross-cutting
issues.'' Generally, we do not address technical and other minor
changes, or suggested changes the law does not authorize us to make
under the applicable statutory authority. In addition, we do not
address general comments that raised concerns not directly related to
the proposed regulations or that were otherwise outside the scope of
the regulations, including comments that raised concerns pertaining to
instructional curriculum, particular sets of academic standards or
assessments or the Department's authority to require a State to adopt a
particular set of academic standards or assessments, as well as
comments pertaining to the Department's regulations on statewide
accountability systems, data reporting, and State plans.
Tribal Consultation: The Department held four tribal consultation
sessions on April 24, April 28, May 12, and June 27, 2016, pursuant to
Executive Order 13175 (``Consultation and Coordination with Indian
Tribal Governments''). The purpose of these tribal consultation
sessions was to solicit tribal input on the ESEA, including input on
several changes that the ESSA made to the ESEA that directly affect
Indian students and tribal communities. The Department specifically
sought input on: The new grant program for Native language Immersion
schools and projects; the report on Native American language medium
education; and the report on responses to Indian student suicides. The
Department announced the tribal consultation sessions via listserv
emails and Web site postings on https://www.edtribalconsultations.org/.
The Department considered the input provided during the consultation
sessions in developing the proposed requirements.
Analysis of Comments and Changes: An analysis of the comments and
of any changes in the regulations since publication of the NPRM
follows.
Cross-Cutting Issues
Reorganization and Renumbering of the Proposed Regulations
Comments: None.
Discussion: The NPRM included proposed regulatory sections to
implement the innovative assessment demonstration authority in
Sec. Sec. 200.75 through 200.80. However, some of these sections
contain existing regulations that have not yet been removed and
reserved. Accordingly, we are revising the final regulations by
renumbering the proposed sections, as follows:
New Sec. 200.104 (proposed Sec. 200.76) entitled
``Innovative assessment demonstration authority.''
New Sec. 200.105 (proposed Sec. 200.77) entitled
``Demonstration authority application requirements.''
New Sec. 200.106 (proposed Sec. 200.78) entitled
``Innovative assessment selection criteria.''
New Sec. 200.107 (proposed Sec. 200.79) entitled
``Transition to statewide use.''
New Sec. 200.108 (proposed Sec. 200.80) entitled
``Extensions, waivers, and withdrawal of authority.''
Changes: We have revised the final regulations by renumbering the
regulatory sections, as proposed. As a result, we have added Sec. Sec.
200.104 through 200.108 in the final regulations, which describe the
demonstration authority, in general; application requirements;
selection criteria; transition to statewide use; and extensions,
waivers, and withdrawal of authority.
Overtesting
Comments: A few commenters raised concerns that the proposed
requirements impose new testing requirements. Of these commenters, a
few expressed concern that the assessments would serve to punish
teachers who work with children who are struggling academically. Others
were concerned that the assessments would be inappropriately used for
high stakes decisions.
Discussion: Neither section 1204 of the ESEA nor the proposed
regulations impose new assessment requirements beyond those required by
title I, part A of the ESEA. Accurate and reliable measurement of
student achievement based on annual State assessments in reading/
language arts and mathematics remains a core component of State
assessment and accountability systems under the ESSA. In support of
these goals, section 1111(b)(2)(B)(v)(I) of the ESEA requires annual
assessments in reading/language arts and mathematics to be administered
to all students in each of grades 3 through 8, and at least once
between grades 9 and 12. Section 1204 allows a State to pilot new
innovative assessments under a demonstration authority, but requires
that each State assess all students on the applicable assessments,
using either the innovative assessment in participating LEAs and
schools or the statewide assessment in non-participating LEAs and
schools. No State is required to participate in the innovative
assessment demonstration authority. Finally, while States are required
to use the results of State assessments in statewide accountability
systems, consistent with sections 1111(c) and 1111(d) of the ESEA,
there are no further requirements for how assessment results are used,
including for teacher evaluation or student advancement and promotion
decisions. Decisions about the use of test results for those purposes
remain a State and local decision.
Changes: None.
Comments: One commenter commended the Department for allowing
States the option to pilot a new assessment in a subset of schools
rather than the entire State, but stressed that true innovation is
needed to reduce the unnecessary and high stakes associated with
assessments in the United States. The commenter encouraged the
Department to look for opportunities to reduce testing, particularly
for high stakes purposes. Another commenter noted that districts are
already required to track student growth through Response to
Intervention in kindergarten through grade 5 (K-5), so having State
assessments in grades 3-5 is duplicative testing.
Discussion: Section 1111(b)(2)(B)(v)(I) of the ESEA requires that
each State administer reading/language arts and mathematics assessments
in each of grades 3 through 8 and at least once in grades 9 through 12;
while some schools may be required by their LEA or State to use
Response to Intervention in grades K-5, there is no Federal requirement
to do so. We believe that while the ESEA maintains this core
requirement for annual assessment, it also presents States with
opportunities to streamline low-quality or duplicative testing. Each
State, in coordination with its LEAs, should continue to consider
additional action it may take to reduce burdensome and unnecessary
testing. We know that annual assessments, as required by the ESSA, are
tools for learning and promoting equity when they are done well and
thoughtfully. When assessments are done poorly, in excess, or without a
clear purpose, they take time away from teaching and learning. The
President's Testing Action Plan provides a set of principles and
[[Page 88943]]
actions that the Department put forward to help protect the vital role
that good assessments play in guiding progress for students, advancing
equity for all, and evaluating schools, while providing help in
reducing practices that have burdened classroom time or not served
students or educators well. We plan to issue further non-regulatory
guidance to help States and LEAs use the provisions of the ESEA to take
actions aligned with the Testing Action Plan to improve assessment
quality and reduce the burden of unnecessary and duplicative testing.
Changes: None.
Parental Rights
Comments: One commenter noted the importance of parental
involvement in issues pertaining to State assessments under the ESEA,
including test design, reporting, and use of test results, and voiced
support for parents' rights to make decisions around their child's
participation in assessments. Another commenter was supportive of
expecting students to take assessments, but concerned--given the
decisions some parents make to opt their children out of taking
assessments--about requiring that a 95 percent participation rate among
students and subgroups of students be a factor for school
accountability purposes. The commenter suggested that the final
regulations make 95 percent participation a goal, rather than a
requirement, and expect States to review participation rates in schools
that fail to assess at least 95 percent of their students.
Discussion: We agree with commenters that it is important to seek
and consider input from parents when designing and implementing State
assessment systems and policies. Accurate and reliable measurement of
student achievement based on annual State assessments in reading/
language arts and mathematics remains a core component of State
assessment and accountability systems under the ESEA. In support of
these goals, section 1111(b)(2)(B)(i) and (v)(I) of the ESEA requires
annual assessments in reading/language arts and mathematics to be
administered to all students in each of grades 3 through 8, and at
least once between grades 9 and 12. Section 1111(c)(4)(E) of the ESEA
also requires that States hold schools accountable for assessing at
least 95 percent of their students. The statute reiterates these
critical requirements for holding participating schools in the
innovative assessment demonstration authority accountable, as described
in sections 1204(e)(2)(ix) and 1204(j)(1)(B)(v)(II), which both
reference the requirements in section 1111(c) in the application
requirements and requirements for transitioning to using the innovative
assessment system statewide. All States, regardless of their
participation in innovative assessment demonstration authority, are
responsible for ensuring that all students participate in the State's
annual assessments and that all schools meet the statutory and
applicable regulatory requirements to hold schools accountable for the
95 percent participation rate requirement. The final regulations for
the innovative assessment demonstration authority, like the proposed
regulations, are designed to assist States in fulfilling this
responsibility.
Changes: None.
Comments: A few commenters raised concerns that the proposed
regulations will impose new data collection requirements that might
lead to data mining. These commenters were particularly concerned about
student privacy and the right of parents to protect their students'
data from being collected.
Discussion: We agree with the commenters' concern that it is
paramount to protect student privacy. New Sec. 200.105(b)(8) (proposed
Sec. 200.77(b)(8)) requires that each State and LEA report student
results on the innovative assessment, consistent with sections
1111(b)(2)(B) and 1111(h) of the ESEA, including section
1111(b)(2)(B)(xi), which provides that in reporting disaggregated
results, the State, LEA, and school may not reveal personally
identifiable information about an individual student. Further, new
Sec. 200.105(d)(3)(ii) (proposed Sec. 200.77(d)(3)(ii)) requires that
any data submitted to the Secretary regarding the State's
implementation of the innovative assessment demonstration authority may
not reveal any personally identifiable information. We disagree with
the commenters that this regulation requires new student-level data to
be publicly reported beyond those requirements in the statute; rather,
it requires that any State choosing to participate in the innovative
assessment demonstration authority continue to meet the reporting
requirements of sections 1111(b)(2)(B) and 1111(h) of the ESEA.
Changes: None.
Stakeholder Engagement
Comments: Multiple commenters supported the proposed regulations
for prioritizing meaningful consultation with stakeholders in various
phases of the innovative assessment demonstration authority, such as in
developing States' applications and plans for innovative assessment
demonstration authority in proposed Sec. 200.77(a)(2) and in requiring
ongoing feedback from stakeholders on implementation in proposed Sec.
200.77(d)(3)(iv). These commenters appreciated that the proposed
regulations emphasized a meaningful role for assessment experts;
parents and parent organizations; teachers, principals and other school
leaders, and local teacher organizations (including labor
organizations); local school boards; groups representing the interests
of particular subgroups of students, including English learners,
children with disabilities, and other subgroups included under section
1111(c)(2) of the ESEA; and community organizations and intermediaries.
Discussion: We appreciate the support for these provisions and
agree that meaningful, timely, and ongoing consultation with a diverse
group of stakeholders at all phases of the innovative assessment
demonstration authority is essential to ensure effective implementation
and development of a high-quality innovative assessment system. We
strongly encourage States to engage in substantial outreach with
stakeholders in developing and implementing an innovative assessment
system under the ESSA.\2\
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\2\ The Department has issued non-regulatory guidance on
consultation under the ESEA, including suggestions and examples of
best practices for meaningful stakeholder engagement. See: https://www2.ed.gov/policy/elsec/guid/secletter/160622.html.
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Changes: None.
Comments: Several commenters suggested that evidence of
consultation with stakeholders at the time a State is seeking
demonstration authority in proposed Sec. 200.77(a) be submitted
directly from stakeholders, rather than from the State.
Discussion: We believe the commenters' concern that evidence of
meaningful consultation under new Sec. 200.105(a) (proposed Sec.
200.77(a)) is submitted from the State, rather than from required
groups, is mitigated by the selection criterion under new Sec.
200.106(b)(3) (proposed Sec. 200.78(b)(3)), which requires a State to
submit signatures directly from groups and individuals supporting the
application, many of whom overlap with those who must be consulted
under new Sec. 200.105(a). As a result, we believe that adding to the
provisions for consultation by requiring States to gather and submit
further information from organizations and individuals directly would
add burden to the application process without providing
[[Page 88944]]
substantially new information that would aid in the external peer
review of a State's application.
Changes: None.
Comments: A few commenters requested that the Department add
specific groups of stakeholders to the list of those with which the
State must consult in developing its innovative assessment system and
application under proposed Sec. 200.77(a)(2). Commenters suggested
adding groups such as specialized instructional support personnel,
representatives of community-based organizations, and organizations and
parents who advocate for the interests of particular subgroups of
children or are experts in working with these subgroups. In addition,
one commenter representing tribal organizations suggested that tribal
leaders be included as a required group for consultation under proposed
Sec. 200.77(a)(2). Stakeholders supported including these groups under
proposed Sec. 200.77(a)(2) because States would then be required to
regularly solicit ongoing feedback from these additional groups under
proposed Sec. 200.77(d)(3)(iv) and during the transition to statewide
use of the innovative assessment system under proposed Sec.
200.79(b)(3).
Discussion: The list of stakeholders that are part of required
consultation under new Sec. 200.105(a)(2) (proposed Sec.
200.77(a)(2)) comes directly from section 1204(e)(2)(A)(v)(I) of the
ESEA. The Department added students to the list of required
stakeholders, given the substantial and direct impact of implementing a
new innovative assessment on the teaching and instruction students will
receive and to reinforce related statutory requirements for ensuring
students are acclimated to the innovative assessments, as described in
section 1204(e)(2)(B)(vi) of the ESEA. While we recognize that the
additional groups suggested by commenters for inclusion in the
regulations may also provide valuable input in developing the
innovative assessment, we believe that the current list, as proposed,
already includes broad categories to ensure diverse input, such as
``educators'' and those ``representing the interests of children with
disabilities, English learners, and other subgroups.''
We note that a State may always consult with additional groups
beyond those required in the regulations in developing its innovative
assessment system, and we strongly encourage States to ensure
meaningful and ongoing engagement with a diverse group of stakeholders.
The Department has issued non-regulatory guidance, generally, on
conducting effective outreach with stakeholders in implementing the
ESSA, with suggestions and examples of best practices for meaningful
stakeholder engagement.\3\
---------------------------------------------------------------------------
\3\ For more information regarding stakeholder engagement,
please see: https://www2.ed.gov/policy/elsec/guid/secletter/160622.html.
---------------------------------------------------------------------------
We agree that it would be helpful to emphasize that parents of
particular subgroups of students, as well as organizations representing
these students, must be consulted, and are revising the final
regulations accordingly. The State must consider the appropriate
services to ensure meaningful communication for parents with limited
English proficiency and parents with disabilities.
In addition, we agree that it would be beneficial to add
representatives of Indian tribes to the list of required stakeholders,
as some LEAs have a high percentage of their student population who are
American Indian or Alaska Native, and these LEAs will be expected to
implement the innovative assessment by the time the State transitions
to statewide use of the innovative assessment system. This requirement
is consistent with the new requirement in title I, part A for States to
consult with representatives of Tribes prior to submitting a State plan
(section 1111(a)(1) of the ESEA), and the new requirement that certain
LEAs consult with Tribes prior to submitting a plan or application for
covered programs (section 8538 of the ESEA).
Changes: We have added new Sec. 200.105(a)(2)(iv) to require State
collaboration with representatives of Indian tribes and Sec.
200.105(a)(2)(v) to specify that parents who are consulted must include
parents of children in subgroups described in Sec. 200.105(a)(2)(i)
(proposed Sec. 200.77(a)(2)(i)).
Comments: Several commenters suggested that particular groups or
individuals be added to the list of entities for which a State submits
signatures under the selection criterion demonstrating stakeholder
support for innovative assessment demonstration authority in proposed
Sec. 200.78(b)(3)(iv). Commenters suggested that disability rights
organizations, community-based organizations, and statewide
organizations representing superintendents or school board members also
be added. Some of these commenters felt that signatures from other
stakeholders listed in proposed Sec. 200.78(b)(3)(iv) should be
required, believing these organizations' views were considered as less
important than groups representing local leaders, administrators, and
teachers. Another commenter recommended that we require teacher
signatures where local teacher organizations do not exist to ensure
that States have support from teachers in the development and
implementation of the innovative assessment system.
Discussion: In proposed Sec. 200.78(b)(3), the Department
prioritized requiring signatures from those individuals and
organizations that are most directly involved in the implementation of
innovative assessments at the local level, such as superintendents,
school boards, and teacher organizations, as these are the individuals
who will be charged (depending on the State's innovative assessment
system design) with developing, administering, or scoring the
assessments; thus, their input and support are essential to the
successful implementation of the innovative assessment system. We agree
with commenters that signatures of support from other individuals,
however, can be beneficial and note that while the selection criterion
in new Sec. 200.106(b)(3)(i)-(ii) (proposed Sec. 200.78(b)(3)(i)-
(ii)) specifically references signatures from superintendents and
school boards in participating districts, this does not preclude a
State from requesting and including signatures and letters of support
from State organizations representing superintendents and school
boards, as such groups may be included under ``other affected
stakeholders'' as described in new Sec. 200.106(b)(3)(iv) (proposed
Sec. 200.77(b)(3)(iv)). Signatures from disability and community-based
organizations may also be included under new Sec. 200.106(b)(3)(iv).
Moreover, because these signatures are part of the selection criteria,
if a State were to include signatures from a wide range of
individuals--including those that are not required, but may be
included, as described in new Sec. 200.106(b)(3)(iv)--it would
strengthen this component of the State's application. In this way, we
believe the requirements, as proposed, provide a strong incentive for a
State to seek input and support from a diverse group of stakeholders,
and organizations representing those stakeholders in developing its
application, without adding burden to the process for States by
including additional required signatures from groups who may not be
directly involved in implementation of the innovative assessment
system. Similarly, while signatures from individual teachers in
participating districts could be a powerful demonstration of support
from
[[Page 88945]]
educators in participating districts, we believe such a requirement
would add a significant burden for LEAs and SEAs. A State may choose to
collect teacher signatures, but we also recognize it may be more
efficient and feasible for SEAs and LEAs to collect signatures from
organizations that represent teachers.
Changes: None.
Comments: One commenter recommended that the final regulations
require ongoing collaboration with stakeholders, including parents and
organizations that advocate on behalf of students, in addition to
consultation on the development of the innovative assessment system at
the time of the State's application as described in proposed Sec.
200.77(a).
Discussion: New Sec. 200.105(d)(3)(iv) (proposed Sec.
200.77(d)(3)(iv)) requires each State to submit an assurance in its
application that it will annually report to the Secretary on
implementation of its innovative assessment system, including ongoing
feedback from teachers, principals, other school leaders, students and
parents, and other stakeholders consulted under new Sec. 200.105(a)(2)
(proposed Sec. 200.77(a)(2)) from participating schools and LEAs. As
States must collect and report on this stakeholder feedback each year,
and the Department will use it to inform ongoing technical assistance
and monitoring of participating States, we believe no further
requirements related to ongoing consultation are necessary.
Changes: None.
Comments: One commenter supported the provisions for States to
include the prior experience of external partners as part of the
selection criterion in proposed Sec. 200.78(b), but suggested that we
revise the final regulations in proposed Sec. 200.78(d) to include
community-based organizations so as to emphasize the need for States to
partner with external organizations to provide training to staff and to
familiarize parents and students with the innovative assessment.
Discussion: SEAs and consortia of SEAs must submit evidence under
new Sec. 200.105(a)(1) (proposed Sec. 200.77(a)(1)) of collaboration
in developing the innovative assessment system, including experts in
the planning, development, implementation, and evaluation of innovative
assessment systems, many of whom could be part of external partnerships
the SEA or consortium has established. We are revising the regulations
in new Sec. 200.105(a)(1) to more clearly describe that external
partners may be included as collaborators. The commenter is correct
that the selection criterion in new Sec. 200.106(b) (proposed Sec.
200.78(b)) provides for States to describe the prior experience of
their external partners, if any. Further, we presume the role of
external partners in executing a State's plan for demonstration
authority will be fully described, if applicable, in each relevant
selection criterion, and do not feel it is necessary to explicitly note
that a State may work with external partners in each and every area, as
we believe States are best positioned to determine the areas in which
their work could benefit from external partnerships, based on their
innovative assessment system design. A high-quality plan for supporting
educators and students, for example, would include sufficient detail on
any external partnerships and resources to accomplish this work, if the
State has determined such partnerships are necessary.
Changes: We have added new Sec. 200.105(a)(1) (proposed Sec.
200.77(a)(1)) to clarify that experts in the planning, development,
implementation, and evaluation of innovative assessment systems with
whom SEAs collaborate to develop the innovative assessment system may
include external partners.
Comments: One commenter encouraged the Department and States to
engage local school boards in the process to identify participating
districts and schools for the innovative assessment pilot.
Discussion: SEAs and consortia of SEAs must consult with school
leaders during the application process under new Sec.
200.105(a)(2)(ii) (proposed Sec. 200.77(a)(2)(ii)). The selection
criterion provides for SEAs to submit signatures from LEA
superintendents and local school boards participating in the
demonstration authority, consistent with new Sec. 200.106(b)(3)(i)-
(ii) (proposed Sec. 200.78(b)(3)(i)-(ii)), as a showing of support for
the innovative assessment demonstration authority. We believe that
these requirements and selection criterion provide opportunities for
SEAs to speak with local school leaders, including local school boards,
about their plans for and support of innovative assessments. These
conversations will also be the time for SEAs to discuss district or
school participation with local leaders, including school boards. Given
these provisions, we do not think further changes to the regulations
are necessary.
Changes: None.
200.104 Innovative Assessment Demonstration Authority
General
Comments: Many of the commenters supported the innovative
assessment demonstration authority as an opportunity to move toward
more innovative and meaningful systems for assessing student learning,
beyond traditional multiple choice exams. In particular, some
commenters supported the inclusion of performance- and competency-based
assessments. One commenter advocated for a regulation that encourages
new ways to assess under an existing system (e.g., embedding
technology-enhanced items), different strategies to do what current
assessments intend to do but fail to do (e.g., assessing higher-order
thinking skills), or new ways to assess student competencies beyond
what current assessments can do (e.g., assessing in individualized or
real world settings).
One commenter appreciated the opportunity to use the advances in
assessment to better measure student learning, but asked the Department
to ensure that this focus on innovation does not jeopardize assessment
rigor and comparability. Multiple commenters felt that the regulations
provided appropriate flexibility with protections to ensure that
assessments are high-quality, valid, and reliable measurements
consistent with the provisions of ESEA.
Discussion: We appreciate commenters' support of the innovative
assessment demonstration authority and believe that this authority can
enhance State efforts to measure student mastery of challenging State
academic standards and will lead to improved academic outcomes for all
students. We also agree that it is essential, even as States are
piloting more innovative assessments, that all students, including
students with the most significant cognitive disabilities, be held to
challenging content standards, and that all assessments be of high
quality, producing valid, reliable, and comparable determinations of
student achievement, except for alternate assessments for students with
the most significant cognitive disabilities, as defined by a State
under Sec. 200.6(d)(1) and section 1111(b)(2)(D) of the ESEA, who may
be assessed with alternate assessments aligned with alternate academic
achievement standards consistent with section 1111(b)(1)(E) of the
ESEA.
In developing these regulations, we worked carefully to balance the
flexibility offered to States under this authority and the need to
provide room for innovation with the responsibility to ensure that
States continue to meet the requirements of title I of the ESEA. As
long as States meet the requirements of title I of the ESEA, they may
explore new ways to assess students beyond
[[Page 88946]]
what is possible with the current assessments.
Changes: None.
Comments: Several commenters expressed general disagreement with
providing States innovative assessment demonstration authority,
claiming that the authority would not support students or their
learning. Other commenters expressed concern that the regulations, as
proposed, require too many assurances and documentation, create too
many prescriptive requirements, and impede States' ability to create
truly innovative assessment systems.
Discussion: The innovative assessment demonstration authority
provides flexibility to States to develop and administer a new system
of assessments that may include different types of assessments, such as
instructionally embedded assessments or performance-based tasks, that
provide useful and timely information for educators to guide
instruction and identify appropriate instructional supports. Under the
demonstration authority, States may develop new innovative assessments
that meet the needs of their teachers and that provide better measures
for learning. However, section 1204(e)(2)(A)(vi) of the ESEA requires
that assessments be developed so that they are accessible to all
students, including English learners and students with disabilities;
are fair, valid, and reliable; and hold all students to the same high
standards.
We disagree that the requirements are unnecessarily burdensome or
too prescriptive. Under section 1204 of the ESEA, the demonstration
authority is for those States interested in piloting new innovative
assessments and administering the innovative assessments in a subset of
schools for the purposes of accountability and reporting instead of the
statewide assessment, until a State fully scales use of the innovative
assessment among all LEAs and schools. If a State wants to create an
innovative assessment outside of the demonstration authority while
continuing to use the statewide assessment in all schools and LEAs, the
State may do so. Section 1204 of the ESEA further establishes the
application requirements for States seeking innovative assessment
demonstration authority. The regulations clarify and organize those
statutory requirements in new Sec. Sec. 200.105 and 200.106 (proposed
Sec. Sec. 200.77 and 200.78). Given that the demonstration authority
is initially limited to seven States, we particularly believe the
selection criteria outlined in new Sec. 200.106 will provide the
chance for peer reviewers to distinguish high-quality applications
consistent with the requirements of the statute. Moreover, section
1601(a) of the ESEA provides that the Secretary ``may issue . . . such
regulations as are necessary to reasonably ensure that there is
compliance'' with the law. The Department also has rulemaking authority
under section 410 of the General Education Provisions Act (GEPA), 20
U.S.C. 1221e-3, and section 414 of the Department of Education
Organization Act (DEOA), 20 U.S.C. 3474. These regulations are
necessary and appropriate to assist States in developing new,
innovative assessments while maintaining high expectations, validity,
and rigor; further, they are consistent and specifically intended to
ensure compliance with section 1204 of the ESEA.
Changes: None.
Comments: One commenter suggested the Department ask States to
indicate their interest in the innovative assessment demonstration
authority when they submit their consolidated State plan. The commenter
noted that under this recommendation a State would share its vision for
an innovative assessment without submitting a binding application,
allowing the Department to provide targeted technical assistance to
interested States.
Discussion: Title I, part B is not one of the programs included in
the definition of ``covered program'' in section 8101(11) of the ESEA
as it applies to the consolidated State plan. Accordingly, we do not
believe it is necessary to include a requirement for States to indicate
their interest in the demonstration authority in the consolidated State
plan.
Changes: None.
Comments: None.
Discussion: In reviewing the proposed regulations, the Department
believes it would be helpful to establish definitions of
``participating LEA'' and ``participating school.'' At some points
during implementation, States may have both participating and non-
participating LEAs and schools, and this change provides clarity about
what it means for an LEA or school to be participating in the
demonstration authority.
Changes: We have added Sec. 200.104(b)(4) to define a
``participating LEA'' as an LEA in the State with at least one school
participating in the innovative demonstration authority. We also have
added Sec. 200.104(b)(5) to define ``participating school'' as a
public school in the State where the innovative assessment system is
administered under the innovative assessment demonstration authority
instead of the statewide assessment under section 1111(b)(2) of the
ESEA and where the results of the school's students on the innovative
assessment system are used by its State and LEA for purposes of
accountability and reporting under section 1111(c) and 1111(h) of the
ESEA. We have made conforming edits in new Sec. Sec. 200.105 and
200.106.
Defining Innovative Assessment
Comments: Many commenters requested clarity concerning which parts
of the innovative assessment system need to meet the requirements of
section 1111(b)(2) of the ESEA. Specifically, commenters asked the
Department to be clear that it is the innovative assessment system that
must meet the requirements, not each individual innovative assessment.
The commenters noted that a grade-level innovative assessment may be
comprised of multiple parts, each of which may be a stand-alone
assessment (e.g., an interim assessment, a performance-based
assessment, or a competency-based assessment), which sum to an annual,
summative grade-level determination of how a student performed against
the challenging State academic standards. Commenters suggested that
individual assessments should not be required to meet the requirements
of peer review or section 1111(b)(2) individually.
Discussion: The Department believes there may have been some
confusion about the meaning of innovative assessments in the context of
an innovative assessment ``system.'' The Department considers an
assessment system to be inclusive of all required assessments under the
ESEA, such as the general assessments in all grade levels in reading/
language arts, mathematics, and science, and the AA-AAAS. A grade-level
innovative assessment, on the other hand, refers to the full suite of
items, performance tasks, or other parts that sum to the annual,
summative determination.
The Department, through its peer review process, will review the
innovative assessment system overall, including a review of
documentation and evidence provided for the innovative assessment at
each grade level that comprises the innovative assessment system. The
provision in new Sec. 200.107(b) (proposed Sec. 200.79(b)), which
requires an innovative assessment to meet all of the requirements of
section 1111(b)(2) of the ESEA, does not mean that each part of a
grade-level innovative assessment (e.g., an interim assessment, a
performance-based assessment, a competency-based assessment) must meet
those requirements. Accordingly,
[[Page 88947]]
the Department will not review each part of the grade-level innovative
assessment (e.g., a single performance task that makes up part of the
State's innovative 4th-grade mathematics test) to ensure that it meets
the requirements in Sec. 200.2(b) and, therefore, the peer review will
not result in a determination that a single grade-level assessment does
or does not meet the requirements of peer review. We do note, however,
that, as a component of the peer review, a State must submit grade-
specific documentation, such as alignment evidence, test blueprints, or
documentation outlining the development of performance tasks or other
components, and documentation about the validity of the inferences
about the student.
To provide further clarity, we are revising the definition of
``innovative assessment system'' in new Sec. 200.104(b)(3) (proposed
Sec. 200.76(b)(2)) to specify that an ``innovative assessment system''
produces an annual summative determination of each student's mastery of
grade-level content standards aligned to the challenging State academic
standards under section 1111(b)(1) of the ESEA, or, in the case of a
student with the most significant cognitive disabilities assessed with
an AA-AAAS under section 1111(b)(1)(E) of the ESEA and aligned with the
State's academic content standards for the grade in which the student
is enrolled, an annual summative determination relative to such
alternate academic achievement standards for each such student. We also
are revising the definition of ``innovative assessment system'' to
specify that an innovative assessment may include, in any required
grade or subject, one or more types of assessments, such as cumulative
year-end assessments, competency-based assessments, instructionally
embedded assessments, interim assessments, or performance-based
assessments.
Changes: We have added a revised definition of ``innovative
assessment system'' in new Sec. 200.104(b)(3) (proposed Sec.
200.76(b)(2)) to clarify the definition of ``innovative assessment
system'' to indicate that an innovative assessment system:
Produces an annual summative determination of each
student's mastery of grade-level content standards aligned to the
challenging State academic standards under section 1111(b)(1) of the
ESEA, or, in the case of a student with the most significant cognitive
disabilities assessed with an alternate assessment aligned with
alternate academic achievement standards under section 1111(b)(1)(E) of
the ESEA and aligned with the State's academic content standards for
the grade in which the student is enrolled, an annual summative
determination relative to such alternate academic achievement standards
for each such student;
May include any combination of general assessments or
alternate assessments aligned to alternate academic achievement
standards (AA-AAAS) in reading/language arts, mathematics, or science;
and
May, in any required grade or subject, include one or more
types of assessments listed in new Sec. 200.104(b)(3)(ii).
Comments: Two commenters asked the Department to be more explicit
in the regulations that the innovative assessment could be an
innovative general assessment, an innovative AA-AAAS, or both.
Discussion: As we stated in the preamble of the NPRM, an SEA or
consortium of SEAs may propose an innovative general assessment in
reading/language arts, mathematics, or science; an innovative AA-AAAS
for students with the most significant cognitive disabilities, as
defined by a State under section 1111(b)(2)(D) of the ESEA and Sec.
200.6; or both. The definition of ``innovative assessment system'' in
new Sec. 200.104(b)(3) (proposed Sec. 200.76(b)(2)) also specifies
that a State's innovative assessment system may include assessments
that produce an annual summative determination aligned with alternate
academic achievement standards for students with the most significant
cognitive disabilities. In such cases, a State's application would
demonstrate that an innovative AA-AAAS has or will meet all
requirements, including for technical quality, validity, and
reliability, that are included under section 1111(b)(2)(B) of the ESEA.
We are further revising new Sec. 200.104(b)(3) to clarify that the
innovative assessment system may include any combination of general
assessments or AA-AAAS in any required grade or subject.
Changes: We have added new Sec. 200.104(b)(3) (proposed Sec.
200.76(b)(2)) to specify that the innovative assessment system may
include any combination of general assessments or AA-AAAS in reading/
language arts, mathematics, or science that are administered in at
least one required grade under section 1111(b)(2)(B)(v) of the ESEA.
Defining Types of Innovative Assessments
Comments: Multiple commenters asserted that the terms used in
proposed Sec. 200.76(b)(2) to define an innovative assessment, such as
competency-based assessments, instructionally embedded assessments, and
performance-based assessments, are too open to interpretation and may,
in fact, limit assessment options. Commenters recommended that proposed
Sec. 200.76(b)(2) provide more specific examples, such as essays,
research papers, science experiments, and high-level mathematical
problems.
Discussion: The definition of ``innovative assessment system'' in
new Sec. 200.104(b)(3) (proposed Sec. 200.76(b)(2)) is consistent
with the definition in section 1204(a)(1) of the ESEA. We note that
essays, research papers, science experiments, and high-level
mathematical problems may be examples of performance-based assessments,
competency-based assessments, or instructionally embedded assessments.
However, we do not believe it is necessary to provide that level of
specificity in the regulations. We think that this kind of detailed
clarification can be more effectively provided in non-regulatory
guidance.
Changes: None.
Demonstration Authority Period
Comments: Multiple commenters agreed with the proposed regulation
as written and believe that a requirement for immediate implementation
of the innovative assessment system will ensure that States receiving
authority commit time and resources to develop a successful innovative
assessment system.
Discussion: We appreciate the support of commenters for innovative
assessments and for the timeline for implementation. States only need
demonstration authority when they are ready to use the innovative
assessment, including for accountability and reporting purposes, in at
least one school and at least one required grade or subject instead of
the statewide assessment; prior to that, States have discretion to
consider and test different innovative models to subsequently propose
under this authority.
Changes: None.
Comments: Numerous commenters expressed concern about the
requirement that States be ready, upon receiving demonstration
authority, to immediately implement a new innovative assessment in at
least one school. Commenters believe States may be unwilling or unable
to commit time and resources to the development of an innovative
assessment system without an assurance that the Department would
consider their approach to an innovative assessment system. These
commenters
[[Page 88948]]
suggested the Department consider a two-stage application process in
which applicants may receive conditional approval that would allow time
for planning prior to administration of the innovative assessment
system in at least one school. One commenter noted that this would be
an opportunity for States to work directly with the Department and
receive feedback and technical assistance.
One commenter stated that, were the Department to consider a
conditional approval process, it might risk exceeding the seven-State
limitation during the initial demonstration authority period if the
Department receives more than seven high-quality applications that meet
all of the application requirements and selection criteria. The
commenter proposes a contingency plan to rank the applications in the
event that the number of applications exceeds the cap.
Several commenters suggested that this requirement means the
Department drafted the proposed rule to accommodate specific States or
may favor the participation of specific States. One of these commenters
recommended the Department commit to granting demonstration authority
so that States may pursue assessment innovation without the burden of
sanctions or the threat of losing funds.
Discussion: We recognize that many States need time to develop and
implement an innovative assessment system. However, a State does not
need demonstration authority to plan for, develop, or pilot an
innovative assessment system. The authority is only needed once the
State is ready to administer an innovative assessment in at least one
school and will administer the innovative assessment in place of the
statewide assessment, including for purposes of accountability and
reporting under title I, part A.
If the Department grants demonstration authority, even on a
conditional basis, to seven States in the first year, there would be no
additional opportunities for other States to pursue authority until the
initial demonstration period ends. The Department is concerned that
providing conditional approval to States that are not ready to
implement an innovative assessment system in at least one school may,
as a result, take an opportunity away from a State that is close to
being ready but waits to submit an application to the Department, even
though that second State may ultimately be ready to begin implementing
its innovative assessment system sooner than the first State. In
addition, because we know there is a tremendous amount of work involved
in developing an innovative assessment system, we think that it is
possible that a State with conditional approval may subsequently
encounter unanticipated delays, challenges, or the need for substantial
redesign. If this were to happen, it could negatively affect the
Department's ability to evaluate the initial demonstration authority
before determining to expand the innovative demonstration authority, as
required by section 1204(c)(3) of the ESEA.
We encourage States to consider several options for how they may
develop, implement, and scale an innovative assessment. If a State
plans to pursue demonstration authority immediately, a State might
choose to partner with an LEA or a school that already has an
innovative assessment model in place at the local level. The State
could choose to partner with that LEA or school using an innovative
assessment model to begin piloting this model and using it for
accountability and reporting purposes under the ESEA in that LEA or
school, with the intention of moving statewide, once the State is
granted innovative assessment demonstration authority. Alternatively, a
State may choose to start small with a focus on a single grade and
content area, like 8th-grade science. If the Department does not
receive and grant demonstration authority to seven States in the first
year, we anticipate that there will be additional opportunities for
States to apply for demonstration authority until seven States have
been approved.
Finally, the regulations are not designed to favor the
participation of certain States. We will hold all applicants to the
same high expectations, outlined in new Sec. Sec. 200.105 and 200.106
(proposed Sec. Sec. 200.77 and 200.78), based on external peer review
of applications, before granting innovative assessment demonstration
authority.
Changes: None.
Comments: Several commenters objected to proposed Sec.
200.76(b)(1), which would require States to use the innovative
assessment system for purposes of accountability during the
demonstration authority period. These commenters cited section 1204(h)
of the ESEA which provides that States may use the innovative
assessment system for accountability during the demonstration
authority. The commenters believe that requiring immediate use for
accountability will limit innovation and may discourage States from
applying until they are ready.
Discussion: Schools and LEAs in a State that are participating in
an innovative assessment must continue to be included in the State's
accountability system to ensure transparency to educators, parents, and
the public about school performance. Section 1204(e)(2)(C)(iii)
requires an SEA's plan for innovative assessment demonstration
authority to include a description of how the SEA will hold all
participating schools accountable for meeting the State's expectations
for student achievement. The manner in which an SEA holds schools
accountable for meeting the State's expectations for student
achievement is through the statewide accountability system under
section 1111(c) of the ESEA. A State may elect, pursuant to section
1204(e)(2)(B)(i) of the ESEA, to use the statewide academic assessments
required under section 1111(b)(2) of the ESEA in the participating
schools and participating LEAs for accountability purposes while
piloting the innovative assessment system. In the alternative, the
State may use its innovative assessments, instead of the statewide
academic assessments, in reading/language arts, mathematics, or science
for accountability purposes under the demonstration authority if the
innovative assessment meets all of the statutory requirements.
If a State does not wish to use an innovative assessment for
accountability and reporting purposes, it does not need demonstration
authority to pilot its innovative assessments. Only those States that
wish to use the innovative assessment in place of the statewide
assessment, including for the purposes of accountability and reporting
under title I, part A, in at least one school, require innovative
assessment demonstration authority.
Changes: None.
Comments: Several commenters strongly supported the option in
proposed Sec. 200.77(b)(1) for SEAs to use the statewide academic
assessments for accountability should they choose not to use the
innovative assessments for such purposes.
Discussion: We appreciate the commenters' support.
Changes: None.
Community of Practice
Comments: Multiple commenters expressed support for a process that
encourages States to undergo careful planning, gather technical
expertise, and engage stakeholders before piloting an innovative
assessment. One commenter supported the idea of having a community of
practice to provide feedback and support to States in their planning
for an innovative assessment system. However, the commenter noted
[[Page 88949]]
that the lack of funding for the community of practice does not
indicate a high level of support for States in the development of an
innovative assessment system.
Discussion: We appreciate the support of commenters for planning
time and a community of practice that provides technical assistance in
the planning and development of an innovative assessment system. We
agree that a community of practice would provide an opportunity for
States that are not yet ready to apply for demonstration authority an
opportunity to work together and with the Department and experts in
assessment and accountability, to share information on challenges
faced, lessons learned, and promising and best practices to support
continuous learning in ways to strengthen student assessments. The
Department will strive to work collaboratively with States and other
interested parties to provide technical assistance and support to all
interested States.
Changes: None.
Peer Review of Applications
Comments: Commenters recommended that teachers be included in the
list of peer reviewers on the basis that teachers have experience
developing and implementing innovative item types and may be
implementing the innovative assessment systems that will be under
consideration in peer review. In addition, commenters suggested that
principals and parents also be considered as peer reviewers.
Discussion: We agree with commenters that educators, including
teachers and principals, should be considered as external peer
reviewers. The experience of principals and teachers, especially of
those already implementing innovative assessments in their schools and
classrooms, is valuable in the peer review process to evaluate the
strength of the application and its supporting evidence. In new Sec.
200.104(c)(2) (proposed Sec. 200.76(c)(2)), the Department specifies
that peer review teams will consist of individuals with expertise in
developing and implementing innovative assessments, such as
psychometricians, researchers, State and local assessment directors,
and educators--which includes teachers and principals. Therefore, this
is already addressed in the regulations.
We do not agree that parents in general should be added to the list
of peer reviewers in new Sec. 200.104(c)(2). The very technical nature
of these reviews requires that peer reviewers have the experience and
expertise to evaluate an SEA's application, with an emphasis on
knowledge of and experience with the development and implementation of
innovative assessments and assessment technical requirements such as
test design, comparability, and accessibility. Certainly, if a parent
meets these requirements, including the level of expertise expected in
the development and implementation of innovative assessments, that
person would be considered to serve as a peer reviewer for the
innovative assessment demonstration authority.
Changes: None.
Comments: One commenter recommended that tribal representatives be
included in the list of peer reviewers of State applications for
demonstration authority.
Discussion: As stated above, peer reviewers will be selected based
on the individual's experience and expertise, with an emphasis on
knowledge of and experience with the development and implementation of
innovative assessments. Peer reviewers may also be individuals with
past experience developing innovative assessment systems that support
all students, including English learners, children with disabilities,
and disadvantaged students (ESEA section 1204(f)(2)). Prior to
selecting peer reviewers, the Department will publish a notice seeking
peer reviewers and will reach out to a wide variety of stakeholders
with such experience. We encourage tribal representatives with the
experience and expertise in the development and implementation of
innovative assessments to apply to be a peer reviewer.
Changes: None.
Granting Demonstration Authority
Comments: Commenters expressed concern that proposed Sec.
200.76(d), which stated that the Secretary may award demonstration
authority to ``at least one'' State, suggests that the Secretary might
reject eligible applicants or limit the pilot to fewer States than the
seven-State limit set forth in the statute during the initial
demonstration period. Commenters asked that Sec. 200.76(d), and other
sections of the regulations, as appropriate, be changed to clarify that
any State that meets the eligibility criteria will receive
demonstration authority, not to exceed the seven-State limit.
Discussion: We intended new Sec. 200.104(d) (proposed Sec.
200.76(d)) to provide that the initial demonstration period is the
three years beginning with the first year in which the Secretary awards
at least one State or consortium demonstration authority under section
1204 of the ESEA. This is important to clarify because, during the
initial demonstration authority period, the Secretary may not grant
demonstration authority to more than seven States, including States
participating in a consortium. We do not believe additional
clarification is needed in the regulation as the Department references
``at least one State'' to indicate when the initial demonstration
authority period begins (i.e., it is when at least one State is granted
the authority and begins implementing in at least one school; not when
a full cadre of seven States have been granted the authority).
Each State that applies for the demonstration authority will
undergo peer review, as identified in the statute and regulations. The
peers will review the strength of the State's application and evidence
against the application requirements and selection criteria before
providing recommendations to the Secretary.
Changes: None.
Developing Innovative Assessments
Comments: One commenter recommended that the Department include a
requirement that SEAs or consortia of SEAs use competitive bidding to
identify and select developers for innovative assessments under the
innovative assessment demonstration authority. The commenter asserted
that such a requirement would ensure that SEAs or consortia of SEAs
consider the expertise of a wide range of entities experienced in the
design and development of assessments, including the types of
assessments likely to be included as part of an innovative assessment
system. Finally, the commenter noted that this requirement would not be
burdensome as many State procurement laws specifically require this
type of process.
Discussion: We believe it is important that each SEA or consortia
of SEAs consider the expertise and experience of both LEAs within the
State and any external entities that will be supporting the development
and implementation of innovative assessments. As noted by the
commenter, many State procurement laws already govern the process that
States must use to identify and select external partners. We do not
believe it is necessary or within the scope of these regulations for
the Department to require specific procurement processes. Therefore,
the Department declines to include additional requirements.
Changes: None.
[[Page 88950]]
Consortia
Comments: One commenter recommended that tribes be allowed to apply
for innovative assessment demonstration authority, and that tribes be
allowed to participate in a consortium of SEAs without counting against
the four-State limitation on consortium membership. The commenter also
requested that tribes be considered and included in State innovative
assessment pilots.
Discussion: Under section 1204 of the ESEA, the Secretary may
provide an SEA, or a consortium of SEAs, innovative assessment
demonstration authority. An SEA is defined as ``the agency primarily
responsible for the State supervision of public elementary schools and
secondary schools'' (section 8101(49) of the ESEA), and ``State'' is
defined for purposes of title I, part B as the 50 States, the District
of Columbia, and the Commonwealth of Puerto Rico (section 1203(c) of
the ESEA). The law does not provide for separate eligibility for tribes
so we are unable to make that change in these regulations. We note that
these regulations only govern States and their school districts, and
not schools funded by the Bureau of Indian Education (BIE) or by
tribes. We also note, however, that title I, part B does provide a
specific set-aside of funds for the BIE for assessments (section
1203(a)(1) of the ESEA), and nothing in the law prohibits those funds
from being distributed to tribes for the development of assessments.
For the many State-funded public school districts serving
substantial populations of American Indian/Alaska Native students, and
for individual State-funded public schools operated by a tribe (as in
the case of some charter schools), such public schools in a State
granted the demonstration authority would be eligible to participate in
the innovative assessment system. We agree that, in such States,
collaboration with tribal communities is essential. Therefore, we
strongly encourage interested States to work closely with any tribes
located in their State when developing and administering innovative
assessments. To prioritize this collaboration, and as previously
described, we are requiring, in new Sec. 200.105(a)(2) (proposed Sec.
200.77(a)(2)), State collaboration with representatives of Indian
tribes located in the State in the development of the innovative
assessment.
Changes: None.
Comments: One commenter appreciated the allowance in proposed Sec.
200.76(d)(2), which provides that an SEA that is affiliated with a
consortium but not planning on using its innovative assessment under
the demonstration authority would not count toward the four-State limit
on consortium size. The commenter believed that this would create an
opportunity for some States to receive technical assistance and
additional time for planning prior to implementation of an innovative
assessment system. The commenter suggested the final regulations
include information about how affiliate members transition to become
full, participating members in a consortium, including requiring these
members to receive approval through the Department's peer review
process before implementing innovative assessment systems for
accountability purposes.
Discussion: An SEA may be affiliated with a consortium in order to
participate in the planning and development of the innovative
assessment, but is not considered a full member of the consortium
unless the SEA is using the innovative assessment system in at least
one LEA for the purposes of accountability and reporting under title I,
part A of the ESEA instead of the statewide assessment. Affiliate
members do not need to be included in the application for demonstration
authority, nor do they count toward the four-State limitation on
consortium size. The Department believes that it is the responsibility
of the consortium of States and the affiliate State to determine when
the affiliate State is ready to transition to full membership in the
consortium and begin using the innovative assessment system, consistent
with the innovative assessment demonstration authority requirements. At
that point, the consortium, in partnership with the State seeking to
transition from affiliated to full-member status, must apply for and
receive authority from the Secretary to use the innovative assessment
system for accountability and reporting purposes in place of the
statewide assessment system in participating LEAs.
The Department believes it would be helpful to establish a
definition of ``affiliate member of a consortium.'' A consortium of
States may have both full members and affiliate members, and we believe
it is necessary to clarify that a State is not a full member of a
consortium unless it is proposing to use the consortium's innovative
assessment system. In addition, we agree with commenters that it is
necessary to provide detail on how an affiliate member of a consortium
becomes a full member with authority to administer the consortium's
innovative assessment system under demonstration authority.
Changes: We have added Sec. 200.104(b)(1) to include a definition
of ``affiliate member of a consortium'' to be an SEA that is formally
associated with a consortium of SEAs that is implementing the
innovative assessment demonstration authority, but is not yet a full
member of the consortium because it is not proposing to use the
consortium's innovative assessment system under the demonstration
authority. We have made corresponding edits to new Sec.
200.105(f)(1)(i) (proposed Sec. 200.77(f)(1)(i)). We also have added
Sec. 200.105(f)(2) to clarify that the consortium must submit a
revised application to the Secretary in order for an affiliate member
to become a full member of the consortium and use the consortium's
innovative assessment system under the demonstration authority.
200.105 Demonstration Authority Application Requirements
General
Comments: One commenter suggested that the innovative assessment
system incorporate expanded learning time or other strategies that
emphasize out-of-school time as part of a coordinated effort to provide
students the opportunity to demonstrate mastery anytime, anywhere,
including new requirements for SEAs and consortium of SEAs throughout
proposed Sec. Sec. 200.77(b) and 200.78(a) to incorporate after school
and expanded learning time programs.
Discussion: This regulation is intended to support States as they
apply for and implement innovative assessment demonstration authority
under section 1204 of the ESEA, which includes the development and
expansion of an innovative assessment system that can, at the
conclusion of the demonstration authority period, meet requirements for
statewide assessment and accountability systems under title I, part A.
As there are no requirements regarding instructional programming or
learning opportunities for students outside of the school day related
to assessments and accountability systems under title I, part A, nor in
section 1204 of the ESEA, we believe that decisions related to how
extended learning time may support implementation of the innovative
assessment system are best left to SEAs and LEAs.
Changes: None.
Comments: None.
Discussion: The Department believes it would be helpful for States
interested in innovative assessment demonstration authority to
reiterate in the regulations
[[Page 88951]]
the statutory requirement in section 1204(e) of the ESEA that an SEA or
consortium's application for demonstration authority must be submitted
to the Secretary ``at such time'' and ``in such manner'' as the
Secretary reasonably requires. Given that the innovative assessment
demonstration authority is a new flexibility permitted under the ESEA,
and that commenters, as previously described, and stakeholders have
asked questions and requested greater specificity on the application
process, we believe this revision would better align the final
regulations to the statute and provide further clarity for States,
LEAs, and interested stakeholders.
Changes: We have added to the introductory paragraph of new Sec.
200.105 (proposed Sec. 200.77) to clarify that applications for
innovative assessment demonstration authority must be submitted to the
Secretary at such time and in such manner as the Secretary may
reasonably require.
Comments: None.
Discussion: In reviewing the proposed regulations, the Department
believes it will improve consistency with the application requirements
in new Sec. 200.105(b) (proposed Sec. 200.77(b)), which requires that
each application demonstrate how the innovative assessment system does
or will meet certain requirements for alignment, validity, reliability,
and quality, to add to new Sec. 200.104(c)(2) (proposed Sec.
200.76(c)(2)) to state that the external peer review process will
evaluate how the SEA's application ``meets or will meet'' each of these
requirements in new Sec. 200.105.
Changes: We have added Sec. 200.104(c)(2) (proposed Sec.
200.76(c)(2)) to specify that the peer review of SEA applications will
be used to determine if an application ``meets or will meet'' each of
the requirements in Sec. 200.105.
Comments: None.
Discussion: We further believe it is necessary to clarify certain
application requirements pertaining to the assurances a State must
include relating to annual reporting of information on the
demonstration authority. First, we believe it would be helpful to
clarify in new Sec. 200.105(d)(3) (proposed Sec. 200.77(d)(3)) that
States must provide this information in a time and manner as reasonably
required by the Secretary--which is consistent with the requirement in
new Sec. 200.104(c) for the submission of applications. Second,
because new schools within participating LEAs and new LEAs may join the
demonstration authority annually, we believe it would be helpful to
clarify in new Sec. 200.105(e)(2) (proposed Sec. 200.77(e)(2)) that
LEAs must annually assure they will follow all requirements in Sec.
200.105 and add to new Sec. 200.105(d)(3)(i)(B) (proposed Sec.
200.77(d)(3)(i)(B)) that the State must include these updated
assurances in its annual reporting to the Secretary. Finally, in order
to ensure consistent reporting between participating and non-
participating schools, we believe States should annually report data on
student achievement on the innovative assessment system to the
Secretary in a way that is consistent with requirements for State and
LEA report cards required under section 1111(h) of the ESEA, which
includes reporting on student achievement and progress toward meeting
long-term goals. We are revising Sec. 200.105(d)(3)(ii) accordingly.
Changes: We have added to new Sec. 200.105(d)(3) (proposed Sec.
200.77(d)(3)) to specify that annual reporting is required at such time
and in such manner as the Secretary may reasonably require. We have
further added to new Sec. Sec. 200.105(d)(3)(i)(B) and 200.105(e)(2)
(proposed Sec. 200.77(e)(2)) to require States to include updated
assurances from each participating LEA annually that the participating
LEA will meet all requirements in new Sec. 200.105. Finally, we have
added to new Sec. 200.105(d)(3)(ii) to specify that reporting on the
performance of all students in participating schools must be consistent
with reporting student achievement and participation data on State and
LEA report cards under section 1111(h) of the ESEA.
Innovative Assessment Design and Alignment
Comments: One commenter expressed support for proposed Sec.
200.77(b)(1), which would allow States flexibility in selecting
specific grades or subject areas to administer innovative assessments,
rather than assessments in all required grades or subject areas.
Discussion: We appreciate the support for providing flexibility for
States to propose an innovative assessment system in any, or all,
required grades and subjects under section 1111(b)(2)(B)(v) of the ESEA
as it enables States to develop the innovative demonstration authority
at a scope to meet their needs and priorities.
Changes: None.
Comments: A few commenters encouraged the Department to clarify in
proposed Sec. 200.77(b)(1) that the innovative assessment must be
administered to all students and all student subgroups within
participating schools, believing that it is critical to emphasize that
all students in each school are expected to participate in the
innovative assessment.
Discussion: We agree with commenters that it is important for all
students, including all students within particular subgroups, to be
administered the innovative assessment in each participating school,
and the intent of proposed Sec. 200.77(b)(1) was to require all
students in each participating school to take the innovative
assessment, if an innovative assessment was developed for a subject or
grade in which they were enrolled under the demonstration authority.
Given the concerns of the commenters, we are revising the regulations
to more clearly state that all students in each participating school
must take the innovative assessment in each grade and subject in which
an innovative assessment is being piloted. However, we note that, taken
together, final Sec. 200.105(b)(1)(i) and (ii) (proposed Sec.
200.77(b)(1)(i) and (ii)) do not require States to develop an
innovative AA-AAAS for students with the most significant cognitive
disabilities for each innovative general assessment; a State only
developing an innovative general assessment would be required to
continue administering its statewide AA-AAAS to students with the most
significant cognitive disabilities, consistent with applicable
statutory and regulatory requirements under title I, part A. All
children with disabilities ineligible for the AA-AAAS in the
participating school in the grade and subject for which the State has
an innovative assessment should participate in the innovative
assessment.
Changes: We have added to new Sec. 200.105(b)(1)(i) (proposed
Sec. 200.77(b)(1)(i)) to clarify that the innovative assessment must
be administered to all students in a subset of participating LEAs or a
subset of participating schools within a participating LEA.
Comments: One commenter recommended that proposed Sec.
200.77(b)(1)(i), which exempts States from administering the same
assessment to all elementary and secondary students in the State once
it has been granted demonstration authority, be clarified, as it
suggests States may simultaneously pilot multiple innovative
assessments even within the same grade or content area. If that was the
Department's intent, the commenter suggested that multiple innovative
assessments should each meet all applicable regulatory requirements.
Discussion: We appreciate the commenter's suggestion for
clarification in this area. The Department intends for the
demonstration authority to be used
[[Page 88952]]
to pilot a single innovative assessment system, which--if successful--
will replace the current statewide assessment. It was not meant to
allow for a State to try out multiple different innovative assessment
systems simultaneously; accordingly, we are adding to new Sec.
200.105(b)(1)(i) (proposed Sec. 200.77(b)(1)(i)) to clarify that a
State with demonstration authority may implement a single innovative
assessment system, rather than ``innovative assessments,'' and that the
requirement to administer the same assessment to all public school
students in the State does not apply during the demonstration authority
period, extension period, or waiver period, but does apply once the
innovative assessment system is used statewide consistent with new
Sec. 200.107 (proposed Sec. 200.79).
Changes: We have added to new Sec. 200.105(b)(1)(i) (proposed
Sec. 200.77(b)(1)(i)) to specify that a State with demonstration
authority may implement an ``innovative assessment system'' initially
in a subset of LEAs, or a subset of schools within an LEA, during the
demonstration authority period, extension period, or waiver period, but
must administer the same assessment to all public school students upon
transition to statewide use consistent with new Sec. 200.107 (proposed
Sec. 200.79).
Comments: One commenter suggested that proposed Sec. 200.77(b)(2)
be modified to more clearly specify that all innovative assessments,
including an innovative AA-AAAS for students with the most significant
cognitive disabilities, align with challenging academic content
standards for the grade in which the student is enrolled, similar to
proposed requirements for statewide assessments under part A of title I
of the ESEA.
Discussion: The regulations in new Sec. 200.105(b)(1) (proposed
Sec. 200.77(b)(1)) require that the innovative assessment system meet
the requirements of section 1111(b)(2)(B) of the ESEA, including
demonstrating that it is aligned with the challenging State academic
standards and provides information about student attainment of such
standards and whether the student is performing at the student's grade
level. The requirement in new Sec. 200.105(b)(2)(i) (proposed Sec.
200.77(b)(2)) applies to any innovative assessment developed under the
demonstration authority, including an innovative AA-AAAS for students
with the most significant cognitive disabilities.
We agree with the commenter that it is critical for requirements
related to alignment of assessments with academic content standards to
be the same for the innovative assessment demonstration authority under
part B of title I as they are for statewide assessments under part A of
title I; like statewide assessments, all innovative assessments must be
aligned with the breadth and depth of the challenging State academic
content standards. To improve consistency between these regulations and
requirements for State assessment systems under title I, part A and to
reiterate uniform expectations for alignment, we are revising these
regulations by adding ``challenging'' to the reference to the State's
academic content standards and removing ``full'' modifying depth and
breadth of State academic content standards. We also agree with
commenters that it would be helpful to clarify that these standards
apply to the grade in which a student is enrolled, which also improves
alignment of these requirements with those in section 1111(b)(2)(B) of
the ESEA.
Changes: We have added Sec. 200.105(b)(2)(i) to clarify that the
innovative assessment must align to the challenging State academic
content standards under section 1111(b)(1) of the ESEA, including their
depth and breadth, for the grade in which a student is enrolled.
Comments: One commenter appreciated the clarification and the
flexibility in the proposed regulations to allow implementation of the
innovative assessment pilot in a subset of LEAs or schools in one or
more LEAs. Another commenter, however, objected to this flexibility,
believing that participating LEAs should be required to administer the
same assessment in all schools in the LEA each year. The commenter was
concerned the requirement would set a precedent for incomparable
assessment results and different expectations among schools in a single
school district.
Discussion: We appreciate commenters' feedback, but continue to
believe that it is helpful to provide States and LEAs with flexibility
to determine whether it is best to pilot the innovative assessment
system in all schools within an LEA in the same year, or whether an LEA
would be able to better support high-quality implementation if it has
multiple years to expand the pilot within the LEA to all schools. In
particular, we believe this flexibility will benefit especially large
LEAs that will need to support hundreds of schools in implementing a
new--and potentially quite different--system, which will require shifts
in instruction, new professional development, and other significant
investments of time and resources.
Further, we believe that the statutory and regulatory requirements
that ensure valid, reliable, and comparable annual summative
determinations, based on the State's academic standards, between the
innovative assessment system and the statewide assessment, particularly
in new Sec. 200.105(b)(2)-(4), allay the commenter's concern that this
flexibility will result in incomparable data and disparate expectations
for students in participating and non-participating schools. To that
end, we are adding to new Sec. 200.105(b)(3) (proposed Sec.
200.77(b)(3)) to clarify that the innovative assessment system must
express student results ``consistent with'' the ``challenging'' State
academic achievement standards; we are making these changes given that,
as proposed, the provision to express results ``in terms consistent
with'' the State's academic achievement standards could have been
misinterpreted to only require that the same labels be used to describe
student achievement on the innovative assessment as are used to
describe student achievement on the statewide assessment--even if those
labels carried very different meaning in terms of students' mastery of
the challenging State academic achievement standards. We believe that
removing ``in terms'' and adding ``challenging'' to new Sec.
200.105(b)(3) helps clarify that the academic achievement standards
must be consistent and comparable between the innovative and statewide
assessment systems. This requirement is also reiterated in new Sec.
200.105(b)(4)(ii), as discussed in response to comments on
comparability of the two assessment systems.
Changes: We have added Sec. 200.105(b)(3) (proposed Sec.
200.77(b)(3)) to clarify that the innovative assessment system must
express student results or competencies ``consistent with'' the
``challenging'' State academic achievement standards.
Comments: One commenter suggested the Department require SEAs to
include demographically diverse LEAs or schools in the innovative
assessment pilot from the very beginning of the demonstration authority
period, as opposed to the requirement in the proposed regulations under
which SEAs must ensure they are moving toward including demographically
diverse LEAs over the course of the demonstration authority. The
commenter pointed out that the inclusion of different types of LEAs
from the outset, such as urban, suburban, and rural LEAs, will ensure
that SEAs understand the needs of different types of districts and
schools as they implement an innovative
[[Page 88953]]
assessment system. Another commenter supported the intent of proposed
Sec. Sec. 200.77(d)(3)(ii) and 200.78(a)(3)(iii), but suggested the
final rule strengthen the selection criterion so that a State must use
the demographic composition of its public school students, rather than
its initially participating LEAs, as the baseline to measure progress
toward a more demographically representative subset of schools
participating in the innovative assessment system.
Discussion: The Department shares a commitment to ensuring that
SEAs include demographically diverse LEAs and schools in their
innovative assessment systems over time, but we continue to believe
that it is necessary to provide States with reasonable flexibility in
how they scale their innovative assessment system statewide during the
demonstration authority period. While it is critically important for
States to implement and pilot their new assessment systems in
demographically diverse LEAs and schools as soon as possible in order
to make sure the assessment system is viable and effective in a wide
range of contexts, requiring implementation in demographically
representative LEAs and schools in the first year could result in
rushed implementation in LEAs and schools that are not fully prepared
for the significant changes an innovative assessment system may
require. With gradual implementation, SEAs may be better able to
recruit districts and schools that are willing and prepared to try the
innovative assessment system first, which can serve as proof points for
other districts and help set the entire State and its schools up for
success. Nonetheless, all participating States must demonstrate in
their application under new Sec. 200.105(b)(5) (proposed Sec.
200.77(b)(5)) that the innovative assessment system will provide for
the participation of, and be accessible to, all students, including
children with disabilities and English learners, and provide
appropriate accommodations consistent with section 1111(b)(2) of the
ESEA.
Further, we believe that States will be most likely to succeed in
scaling their innovative assessment if they can develop rigorous
criteria for determining when to add new LEAs or schools, with a plan
that includes annual benchmarks, as described in new Sec.
200.106(a)(3)(iii) (proposed Sec. 200.78(a)(3)(iii)), to achieve
implementation in demographically diverse settings over time. We are,
however, revising new Sec. 200.106(a)(3)(iii) to clarify that the
benchmarks are intended to achieve high-quality and consistent
implementation across all participating schools that are similar
demographically to the State as a whole during the demonstration
authority period, using the demographics of participating schools as
the baseline. Our intent in specifying that the demographics of
initially participating schools must serve as the baseline in setting
these benchmarks is to signal that the demographics of initial
participants, which may be a subset of schools with an LEA, are the
starting point--while the demographics of all students and schools in
the State serve as the end point for these benchmarks.
Changes: We have added to new Sec. 200.106(a)(3)(iii) (proposed
Sec. 200.78(a)(3)(iii)) to clarify that the baseline for setting
annual benchmarks toward high-quality and consistent implementation
across schools that are demographically similar to the State as a whole
is the demographics of participating schools, not LEAs.
Comments: One commenter requested that the Department require
innovative assessments to include items and tasks that are the same
across all participating LEAs and schools. The commenter argued that
administering identical assessments is a critical equity lever to
ensure that all students are receiving rigorous instruction, and that
schools are being held accountable for the performance of all students
on high-quality assessments.
Discussion: Under new Sec. 200.105(b)(1) (proposed Sec.
200.77(b)(1)), the innovative assessments included within a State's
innovative assessment system under the demonstration authority must
meet the requirements of section 1111(b)(2)(B) of the ESEA. As section
1111(b)(2)(B) and corresponding regulations do not require a State to
use the same items or tasks on an assessment administered statewide
under part A of title I and allow for multiple forms of the statewide
assessment, we believe it would be inappropriate, and counter to the
purpose of encouraging assessment innovation and flexibility, to
include such a requirement for assessments developed under the
innovative assessment demonstration authority. In addition, we note
that the requirements for valid, reliable, and comparable annual
summative determinations, based on the State's academic standards,
between the innovative assessment system and the statewide assessment,
particularly as set forth in new Sec. 200.105(b)(2)-(4), (proposed
Sec. 200.77(b)(2)-(4)) help ensure that accountability and data
reporting will be consistent between participating and non-
participating schools and help to protect equitable expectations for
all students.
Changes: None.
Comments: A few commenters recommended that the regulations
explicitly require that a State be able to calculate student growth
from its innovative assessment system. Another commenter suggested that
the peer review process should be used to make a determination on
whether the innovative assessment system may be used to calculate
student growth.
Discussion: The Department appreciates the commenters' views on the
use of innovative assessments to estimate student growth, and
encourages States to strongly consider if it will be beneficial for the
innovative assessment to measure student growth when designing the
system. However, the Department believes it is more consistent with
both the requirements for State assessments under section
1111(b)(2)(B)(vi) of the ESEA, and the prohibition in section
1111(e)(1)(B)(iii)(III) of the ESEA, for the innovative assessment
demonstration authority to not include a requirement for innovative
assessments to measure student growth or for peer reviewers to make a
determination of whether the innovative assessment system may be used
to measure student growth.
Changes: None.
Comparability
Comments: Several commenters supported the requirement in proposed
Sec. 200.77(b)(4) that States demonstrate comparability of the
innovative assessment results to the statewide academic assessment. One
commenter, while providing general support for the requirement, also
encouraged the Department to avoid adding burden with overly
prescriptive requirements for comparability and for the design and
implementation of an innovative assessment system. Another commenter
did not agree with the requirement that the innovative assessment must
provide comparable, valid, and reliable results to the statewide
assessment.
Discussion: The Department agrees that comparability is key to the
development of a valid and reliable innovative assessment system that
meets the statutory requirements for innovative assessment
demonstration authority. Additionally, the Department solicited
feedback from the public during the notice and comment period of the
NPRM to gather additional ideas on how the Department can ensure
comparability between existing statewide assessments and innovative
assessments a State may pilot. Section 1204(e)(2)(A)(iv) of the ESEA
requires
[[Page 88954]]
that a State's innovative assessment system generate ``results that are
valid and reliable, and comparable, for all students and for each
subgroup of students'' compared to the results for those students on
the statewide assessment under title I, part A. Section 1601(a) of the
ESEA provides that the Secretary ``may issue . . . such regulations as
are necessary to reasonably ensure that there is compliance'' with the
law. The Department also has rulemaking authority under section 410 of
the GEPA, 20 U.S.C. 1221e-3, and section 414 of the DEOA, 20 U.S.C.
3474.
We firmly believe that the requirements for comparability are
necessary to reasonably ensure that States meet the requirement in
section 1204(e)(2)(A)(iv) as well as other statutory requirements under
section 1204(e)(2)(A)(xi) of the ESEA, such as the requirement ``to
validly and reliably aggregate data from the innovative assessment
system'' for purposes of school accountability and data reporting under
title I, part A. Thus, these regulations are consistent and
specifically intended to ensure compliance with section 1204 of the
ESEA.
The Department acknowledges that the requirements for comparability
for innovative assessment systems are rigorous in these regulations,
but believes they are reasonable because setting clear expectations for
comparability will lead to stronger evidence of validity and
reliability from States. While the Department appreciates the need to
allow States flexibility in designing innovative assessments, this
flexibility must be balanced with the imperative that States meet all
of the statutory provisions and ensure their innovative assessment
systems are valid, reliable, fair, and of high-quality. In addition, by
providing multiple paths to demonstrating comparability, including a
State-determined method, we believe we are providing sufficient
flexibility to States in how they may demonstrate comparability.
Changes: None.
Comments: One commenter urged the Department to ensure that the
comparability requirements in proposed Sec. 200.77(b)(4) provide for
the evaluation of new innovative assessments in terms of their ability
to allow for the comparison of student performance against the
challenging State academic standards across districts and among
subgroups of students.
Discussion: The Department agrees that it is important to establish
comparability of student performance on the innovative assessment
systems with statewide assessments, and believe the regulations
sufficiently address the commenter's concern. New Sec. 200.105(b)(2)-
(3) (proposed Sec. 200.77(b)(2)-(3)) requires the innovative
assessment system to be aligned with the same academic content and
achievement standards with which the statewide assessment is aligned,
and as previously described, we are revising new Sec. 200.105(b)(2)-
(3) to further clarify these expectations. In addition, new Sec.
200.105(b)(4)(i) (proposed Sec. 200.77(b)(4)) will ensure that States
plan, as described further in the selection criterion related to
evaluation and continuous improvement in new Sec. 200.106(e) (proposed
Sec. 200.78(e)), for how they will demonstrate that the annual
summative determinations for students (which are based on the
challenging State academic standards) are comparable between the two
assessment systems, including for all students and for each subgroup of
students under section 1111(b)(2)(B)(xi) of the ESEA.
Changes: None.
Comments: Many commenters requested that the Department make
explicit that the requirement for comparability is based on the annual
summative determinations of student proficiency on the innovative
assessment as compared to the results (i.e., the academic achievement
levels) on the statewide assessment.
Discussion: The Department agrees with these commenters that
comparability of the innovative assessment to the statewide assessment
should be based on annual summative determinations of student
proficiency on the innovative assessment system. While the two
assessment systems must be aligned to the same challenging State
academic content and achievement standards and produce student results
that are valid, reliable, and comparable--as described in section
1204(e)(2)(A)(ii)-(iv) of the ESEA--we did not intend to imply that the
raw scores or scale score levels must be directly comparable, and we
are adding to new Sec. 200.105(b)(4)(i) (proposed Sec. 200.77(b)(4))
to clarify that the requirement for comparability between the two
assessment systems is based on results, including annual summative
determinations, generated for all students and for each subgroup of
students.
Changes: We have added to new Sec. 200.105(b)(4)(i) (proposed
Sec. 200.77(b)(4)) to clarify that determinations of the comparability
between the innovative and statewide assessment systems must be based
on results, including the annual summative determinations, as defined
in new Sec. 200.105(b)(7) (proposed Sec. 200.77(b)(7)), that are
generated for all students and for each subgroup of students and have
made a conforming change to new Sec. 200.106(b)(1)(ii)(C) (proposed
Sec. 200.78(b)(1)(ii)(C)).
Comments: A number of commenters urged the Department not to define
comparability so narrowly that it would stifle innovation and generally
advised the Department not to list specific methodologies for
establishing comparability in regulation, but instead provide examples
of various approaches in non-regulatory guidance. These commenters also
recommended that the Department allow a State to develop an evaluation
methodology for establishing comparability that is consistent with the
design and context of its innovative assessment system. Similarly, some
commenters advised that States should consider multiple approaches to
comparability evaluations to provide a more complete picture of the
degree of comparability.
Discussion: The Department agrees with commenters that States may
need flexibility in establishing the comparability of their innovative
assessment system with their statewide assessment system, and that it
is important for a State to select a comparability methodology that is
best aligned with the design and context of its innovative assessment
system. To support these goals, new Sec. 200.105(b)(4)(i)(E) (proposed
Sec. 200.77(b)(4)(iv)) allows for a State-designed comparability
methodology should the State not wish to pursue one of the other four
methods in the regulations; States may propose an alternate methodology
that provides for an equally rigorous and statistically valid
comparison between student performance on the innovative assessment and
the statewide assessment.
However, we also believe that demonstrating comparability between
the two assessment systems, as required by section 1204(e)(2)(A)(iv) of
the ESEA is a critical safeguard for fairness and equity during the
demonstration authority period, when both assessment systems will be in
use throughout the State for school accountability and data reporting
purposes under title I, part A for a period of five years, or more. If
the data from the innovative assessment system are not comparable to
the statewide assessment during this time, the integrity and validity
of the school accountability system will be jeopardized; schools and
students requiring additional supports may go
[[Page 88955]]
unidentified and not receive the extra resources they deserve; and
parents, educators, and community members will lack transparent and
clear data about student performance. Because the comparability
requirement is paramount to consistently measuring student progress
against the challenging State academic standards throughout the State,
and recognizing that demonstrating comparability may be technically
challenging for States, the regulations include examples of four
methods a State may use to demonstrate comparability, in addition to
providing the option for a State-designed methodology. We believe
providing these examples in the regulations, which were developed based
on public comment and recommendations from researchers and assessment
experts, States and other stakeholders, will be helpful to States
interested in the demonstration authority for several reasons. Having
these examples in the regulation will help States in evaluating and
adopting rigorous and well-established methods to meet the statutory
requirement for comparable assessment systems; can support States in
immediate planning for the activities and strategies that will be part
of an innovative assessment pilot prior to the release of any Notice
Inviting Applicants (NIA), peer review guidance, or additional non-
regulatory guidance; and provides context and a helpful comparison if
States decide to pursue their own State-designed method to demonstrate
comparability. Because a State-designed method for demonstrating
comparability between the two assessments is also permitted, we believe
the regulations balance the requirement that States must sufficiently
demonstrate comparability, as described in section 1204(e)(2)(A)(iv) of
the ESEA, with the desire to provide States with flexibility and
promote innovation in designing innovative assessment systems.
Changes: None.
Comments: Several commenters provided technical advice to the
Department regarding the methodologies for demonstrating comparability.
These commenters urged the Department to make judgments on the strength
of the theory and evidence provided by States to support comparability
for each innovative assessment system and avoid an overly prescriptive
approach, offering a detailed list of considerations and decision
points States could use in selecting a comparability method. Finally,
while agreeing with the technical soundness of the methodologies
provided in the regulations, these commenters described a dozen
specific research approaches for evaluating comparability under
proposed Sec. 200.77(b)(4), such as propensity score matching. These
commenters encouraged the Department to not include any specific
methodologies in regulation but provide a multitude of methodologies in
guidance.
Discussion: The Department appreciates these commenters' analysis
and recommendations, but as previously discussed, continues to believe
that new Sec. 200.105(b)(4)(i) (proposed Sec. 200.77(b)(4)) should
include examples of methods that we believe a State could use in order
to meet the requirement in section 1204(e)(2)(A)(iv) of the ESEA to
generate results that are valid, reliable, and comparable between the
two assessment systems--including a State-designed methodology--as a
way to help States develop strong proposals and to clarify what the
expectations of the peer reviewers will be, among other reasons. These
examples were not intended to be the only methodologies the Department
would consider for a State to demonstrate comparability. The Department
agrees that there are a number of technically sound methodologies that,
if well-designed, could support a State's demonstration of
comparability for its innovative assessment system beyond those
specified in new Sec. 200.105(b)(4)(i)(A)-(D) (proposed Sec.
200.77(b)(4)(i) through (iii)) and provide for an equally rigorous and
statistically valid comparison. Further, we note that several of the
specific suggestions (e.g., propensity score matching) from the
commenters could be used to evaluate comparability as part of any of
the methods included in new Sec. 200.105(b)(4)(i), as these methods
consider how a State may use its innovative and statewide assessment
systems during the demonstration authority in order to establish
comparability between the two systems but do not specify a particular
research or evaluation approach. We believe that States should
administer the innovative and statewide assessments in participating
schools and LEAs in a way that works best for the design of their
innovative assessment system, and select an approach and research
methodology for demonstrating comparability that is appropriate to that
design. We believe that the regulations provide sufficient flexibility
for States to do so--including by allowing for a State-determined
method beyond the options described in new Sec. 200.105(b)(4)(i)(A)-
(D). We will consider providing additional examples in any technical
assistance the Department may provide to States and in guidance for
peer reviewers.
In response to the additional proposed methodologies that included
a suggestion to allow States to administer items from the innovative
assessment to students taking the statewide assessment, we are
clarifying in new Sec. 200.105(b)(4)(i)(C) and (D) that States may
include items ``or performance tasks'' from the innovative assessment
on the statewide assessment, and vice versa, if their inclusion
constitutes a significant portion of the assessment and is appropriate
for the research design to demonstrate comparability proposed by the
State.
Changes: We have added to new Sec. 200.105(b)(4)(i)(C) to clarify
that States may include, as a significant portion of the innovative
assessment system in each required grade and subject in which both an
innovative and statewide assessment is administered, items or
performance tasks from the statewide assessment system that, at a
minimum, have been previously pilot tested or field tested for use in
the statewide assessment system.
We have also added Sec. 200.105(b)(4)(i)(D) to clarify that States
may include, as a significant portion of the statewide assessment
system in each required grade and subject in which both an innovative
and statewide assessment is administered, items or performance tasks
from the innovative assessment system that, at a minimum, have been
previously pilot tested or field tested for use in the innovative
assessment system.
Comments: Some commenters noted that as an innovative assessment
system is taken to scale statewide, comparability with the statewide
assessment systems becomes less important than the comparability of
results among LEAs and schools using the innovative system of
assessments. These commenters urged the Department to modify the
regulations to not require an annual comparability evaluation between
the statewide and innovative assessment systems; they argued that if
the evidence for comparability across the two systems of assessment is
strong, comparability of the innovative assessment with the statewide
assessment need not be re-evaluated every year.
Discussion: The Department agrees that as the innovative assessment
system scales into wider use among LEAs and schools, comparability
among the LEAs and schools administering the innovative assessment
system will become more important than in the beginning of the
demonstration
[[Page 88956]]
authority period. Further, we note that the comparability, validity,
reliability, and technical quality of innovative assessments across
participating LEAs and schools will be one critical component of the
peer review required to transition to statewide use of the innovative
assessment for purposes of part A of title I, as described further in
new Sec. 200.107 (proposed Sec. 200.79). Given these comments, the
Department is also concerned that the requirement for comparable
results within the innovative assessment system was unclear in the
regulations, as proposed. As the innovative assessment system will be
used during the demonstration authority period for purposes of school
accountability and reporting, it is imperative for States to have plans
and procedures in place to ensure the quality, validity, reliability,
and consistency of assessment blueprints, items or tasks, test
administration, scoring, and other components across participating LEAs
and schools. To clarify that comparability between LEAs and schools
participating in the innovative assessment is required and reinforce
that States should take this into account as they develop and implement
their innovative assessment system, we are adding new Sec.
200.105(b)(4)(ii) to specify that States must annually determine the
comparability of the innovative assessment system, including annual
summative determinations that are valid, reliable, and comparable for
all students and each subgroup of students, among participating schools
and LEAs. This will also be part of a State's plan for evaluation and
continuous improvement as described in new Sec. 200.106(e) (proposed
Sec. 200.78(e)).
We disagree that an annual demonstration of comparability between
the innovative and statewide assessment systems is unnecessary or
overly burdensome as States focus on scaling their innovative systems.
As provided in section 1601(a) of ESEA, ``[t]he Secretary may issue . .
. such regulations as are necessary to reasonably ensure that there is
compliance'' with the statute. Also, the Department has rulemaking
authority under section 410 of the GEPA, 20 U.S.C. 1221e-3, and section
414 of the DEOA, 20 U.S.C. 3474. Section 1204(e)(2)(A)(iv) requires
that the innovative assessment system generates valid, reliable, and
comparable results relative to the statewide assessment during the
demonstration authority period. We believe that as an innovative
assessment system goes to scale, the regulations related to statewide
assessment will remain a valuable reference to monitor effective
implementation across the increasing number of LEAs and schools that
adopt the innovative assessment. Further, annual information on
comparability will enable the Department to better support and work
with States to make needed adjustments over time to maintain a high
level of comparability between the two assessment systems, which is not
only required by the statute, but also critical to maintain fair and
valid school accountability determinations and transparent data
reporting while both assessment systems are in operation during the
demonstration authority period. Finally, these final regulations are
consistent and specifically intended to ensure compliance with section
1204 of the ESEA.
For example, the evidence a State will provide to demonstrate that
its statewide and innovative assessment systems are comparable may need
to change little from one year to next, particularly in any year of the
demonstration authority period where the innovative assessment has not
expanded to a large number of new schools or where implementation has
been relatively stable--in such cases, providing this information will
result in minimal work for SEAs and will assure the Department that the
SEA continues to comply with the minimal requirements for demonstration
authority. However, there are many cases where implementation from one
year to the next will not be as stable, leading to variation in the
results between the two assessments over time. For instance,
comparability could be strengthened in later years if the State makes
adjustments to modify its performance tasks to better align with the
State's academic content standards or to improve the inter-rater
reliability and training of evaluators. However, comparability could
decline in later years of the demonstration authority period if the
initial participating LEAs had greater prior experience with the
innovative assessment system, and newly added LEAs struggle to
implement the innovative assessment system with the same fidelity as
early adopters. Similarly, if initially participating schools are not
demographically representative of the State as a whole, the
comparability of the innovative assessment system results to the
statewide assessment could change as greater numbers of students take
the innovative assessment, including children with disabilities and
English learners. Without annual information on comparability between
the statewide and innovative assessment systems, the Department would
not be able to provide the necessary technical assistance to States
that see these fluctuations over time and would not have essential
information to ensure compliance with the statutory requirements in
section 1204 for the demonstration authority.
Changes: We have added Sec. 200.105(b)(4)(ii) to require that
States' innovative assessment systems generate results, including
annual summative determinations, that are valid, reliable, and
comparable for all students and for each subgroup of students among
participating schools and LEAs, which an SEA must annually determine as
part of its evaluation plan described in Sec. 200.106(e).
Accessibility
Comments: A few commenters supported proposed Sec. 200.77(b)(5),
which would require SEAs to ensure that the innovative assessment
systems provide for the participation of, and are accessible to, all
students, including students with disabilities and English learners.
One commenter also expressed support for the provision that the
innovative assessment system may incorporate, as appropriate, the
principles of universal design for learning (UDL), noting that UDL
includes principles for flexible approaches and accommodations in
assessment. However, another recommended that the words ``as
appropriate'' be removed, in order to require the use of the principles
of UDL in the development of innovative assessments, which they
believed would be more consistent with the requirements of section
1204(e) of the ESEA.
Discussion: We appreciate the support of commenters for ensuring
innovative assessments are accessible to all students, and share their
belief that innovative assessments should be accessible to all
students. We agree that the language should encourage States to
incorporate the principles of UDL. We also believe this language should
be consistent with how principles of UDL are included in Sec.
200.2(b)(2)(ii) with respect to the requirements for statewide
assessments under part A of title I. This will help to reiterate for
States that they should develop innovative assessment systems that will
be able to meet the title I, part A requirements when the States seek
to transition to statewide use of the innovative assessment and undergo
peer review under title I, part A, as described in Sec. 200.107
(proposed Sec. 200.79).
[[Page 88957]]
We are therefore adding to new Sec. 200.105(b)(5) (proposed Sec.
200.77(b)(5)) to state that the principles of UDL should be
incorporated ``to the extent practicable'' instead of ``as
appropriate'' consistent with section 1111(b)(2)(B)(xiii) of the ESEA.
Changes: We have added to new Sec. 200.105(b)(5) to make clearer
the three concepts contained in that section include: Participation of
all students; accessibility by incorporating principles of UDL; and
accommodations. We have also specified in Sec. 200.105(b)(5)(ii) that
the principles of UDL should be incorporated ``to the extent
practicable.''
Comments: Multiple commenters advocated amending proposed Sec.
200.77(b)(5) to require specific accessibility standards for digital
content, such as Web Content Accessibility Guidelines (WCAG) 2.0, as
part of an innovative assessment system.
Discussion: Section 1204(e)(2)(A)(vi) of the ESEA requires all
innovative assessment systems to be accessible to all students, such as
by incorporating the principles of UDL. The requirement that assessment
systems be accessible to individuals with disabilities is also based on
the Federal civil rights requirements of section 504 of the
Rehabilitation Act, 29 U.S.C. 794, title II of the Americans with
Disabilities Act, 42 U.S.C. 12131 et seq., and their implementing
regulations, all of which are enforced by the Department's Office for
Civil Rights (OCR). In OCR's enforcement experience, where an SEA
collects information through electronic and information technology,
such as student assessment, it is difficult to ensure compliance with
accessibility requirements without adherence to modern standards, such
as the WCAG 2.0 Level AA standard. However, we do not think further
requirements regarding digital content are appropriate here since the
assessment models that States pilot could be quite different depending
on a State's specific priorities and goals--some innovative assessments
may be heavily dependent on digital content, while another innovative
assessment system could use very little digital content. Regardless,
the baseline requirement under both ESEA and Federal civil rights laws
remains that the innovative assessment system must be accessible for
all students, including all children with disabilities. In addition, we
note that any innovative assessment system developed under the
demonstration authority must, prior to transition to statewide use,
undergo a second peer review as described in new Sec. 200.107
(proposed Sec. 200.79) to determine if the system meets the
requirements for State assessments and accountability under part A, of
title I, which includes a regulatory requirement related to
accessibility and nationally recognized accessibility standards under
Sec. 200.2. Thus, it is clear that SEAs' innovative assessment systems
will, when implemented at scale, also be subject to these same
requirements to incorporate the principles of UDL to the extent
practicable.
Changes: None.
Participation Rates
Comments: One commenter opposed the requirement in proposed Sec.
200.77(b)(6) that, for purposes of the State accountability system, the
innovative assessment system must annually measure the achievement of
at least 95 percent of all students, and 95 percent of students in each
subgroup. The commenter believes that this provision would impose an
additional requirement taken from section 1111(c)(4)(E)(iii) of the
ESEA on participating schools and additional consequences on such
schools for not assessing 95 percent of students, contrary to
congressional intent. The commenter recommended requiring innovative
assessment participation in schools participating in the demonstration
authority at a rate that is no less than the participation rate of
students in the statewide assessment system. In particular, the
commenter does not believe that demonstration authority should be
placed at risk because of assessment participation requirements.
Discussion: We believe the commenter's concerns may be addressed by
further clarifying the intent of new Sec. 200.105(b)(6) (proposed
Sec. 200.77(b)(6)) and related requirements. The commenter is correct
that section 1111(c)(4)(E)(iii) of the ESEA requires States to factor
95 percent participation in State assessments into their accountability
systems. However, section 1111(c)(4)(E)(i)-(ii) also includes specific
requirements for the measurement of academic achievement based on State
assessments, including (1) a requirement that States annually measure,
for school accountability, the progress of at least 95 percent of all
students and 95 percent of students in each subgroup on the State's
reading/language arts and mathematics assessments, and (2) a
requirement that, for purposes of measuring, calculating, and reporting
on the Academic Achievement indicator, the denominator must always
include either the number of students with valid assessment scores or
95 percent of students enrolled in the school, whichever is greater.
New Sec. 200.105(b)(6) (proposed Sec. 200.77(b)(6)) and related
requirements for 95 percent assessment participation in the final
regulations for innovative assessment demonstration authority were
intended to clarify how these statutory requirements for measurement of
academic achievement related to school accountability apply to
participating schools in the demonstration authority.
Section 1204(e)(2)(A)(ix) of the ESEA requires that the innovative
assessment system annually measure the progress of ``not less than the
same percentage'' of all students and students in each subgroup in
participating schools as were assessed by schools administering the
statewide assessments and ``as measured under section 1111(c)(4)(E)''
(emphasis added). As explained previously, the percentage of all
students and students in each subgroup whose performance on assessments
must be measured for accountability under section 1111(c)(4)(E)(i) of
the ESEA is 95 percent of students and 95 percent of students in each
subgroup; the requirements in section 1111(c)(4)(E)(ii) of the ESEA
reinforce this further by requiring that at least 95 percent of all
students and students in each subgroup be included in calculating the
Academic Achievement indicator. As a result, ``not less than the same
percentage'' will always be 95 percent, because the Academic
Achievement indicator--``as measured under ESEA section
1111(c)(4)(E)''--will always measure the performance of 95 percent of
all students and 95 percent of students in each subgroup enrolled in a
school.
New Sec. 200.105(b)(6) does not prescribe how each State will
factor participation rates into its accountability system for all
public schools, as required under section 1111(c)(4)(E)(iii) of the
ESEA. This requirement would still apply to all schools in the State,
including schools participating in the innovative assessment
demonstration authority, because of requirements in section
1204(e)(2)(A)(xi) and (C)(iii) of the ESEA to maintain consistent,
valid, and reliable accountability for all schools, but the actions for
holding schools accountable for improving school participation rates
are determined by the State as described in the statutory requirements
for statewide accountability systems. While the commenter is correct
that the Secretary may withdraw demonstration authority for a number of
reasons, including when a State cannot provide evidence that it is
meeting the requirements under new Sec. 200.105, this does not mean
low
[[Page 88958]]
assessment participation in a school or LEA will automatically result
in withdrawal of demonstration authority. In order for a State to meet
the requirement under new Sec. 200.105(b)(6), the State would need to
hold participating schools accountable for 95 percent participation in
assessments in the same way as it does for all public schools,
including the calculation of the Academic Achievement indicator and the
way the State determines it will factor the 95 percent participation
requirement into its overall accountability system consistent with
section 1111(c)(4)(E) of the ESEA. We believe the requirements in new
Sec. 200.105(b)(6) help clarify the statutory language and ensure
fairness and consistency in accountability determinations between
participating and non-participating schools, without creating any new
requirements for participating schools.
Changes: None.
Annual Summative Determinations for Students
Comments: Several commenters supported requirements in proposed
Sec. 200.77(b)(7) regarding annual summative determinations for
student performance on the innovative assessment. These commenters
noted the importance of providing students and families an indicator of
grade-level mastery of the State's academic content standards and
making sure that all students are held to the same academic standards.
One commenter also noted this requirement will help ensure
comparability in student results between the statewide annual
assessment and the innovative assessment. A few commenters requested
further clarification in proposed Sec. Sec. 200.76(b)(2) and
200.77(b)(1) that innovative assessments may assess a student on
content that is above or below the content standards for the grade in
which the student is enrolled, citing section 1111(b)(2)(J) of the
ESEA, which allows computer-adaptive assessments to include items above
or below grade level. These commenters believe that innovative
assessments should be able to use a different approach for measuring
student academic proficiency, while maintaining an annual grade-level
determination of proficiency. Another commenter was concerned that the
proposed requirements to produce an annual grade-level determination
would mean innovative assessments would not also produce a valid result
for a student's performance above or below that standard.
Discussion: Given that the assessment requirements in title I, part
A of the ESEA focus on the alignment of the assessment system to the
challenging State academic standards and these academic standards also
apply to innovative assessments as described in section
1204(e)(2)(A)(ii)-(iii) of the ESEA, we believe it is both consistent
with the statute and critically important to continue this focus within
the demonstration authority. While we support the need for better and
more valid assessments of student knowledge, we do not think that these
assessments should set a different or lower expectation for student
achievement. In addition, it is vital that the innovative assessment
system provide valid, reliable, comparable, and fair determinations of
student achievement against the challenging State academic standards
for the student's grade, because the innovative assessments (1) will be
used in place of the statewide assessments that are administered to
meet the requirements in section 1111(b)(2)(B) of the ESEA; (2) will be
required to meet these same requirements as described in section
1204(e)(2)(A)(i) of the ESEA; and (3) will be used in the State's
accountability system for participating LEAs and schools.
There is nothing in these regulations that would preclude a State
from including additional content to measure a student's mastery of
content other than the content for the grade in which the student is
enrolled, and we are revising the final regulations to make this clear.
A State is able to include such content, whether through a computer-
adaptive design or some other innovative design, provided the
innovative assessment system meets the statutory and regulatory
requirements, including by producing an annual summative determination
that describes the student's mastery of the State's grade-level
academic content standards based on the State's aligned academic
achievement standards.
Changes: We have added new Sec. 200.105(b)(2)(ii) (proposed Sec.
200.77(b)(2)) to clarify that innovative assessments may include items
above or below the State's academic content standards for the grade
level in which a student is enrolled, so long as, for purposes of
reporting and school accountability consistent with new Sec.
200.105(b)(3) and (7)-(9), the State measures a student's academic
proficiency based on the challenging State academic standards for the
grade in which a student is enrolled.
Comments: One commenter recommended that the regulations clarify
more specifically that the annual summative determination under
proposed Sec. 200.77(b)(7) be based on the State's academic
achievement standards that are aligned to grade-level academic content
standards. One commenter specifically recommended that proposed Sec.
200.77(b)(7) be modified to state that the achievement standards must
be ``aligned'' to the State's grade-level academic content standards,
believing such an addition was especially critical if a State adopts an
innovative AA-AAAS.
Discussion: The Department agrees that any innovative assessment
(including an innovative AA-AAAS) must produce an annual summative
determination for each student that describes the students' mastery of
grade-level academic content standards, using either the State's
academic achievement standards or, for students with the most
significant cognitive disabilities, the State's alternate academic
achievement standards. Section 1111(b)(1) of the ESEA requires that
challenging State academic standards include academic content standards
and aligned academic achievement standards, and these requirements
apply whether or not a State applies for or receives innovative
assessment demonstration authority. To clarify this in the final
regulations, we are adding to new Sec. 200.105(b)(7) to specify that
(1) the annual summative determination of achievement for a student on
the innovative assessment describes the student's achievement of the
challenging State academic standards (i.e., both the State's academic
content and achievement standards) for the grade in which the student
is enrolled; and (2) in the case of a student with the most significant
cognitive disabilities assessed with an innovative AA-AAAS aligned with
the challenging State academic content standards for the grade in which
the student is enrolled, the innovative AA-AAAS must provide an annual
summative determination of to the student's mastery of the alternate
academic achievement standards for each such student.
Changes: We have added to new Sec. 200.105(b)(7) (proposed Sec.
200.77(b)(7)) to require that the innovative assessment produce an
annual summative determination of achievement for each student that
describes the student's mastery of the challenging State academic
standards (i.e., both the State's academic content and achievement
standards) for the grade in which the student is enrolled, or, in the
case of a student with the most significant cognitive disabilities
assessed with an alternate assessment aligned with alternate academic
[[Page 88959]]
achievement standards under section 1111(b)(1)(E) of the ESEA, the
student's mastery of those standards.
Reporting to Parents
Comments: Multiple commenters expressed strong support for the
requirements in proposed Sec. 200.77(d)(4). This section would require
an SEA to provide an assurance that it will ensure each LEA provides
information to parents in a timely, uniform, and understandable format.
In particular, commenters asserted the importance of providing
assessment information for non-English speaking parents in their native
language. While appreciating the requirement to provide oral
translations to parents with limited English proficiency when written
translations are not practicable, one commenter suggested the
regulations require LEAs to secure written translations for the most
populous language spoken, other than English, by participating
students. Another commenter, however, recommended removing altogether
requirements related to written and oral translations and to alternate
formats in proposed Sec. 200.77(d)(4)(ii)-(iii), expressing concern
about the financial burden placed on large urban districts with
students and families who speak many different languages.
Discussion: We appreciate the strong support for proposed Sec.
200.77(d)(4) and agree these regulations are critical to ensure that a
parent receives needed information about a child's academic progress on
State assessments. Section 1111(b)(2)(B)(x) of the ESEA requires a
State to provide information to parents in an understandable and
uniform format, and to the extent practicable, in a language that
parents can understand. These requirements also apply to innovative
assessment systems developed under the demonstration authority,
consistent with section 1204(e)(2)(A)(i) of the ESEA and new Sec.
200.105(b)(1) (proposed Sec. 200.77(b)(1)). In addition, the statute
includes these same requirements for accessibility of notices to
parents under section 1112(e) of the ESEA, which requires LEAs to
provide certain information to parents each year, including information
pertaining to testing transparency. We believe the clarifications
provided by new Sec. 200.105(d)(4) (proposed Sec. 200.77(d)(4)) will
help parents take an active role in supporting their children's
education, improve transparency and understanding of the innovative
assessment system, and provide consistency among the statutory
requirements, regulations, and applicable civil rights laws, as
explained below.
We disagree with commenters that we should require written or oral
translations and alternate formats only to the extent practicable.
Parents with disabilities or parents who are limited English proficient
have the right to request notification in accessible formats. Whenever
practicable, written translations of printed information must be
provided to parents with limited English proficiency in a language they
understand, and the term ``language'' includes all languages, including
Native American languages. However, if written translations are not
practicable for a State or LEA to provide, it is permissible to provide
information to limited English proficient parents orally in a language
that they understand instead of a written translation. This requirement
is consistent with Title VI of the Civil Rights Act of 1964 (Title VI),
as amended, and its implementing regulations. Under Title VI,
recipients of Federal financial assistance have a responsibility to
ensure meaningful access to their programs and activities by persons
with limited English proficiency. It is also consistent with Department
policy under Title VI and Executive Order 13166 (Improving Access to
Services for Persons with Limited English Proficiency).
We decline to further define the term ``to the extent practicable''
under these regulations, but remind States and LEAs of their Title VI
obligation to take reasonable steps to communicate the information
required by ESEA to parents with limited English proficiency in a
meaningful way.\4\ We also remind States and LEAs of their concurrent
obligations under Section 504 and title II of the ADA, which require
covered entities to provide persons with disabilities with effective
communication and reasonable accommodations necessary to avoid
discrimination unless it would result in a fundamental alteration in
the nature of a program or activity or in undue financial and
administrative burdens. Nothing in the ESSA or these regulations
modifies those independent and separate obligations. Compliance with
the ESEA, as amended by the ESSA, does not ensure compliance with Title
VI, Section 504 or title II.
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\4\ For more information on agencies' civil rights obligations
to parents with limited English proficiency, see the Joint Dear
Colleague Letter of Jan. 7, 2015, at Section J. (https://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf).
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Changes: None.
Comments: Some commenters suggested that if an LEA begins to
administer a general innovative assessment in some or all schools under
the demonstration authority, the LEA should be required to notify
parents of students with significant cognitive disabilities that their
child will be assessed using an assessment other than the innovative
assessment system and provide detail on that assessment.
Discussion: Section 1112(e) of the ESEA requires each LEA to
provide annually to parents information on assessments required in
their LEA, which would include, in the case of an LEA administering an
innovative general assessment and the statewide AA-AAAS, details on the
purpose of both assessments, the grades and subjects in which they are
administered, and other information. In addition, section
1111(b)(2)(D)(i)(II) and related regulations require that parents of
students assessed using an AA-AAAS receive information about that
assessment. Accordingly, we believe that new Sec. 200.105(d)(4)
(proposed Sec. 200.77(d)(4)) ensures that parents in participating
schools will receive transparent information about all required
assessments administered to students in the school; however, we are
adding to new Sec. 200.105(d)(4) in the final regulations to specify
that this information must be sent to ``all'' parents of students in
participating schools and include the grades and subjects in which the
innovative assessment will be administered, to further clarify that an
LEA must (1) include all parents in these notices, even if their
student is not being assessed using an innovative assessment in the
upcoming school year, and (2) provide information on any required
statewide assessments that are still being given in other grades and
subjects, including an AA-AAAS for students with the most significant
cognitive disabilities.
Changes: We have added to new Sec. 200.105(d)(4) to clarify that
notices must be sent to parents of all students, including in a manner
accessible to parents and families with limited English proficiency and
those with disabilities, in participating schools and include specific
information on the innovative assessment in each required grade and
subject in which it is being administered.
200.106 Demonstration Authority Selection Criteria
General
Comments: One commenter supported the general depth of the
selection criteria in the proposed regulations and believes the
criteria,
[[Page 88960]]
particularly for a timeline and budget, hold States accountable for
their financial capacity and technical expertise to develop an
innovative assessment system. The commenter further encouraged the
Department to provide sufficient notice of application requirements and
selection criteria so that States can undergo extensive planning.
Another commenter expressed general support for holding States to a
high bar prior to awarding demonstration authority (including a
rigorous evaluation and peer review of applications) and expressed
strong support for the selection criteria, especially prior experience,
capacity, and stakeholder support.
Discussion: We share the commenters' views that States should be
held to rigorous expectations in the development of a valid, reliable,
and comparable innovative assessment system and that the requirements
and selection criteria--which will be outlined in any future NIA--will
both support States in planning and developing strong, thorough
proposals, as well as the Department and peers in reviewing and
approving applications that are likely to be successful.
Changes: None.
Comments: Due to the small scale nature of the pilot, the limited
number of test items available, and the cost of developing innovative
items, one commenter stated that testing irregularities and breaches of
test security pose a greater risk to innovative assessment pilots, and
requested additional emphasis on test security measures. The commenter
suggested an additional selection criterion outlining an SEA's or
consortium's plans for test security, including a description of the
security measures used to protect test content and ensure test validity
and reliability.
Discussion: We appreciate the commenter's concern about the
increased frequency of testing irregularities and security breaches.
However, we do not believe it is necessary to add additional selection
criterion for SEAs or consortia of SEAs with respect to test security
measures. We believe that SEAs are aware of the test security risks,
and will develop their implementation plans accordingly. In addition,
SEAs are required to submit evidence of test security and monitoring
practices, as described in the Department's current State assessment
peer review guidance, to meet the requirements for State assessments in
section 1111(b)(2)(B) of the ESEA. Because SEAs are aware that their
innovative assessment systems will be subject to these requirements
when transitioning to statewide use as described in new Sec. 200.107
(proposed Sec. 200.79), we believe there is sufficient incentive in
the regulations, as proposed, to develop an innovative assessment
system that considers and accounts for test security and necessary
protocols. We strongly encourage SEAs and consortia to consider these
peer review criteria when developing their innovative assessments under
the demonstration authority.
Changes: None.
Prior Experience
Comments: Several commenters expressed strong support for proposed
Sec. 200.78(b)(1)(ii)(A), which creates a selection criterion for
prior experience, and specifically any experience the SEA or its LEA
has in developing or using effective supports and appropriate
accommodations for administering innovative assessments to all
students, including English learners and children with disabilities.
Discussion: We appreciate the support of these commenters, and
agree that an important criterion for evaluating the strength of an
application from an SEA or consortium of SEAs, and its ability to
effectively implement and scale up a high-quality innovative assessment
system, will be ensuring that appropriate accommodations are provided
on the assessments so that all students may participate.
Changes: None.
Comments: One commenter recommended we revise proposed Sec.
200.78(b)(1)(ii)(C) to require independent reviewers to provide an
unbiased judgment of the validity, reliability, and comparability of
scoring rubrics.
Discussion: We disagree that it is necessary to revise this
selection criterion to provide for evaluation by an independent
reviewer under new Sec. 200.106(b)(1)(ii)(C) (proposed Sec.
200.78(b)(1)(ii)(C)). Because all of the information pertaining to each
selection criterion is submitted as part of the SEA or consortium's
application for the demonstration authority (see Sec. 200.105(c)) and
because the application is subject to external peer review as part of
the approval process (see Sec. 200.104(c)), the recommended addition
of an independent review requirement in new Sec. 200.106(b)(1)(ii) is
redundant. Any prior experience with developing or using scoring
rubrics would be evaluated by independent, unbiased teams of external
peer reviewers who will examine the evidence submitted by States that
documents validity, reliability, and comparability of student
determinations using standardized and calibrated scoring rubrics.
Changes: None.
Supports for Educators
Comments: Multiple commenters supported the proposed selection
criterion in proposed Sec. 200.78(d), which provides for an SEA to
describe available supports for educators to help them understand and
become familiar with the innovative assessment system. Some of these
commenters further requested that the selection criterion be revised to
provide for SEAs to include in their applications a detailed
professional development plan to support the implementation of the
innovative assessment system. According to the commenters, this plan
should address how the State will, among other things: Scale its system
of professional development to more LEAs over time; provide sufficient
time for teachers and school leaders to participate in professional
development; partner with educator preparation programs to ensure pre-
service and in-service training is sufficiently preparing educators to
implement and use data from the innovative assessment system to inform
instruction; and use Federal funding under title II, and other public
sources of funds, to provide supports for educators described in its
plan. These commenters also suggested the Department issue additional
non-regulatory guidance that could be beneficial to support effective
professional development for educators as part of the demonstration
authority. Similarly, other commenters requested that the Department
add a requirement that SEAs include a description of the State's
efforts to increase teacher and principal assessment literacy and
provide incentives to teachers participating in professional
development on the innovative assessment system.
Discussion: We appreciate the feedback on ways to clarify and
strengthen the supports an SEA or consortium must provide to educators
who will be implementing the innovative assessment demonstration
authority and agree that this will be a critical component in
effectively scaling a State's innovative assessment system. As
proposed, the selection criterion would allow States to provide this
type of information. However, we are adding to new Sec. 200.106(d)
(proposed Sec. 200.78(d)) to clarify that each SEA or consortium's
application must include a plan for delivering supports to educators
that can be consistently provided at scale, recognizing the commenter's
suggestion that successful
[[Page 88961]]
implementation will require a comprehensive plan for professional
development and that States consider whether their plan can feasibly be
delivered in all LEAs during the demonstration authority period, even
if only a few LEAs are initially participating. We also are adding to
new Sec. 200.106(d)(1) to provide for applications to be evaluated on
the extent to which an SEA or consortium's training for LEA and school
staff will develop teacher capacity to provide instruction that is
informed by the innovative assessment system and to use the results the
system produces. Further, we are adding to new Sec. 200.106(d)(4) to
provide for SEAs to describe their strategies to support teachers and
staff in carrying out their responsibilities under the State's chosen
innovative assessment model, which may include developing, designing,
implementing, and ``validly and reliably'' scoring the assessment
results. We also note that the information in each application under
the selection criteria for timeline and budget and evaluation and
continuous improvement described in new Sec. 200.106(c) and (e)
(proposed Sec. 200.78(c) and (e)), respectively, will include how the
SEA or consortium plans to fund and support any evaluation of its
professional development plans and activities, so it is unnecessary to
add these elements to the selection criterion in Sec. 200.106(d).
Finally, we appreciate commenters' suggestions for additional non-
regulatory guidance in this area and will take them into consideration
as the Department moves forward with implementation of the innovative
assessment demonstration authority.
Changes: We have added to the selection criterion in new Sec.
200.106(d) to:
Provide for each SEA or consortium's application to
include a plan for delivering supports to educators that can be
consistently provided at scale;
Clarify that the SEA's or consortium's application will be
evaluated on the extent to which training for LEA and school staff will
develop teacher capacity to provide instruction that is informed by the
innovative assessment system and to use the system's results; and
Clarify that SEAs or consortia should describe strategies
that will engage teachers and staff in carrying out their
responsibilities under the State's chosen innovative assessment model,
which may include ``designing'', ``implementing,'' and ``validly and
reliably'' scoring the assessment results--not just in developing and
scoring them, in general.
Comments: One commenter objected to the reference in proposed Sec.
200.78(d)(4) regarding teachers developing and scoring innovative
assessments administered in their school. The commenter was concerned
about potential conflicts of interest and the validity and reliability
of the resulting scores if educators providing instruction are also
developing and scoring the assessments for the students they teach. The
commenter suggested revising Sec. Sec. 200.105 and 200.106 to restrict
teacher involvement in item development and scoring.
Discussion: We believe that teachers play a critical role in the
development of assessments and should be involved throughout test
development. This is true in all test development, but may be
especially relevant with respect to innovative assessment systems,
given changes in test design and delivery with an innovative assessment
that may necessitate changes in instruction and additional or new
responsibilities for educators. In addition, restricting teacher
involvement in the development of the innovative assessment system or
scoring such innovative assessments would place an additional
restriction on the development of these assessments beyond what is
required of State assessment systems in section 1111(b)(2) of the
ESEA--the requirements these innovative assessment systems will need to
meet in order to be used for statewide use at the end of the
demonstration authority period.
We agree, however, with the commenter that States should establish
reasonable safeguards within their assessment systems, including any
innovative assessment system. For example, teachers, in general, should
not be permitted to score the assessments taken by students for which
the teacher is considered the teacher of record or the assessments
taken by students in a school in which the teacher is employed, as this
could affect the reliability of the scores and create incentives for
improper behavior given that the results will be used in the State's
accountability system. We believe that States should have flexibility
to design and develop a truly innovative assessment system and do not
want to restrict innovation by placing extensive restrictions on the
development and scoring of these new assessments. We do want to ensure
that States are considering proper safeguards (e.g., quality control
procedures, inter-rater reliability checks, audit plans) to avoid any
conflicts, or the appearance of conflict, of interest and note that the
innovative assessment system will undergo a peer review process prior
to a State receiving demonstration authority and following the
statewide transition of the innovative assessment system, and are
clarifying final Sec. 200.106(d)(4) (proposed Sec. 200.78(d)(4)) to
require States to describe in their applications any ``safeguards''
they are using when teachers are involved in developing or scoring
assessments and how they are sufficient to ensure objective and
unbiased scoring of innovative assessments. Further, the Department's
external peer review of State assessment systems under title I, part A
of the ESEA, which is based on the APA's Standards for Psychological
and Educational Testing, includes specific criteria related to sections
on the State's plans for scoring assessments and for demonstrating the
reliability of the assessment scores. To meet these criteria, States
need to ensure adequate training, calibration, and monitoring for all
scoring conducted within their assessment system. We believe these
criteria will serve to mitigate the commenter's concern.
Changes: We have added language to new Sec. 200.106(d)(4)
(proposed Sec. 200.78(d)(4)) to include both strategies and safeguards
related to the development and scoring of innovative assessments by
teachers and other school staff and to require States to describe in
their applications how the strategies and safeguards are sufficient to
ensure objective and unbiased scoring of innovative assessments.
Comments: One commenter requested the inclusion of specialized
instructional support personnel among the list of school staff in
proposed Sec. 200.78(d) for which the SEA must demonstrate a plan for
training and support, noting the important role that specialized
instructional support personnel, such as audiologists and speech-
language pathologists, play in providing curriculum and instructional
supports for students.
Discussion: The selection criterion in new Sec. 200.106(d)
(proposed Sec. 200.78(d)) is intended to ensure that States applying
for demonstration authority have carefully considered how they will
support LEA and school staff in participating schools during
implementation of the innovative assessment system. While the proposed
regulations specifically mention that these staff must include
``teachers, principals, and other school leaders,'' an SEA could
certainly respond to this selection criterion by including other LEA
and school staff, including specialized instructional support
[[Page 88962]]
personnel, paraprofessionals, and district administrators, in their
plans to support LEA and school personnel in effective implementation--
which could likely improve the strength of the SEA's application in
this area as it is evaluated by peers. However, we decline to modify
the selection criterion to specifically list examples of other LEA and
school staff, as enumerating ``teachers, principals, and other school
leaders'' is more consistent with the statutory requirements for
demonstration authority, which only reference teachers, principals, and
other school leaders.\5\
---------------------------------------------------------------------------
\5\ For example, see the following sections of the ESEA: Section
1204(c)(2)(A)(i)-(ii); section 1204(e)(2)(A)(v)(II), (vii), and
(viii); section 1204(e)(2)(B)(v), (ix), and (x)(III); and section
1204(j)(1)(B)(iv).
---------------------------------------------------------------------------
Changes: None.
Supports for Parents
Comments: Several commenters supported the selection criterion in
proposed Sec. 200.78(d) providing for States to detail their
strategies to support students in the transition to a new innovative
assessment system, believing that these strategies will be critical to
ensure a successful transition to a new assessment system. One
commenter recommended that the final regulations also require States to
describe strategies to acquaint parents with the innovative assessment
system, including additional expectations for SEAs and consortia to
describe plans to better communicate and explain assessment results to
parents and families of students in participating LEAs and schools so
that they, too, can play a critical role in using those results to
improve academic outcomes for their children.
Discussion: We agree with commenters and appreciate the support for
including a selection criterion related to supports for students that
will familiarize them with the innovative assessment system. We further
agree that States, in order to effectively implement and scale their
innovative assessment systems, will need strategies to familiarize
parents and families with the new assessments. We are revising the
regulations in new Sec. 200.106 to this effect in order to reinforce
requirements elsewhere in the regulations for collaborating with
parents in the development of the innovative assessment system,
soliciting their feedback and input regularly on implementation, and
providing annual information to parents about the innovative
assessments and the results for their children, as required in other
sections of the regulations.
Changes: We have added to the introductory paragraph of new Sec.
200.106(d) (proposed Sec. 200.78) to include references to supports
for parents, in addition to educators and students, and Sec.
200.106(d)(2) to provide for States to describe their strategies to
familiarize parents, as well as students, with the innovative
assessment system.
200.107 Transition to Statewide Use
General
Comments: One commenter stated that the requirement for a full,
statewide transition at the end of the pilot makes assumptions about
the finality and success of the pilot.
Discussion: The Department appreciates the concern about the
requirement for transition to statewide use. However, the Department
disagrees that such a requirement presumes that statewide
implementation of the innovative assessment system will be successful.
The requirements of new Sec. 200.105 (proposed Sec. 200.77) must be
met in order for a State to implement the innovative assessment
statewide. The Department is establishing these requirements in part to
ensure a higher likelihood of successful implementation, but the
Department does not believe that success is a forgone conclusion.
The regulations in new Sec. 200.107(a) and (b) (proposed Sec.
200.79(a) and (b)) represent another significant set of criteria that
the innovative assessment must meet in order to achieve acceptance as a
statewide assessment. Additionally, new Sec. 200.108 (proposed Sec.
200.80) provides that the Department may withdraw the innovative
assessment authority from a State when it cannot produce a high-quality
plan for transition or evidence that the innovative assessment systems
meets specific conditions. Given these provisions, we disagree that
these regulations collectively presume that an innovative assessment
system which achieves statewide implementation status will
automatically be deemed final or successful.
Changes: None.
Comments: One commenter suggested that the Department include
additional steps in the transition to statewide use of the innovative
assessment to strengthen the transparency and ensure the quality of the
system to be implemented. First, the commenter suggested that an SEA be
required to affirmatively notify the Secretary and the LEAs in the
State of its intention to move forward with the innovative assessment,
replacing the statewide assessment. Second, the commenter recommended
that the State receive validation that the innovative assessment meets
peer review before the State makes the transition, instead of after, as
in proposed Sec. 200.79(a)(1).
Discussion: The Department appreciates the concerns voiced by this
commenter. The Department believes that the requirements in new
Sec. Sec. 200.105 and 200.106 (proposed Sec. Sec. 200.77 and 200.78)
collectively address the concerns of the commenter regarding LEA
notification and transparency. The application requirements in new
Sec. 200.105(d)(3), requiring an annual update on the SEA's progress
in scaling the innovative assessment system statewide, are sufficient
to ensure that the Secretary will be notified when the State begins
implementing the innovative assessment system statewide. Specifically,
the annual report must include a timeline for and an update on progress
toward full statewide implementation of the innovative assessment
system. In addition, consistent with final Sec. Sec. 200.105(d)(3) and
200.106(e), the annual report must include the results of the
comparability determination required under final Sec. 200.105(b)(4).
Finally, the requirements for peer review of the innovative
assessment system in new Sec. 200.107(a)(1) (proposed Sec.
200.79(a)(1)) that is required for transitioning out of the
demonstration authority are the same requirements for peer review that
apply to all statewide assessments used to meet the requirements under
title I, part A, that is, the peer review is conducted after the first
administration of a new statewide assessment, which ensures that all
necessary evidence will be available for submission to the Department.
Changes: None.
Comments: One commenter asked the Department to provide greater
clarity on what steps the State will need to take if the innovative
assessment system does not meet the requirements of proposed Sec.
200.79(b). That section outlines the requirements the assessment system
must meet before it can be used for purposes of both academic
assessments and accountability under section 1111 of the ESEA. The
commenter recommended that in such situations, a State be granted an
extension under proposed Sec. 200.80 or be required to return
immediately to the previous statewide academic assessment.
Discussion: The Department agrees that States need to follow a
clearly defined process in the event that the innovative assessment
system does not meet the requirements of new Sec. 200.107(b) (proposed
Sec. 200.79(b)). The Department believes, however, that the
[[Page 88963]]
regulations in new Sec. 200.108(a)-(b) (proposed Sec. 200.80(a)-(b))
provide such a clearly defined process both in the case of granting an
extension, and for a withdrawal and return to a statewide assessment,
and declines to make further changes.
Changes: None.
Flexibility in Scaling Statewide
Comments: Multiple commenters requested that States be permitted to
administer multiple assessments as part of the innovative assessment
system. Commenters recommended that States should not be required to
scale a single innovative assessment.
Discussion: The Department believes that the intent of the statute
is to provide States the ability to implement an innovative assessment
system as defined in final Sec. 200.104(b)(3) (proposed Sec.
200.76(b)(2)). States have broad flexibility to develop and design
their system within the parameters of this definition, which allows for
multiple assessments to be given in a single grade, including
performance tasks, instructionally embedded assessments, and interim
assessments.
Changes: None.
Comments: One commenter requested that States receive flexibility
such that at the end of the innovative assessment demonstration
authority, once the innovative assessment system has been successfully
piloted, peer reviewed, and approved, the State could keep both its
statewide assessment system and its innovative assessment system and
allow LEAs to choose one for purposes of accountability and reporting.
Discussion: The purpose of innovative assessment demonstration
authority under section 1204 of the ESEA is to provide States the
flexibility to pilot an innovative assessment system with the purpose
of scaling the innovative assessment system to statewide use. Once the
State transitions to statewide use, the innovative assessment system
must meet the requirements of section 1111(b)(2) of the ESEA. Under
section 1111(b)(2)(B), a State must use the same academic assessment
system to measure the achievement of all students and evaluate their
achievement against the same challenging State academic achievement
standards. To meet the requirement under section 1111(b)(2)(B), the
State must select either its statewide assessment system or the
innovative assessment system; it cannot offer a choice to LEAs.
Finally, we note that section 1204(i) of the ESEA grants the Secretary
authority to withdraw demonstration authority if the State cannot
provide a high-quality plan for transition to full statewide use of the
innovative assessment system. Thus, we believe allowing States to offer
a choice to LEAs would be inconsistent with this statutory provision as
well.
Changes: None.
Evaluation of Demonstration Authority
Comments: One commenter expressed concern about how the proposed
regulations define a baseline year for purposes of evaluating the
innovative assessment system. Since States may pilot their innovative
assessment systems prior to receiving demonstration authority, the
first year of innovative demonstration authority may not be the first
year the test is administered, but may be the first year the test is
administered for accountability purposes.
Discussion: The Department appreciates the commenter's request for
clarification. We are adding to new Sec. 200.107(c) (proposed Sec.
200.79(c)) to clarify that the baseline year for an evaluation of the
innovative assessment system is the first year the innovative
assessment system is administered in an LEA under the demonstration
authority.
Changes: We have added to Sec. 200.107(c) to clarify that the
baseline year is the first year the innovative assessment system is
administered in an LEA under the demonstration authority.
Comments: Several commenters supported proposed Sec. 200.79(b)(2),
which would require that the SEA evaluate the statistical relationship
between student performance on the innovative assessment and other
measures of success. The commenters proposed a clarification to allow
for the Department, peer reviewers, and States to take into account
measures other than student performance. They strongly encouraged the
Department to clarify that student performance should not be the only
criterion used to determine that the innovative assessment system is of
high quality, can replace the statewide assessments, and can be used
for both accountability and reporting.
Discussion: The Department appreciates the commenters' concerns.
The requirement to provide evidence of the statistical relationship
between student performance on the innovative assessment and student
performance on other measures of success is just one requirement in
final Sec. 200.107 (proposed Sec. 200.79) for States to demonstrate
that their innovative assessments are of ``high quality'' and may be
used for purposes of State assessments and accountability under section
1111 of the ESEA. The relationship of student performance on the
innovative assessment for each grade and subject to other measures must
consider the relationship between the innovative assessment and the
measures used in the remaining accountability indicators that do not
rely on data from the State's academic content assessments (e.g., the
Graduation Rate indicator, Progress in Achieving English Language
Proficiency indicator, a School Quality or Student Success indicator),
and may also examine the relationship of student performance on the
innovative assessment to student performance on other assessments like
NAEP, TIMMS, or college entrance exams, or measures other than test
scores like college enrollment rates or success in related entry-level,
college credit-bearing courses. This analysis provides validity
evidence and is considered in the Department's peer review of State
assessments under section 1111(a)(4) of the ESEA, as well as final
Sec. 200.107(b)(2). Additional evidence is required in peer review and
will be considered in the determination that an innovative assessment
system is of high quality. Since other measures would be included in
peer review, as reflected in final Sec. 200.107, to evaluate whether
an innovative assessment is of high quality, we do not believe it is
necessary to clarify that measures other than student performance can
be taken into account.
Changes: None.
200.108 Extension, Waivers, and Withdrawal of Authority
Withdrawal of Authority
Comments: One commenter urged the Department to clearly articulate
the Secretary's ability to withdraw innovative assessment authority if
a State cannot demonstrate comparability or sufficient quality in order
to ensure the innovative assessment system is an objective measure of
student performance.
Discussion: Under section 1204 of the law, the Secretary must
withdraw a State's authority to implement an innovative assessment
system if, at any time during the initial demonstration period or an
extension period, the State cannot meet certain requirements, including
requirements pertaining to comparability to statewide assessments
(section 1204(i)(5) of the ESEA) and system quality (section
1204(j)(1)(A) of the ESEA).
Changes: None.
Extension
Comments: One commenter supported proposed Sec. 200.80(a)(1)(iii)
requiring SEAs requesting an extension to address the capacity of all
LEAs to full implement the innovative
[[Page 88964]]
assessment system by the end of the extension period.
Discussion: The Department agrees with the commenter that SEAs must
consider the readiness and capacity of all LEAs in planning for
statewide implementation of the innovative assessment system. The
regulations in this section help ensure that States are on track to
implement the innovative assessment system statewide before receiving
an extension.
Changes: None.
Waivers
Comments: Several commenters agreed with proposed Sec.
200.80(c)(2), under which the Secretary may grant a one-year waiver to
a State to delay withdrawal of the demonstration authority at the end
of the extension period if a State's innovative assessment system has
not yet met peer review requirements described in proposed Sec.
200.79. One commenter supported the one-year cap on this waiver
because, it asserted, States should not be given unlimited time to
transition to statewide use of the innovative assessment system.
Another commenter supported this requirement because it would ensure
that States cannot operate two separate assessment systems for an
extended period of time.
Several commenters requested that the Department remove the
provision in proposed Sec. 200.80(c)(2) because they opposed a one-
year limitation on such waivers and asserted that this timeline was
inconsistent with section 1204(j)(3) of the ESEA, which provides the
Secretary with the authority to grant a waiver to delay withdrawal of
authority in order to provide the State the time necessary to fully
implement the innovative assessment system statewide. Commenters
asserted that the variation in structure, design, and complexity of
innovative assessment systems requires flexibility for States, and that
the Department should not apply a standard expectation to all States
and innovative assessment systems.
Discussion: We appreciate that innovative assessment systems will
vary in complexity, and that some States may require more time than
others to implement the innovative assessment system statewide.
However, under the regulations, States have five years within the
initial demonstration authority period to implement innovative
assessments statewide. Then, States can request up to two years of
extensions beyond that five year period. Given that States requesting
the waiver would be in their eighth year of implementing the innovative
assessments, we believe that a one-year limitation on the waiver is
reasonable and appropriate to ensure that States move forward in
implementing statewide assessment systems, consistent with the
requirements of title I. The purpose of the innovative demonstration
authority is to scale innovative assessments statewide, not to
indefinitely allow States to administer two assessments. In the
unlikely scenario that a State needs more than eight years to implement
its innovative assessment system statewide, including having such a
system peer reviewed, the Secretary maintains authority under section
8401 of the ESEA to waive requirements of the ESEA.
Changes: None.
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, OMB must determine whether this
regulatory action is significant and, therefore, subject to the
requirements of the Executive order and to review by OMB. Section 3(f)
of Executive Order 12866 defines a ``significant regulatory action'' as
an action likely to result in a rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This final regulatory action is significant and is subject to
review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only upon a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account, among other things and to the extent practicable, the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives such as user fees or
marketable permits, to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these final regulations only on a reasoned
determination that their benefits justify their costs. In choosing
among alternative regulatory approaches, we selected those approaches
that maximize net benefits. Based on the analysis that follows, the
Department believes that these final regulations are consistent with
the principles in Executive Order 13563.
We also have determined that this regulatory action would not
unduly interfere with State, local, and tribal governments in the
exercise of their governmental functions.
In accordance with both Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential costs associated
with this regulatory action are those resulting from statutory
requirements and those we have determined as necessary for
administering the Department's programs and activities.
In this regulatory impact analysis we discuss the need for
regulatory action and the potential costs and benefits. Elsewhere in
this section under Paperwork Reduction Act of 1995, we discuss burdens
associated with information collection requirements.
[[Page 88965]]
Need for Regulatory Action
The Department believes that regulatory action is needed to ensure
effective implementation of section 1204 of the ESEA, which permits the
Secretary to provide an SEA or consortium of SEAs that meets the
application requirements with authority to establish, operate, and
evaluate a system of innovative assessments. Crucially, and as
discussed elsewhere in this document in response to concerns expressed
by commenters that the regulations are overly prescriptive or might
limit innovation, the Department believes that regulatory action is
needed to ensure that these assessments ultimately can meet
requirements for academic assessments and be used in statewide
accountability systems under section 1111 of the ESEA, including
requirements for assessment validity, reliability, technical quality,
and alignment to challenging State academic standards. Absent
regulatory action, SEAs implementing innovative assessment authority
run a greater risk of developing assessments that are inappropriate or
inadequate for these purposes, which could hinder State and local
efforts to provide all children significant opportunity to receive a
fair, equitable, and high-quality education and to close educational
achievement gaps consistent with the purpose of title I of the ESEA.
Discussion of Potential Costs and Benefits
The primary benefit of these regulations is the administration of
statewide assessments that more effectively measure student mastery of
challenging State academic standards and better inform classroom
instruction and student supports, ultimately leading to improved
academic outcomes for all students. We believe that this benefit
outweighs associated costs to an SEA, which may use funds received
under the Grants for State Assessments and Related Activities program
and funds reserved for State administration under part A of title I to
participate in the demonstration authority. In addition, high-quality,
innovative assessment models developed by participating SEAs under the
demonstration authority can benefit other SEAs by providing examples of
new assessment strategies for those SEAs to consider.
Participation in the innovative assessment demonstration authority
is voluntary and limited during the initial demonstration period to
seven SEAs. In light of the initial limits on participation, the number
and rigor of the statutory application requirements, and the high
degree of technical complexity involved in establishing, operating, and
evaluating innovative assessment systems, we anticipate that few SEAs
will seek to participate. Based on currently available information, we
estimate that, initially, up to five SEAs will apply.
For those SEAs that apply and are provided demonstration authority
(consistent with the final regulations), implementation costs may vary
considerably based on a multitude of factors, including: The number and
type(s) of assessments the SEA elects to include in its system; the
differences between those assessments and the SEA's current statewide
assessments, including with respect to assessment type, use of
assessment items, and coverage of State academic content standards; the
number of grades and subjects in which the SEA elects to administer
those assessments; whether the SEA will implement its system statewide
upon receiving demonstration authority and, if not, the SEA's process
and timeline for scaling the system up to statewide implementation; and
whether the SEA is part of a consortium (and thus may share certain
costs with other consortium members). Because of the potential wide
variation in innovative assessment systems along factors such as these,
we did not provide estimates of the potential cost to implement
innovative assessment demonstration authority for the typical SEA
participant in the NPRM, stating that we believed such estimates would
not be reliable or useful. We continue to believe that is the case, and
note that we received no comments from SEAs providing specific
anticipated costs that could inform our production of estimates.
That said, we received several comments expressing general concern
about the potential cost of implementing innovative assessment
demonstration authority, including concerns about additional costs to
SEAs of implementing innovative assessments while also administering
current State assessments in non-participating LEAs. Although we
appreciate these general concerns, we remind the commenters that
participation in innovative assessment demonstration authority is
voluntary and that no SEA is required to develop and implement
innovative assessments under this authority. Moreover, an SEA that
chooses to participate has considerable flexibility in determining the
number, types, and breadth of innovative assessments to include in its
system. In selecting its assessments, such an SEA should accordingly be
mindful of development and implementation costs, including the extent
to which those costs can be supported with Federal grant funds not
needed for other assessment purposes.
Regulatory Flexibility Act Certification
The Secretary certifies that these final requirements will not have
a significant economic impact on a substantial number of small
entities. Under the U.S. Small Business Administration's Size
Standards, small entities include small governmental jurisdictions such
as cities, towns, or school districts (LEAs) with a population of less
than 50,000. Although the majority of LEAs that receive ESEA funds
qualify as small entities under this definition, these regulations will
not have a significant economic impact on these small LEAs because few
SEAs are expected to participate in this voluntary innovative
assessment demonstration authority and the costs of participation will
be borne largely by SEAs and can be supported with Federal grant funds.
We believe the benefits provided under this regulatory action outweigh
any associated costs for these small LEAs. In particular, the final
regulations will help ensure that the LEAs can implement assessments
that measure student mastery of challenging State academic standards
more effectively and better inform classroom instruction and student
supports, ultimately leading to improved academic outcomes for all
students.
Paperwork Reduction Act of 1995
The Paperwork Reduction Act of 1995 does not require you to respond
to a collection of information unless it displays a valid OMB control
number. We display the valid OMB control numbers assigned to the
collections of information in these final regulations at the end of the
affected sections of the regulations.
Sections 200.104(c), 200.105, and 200.106 of the final regulations
contain information collection requirements. The Department will
develop an Information Collection Request based upon these final
regulations, and will submit a copy of these sections and the
information collection instrument to OMB for its review before
requiring the submission of any information based upon these
regulations.
Intergovernmental Review
This program is not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.
Assessment of Educational Impact
In the NPRM we requested comments on whether the proposed
regulations would require transmission of
[[Page 88966]]
information that any other agency or authority of the United States
gathers or makes available.
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print, or
electronic format) on request to the person listed under FOR FURTHER
INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. Free
Internet access to the official edition of the Federal Register and the
Code of Federal Regulations is available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you can view this document, as well
as all other documents of this Department published in the Federal
Register, in text or Adobe Portable Document Format (PDF). To use PDF
you must have Adobe Acrobat Reader, which is available free at the
site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department. (Catalog of Federal Domestic Assistance Number does
not apply.)
List of Subjects in 34 CFR Part 200
Elementary and secondary education, Grant programs--education,
Indians--education, Infants and children, Juvenile delinquency, Migrant
labor, Private schools, Reporting and recordkeeping requirements.
Dated: November 30, 2016.
John B. King, Jr.,
Secretary of Education.
For the reasons discussed in the preamble, the Department of
Education amends part 200 of title 34 of the Code of Federal
Regulations as follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
0
1. The authority citation for part 200 continues to read as follows:
Authority: 20 U.S.C 6301-6576, unless otherwise noted.
0
2. Add a new undesignated center heading following Sec. 200.103 to
read as follows:
Innovative Assessment Demonstration Authority
0
3. Add Sec. 200.104 to read as follows:
Sec. 200.104 Innovative assessment demonstration authority.
(a) In general. (1) The Secretary may provide a State educational
agency (SEA), or consortium of SEAs, with authority to establish and
operate an innovative assessment system in its public schools
(hereinafter referred to as ``innovative assessment demonstration
authority'').
(2) An SEA or consortium of SEAs may implement the innovative
assessment demonstration authority during its demonstration authority
period and, if applicable, extension or waiver period described in
Sec. 200.108(a) and (c), after which the Secretary will either approve
the system for statewide use consistent with Sec. 200.107 or withdraw
the authority consistent with Sec. 200.108(b).
(b) Definitions. For purposes of Sec. Sec. 200.104 through
200.108--
(1) Affiliate member of a consortium means an SEA that is formally
associated with a consortium of SEAs that is implementing the
innovative assessment demonstration authority, but is not yet a full
member of the consortium because it is not proposing to use the
consortium's innovative assessment system under the demonstration
authority, instead of, or in addition to, its statewide assessment
under section 1111(b)(2) of the Elementary and Secondary Education Act
of 1965, as amended by the Every Student Succeeds Act (hereinafter
``the Act'') for purposes of accountability and reporting under
sections 1111(c) and 1111(h) of the Act.
(2) Demonstration authority period refers to the period of time
over which an SEA, or consortium of SEAs, is authorized to implement
the innovative assessment demonstration authority, which may not exceed
five years and does not include the extension or waiver period under
Sec. 200.108. An SEA must use its innovative assessment system in all
participating schools instead of, or in addition to, the statewide
assessment under section 1111(b)(2) of the Act for purposes of
accountability and reporting under section 1111(c) and 1111(h) of the
Act in each year of the demonstration authority period.
(3) Innovative assessment system means a system of assessments,
which may include any combination of general assessments or alternate
assessments aligned with alternate academic achievement standards, in
reading/language arts, mathematics, or science administered in at least
one required grade under Sec. 200.5(a)(1) and section 1111(b)(2)(B)(v)
of the Act that--
(i) Produces--
(A) An annual summative determination of each student's mastery of
grade-level content standards aligned to the challenging State academic
standards under section 1111(b)(1) of the Act; or
(B) In the case of a student with the most significant cognitive
disabilities assessed with an alternate assessment aligned with
alternate academic achievement standards under section 1111(b)(1)(E) of
the Act and aligned with the State's academic content standards for the
grade in which the student is enrolled, an annual summative
determination relative to such alternate academic achievement standards
for each such student; and
(ii) May, in any required grade or subject, include one or more of
the following types of assessments:
(A) Cumulative year-end assessments.
(B) Competency-based assessments.
(C) Instructionally embedded assessments.
(D) Interim assessments.
(E) Performance-based assessments.
(F) Another innovative assessment design that meets the
requirements under Sec. 200.105(b).
(4) Participating LEA means a local educational agency (LEA) in the
State with at least one school participating in the innovative
assessment demonstration authority.
(5) Participating school means a public school in the State in
which the innovative assessment system is administered under the
innovative assessment demonstration authority instead of, or in
addition to, the statewide assessment under section 1111(b)(2) of the
Act and where the results of the school's students on the innovative
assessment system are used by its State and LEA for purposes of
accountability and reporting under section 1111(c) and 1111(h) of the
Act.
(c) Peer review of applications. (1) An SEA or consortium of SEAs
seeking innovative assessment demonstration authority under paragraph
(a) of this section must submit an application to the Secretary that
demonstrates how the applicant meets all application requirements under
Sec. 200.105 and that addresses all selection criteria under Sec.
200.106.
(2) The Secretary uses a peer review process, including a review of
the SEA's application to determine that it meets or will meet each of
the requirements under Sec. 200.105 and sufficiently addresses each of
the selection criteria
[[Page 88967]]
under Sec. 200.106, to inform the Secretary's decision of whether to
award the innovative assessment demonstration authority to an SEA or
consortium of SEAs. Peer review teams consist of experts and State and
local practitioners who are knowledgeable about innovative assessment
systems, including--
(i) Individuals with past experience developing innovative
assessment and accountability systems that support all students and
subgroups of students described in section 1111(c)(2) of the Act (e.g.,
psychometricians, measurement experts, researchers); and
(ii) Individuals with experience implementing such innovative
assessment and accountability systems (e.g., State and local assessment
directors, educators).
(3)(i) If points or weights are assigned to the selection criteria
under Sec. 200.106, the Secretary will inform applicants in the
application package or a notice published in the Federal Register of--
(A) The total possible score for all of the selection criteria
under Sec. 200.106; and
(B) The assigned weight or the maximum possible score for each
criterion or factor under that criterion.
(ii) If no points or weights are assigned to the selection criteria
and selected factors under Sec. 200.106, the Secretary will evaluate
each criterion equally and, within each criterion, each factor equally.
(d) Initial demonstration period. (1) The initial demonstration
period is the first three years in which the Secretary awards at least
one SEA, or consortium of SEAs, innovative assessment demonstration
authority, concluding with publication of the progress report described
in section 1204(c) of the Act. During the initial demonstration period,
the Secretary may provide innovative assessment demonstration authority
to--
(i) No more than seven SEAs in total, including those SEAs
participating in consortia; and
(ii) Consortia that include no more than four SEAs.
(2) An SEA that is an affiliate member of a consortium is not
included in the application under paragraph (c) of this section or
counted toward the limitation in consortia size under paragraph
(d)(1)(ii) of this section.
(Authority: 20 U.S.C. 1221e-3, 3474, 6364, 6571)
0
4. Add Sec. 200.105 to read as follows:
Sec. 200.105 Demonstration authority application requirements.
An SEA or consortium of SEAs seeking the innovative assessment
demonstration authority must submit to the Secretary, at such time and
in such manner as the Secretary may reasonably require, an application
that includes the following:
(a) Consultation. Evidence that the SEA or consortium has developed
an innovative assessment system in collaboration with--
(1) Experts in the planning, development, implementation, and
evaluation of innovative assessment systems, which may include external
partners; and
(2) Affected stakeholders in the State, or in each State in the
consortium, including--
(i) Those representing the interests of children with disabilities,
English learners, and other subgroups of students described in section
1111(c)(2) of the Act;
(ii) Teachers, principals, and other school leaders;
(iii) LEAs;
(iv) Representatives of Indian tribes located in the State;
(v) Students and parents, including parents of children described
in paragraph (a)(2)(i) of this section; and
(vi) Civil rights organizations.
(b) Innovative assessment system. A demonstration that the
innovative assessment system does or will--
(1) Meet the requirements of section 1111(b)(2)(B) of the Act,
except that an innovative assessment--
(i) Need not be the same assessment administered to all public
elementary and secondary school students in the State during the
demonstration authority period described in Sec. 200.104(b)(2) or
extension period described in Sec. 200.108 and prior to statewide use
consistent with Sec. 200.107, if the innovative assessment system will
be administered initially to all students in participating schools
within a participating LEA, provided that the statewide academic
assessments under Sec. 200.2(a)(1) and section 1111(b)(2) of the Act
are administered to all students in any non-participating LEA or any
non-participating school within a participating LEA; and
(ii) Need not be administered annually in each of grades 3-8 and at
least once in grades 9-12 in the case of reading/language arts and
mathematics assessments, and at least once in grades 3-5, 6-9, and 10-
12 in the case of science assessments, so long as the statewide
academic assessments under Sec. 200.2(a)(1) and section 1111(b)(2) of
the Act are administered in any required grade and subject under Sec.
200.5(a)(1) in which the SEA does not choose to implement an innovative
assessment;
(2)(i) Align with the challenging State academic content standards
under section 1111(b)(1) of the Act, including the depth and breadth of
such standards, for the grade in which a student is enrolled; and
(ii) May measure a student's academic proficiency and growth using
items above or below the student's grade level so long as, for purposes
of meeting the requirements for reporting and school accountability
under sections 1111(c) and 1111(h) of the Act and paragraphs (b)(3) and
(b)(7)-(9) of this section, the State measures each student's academic
proficiency based on the challenging State academic standards for the
grade in which the student is enrolled;
(3) Express student results or competencies consistent with the
challenging State academic achievement standards under section
1111(b)(1) of the Act and identify which students are not making
sufficient progress toward, and attaining, grade-level proficiency on
such standards;
(4)(i) Generate results, including annual summative determinations
as defined in paragraph (b)(7) of this section, that are valid,
reliable, and comparable for all students and for each subgroup of
students described in Sec. 200.2(b)(11)(i)(A)-(I) and sections
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of the Act, to the results
generated by the State academic assessments described in Sec.
200.2(a)(1) and section 1111(b)(2) of the Act for such students.
Consistent with the SEA's or consortium's evaluation plan under Sec.
200.106(e), the SEA must plan to annually determine comparability
during each year of its demonstration authority period in one of the
following ways:
(A) Administering full assessments from both the innovative and
statewide assessment systems to all students enrolled in participating
schools, such that at least once in any grade span (i.e., 3-5, 6-8, or
9-12) and subject for which there is an innovative assessment, a
statewide assessment in the same subject would also be administered to
all such students. As part of this determination, the innovative
assessment and statewide assessment need not be administered to an
individual student in the same school year.
(B) Administering full assessments from both the innovative and
statewide assessment systems to a demographically representative sample
of all students and subgroups of students described in section
1111(c)(2) of the Act, from among those students enrolled in
participating schools, such that at least once in any grade span (i.e.,
3-5, 6-8, or 9-12) and subject for which
[[Page 88968]]
there is an innovative assessment, a statewide assessment in the same
subject would also be administered in the same school year to all
students included in the sample.
(C) Including, as a significant portion of the innovative
assessment system in each required grade and subject in which both an
innovative and statewide assessment are administered, items or
performance tasks from the statewide assessment system that, at a
minimum, have been previously pilot tested or field tested for use in
the statewide assessment system.
(D) Including, as a significant portion of the statewide assessment
system in each required grade and subject in which both an innovative
and statewide assessment are administered, items or performance tasks
from the innovative assessment system that, at a minimum, have been
previously pilot tested or field tested for use in the innovative
assessment system.
(E) An alternative method for demonstrating comparability that an
SEA can demonstrate will provide for an equally rigorous and
statistically valid comparison between student performance on the
innovative assessment and the statewide assessment, including for each
subgroup of students described in Sec. 200.2(b)(11)(i)(A)-(I) and
sections 1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of the Act; and
(ii) Generate results, including annual summative determinations as
defined in paragraph (b)(7) of this section, that are valid, reliable,
and comparable, for all students and for each subgroup of students
described in Sec. 200.2(b)(11)(i)(A)-(I) and sections
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of the Act, among participating
schools and LEAs in the innovative assessment demonstration authority.
Consistent with the SEA's or consortium's evaluation plan under Sec.
200.106(e), the SEA must plan to annually determine comparability
during each year of its demonstration authority period;
(5)(i) Provide for the participation of all students, including
children with disabilities and English learners;
(ii) Be accessible to all students by incorporating the principles
of universal design for learning, to the extent practicable, consistent
with Sec. 200.2(b)(2)(ii); and
(iii) Provide appropriate accommodations consistent with Sec.
200.6(b) and (f)(1)(i) and section 1111(b)(2)(B)(vii) of the Act;
(6) For purposes of the State accountability system consistent with
section 1111(c)(4)(E) of the Act, annually measure in each
participating school progress on the Academic Achievement indicator
under section 1111(c)(4)(B) of the Act of at least 95 percent of all
students, and 95 percent of students in each subgroup of students
described in section 1111(c)(2) of the Act, who are required to take
such assessments consistent with paragraph (b)(1)(ii) of this section;
(7) Generate an annual summative determination of achievement,
using the annual data from the innovative assessment, for each student
in a participating school in the demonstration authority that
describes--
(i) The student's mastery of the challenging State academic
standards under section 1111(b)(1) of the Act for the grade in which
the student is enrolled; or
(ii) In the case of a student with the most significant cognitive
disabilities assessed with an alternate assessment aligned with
alternate academic achievement standards under section 1111(b)(1)(E) of
the Act, the student's mastery of those standards;
(8) Provide disaggregated results by each subgroup of students
described in Sec. 200.2(b)(11)(i)(A)-(I) and sections
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of the Act, including timely
data for teachers, principals and other school leaders, students, and
parents consistent with Sec. 200.8 and section 1111(b)(2)(B)(x) and
(xii) and section 1111(h) of the Act, and provide results to parents in
a manner consistent with paragraph (b)(4)(i) of this section and Sec.
200.2(e); and
(9) Provide an unbiased, rational, and consistent determination of
progress toward the State's long-term goals for academic achievement
under section 1111(c)(4)(A) of the Act for all students and each
subgroup of students described in section 1111(c)(2) of the Act and a
comparable measure of student performance on the Academic Achievement
indicator under section 1111(c)(4)(B) of the Act for participating
schools relative to non-participating schools so that the SEA may
validly and reliably aggregate data from the system for purposes of
meeting requirements for--
(i) Accountability under sections 1003 and 1111(c) and (d) of the
Act, including how the SEA will identify participating and non-
participating schools in a consistent manner for comprehensive and
targeted support and improvement under section 1111(c)(4)(D) of the
Act; and
(ii) Reporting on State and LEA report cards under section 1111(h)
of the Act.
(c) Selection criteria. Information that addresses each of the
selection criteria under Sec. 200.106.
(d) Assurances. Assurances that the SEA, or each SEA in a
consortium, will--
(1) Continue use of the statewide academic assessments in reading/
language arts, mathematics, and science required under Sec.
200.2(a)(1) and section 1111(b)(2) of the Act--
(i) In all non-participating schools; and
(ii) In all participating schools for which such assessments will
be used in addition to innovative assessments for accountability
purposes under section 1111(c) of the Act consistent with paragraph
(b)(1)(ii) of this section or for evaluation purposes consistent with
Sec. 200.106(e) during the demonstration authority period;
(2) Ensure that all students and each subgroup of students
described in section 1111(c)(2) of the Act in participating schools are
held to the same challenging State academic standards under section
1111(b)(1) of the Act as all other students, except that students with
the most significant cognitive disabilities may be assessed with
alternate assessments aligned with alternate academic achievement
standards consistent with Sec. 200.6 and section 1111(b)(1)(E) and
(b)(2)(D) of the Act, and receive the instructional support needed to
meet such standards;
(3) Report the following annually to the Secretary, at such time
and in such manner as the Secretary may reasonably require:
(i) An update on implementation of the innovative assessment
demonstration authority, including--
(A) The SEA's progress against its timeline under Sec. 200.106(c)
and any outcomes or results from its evaluation and continuous
improvement process under Sec. 200.106(e); and
(B) If the innovative assessment system is not yet implemented
statewide consistent with Sec. 200.104(a)(2), a description of the
SEA's progress in scaling up the system to additional LEAs or schools
consistent with its strategies under Sec. 200.106(a)(3)(i), including
updated assurances from participating LEAs consistent with paragraph
(e)(2) of this section.
(ii) The performance of students in participating schools at the
State, LEA, and school level, for all students and disaggregated for
each subgroup of students described in section 1111(c)(2) of the Act,
on the innovative assessment, including academic achievement and
participation data required to be reported consistent with
[[Page 88969]]
section 1111(h) of the Act, except that such data may not reveal any
personally identifiable information.
(iii) If the innovative assessment system is not yet implemented
statewide, school demographic information, including enrollment and
student achievement information, for the subgroups of students
described in section 1111(c)(2) of the Act, among participating schools
and LEAs and for any schools or LEAs that will participate for the
first time in the following year, and a description of how the
participation of any additional schools or LEAs in that year
contributed to progress toward achieving high-quality and consistent
implementation across demographically diverse LEAs in the State
consistent with the SEA's benchmarks described in Sec.
200.106(a)(3)(iii).
(iv) Feedback from teachers, principals and other school leaders,
and other stakeholders consulted under paragraph (a)(2) of this
section, including parents and students, from participating schools and
LEAs about their satisfaction with the innovative assessment system;
(4) Ensure that each participating LEA informs parents of all
students in participating schools about the innovative assessment,
including the grades and subjects in which the innovative assessment
will be administered, and, consistent with section 1112(e)(2)(B) of the
Act, at the beginning of each school year during which an innovative
assessment will be implemented. Such information must be--
(i) In an understandable and uniform format;
(ii) To the extent practicable, written in a language that parents
can understand or, if it is not practicable to provide written
translations to a parent with limited English proficiency, be orally
translated for such parent; and
(iii) Upon request by a parent who is an individual with a
disability as defined by the Americans with Disabilities Act, provided
in an alternative format accessible to that parent; and
(5) Coordinate with and provide information to, as applicable, the
Institute of Education Sciences for purposes of the progress report
described in section 1204(c) of the Act and ongoing dissemination of
information under section 1204(m) of the Act.
(e) Initial implementation in a subset of LEAs or schools. If the
innovative assessment system will initially be administered in a subset
of LEAs or schools in a State--
(1) A description of each LEA, and each of its participating
schools, that will initially participate, including demographic
information and its most recent LEA report card under section
1111(h)(2) of the Act; and
(2) An assurance from each participating LEA, for each year that
the LEA is participating, that the LEA will comply with all
requirements of this section.
(f) Application from a consortium of SEAs. If an application for
the innovative assessment demonstration authority is submitted by a
consortium of SEAs--
(1) A description of the governance structure of the consortium,
including--
(i) The roles and responsibilities of each member SEA, which may
include a description of affiliate members, if applicable, and must
include a description of financial responsibilities of member SEAs;
(ii) How the member SEAs will manage and, at their discretion,
share intellectual property developed by the consortium as a group; and
(iii) How the member SEAs will consider requests from SEAs to join
or leave the consortium and ensure that changes in membership do not
affect the consortium's ability to implement the innovative assessment
demonstration authority consistent with the requirements and selection
criteria in this section and Sec. 200.106.
(2) While the terms of the association with affiliate members are
defined by each consortium, consistent with Sec. 200.104(b)(1) and
paragraph (f)(1)(i) of this section, for an affiliate member to become
a full member of the consortium and to use the consortium's innovative
assessment system under the demonstration authority, the consortium
must submit a revised application to the Secretary for approval,
consistent with the requirements of this section and Sec. 200.106 and
subject to the limitation under Sec. 200.104(d).
(Authority: 20 U.S.C. 1221e-3, 3474, 6364, 6571; 29 U.S.C. 794; 42
U.S.C. 2000d-1; 42 U.S.C. 12101; 42 U.S.C. 12102)
0
5. Add Sec. 200.106 to read as follows:
Sec. 200.106 Demonstration authority selection criteria.
The Secretary reviews an application by an SEA or consortium of
SEAs seeking innovative assessment demonstration authority consistent
with Sec. 200.104(c) based on the following selection criteria:
(a) Project narrative. The quality of the SEA's or consortium's
plan for implementing the innovative assessment demonstration
authority. In determining the quality of the plan, the Secretary
considers--
(1) The rationale for developing or selecting the particular
innovative assessment system to be implemented under the demonstration
authority, including--
(i) The distinct purpose of each assessment that is part of the
innovative assessment system and how the system will advance the design
and delivery of large-scale, statewide academic assessments in
innovative ways; and
(ii) The extent to which the innovative assessment system as a
whole will promote high-quality instruction, mastery of challenging
State academic standards, and improved student outcomes, including for
each subgroup of students described in section 1111(c)(2) of the Act;
(2) The plan the SEA or consortium, in consultation with any
external partners, if applicable, has to--
(i) Develop and use standardized and calibrated tools, rubrics,
methods, or other strategies for scoring innovative assessments
throughout the demonstration authority period, consistent with relevant
nationally recognized professional and technical standards, to ensure
inter-rater reliability and comparability of innovative assessment
results consistent with Sec. 200.105(b)(4)(ii), which may include
evidence of inter-rater reliability; and
(ii) Train evaluators to use such strategies, if applicable; and
(3) If the system will initially be administered in a subset of
schools or LEAs in a State--
(i) The strategies the SEA, including each SEA in a consortium,
will use to scale the innovative assessment to all schools statewide,
with a rationale for selecting those strategies;
(ii) The strength of the SEA's or consortium's criteria that will
be used to determine LEAs and schools that will initially participate
and when to approve additional LEAs and schools, if applicable, to
participate during the requested demonstration authority period; and
(iii) The SEA's plan, including each SEA in a consortium, for how
it will ensure that, during the demonstration authority period, the
inclusion of additional LEAs and schools continues to reflect high-
quality and consistent implementation across demographically diverse
LEAs and schools, or contributes to progress toward achieving such
implementation across demographically diverse LEAs and schools,
including diversity based on enrollment of subgroups of students
described in section 1111(c)(2) of the
[[Page 88970]]
Act and student achievement. The plan must also include annual
benchmarks toward achieving high-quality and consistent implementation
across participating schools that are, as a group, demographically
similar to the State as a whole during the demonstration authority
period, using the demographics of initially participating schools as a
baseline.
(b) Prior experience, capacity, and stakeholder support. (1) The
extent and depth of prior experience that the SEA, including each SEA
in a consortium, and its LEAs have in developing and implementing the
components of the innovative assessment system. An SEA may also
describe the prior experience of any external partners that will be
participating in or supporting its demonstration authority in
implementing those components. In evaluating the extent and depth of
prior experience, the Secretary considers--
(i) The success and track record of efforts to implement innovative
assessments or innovative assessment items aligned to the challenging
State academic standards under section 1111(b)(1) of the Act in LEAs
planning to participate; and
(ii) The SEA's or LEA's development or use of--
(A) Effective supports and appropriate accommodations consistent
with Sec. 200.6(b) and (f)(1)(i) and section 1111(b)(2)(B)(vii) of the
Act for administering innovative assessments to all students, including
English learners and children with disabilities, which must include
professional development for school staff on providing such
accommodations;
(B) Effective and high-quality supports for school staff to
implement innovative assessments and innovative assessment items,
including professional development; and
(C) Standardized and calibrated tools, rubrics, methods, or other
strategies for scoring innovative assessments, with documented evidence
of the validity, reliability, and comparability of annual summative
determinations of achievement, consistent with Sec. 200.105(b)(4) and
(7).
(2) The extent and depth of SEA, including each SEA in a
consortium, and LEA capacity to implement the innovative assessment
system considering the availability of technological infrastructure;
State and local laws; dedicated and sufficient staff, expertise, and
resources; and other relevant factors. An SEA or consortium may also
describe how it plans to enhance its capacity by collaborating with
external partners that will be participating in or supporting its
demonstration authority. In evaluating the extent and depth of
capacity, the Secretary considers--
(i) The SEA's analysis of how capacity influenced the success of
prior efforts to develop and implement innovative assessments or
innovative assessment items; and
(ii) The strategies the SEA is using, or will use, to mitigate
risks, including those identified in its analysis, and support
successful implementation of the innovative assessment.
(3) The extent and depth of State and local support for the
application for demonstration authority in each SEA, including each SEA
in a consortium, as demonstrated by signatures from the following:
(i) Superintendents (or equivalent) of LEAs, including
participating LEAs in the first year of the demonstration authority
period.
(ii) Presidents of local school boards (or equivalent, where
applicable), including within participating LEAs in the first year of
the demonstration authority.
(iii) Local teacher organizations (including labor organizations,
where applicable), including within participating LEAs in the first
year of the demonstration authority.
(iv) Other affected stakeholders, such as parent organizations,
civil rights organizations, and business organizations.
(c) Timeline and budget. The quality of the SEA's or consortium's
timeline and budget for implementing the innovative assessment
demonstration authority. In determining the quality of the timeline and
budget, the Secretary considers--
(1) The extent to which the timeline reasonably demonstrates that
each SEA will implement the system statewide by the end of the
requested demonstration authority period, including a description of--
(i) The activities to occur in each year of the requested
demonstration authority period;
(ii) The parties responsible for each activity; and
(iii) If applicable, how a consortium's member SEAs will implement
activities at different paces and how the consortium will implement
interdependent activities, so long as each non-affiliate member SEA
begins using the innovative assessment in the same school year
consistent with Sec. 200.104(b)(2); and
(2) The adequacy of the project budget for the duration of the
requested demonstration authority period, including Federal, State,
local, and non-public sources of funds to support and sustain, as
applicable, the activities in the timeline under paragraph (c)(1) of
this section, including--
(i) How the budget will be sufficient to meet the expected costs at
each phase of the SEA's planned expansion of its innovative assessment
system; and
(ii) The degree to which funding in the project budget is
contingent upon future appropriations at the State or local level or
additional commitments from non-public sources of funds.
(d) Supports for educators, students, and parents. The quality of
the SEA or consortium's plan to provide supports that can be delivered
consistently at scale to educators, students, and parents to enable
successful implementation of the innovative assessment system and
improve instruction and student outcomes. In determining the quality of
supports, the Secretary considers--
(1) The extent to which the SEA or consortium has developed,
provided, and will continue to provide training to LEA and school
staff, including teachers, principals, and other school leaders, that
will familiarize them with the innovative assessment system and develop
teacher capacity to implement instruction that is informed by the
innovative assessment system and its results;
(2) The strategies the SEA or consortium has developed and will use
to familiarize students and parents with the innovative assessment
system;
(3) The strategies the SEA will use to ensure that all students and
each subgroup of students under section 1111(c)(2) of the Act in
participating schools receive the support, including appropriate
accommodations consistent with Sec. 200.6(b) and (f)(1)(i) and section
1111(b)(2)(B)(vii) of the Act, needed to meet the challenging State
academic standards under section 1111(b)(1) of the Act; and
(4) If the system includes assessment items that are locally
developed or locally scored, the strategies and safeguards (e.g., test
blueprints, item and task specifications, rubrics, scoring tools,
documentation of quality control procedures, inter-rater reliability
checks, audit plans) the SEA or consortium has developed, or plans to
develop, to validly and reliably score such items, including how the
strategies engage and support teachers and other staff in designing,
developing, implementing, and validly and reliably scoring high-quality
assessments; how the safeguards are sufficient to ensure unbiased,
objective scoring of assessment items; and how the SEA will use
effective professional development to aid in these efforts.
[[Page 88971]]
(e) Evaluation and continuous improvement. The quality of the SEA's
or consortium's plan to annually evaluate its implementation of
innovative assessment demonstration authority. In determining the
quality of the evaluation, the Secretary considers--
(1) The strength of the proposed evaluation of the innovative
assessment system included in the application, including whether the
evaluation will be conducted by an independent, experienced third
party, and the likelihood that the evaluation will sufficiently
determine the system's validity, reliability, and comparability to the
statewide assessment system consistent with the requirements of Sec.
200.105(b)(4) and (9); and
(2) The SEA's or consortium's plan for continuous improvement of
the innovative assessment system, including its process for--
(i) Using data, feedback, evaluation results, and other information
from participating LEAs and schools to make changes to improve the
quality of the innovative assessment; and
(ii) Evaluating and monitoring implementation of the innovative
assessment system in participating LEAs and schools annually.
(Authority: 20 U.S.C. 1221e-3, 3474, 6364, 6571)
0
6. Add Sec. 200.107 to read as follows:
Sec. 200.107 Transition to statewide use.
(a)(1) After an SEA has scaled its innovative assessment system to
operate statewide in all schools and LEAs in the State, the SEA must
submit evidence for peer review under section 1111(a)(4) of the Act and
Sec. 200.2(d) to determine whether the system may be used for purposes
of both academic assessments and the State accountability system under
sections 1111(b)(2), (c), and (d) and 1003 of the Act.
(2) An SEA may only use the innovative assessment system for the
purposes described in paragraph (a)(1) of this section if the Secretary
determines that the system is of high quality consistent with paragraph
(b) of this section.
(b) Through the peer review process of State assessments and
accountability systems under section 1111(a)(4) of the Act and Sec.
200.2(d), the Secretary determines that the innovative assessment
system is of high quality if--
(1) An innovative assessment developed in any grade or subject
under Sec. 200.5(a)(1) and section 1111(b)(2)(B)(v) of the Act--
(i) Meets all of the requirements under section 1111(b)(2) of the
Act and Sec. 200.105(b) and (c);
(ii) Provides coherent and timely information about student
achievement based on the challenging State academic standards under
section 1111(b)(1) of the Act;
(iii) Includes objective measurements of academic achievement,
knowledge, and skills; and
(iv) Is valid, reliable, and consistent with relevant, nationally
recognized professional and technical standards;
(2) The SEA provides satisfactory evidence that it has examined the
statistical relationship between student performance on the innovative
assessment in each subject area and student performance on other
measures of success, including the measures used for each relevant
grade-span within the remaining indicators (i.e., indicators besides
Academic Achievement) in the statewide accountability system under
section 1111(c)(4)(B)(ii)-(v) of the Act, and how the inclusion of the
innovative assessment in its Academic Achievement indicator under
section 1111(c)(4)(B)(i) of the Act affects the annual meaningful
differentiation of schools under section 1111(c)(4)(C) of the Act;
(3) The SEA has solicited information, consistent with the
requirements under Sec. 200.105(d)(3)(iv), and taken into account
feedback from teachers, principals, other school leaders, parents, and
other stakeholders under Sec. 200.105(a)(2) about their satisfaction
with the innovative assessment system; and
(4) The SEA has demonstrated that the same innovative assessment
system was used to measure--
(i) The achievement of all students and each subgroup of students
described in section 1111(c)(2) of the Act, and that appropriate
accommodations were provided consistent with Sec. 200.6(b) and
(f)(1)(i) under section 1111(b)(2)(B)(vii) of the Act; and
(ii) For purposes of the State accountability system consistent
with section 1111(c)(4)(E) of the Act, progress on the Academic
Achievement indicator under section 1111(c)(4)(B)(i) of the Act of at
least 95 percent of all students, and 95 percent of students in each
subgroup of students described in section 1111(c)(2) of the Act.
(c) With respect to the evidence submitted to the Secretary to make
the determination described in paragraph (b)(2) of this section, the
baseline year for any evaluation is the first year that a participating
LEA in the State administered the innovative assessment system under
the demonstration authority.
(d) In the case of a consortium of SEAs, evidence may be submitted
for the consortium as a whole so long as the evidence demonstrates how
each member SEA meets each requirement of paragraph (b) of this section
applicable to an SEA.
(Authority: 20 U.S.C. 1221e-3, 3474, 6311(a), 6364, 6571)
0
7. Add Sec. 200.108 to read as follows:
Sec. 200.108 Extension, waivers, and withdrawal of authority.
(a) Extension. (1) The Secretary may extend an SEA's demonstration
authority period for no more than two years if the SEA submits to the
Secretary--
(i) Evidence that its innovative assessment system continues to
meet the requirements under Sec. 200.105 and the SEA continues to
implement the plan described in its application in response to the
selection criteria in Sec. 200.106 in all participating schools and
LEAs;
(ii) A high-quality plan, including input from stakeholders under
Sec. 200.105(a)(2), for transitioning to statewide use of the
innovative assessment system by the end of the extension period; and
(iii) A demonstration that the SEA and all LEAs that are not yet
fully implementing the innovative assessment system have sufficient
capacity to support use of the system statewide by the end of the
extension period.
(2) In the case of a consortium of SEAs, the Secretary may extend
the demonstration authority period for the consortium as a whole or for
an individual member SEA.
(b) Withdrawal of demonstration authority. (1) The Secretary may
withdraw the innovative assessment demonstration authority provided to
an SEA, including an individual SEA member of a consortium, if at any
time during the approved demonstration authority period or extension
period, the Secretary requests, and the SEA does not present in a
timely manner--
(i) A high-quality plan, including input from stakeholders under
Sec. 200.105(a)(2), to transition to full statewide use of the
innovative assessment system by the end of its approved demonstration
authority period or extension period, as applicable; or
(ii) Evidence that--
(A) The innovative assessment system meets all requirements under
Sec. 200.105, including a demonstration that the innovative assessment
system has met the requirements under Sec. 200.105(b);
[[Page 88972]]
(B) The SEA continues to implement the plan described in its
application in response to the selection criteria in Sec. 200.106;
(C) The innovative assessment system includes and is used to assess
all students attending participating schools in the demonstration
authority, consistent with the requirements under section 1111(b)(2) of
the Act to provide for participation in State assessments, including
among each subgroup of students described in section 1111(c)(2) of the
Act, and for appropriate accommodations consistent with Sec. 200.6(b)
and (f)(1)(i) and section 1111(b)(2)(B)(vii) of the Act;
(D) The innovative assessment system provides an unbiased,
rational, and consistent determination of progress toward the State's
long-term goals and measurements of interim progress for academic
achievement under section 1111(c)(4)(A) of the Act for all students and
subgroups of students described in section 1111(c)(2) of the Act and a
comparable measure of student performance on the Academic Achievement
indicator under section 1111(c)(4)(B)(i) of the Act for participating
schools relative to non-participating schools; or
(E) The innovative assessment system demonstrates comparability to
the statewide assessments under section 1111(b)(2) of the Act in
content coverage, difficulty, and quality.
(2)(i) In the case of a consortium of SEAs, the Secretary may
withdraw innovative assessment demonstration authority for the
consortium as a whole at any time during its demonstration authority
period or extension period if the Secretary requests, and no member of
the consortium provides, the information under paragraph (b)(1)(i) or
(ii) of this section.
(ii) If innovative assessment demonstration authority for one or
more SEAs in a consortium is withdrawn, the consortium may continue to
implement the authority if it can demonstrate, in an amended
application to the Secretary that, as a group, the remaining SEAs
continue to meet all requirements and selection criteria in Sec. Sec.
200.105 and 200.106.
(c) Waiver authority. (1) At the end of the extension period, an
SEA that is not yet approved consistent with Sec. 200.107 to implement
its innovative assessment system statewide may request a waiver from
the Secretary consistent with section 8401 of the Act to delay the
withdrawal of authority under paragraph (b) of this section for the
purpose of providing the SEA with the time necessary to receive
approval to transition to use of the innovative assessment system
statewide under Sec. 200.107(b).
(2) The Secretary may grant an SEA a one-year waiver to continue
the innovative assessment demonstration authority, if the SEA submits,
in its request under paragraph (c)(1) of this section, evidence
satisfactory to the Secretary that it--
(i) Has met all of the requirements under paragraph (b)(1) of this
section and of Sec. Sec. 200.105 and 200.106; and
(ii) Has a high-quality plan, including input from stakeholders
under Sec. 200.105(a)(2), for transition to statewide use of the
innovative assessment system, including peer review consistent with
Sec. 200.107, in a reasonable period of time.
(3) In the case of a consortium of SEAs, the Secretary may grant a
one-year waiver consistent with paragraph (c)(1) of this section for
the consortium as a whole or for individual member SEAs, as necessary.
(d) Return to the statewide assessment system. If the Secretary
withdraws innovative assessment demonstration authority consistent with
paragraph (b) of this section, or if an SEA voluntarily terminates use
of its innovative assessment system prior to the end of its
demonstration authority, extension, or waiver period under paragraph
(c) of this section, as applicable, the SEA must--
(1) Return to using, in all LEAs and schools in the State, a
statewide assessment that meets the requirements of section 1111(b)(2)
of the Act; and
(2) Provide timely notice to all participating LEAs and schools of
the withdrawal of authority and the SEA's plan for transition back to
use of a statewide assessment.
(Authority: 20 U.S.C. 1221e-3, 3474, 6364, 6571)
[FR Doc. 2016-29126 Filed 12-7-16; 8:45 am]
BILLING CODE 4000-01-P