Title I-Improving the Academic Achievement of the Disadvantaged; Individuals With Disabilities Education Act (IDEA)-Assistance to States for the Education of Children With Disabilities, 74624-74638 [05-24083]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 70, Number 240 (Thursday, December 15, 2005)]
[Proposed Rules]
[Pages 74624-74638]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-24083]



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Part VI





Department of Education





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34 CFR Parts 200 and 300



Title I--Improving the Academic Achievement of the Disadvantaged; 
Individuals With Disabilities Education Act (IDEA)--Assistance to 
States for the Education of Children With Disabilities; Proposed Rule

Federal Register / Vol. 70, No. 240 / Thursday, December 15, 2005 / 
Proposed Rules

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DEPARTMENT OF EDUCATION

34 CFR Parts 200 and 300

RIN 1810-AA98


Title I--Improving the Academic Achievement of the Disadvantaged; 
Individuals With Disabilities Education Act (IDEA)--Assistance to 
States for the Education of Children With Disabilities

AGENCY: Office of Elementary and Secondary Education; Office of Special 
Education and Rehabilitative Services, U.S. Department of Education.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the regulations governing 
programs administered under Title I of the Elementary and Secondary 
Education Act of 1965 (ESEA), as amended by the No Child Left Behind 
Act of 2001 (NCLB) (referred to in these proposed regulations as the 
Title I program) and the regulations governing programs under Part B of 
the Individuals with Disabilities Education Act (IDEA) (referred to in 
these proposed regulations as the IDEA program). The proposed 
regulations would provide States with additional flexibility regarding 
State, local educational agency (LEA), and school accountability for 
the achievement of a group of students with disabilities who can make 
significant progress, but may not reach grade-level achievement 
standards within the same time frame as other students, even after 
receiving the best-designed instructional interventions from highly 
trained teachers.

DATES: We must receive your comments on or before February 28, 2006.

ADDRESSES: Address all comments about these proposed regulations to 
Jacquelyn C. Jackson, Ed.D., Director, Student Achievement and School 
Accountability Programs, Office of Elementary and Secondary Education, 
U.S. Department of Education, 400 Maryland Avenue, SW., room 3C156, FB-
6, Washington, DC 20202-6132. If you prefer to send your comments 
through the Internet, you may address them to us at the U.S. Government 
Web site: https://www.regulations.gov.
    Or you may send your Internet comments to us at the following 
address: TitleIrulemaking@ed.gov. You must include the term ``proposed 
2% rule'' in the subject line of your electronic message.
    If you want to comment on the information collection requirements, 
you must send your comments to the Office of Management and Budget at 
the address listed in the Paperwork Reduction Act section of this 
preamble. You may also send a copy of these comments to the Department 
representative named in this section.

FOR FURTHER INFORMATION CONTACT: Jacquelyn C. Jackson, Ed.D, Director, 
Student Achievement and School Accountability Programs, Office of 
Elementary and Secondary Education, Telephone: (202) 260-0826 or via 
Internet at jacqueline.jackson@ed.gov, or you may contact Troy R. 
Justesen, Ed.D, Deputy Assistant Secretary, Office of Special Education 
and Rehabilitative Services, Telephone: (202) 245-7468 or via Internet 
at troy.justesen@ed.gov.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact persons listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have the maximum effect as we 
develop the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each of 
your comments addresses and to arrange your comments in the same order 
as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Order 12866 and its overall requirement of 
reducing regulatory burden that might result from these proposed 
regulations. Please let us know of any further opportunities we should 
take to reduce potential costs or increase potential benefits while 
preserving the effective and efficient administration of the program.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 3W100, FB-6, 400 
Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. 
and 4 p.m., Eastern time, Monday through Friday of each week except 
Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the Rulemaking 
Record

    On request, we will supply an appropriate aid, such as a reader or 
print magnifier, to an individual with a disability who needs 
assistance to review the comments or other documents in the public 
rulemaking record for these proposed regulations. If you want to 
schedule an appointment for this type of aid, please contact the 
persons listed under FOR FURTHER INFORMATION CONTACT.

Background

    These proposed regulations would amend regulations in 34 CFR part 
200, implementing certain provisions of Title I, Part A of the ESEA, as 
amended by NCLB, which is designed to help disadvantaged children meet 
high academic standards. They would also amend regulations in 34 CFR 
part 300, implementing programs for students with disabilities under 
Part B of the IDEA.
    These proposed regulations provide flexibility for some students 
with disabilities similar to that afforded by the current Title I 
regulations in 34 CFR part 200 regarding children with the most 
significant cognitive disabilities. Those Title I regulations permit a 
State to develop alternate academic achievement standards for students 
with the most significant cognitive disabilities and to include those 
students' proficient and advanced scores on alternate assessments based 
on alternate achievement standards in measuring adequate yearly 
progress (AYP), subject to a cap of 1.0 percent of the students 
assessed at the State and district levels. The purpose of those 
regulations was to provide flexibility for States and LEAS regarding 
the assessment of a very small group of students--those students with 
the most significant cognitive disabilities--to ensure that schools and 
districts receive credit for the good work they are doing with those 
students.
    In the preamble to the December 9, 2003 notice announcing the 
regulations adopting the flexibility for students with the most 
significant cognitive disabilities, the Department indicated that, ``as 
data and research on assessing students with disabilities improve, the 
Department may decide to issue regulations or guidance on other related 
issues in the future'' (68 FR 68698). Since that time, information 
accumulated from the experiences of many States, as well as recent 
research, indicates that there are other students who, because of their 
disability, have significant difficulty achieving grade-level 
proficiency, even with the best instruction. This information and 
research indicate that there is a group of students with disabilities 
whose progress in response to high-quality instruction, including 
special education

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and related services designed to address the student's individual 
needs, is such that the student is not likely to achieve grade-level 
proficiency within the school year covered by the student's 
individualized education program (IEP).
    The proposed regulations would provide States with additional 
flexibility in measuring the achievement of this group of students with 
disabilities who do not meet State guidelines to participate in an 
alternate assessment based on alternate achievement standards, which is 
appropriate only for students with the most significant cognitive 
disabilities. Specifically, the proposed regulations would permit 
States to develop modified achievement standards (and assessments that 
measure achievement based on those standards) that are aligned with 
grade-level content standards, but are modified in such a manner that 
they reflect reduced breadth or depth of grade-level content. At the 
same time, the proposed regulations would include several safeguards to 
ensure that students are not inappropriately assessed based on modified 
achievement standards, including requirements that each State develop 
guidelines defining which students with disabilities are eligible to be 
assessed based on modified achievement standards. Similar to the 
current regulations, under the proposed regulations, States and LEAs 
would be permitted to include the proficient and advanced scores from 
assessments based on modified achievement standards in AYP 
determinations, subject to a cap at the district and State levels based 
on the total number of students assessed. As described elsewhere in 
this notice, the best available research and data indicate that 2.0 
percent, or approximately 20 percent of students with disabilities, is 
a reasonable cap. We are also proposing other changes that would 
address the implementation of this cap at the State and local levels.
    Additionally, to ensure a coordinated administration of the IDEA 
and Title I programs, Sec.  300.160 of these proposed regulations would 
make changes to the proposed regulations published in the Federal 
Register on June 21, 2005 (70 FR 35839) to implement the IDEA as 
reauthorized by the Individuals with Disabilities Education Improvement 
Act of 2004, Public Law No. 108-446, enacted on December 3, 2004, 
regarding inclusion of children with disabilities in State and 
district-wide assessment systems in accordance with section 612(a)(16) 
of the IDEA. We are proposing regulations that will implement relevant 
provisions of the recently reauthorized IDEA and will include this new 
flexibility to assess students with disabilities based on modified 
achievement standards. This coordination of the regulations for the 
IDEA and Title I programs will avoid confusion among parents, teachers, 
and administrators, and reinforce IDEA's and Title I's shared goal of 
high expectations and accountability for all students. We will issue a 
final Sec.  300.160 at the same time that we issue the final Title I 
regulations proposed in this notice.

Significant Proposed Regulations

    We discuss substantive issues under the sections of the proposed 
regulations to which they pertain. Generally, we do not address 
proposed regulatory provisions that are technical or otherwise minor in 
effect.

Section 200.1 State Responsibilities for Developing Challenging 
Academic Standards

    Statute: Section 1111(b)(1) of Title I requires each State to adopt 
challenging academic content standards and student academic achievement 
standards in mathematics, reading/language arts, and, beginning in the 
2005-2006 school year, science. These standards must be the same for 
all public elementary and secondary schools and all public school 
students in the State. The State's academic content standards must 
specify what all students are expected to know and be able to do, 
contain coherent and rigorous content, and encourage the teaching of 
advanced skills. The State's student academic achievement standards 
must be aligned with the State's content standards and must describe at 
least three levels of achievement: advanced, proficient, and basic.
    Current regulations: Section 200.1 of the Title I regulations 
implements the statutory requirements in section 1111(b)(1), regarding 
the development of standards generally. A State must apply these 
standards to all public elementary and secondary schools and public 
school students in the State. Section 200.1 also recognizes that there 
is a small percentage of students with disabilities--those with the 
most significant cognitive disabilities--who will likely never reach 
grade-level achievement standards, even with the very best instruction. 
Thus, Sec.  200.1(d) permits a State to develop alternate achievement 
standards for students with the most significant cognitive 
disabilities, so long as those standards are aligned with the State's 
academic content standards, promote access to the general curriculum, 
and reflect professional judgment of the highest achievement standards 
possible for those students. An alternate achievement standard is an 
expectation of performance that differs in complexity from a grade-
level achievement standard.
    Proposed Regulations: Similar to the flexibility afforded to States 
and LEAs for students with the most significant cognitive disabilities, 
proposed Sec.  200.1(e) would allow a State to use a documented and 
validated standards-setting process to define modified achievement 
standards for some students with disabilities. Proposed Sec.  
200.1(e)(1)(i) through (iii) would require that modified achievement 
standards provide access to grade-level curriculum; be aligned with the 
State's academic content standards for the grade in which the student 
is enrolled, although the modified achievement standards may reflect 
reduced breadth or depth of grade-level content; and not preclude a 
student from earning a regular high-school diploma.
    Proposed Sec.  200.1(e)(2) would require a State to adopt specific 
criteria for IEP teams to use in determining whether a student is 
eligible to be assessed based on modified achievement standards. 
Proposed Sec.  200.1(e)(2)(i) through (iii) provides that, in order for 
an IEP team to determine that a student is eligible to be assessed 
based on modified achievement standards, the IEP team must conclude 
that: The student's disability has precluded the student from achieving 
grade-level proficiency, as demonstrated by objective evidence; the 
student's progress in response to high-quality instruction, including 
special education and related services designed to address the 
student's individual needs, is such that the student is not likely to 
achieve grade-level proficiency within the school year covered by the 
IEP; and the student is receiving instruction in the grade-level 
curriculum for the subjects in which the student is being assessed. 
Proposed Sec.  200.1(e)(3) would clarify that students eligible to take 
assessments based on modified achievement standards may be in any of 
the 13 disability categories listed in the IDEA. Proposed Sec.  
200.1(e)(4) would provide that a student may be held to modified 
academic achievement standards in one or more subjects for which the 
State administers assessments. Proposed Sec.  200.1(e)(5) would require 
that IEP teams review on an annual basis their decision to assess a 
student based on modified achievement standards to ensure that those 
standards remain appropriate.
    Proposed Sec.  200.1(f), regarding the development of State 
guidelines and

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notice to parents, would incorporate the provisions of Sec.  
200.6(a)(2)(iii)(A) and include references to assessments based on 
modified achievement standards. This provision would require each State 
to establish and ensure implementation of clear and appropriate 
guidelines for IEP teams to use in determining which students with 
disabilities may be held to either alternate or modified academic 
achievement standards and to ensure that parents of those students, as 
members of the IEP team and as participants in the IEP process, are 
informed that their child's achievement will be measured based on 
alternate or modified achievement standards.
    Reasons: In proposing these amendments to Sec.  200.1, we 
acknowledge that, while all children can learn challenging content, 
certain students, because of their disability, may not be able to 
achieve grade-level proficiency within the same time-frame as other 
students, even after receiving the best-designed instructional 
interventions, including special education and related services 
designed to address the student's individual needs, from highly trained 
teachers. We believe it is appropriate for these students to be 
assessed on grade-level content, but to measure their performance based 
on achievement standards that have been modified and differ in breadth 
or depth from grade-level achievement standards. The proposed 
regulations would permit States to establish modified achievement 
standards, so long as they meet certain requirements under proposed 
Sec.  200.1(e)(1) that are designed to ensure that these students work 
toward mastering grade-level content. The proposed regulation therefore 
would require that modified achievement standards be aligned with 
grade-level content, but adjusted to reflect reduced breadth or depth 
of grade-level content so that students with disabilities participating 
in an assessment based on modified achievement standards would be 
better able to demonstrate what they know and can do.
    Although proficient performance based on modified achievement 
standards will not indicate the same level of achievement as proficient 
performance based on grade-level achievement standards, modified 
achievement standards must be aligned to grade-level content standards. 
Furthermore, we anticipate that there will be significant overlap 
between the regular and modified achievement standards; but there would 
be no similar overlap between alternate achievement standards and 
grade-level achievement standards. Because assessing a student's 
performance based on modified achievement standards would not preclude 
a student from receiving a regular diploma, students with disabilities 
participating in this type of assessment would not automatically be 
held to a lower graduation standard.
    The proposed regulations also are necessary to ensure that States 
have guidelines in place with certain key elements that will help IEP 
teams appropriately determine which students should be assessed based 
on modified achievement standards. We anticipate that it will be more 
difficult, in general, for IEP teams to determine the students with 
disabilities for whom modified achievement standards would be 
appropriate than it is for IEP teams to determine the students with the 
most significant cognitive disabilities for whom alternate achievement 
standards are appropriate. Students assessed based on modified 
achievement standards would not simply be students who are having 
difficulty with grade-level content or who are receiving instruction 
below grade level. Nor would they necessarily be the lowest-achieving 
two percent of students, who are not students with the most significant 
cognitive disabilities. In fact, based on recent data from the Special 
Education Elementary Longitudinal Study (SEELS) funded by the Office of 
Special Education Programs (OSEP), we anticipate that students from 
each of the 13 disability categories listed in the IDEA will be among 
those who are assessed based on modified achievement standards.
    Students for whom modified achievement standards would be 
appropriate may require assessments that are different both in format 
or design due to the nature of their disability. IEP teams would 
determine the appropriateness of modified achievement standards based 
on the unique needs of each individual student with a disability. 
However, because it is of paramount importance to ensure that students 
are not held inappropriately to standards other than grade-level 
achievement standards, the proposed regulations would include criteria 
that we consider critical to support States in their implementation of 
modified achievement standards and to ensure that IEP teams make 
appropriate determinations about which students participate in 
assessments based on modified achievement standards. The proposed 
criteria are designed to help IEP teams distinguish between students 
whose disability has truly precluded them from achieving grade-level 
proficiency and those who, with appropriate services and interventions, 
including special education and related services designed to address 
the student's individual needs, can be assessed based on grade-level 
achievement standards. The effect of these proposed regulations and the 
IDEA will put into place four key safeguards regarding identification 
for assessment based on modified achievement standards:
    1. Consistent with the IDEA and as a part of the evaluation 
process, a team of qualified professionals and the parent of the child 
would ensure that a student is not identified for special education 
services due to lack of instruction. That is, the team must demonstrate 
that the determining factor for such identification is not a lack of 
appropriate instruction in reading and math (20 U.S.C. 1414(b)(5)). 
After a child is identified, the special education and related services 
a child receives under the child's IEP should be of high quality and 
specially designed to meet the unique needs of the individual, and move 
a child closer to grade-level achievement, if the child is not already 
achieving at grade level.
    2. Proposed Sec.  200.1(e)(2)(ii)(A) would ensure that IEP teams 
examine a student's progress in response to high-quality instruction, 
including special education and related services designed to address 
the student's needs. The requirement to assess the student's 
performance using multiple measures over time in proposed Sec.  
200.1(e)(2)(ii)(B) would ensure that a student is not given an 
assessment based on modified achievement standards on the basis of 
performance on one assessment or measurement.
    3. Proposed Sec.  200.1(e)(2)(iii) would ensure that students are 
not assessed based on modified achievement standards if they have not 
had the opportunity to learn grade-level content. Implementing 
challenging standards, coupled with ensuring that students are 
receiving grade-level instruction in the subjects in which they are 
assessed, would provide a safeguard against leaving children behind due 
to lack of proper instruction.
    4. As indicated in proposed 200.1(e)(5), the decision to assess a 
student based on modified achievement standards would not be a 
permanent one, and would be reviewed on a yearly basis as part of the 
IEP process.
    Proposed Sec.  200.1(f) emphasizes the very important 
responsibility of each State to establish clear and appropriate 
guidelines, which include the criteria for IEP teams to apply in 
determining whether a student with a disability may be held to modified 
academic

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achievement standards. The guidelines required by proposed Sec.  
200.1(f) must provide sufficient guidance to ensure that IEP teams 
(which include parents) make appropriate decisions regarding those 
students for whom either alternate or modified achievement standards 
are appropriate. Moreover, Sec.  200.1(f) would also safeguard 
students' interests because parents, as members of the IEP teams, will 
participate in and be informed about the decision to assess their 
child's achievement based on alternate or modified achievement 
standards.

Section 200.6 Inclusion of All Students

    Statute: Section 1111(b)(3)(C) of Title I of the ESEA provides that 
a State's academic assessment system must be aligned with the State's 
challenging academic content and academic achievement standards and 
measure the achievement of all students in the grades assessed, 
including students with disabilities as defined under section 602(3) of 
the IDEA, students covered by Section 504 of the Rehabilitation Act of 
1973, as amended (Section 504), and students with limited English 
proficiency. With respect to students with disabilities in particular, 
the system must provide for reasonable accommodations necessary to 
measure their academic achievement relative to the State's content and 
achievement standards that all students are expected to meet.
    Current regulations: Section 200.6 of the Title I regulations 
clarifies that a State's academic assessment system must include 
accommodations for students with disabilities under the IDEA and for 
students covered under Section 504 to allow the State to measure the 
academic achievement of these students relative to the State's academic 
content and academic achievement standards for the grades in which they 
are enrolled. In addition, the regulations require a State to provide 
one or more alternate assessments for students with disabilities who 
cannot participate in all or part of the State assessment, even with 
appropriate accommodations. These alternate assessments must yield 
results for the grade in which the student is enrolled in at least 
reading/language arts, mathematics, and, beginning in the 2007-2008 
school year, science.
    Section 200.6 also permits the use of alternate assessments to 
measure the achievement of students with the most significant cognitive 
disabilities based on the alternate academic achievement standards a 
State adopts under Sec.  200.1(d). If a State permits the achievement 
of students with the most significant cognitive disabilities to be 
measured with alternate assessments that yield results based on 
alternate achievement standards, the State must report, to the 
Secretary, those results separately from students with disabilities who 
take the regular assessment or an alternate assessment based on grade-
level achievement standards. The State must also document that students 
with the most significant cognitive disabilities are included, to the 
extent possible, in the general curriculum and in assessments aligned 
with that curriculum. In addition, the State must promote the use of 
appropriate accommodations to increase the number of students with the 
most significant cognitive disabilities who are tested against grade-
level achievement standards. Finally, the State must ensure that 
teachers and other staff know how to administer assessments, including 
how to use appropriate accommodations, for students with the most 
significant cognitive disabilities.
    Proposed regulations: Section 200.6 would be amended to allow a 
State to develop and implement modified academic achievement standards 
(defined by the State pursuant to proposed Sec.  200.1(e)(1)) to assess 
students with disabilities who meet the criteria in proposed Sec.  
200.1(e)(2).
    Proposed Sec.  200.6(a)(3) would allow a State to use its regular 
assessment, with accommodations if necessary, or an alternate 
assessment, provided the assessment--
     Is aligned with the State's grade-level content standards;
     Yields results that measure the achievement of students 
separately in both reading/language arts and mathematics relative to 
the State's modified academic achievement standards;
     Meets the requirements under Sec. Sec.  200.2 and 200.3, 
including validity, reliability, and high technical quality; and
     Fits coherently in the State's overall assessment system 
required under Sec.  200.2.
    Proposed Sec.  200.6(a)(4)(iii) would require a State to report 
separately on the percentage of students with disabilities taking 
assessments based on modified achievement standards. Finally, the 
proposed regulations would move several similar existing provisions to 
the same location in the regulations. Current Sec.  200.6(a)(2)(iii)(D) 
and (E), regarding increasing accommodations and teacher training to 
ensure that more students with disabilities can take a State's regular 
assessments, would be moved to Sec.  200.6(a)(1)(ii). Current Sec.  
200.6(a)(2)(iii)(C), regarding documenting that students with the most 
significant cognitive disabilities are, to the extent possible, 
included in the general curriculum, would be moved to Sec.  
200.6(a)(2)(iii).
    Reasons: The proposed amendments to Sec.  200.6 acknowledge the 
appropriateness of allowing a small percentage of students with 
disabilities to be assessed based on modified academic achievement 
standards aligned with the State's grade-level academic content 
standards. The proposed amendment does not limit the number or 
percentage of students who may take assessments based on modified 
achievement standards defined pursuant to Sec.  200.1(e) as determined 
appropriate by their IEP teams.
    The format of the assessment is less critical than the content of 
the modified academic achievement standards. Modified achievement 
standards may be expressed in various forms: for example, as scores 
from an assessment limited to ``core content and achievement'' 
expectations; or as results from an assessment that includes non-
traditional items based on grade-level content. The critical 
characteristic is that an assessment based on modified achievement 
standards clearly reflects grade-level content standards even if the 
breadth or depth of those standards is reduced or the format or design 
is different.
    The current Title I regulations do not prohibit the use of out-of-
level assessments in all cases. They may be used to assess students 
with the most significant cognitive disabilities if they are aligned 
with a State's alternate achievement standards that meet the 
requirements of current Sec.  200.1(d). However, under proposed Sec.  
200.1(e) and Sec.  200.6, States would not be permitted to use an out-
of-level test to measure the achievement of students with disabilities 
based on modified achievement standards. The proposed regulations 
require that any assessment based on modified achievement standards 
must meet the grade-level alignment requirements of Sec.  200.1(e)(1), 
and an out-of-level assessment, by definition, cannot meet these 
requirements because it is not aligned with the content being taught at 
the grade-level in which the student is enrolled. It is not acceptable, 
for example, simply to assess a child who may be reading at a third-
grade level using a third-grade assessment when the child is actually 
enrolled in the sixth grade and expected to be receiving grade-level 
content.

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    Even though modified achievement standards differ from grade-level 
achievement standards, the following protections in the regulation are 
designed to prevent students with disabilities from being left behind 
and to ensure that these students continue to receive challenging, 
grade-level instruction:
    1. The modified achievement standards must be aligned to grade-
level content standards. Although the breadth or depth of the standards 
may be reduced, it is grade-level content standards, not ``extended'' 
standards or instructional-level standards, that must be the basis of 
the assessment and the modified achievement standards. (Proposed Sec.  
200.1(e)(1)(i)). If a State's content standards include 20 different 
statements of what a student should know, it would not be appropriate 
to reduce the number of standards assessed on modified achievement 
standards to address only a few of those content standards. Although 
the Department will not set a specific numerical goal of how many 
standards should be addressed, we note that the modified achievement 
standards will be peer-reviewed and we expect States to establish 
meaningful academic expectations for all students.
    2. The student receives instruction based on grade-level content 
standards. (Proposed Sec.  200.1(e)(1)(ii) and (2)(iii)).
    3. ``Proficient'' performance on modified achievement standards 
does not preclude a student from earning a regular high school diploma. 
(Proposed Sec.  200.1(e)(1)(iii)).
    A State may assess achievement based on modified achievement 
standards in several ways, either by designing an entirely new 
assessment, or by modifying an existing grade-level assessment. 
Modifications might include:
     Changes to content, such as coverage of a reduced number 
of grade-level content standards that have been identified by the State 
as essential for progress to the next grade.
     Changes to test format or administration, such as modified 
item format or response options, or use of only selected portions of 
the assessment.
    Regardless of the method employed, a State must limit the use of 
modified achievement standards to the appropriate group of students. As 
proposed by these regulations, the State must use a documented 
standard-setting procedure. Results based on modified achievement 
standards must be valid and reliable to be used as a component in AYP 
determinations. Results would also need to be clearly explained to 
parents in terms of student competencies represented by labels such as 
``basic'' or ``proficient.''

Section 200.7 Disaggregation of Data

    Statute: Section 1111(b)(2)(C)(iv) of Title I requires a State's 
definition of AYP to measure the progress of specific subgroups of 
students, including students with disabilities, unless the number of 
students in a category is insufficient to yield statistically reliable 
information.
    Current regulations: Section 200.7(a)(1) of the Title I regulations 
prohibits a State from using disaggregated data for one or more 
subgroups to report achievement results or to identify schools in need 
of improvement, corrective action, or restructuring if the number of 
students in those subgroups is insufficient to yield statistically 
reliable information. Section 200.7(a)(2) requires a State to 
determine, based on sound statistical methodology, the minimum number 
of students sufficient to yield statistically reliable information for 
each purpose for which disaggregated data are used.
    Proposed regulations: Section 200.7(a)(2) would be amended to 
prohibit a State from establishing a different minimum number of 
students for separate subgroups, regardless of whether the State 
chooses to implement modified achievement standards. In other words, a 
State would no longer be able to set a higher minimum number for the 
subgroup of students with disabilities, for example, than it sets for 
all its students or for its other subgroups. As another example, the 
proposed regulation would restrict States from setting a higher minimum 
group size for limited English proficient (LEP) students.
    Reasons: Prior to the implementation of the regulations on 
alternate achievement standards for students with the most significant 
cognitive disabilities and the announcement of these proposed 
regulations, a State did not have much flexibility in measuring the 
achievement of students with disabilities for AYP purposes. Because of 
ongoing concerns about how accurately State assessments measure the 
achievement of a very heterogeneous group of students (many of whom 
were assessed with a range of accommodations and modifications to the 
regular assessment), some States requested permission to use a larger 
minimum number of students--group size--for their students with 
disabilities subgroup. In support of their request, these States argued 
that a larger group size for this subgroup of students would account 
for the challenges of measuring their achievement. States also 
requested to set a higher minimum group size for LEP students for 
similar reasons.
    Setting a different group size, however, can lead to unintended 
consequences, such as manipulating the number of LEP or special 
education students in a particular school to ensure that the school 
will not be specifically held accountable for those students. Once 
these proposed regulations are implemented, we believe that States will 
have sufficient flexibility to measure the achievement of students with 
disabilities appropriately and will no longer need a different group 
size for this subgroup. States will be able to use different 
achievement standards for approximately thirty percent of students with 
disabilities, which is a significant change in how those students are 
assessed. States have also been offered flexibility in including the 
scores of LEP students who have recently arrived in the United States, 
as well as to count in the LEP subgroup for two years the scores of 
students who exit the LEP category. We believe that, in order to ensure 
that schools are held accountable for the achievement of LEP students 
and students with disabilities, the use of differentiated group sizes 
for purposes of measuring AYP must end.

Section 200.13 Adequate Yearly Progress in General

    Statute: Under section 1111(b)(2)(B) of Title I of the ESEA, each 
State must define what constitutes AYP of the State, and of all public 
elementary and secondary schools and LEAs in the State, toward enabling 
all students to meet the State's student academic achievement 
standards. This definition must apply the same high standards of 
academic achievement to all public elementary and secondary school 
students in the State, be statistically valid and reliable, and measure 
progress based primarily on the State's academic assessments. AYP must 
also include measurable objectives for specific subgroups of students, 
including students with disabilities. To make AYP, a school must: meet 
or exceed the State's annual measurable objectives with respect to all 
students and students in each subgroup; test at least 95 percent of all 
students and of the students in each subgroup enrolled in the school; 
and make progress on the other academic indicators determined by the 
State.
    Current Regulations: The current Title I regulations in Sec.  
200.13 require that each State demonstrate in its State plan what 
constitutes AYP of the State and of all public elementary and secondary 
schools and LEAs in the State in a

[[Page 74629]]

manner that applies the same high standards of achievement to all 
public school students; is statistically valid and reliable; results in 
continuous and substantial academic improvement for all students; 
measures the progress of all public schools, LEAs, and the State based 
primarily on the State's academic assessment system; measures progress 
separately for reading/language arts and for mathematics; is the same 
for all public schools and LEAs in the State; and applies the same 
annual measurable objectives for all students and for all identified 
subgroups described in Sec.  200.13(b)(7)(ii).
    Section 200.13(c) contains the rules for calculating AYP with 
respect to students with the most significant cognitive disabilities. 
It permits a State to include proficient and advanced scores of those 
students on assessments based on alternate achievement standards in 
determining AYP, subject to a 1.0 percent cap at the LEA and State 
levels. There is no cap at the school level. A State may request from 
the Secretary an exception to exceed the 1.0 percent cap if it can 
document that the incidence of students with the most significant 
disabilities exceeds 1.0 percent due to such circumstances as school, 
community, or health programs that have drawn large numbers of families 
of students with the most significant cognitive disabilities or a 
student population so small that it would take only a very few students 
to exceed the 1.0 percent cap. A State may grant an LEA's request for 
an exception to exceed the 1.0 percent cap under similar conditions.
    Proposed Regulations: Proposed Sec.  200.13(c) would specify 
acceptable uses of modified achievement standards for students with 
disabilities who meet the criteria in proposed Sec.  200.1(e)(2) for 
the purpose of determining AYP. Specifically, proposed Sec.  
200.13(c)(2)(ii) would permit a State to include in its calculation of 
AYP the proficient and advanced scores of students with disabilities on 
assessments based on modified achievement standards, provided the 
number of such scores does not exceed 2.0 percent of all students in 
the grades assessed in reading/language arts and mathematics, 
separately, at the LEA and State levels. Although the 2.0 percent cap 
would not apply at the school level, schools should be mindful of the 
LEA limit, which may restrict the number of proficient scores for any 
one school that the LEA or State may include in its AYP calculations. 
Proposed Sec.  200.13(c)(3) would permit a State's or LEA's proficient 
and advanced scores on assessments based on modified achievement 
standards to exceed 2.0 percent of all students in the grades assessed, 
without the need for an exception at the LEA level, if the number of 
proficient and advanced scores on assessments based on alternate 
achievement standards in Sec.  200.1(d) is less than 1.0 percent, 
provided the number of proficient and advanced scores based on modified 
and alternate achievement standards combined does not exceed 3.0 
percent of all students in the grades assessed.
    Proposed Sec.  200.13(c)(4) would provide that a State would no 
longer be able to request from the Secretary an exception to exceed the 
1.0 percent cap on proficient and advanced scores based on alternate 
achievement standards, nor would the State be able to request an 
exception to exceed the 2.0 percent cap on proficient and advanced 
scores based on modified achievement standards. A State would still be 
able to grant an exception to an LEA to exceed the 1.0 percent cap on 
proficient and advanced scores based on alternate achievement standards 
if the LEA meets certain requirements. A State would not be able, 
however, to grant an exception to an LEA to exceed the 2.0 percent cap 
on proficient and advanced scores based on modified academic 
achievement standards. If a State grants an LEA an exception to exceed 
the 1.0 percent cap, the total number of students with disabilities in 
that LEA whose proficient and advanced scores may be included in 
calculating AYP would thus exceed 3.0 percent by the amount of the 
exception. However, the State would not be permitted to exceed its 
overall cap of 3.0 percent based on exceptions it had granted to LEAs. 
The proposed regulation also would provide that, for any proficient and 
advanced scores of students with the most significant cognitive 
disabilities that exceed the caps and authorized exceptions, a State 
would need to count those scores as non-proficient and redistribute 
them among schools and LEAs responsible for students with disabilities 
who are assessed based on alternate or modified achievement standards.
    The following table provides a summary of the circumstances in 
which we are proposing that a State or LEA would be permitted to exceed 
the 1% and 2% caps.

                               When Can a State or LEA Exceed the 1% and 2% Caps?
----------------------------------------------------------------------------------------------------------------
                                                                                          Alternate and modified
                                        Alternate achievement     Modified achievement   achievement standards--
                                          standards--1% Cap        standards--2% Cap              3% Cap
----------------------------------------------------------------------------------------------------------------
State................................  Never..................  Only if State is below   Never.
                                                                 1% cap, but cannot
                                                                 exceed 3% cap.
LEA..................................  Only if granted an       Only if LEA is below 1%  Only if granted an
                                        exception by the SEA.    cap. If not below 1%     exception to the 1%
                                                                 cap, never.              cap by the SEA, and
                                                                                          only by the amount of
                                                                                          the exception.
----------------------------------------------------------------------------------------------------------------

    Reasons: To ensure that modified achievement standards are used 
appropriately, the proposed regulations would set a cap of 2.0 percent 
on proficient and advanced scores based on modified achievement 
standards that may be included in AYP determinations. In addition to 
the guidelines in proposed Sec.  200.1(f), a numerical limit protects 
students from being held to lower standards. In establishing the 1.0 
percent cap on proficient and advanced scores based on alternate 
achievement standards for students with the most significant cognitive 
disabilities, we primarily relied upon disability incidence rate data. 
Incidence rate data, however, are not as helpful in establishing a cap 
on the number of students who would be appropriately assessed based on 
modified achievement standards because students assessed based on 
modified achievement standards are less likely to be predominantly from 
a few disability categories, as is the case with students with the most 
significant cognitive disabilities. Therefore, in order to set an 
appropriate cap, we considered other sources of data from research and 
State experiences. This numerical limit is set at 2.0 percent because 
we do not believe it is necessary or appropriate for more than 3.0 
percent of students to be assessed based on alternate or modified

[[Page 74630]]

achievement standards. For example, the Department reviewed several 
studies that indicate 2.0 percent is an appropriate cap when States, 
districts, and schools work to ensure that students receive high-
quality educational services and interventions.\1\ In particular, 
research that has recently been summarized by Reid Lyon, Jack Fletcher, 
Lynn Fuchs and Vinata Chabra in a literature review (currently in 
press) indicates that a 2.0 percent cap is appropriate, based on the 
percent of students who may not reach grade-level achievement standards 
within the same time frame as other students, even after receiving the 
best-designed instructional interventions from highly trained 
teachers.\2\
---------------------------------------------------------------------------

    \1\ For example, see: McMaster, K.L., Fuchs, D., Fuchs, L.S., & 
Compton, D.L. (2005). Responding to nonresponders: An experimental 
field trial of identification and intervention methods. Exceptional 
Children, 71, 445-463; Torgensen, J.K., Alexander, A.W., Wagner, 
R.K., Rashotte, C.A., Voeller, K.K.S., & Conway, T. (2001). 
Intensive remedial instruction for children with severe reading 
disabilities; Immediate and long-term outcomes from two 
instructional approaches. Journal of Learning Disabilities, 34, 33-
58.
    \2\ Lyon, G.R., Fletcher, J. M., Fuchs, L.S., & Chhabra, V. (in 
press). Learning Disabilities. In E. Mash & R. Barkley (Eds.), 
Treatment of Childhood Disorder (2nd ed.). New York: Guilford Press.
---------------------------------------------------------------------------

    Further, we believe 2.0 percent is a reasonable cap when one takes 
into consideration that the cap does not need to equal the total number 
of students that may meet the criteria for this assessment. The cap is 
only a cap on the number of proficient scores that may be included in 
calculating AYP. In addition, we expect that over time State 
assessments will improve, as well as interventions and services for 
students with disabilities. The gains we have seen thus far when 
disabled students are expected to meet high standards should continue.
    The proposed regulations would not permit States to request 
exceptions to the 1.0 or 2.0 percent caps. Under our current 
regulations that provide flexibility with respect to students with the 
most significant cognitive disabilities, we allow States to request an 
exception to exceed the 1.0 percent cap if they can demonstrate that 
there are exceptional circumstances in their State that would account 
for higher numbers of students with the most significant cognitive 
disabilities. However, with the proposed modified achievement standards 
and a 2.0 percent cap, we do not believe it is necessary for States to 
exceed the 1.0 percent cap. The vast majority of students with 
disabilities can, and should, be assessed based on grade-level 
achievement standards and, therefore, we believe it is not necessary or 
appropriate at the State level for the proficient and advanced scores 
of more than 3.0 percent of students who are assessed based on 
alternate or modified achievement standards to count in AYP 
determinations. We recognize, however, that there may still be 
significant local variation in the number of students with the most 
significant cognitive disabilities, and that is why we are proposing to 
allow States to continue granting LEAs exceptions to the 1.0 percent 
cap on proficient scores based on alternate achievement standards.
    We know that it may be difficult to distinguish with absolute 
precision between the achievement levels of the two groups of students 
(students taking assessments based on modified achievement standards 
and students taking an alternate assessment based on alternate 
achievement standards). Therefore, the proposed regulations would 
permit States and LEAs to include proficient and advanced scores based 
on modified achievement standards in excess of 2.0 percent, if the 
State's or LEA's proficient and advanced scores on alternate 
assessments based on alternate achievement standards are less than 1.0 
percent of the students assessed, and so long as the total number of 
proficient and advanced scores based on modified and alternate 
standards does not exceed 3.0 percent. No exception is needed in this 
instance.
    We would like to underscore that the decision about which 
achievement standards to use when evaluating the achievement of a 
student with disabilities is an individual determination made by the 
IEP team, following the State guidelines. The Department expects that 
there will be States that will assess fewer than 1.0 percent of their 
students based on alternate achievement standards or fewer than 2.0 
percent based on modified achievement standards.

Section 200.20 Making Adequate Yearly Progress

    Statute: Under Section 1111(b)(2)(I) of Title I, a school or LEA 
makes AYP if each group of students described in section 
1111(b)(2)(C)(v) of the statute meets or exceeds the State's annual 
measurable objectives in reading/language arts and mathematics, 
separately; not less than 95 percent of the students in each group 
participates in the State assessments required in section 1111(b)(3); 
and the school or LEA as a whole meets the other academic indicators 
selected by the State. If students in any group do not meet the State's 
annual measurable objectives, a school or LEA makes AYP if the 
percentage of students in that group who are not proficient decreased 
by 10 percent from the preceding school year and the group made 
progress on one or more of the State's other academic indicators. 
Section 1111(b)(2)(J) of Title I permits a State, in determining 
whether schools or LEAs are making AYP, to establish a uniform 
procedure for averaging data from one school year with data from one or 
two preceding school years, and to average data across grades in the 
school or LEA. If a State wishes to use a uniform averaging procedure, 
it is not required to include the new NCLB assessments in its annual 
AYP decisions until the State has acquired two or three years of data 
from those assessments.
    Current regulations: Section 200.20 of the Title I regulations 
implements these statutory provisions. In addition, with respect to any 
student who takes the State assessment for a particular subject or 
grade level more than once, Sec.  200.20(c)(3) requires a State to use 
the student's results from the first administration of the assessment 
to determine AYP.
    Proposed regulations: Proposed Sec.  200.20 would make several 
significant changes. First, current Sec.  200.20(c)(3), which requires 
a State to use the student's results from the first administration of 
the State assessment to determine AYP, would be removed. With this 
removal, a State could administer its State assessments to a student 
more than once and include the student's best score in determining AYP. 
This practice, however, could not result in delaying the State's 
ability to make timely AYP determinations.
    Second, proposed Sec.  200.20(c)(3) would make clear that, to count 
a student who is assessed based on alternate or modified achievement 
standards as a participant for purposes of meeting the 95 percent 
participation requirement, a State must have guidelines for IEP teams 
to use to determine appropriately which students should participate in 
assessments based on alternate or modified achievement standards in 
accordance with proposed Sec.  200.1(f). If a State does not have 
guidelines or those guidelines do not meet the requirements in Sec.  
200.1(f), students inappropriately assessed based on alternate or 
modified achievement standards would be considered non-participants for 
purposes of calculating participation rates.
    Third, proposed Sec.  200.20(f) would be added to provide 
additional flexibility in calculating AYP for the students with 
disabilities subgroup. Under this proposed section, a State would be 
able to include, for a period of up to two

[[Page 74631]]

years, the scores of students who were previously identified with a 
disability under section 602(3) of the IDEA, but who have exited from 
special education services. In addition, if a State includes the scores 
of these students in AYP, the State would not be required to include 
those students in the students with disabilities subgroup in 
determining if the number of students with disabilities is sufficient 
to yield statistically reliable information under Sec.  200.7(a). As 
indicated in proposed Sec.  200.20(f)(3), for the purpose of reporting 
information on report cards under section 1111(h) of the ESEA, a State 
and its LEAs would be able to include the scores of former students 
with disabilities as part of the students with disabilities subgroup 
for the purpose of reporting AYP, but would not be able to include the 
scores of former students with disabilities as part of the students 
with disabilities subgroup in reporting any other information under 
section 1111(h) of the ESEA.
    Reasons: The Secretary proposes to remove current Sec.  
200.20(c)(3), which requires a State to use a student's results from 
the first administration of the State assessment to determine AYP, 
because the Secretary believes that it is possible to grant flexibility 
to States to determine which score to count in AYP determinations 
without compromising the integrity of the State accountability system 
or the timing of AYP decisions. Since the publication of this 
regulation on December 2, 2002, the Secretary has learned from several 
States that they wish to administer their assessments to students more 
than once during the school year for differing reasons. For example, 
one State is required by law to offer multiple opportunities to 
students to take and pass the State-mandated graduation exam. In taking 
advantage of this flexibility, we emphasize that States should take 
care not to establish an administrative schedule in which students are 
repeatedly taking the State assessment in order to improve their 
scores.
    Proposed Sec.  200.20(c)(3) clarifies that, to consider a student 
as a participant for AYP purposes under the State accountability 
system, the student must be assessed with assessments that meet the 
requirements of section 1111 of Title I of the ESEA and the Title I 
regulations. That is, the student must be assessed based on grade-level 
achievement standards unless the student qualifies under Sec.  200.1(d) 
or proposed Sec.  200.1(e)(2) to be assessed based on alternate or 
modified achievement standards, respectively. To determine which 
students qualify to be assessed based on alternate or modified 
standards, each State must have guidelines that meet the requirements 
of Sec.  200.1(f)(1) to instruct its IEP teams. The current Title I 
regulations permit only students with the most significant cognitive 
disabilities to be assessed based on alternate achievement standards. 
These regulations propose to permit a second group of students with 
disabilities to be assessed using modified achievement standards. 
However, both current and proposed regulations make clear that only 
certain students may be appropriately assessed based on either 
standard. Therefore, if a State has IEP team guidelines in place that 
permit the use of alternate achievement standards for students without 
the most significant cognitive disabilities, or if the guidelines are 
used to determine that modified achievement standards are appropriate 
for students who do not meet the requirements of proposed Sec.  
200.1(e)(2), those students would not be considered participants when 
determining whether the 95 percent participation requirement has been 
met. For example, if a State decides to measure the performance of a 
population of students based on modified achievement standards that is 
broader than the group of students described in proposed Sec.  
200.1(e)(2), only those students who meet the criteria under proposed 
Sec.  200.1(e)(2) would be considered participants for AYP purposes.
    The proposed amendments to Sec.  200.20(f) would allow a State, in 
determining AYP for the students with disabilities subgroup, to include 
in that subgroup any student tested in the current year who had exited 
special education within the prior two-year period. Students are 
identified as a student with a disability based on two factors: first, 
that they have a disability, as defined under the IDEA; and second, 
that they need special education and related services. Educators and 
parents consider it a success when students succeed to such an extent 
that special education services are no longer needed. Because students 
with disabilities exit this subgroup once special education services 
are no longer needed, school assessment results for that subgroup do 
not reflect the gains that these students with disabilities have made 
in academic achievement or the work that schools and teachers have done 
to achieve this success. Recognizing this, the proposed regulations 
would allow a State, for purposes of making AYP determinations, to 
include the scores of students previously identified as students with 
disabilities within the subgroup for up to two years after they no 
longer receive IDEA services. States may not include the scores of 
these students for reporting purposes under Section 1111(h) apart from 
AYP, because it is very important to have information about the 
achievement of students with disabilities who are currently receiving 
services under the IDEA.
    Finally, to further ensure a coordinated administration of Title I 
and IDEA, we proposed to define in Sec.  200.103 student with a 
disability to mean child with a disability as defined in section 602(3) 
of the IDEA.

Part 300

Section 300.160 Participation in Assessments

    Statute: Under section 612(a)(16) of the IDEA, a State must ensure 
that all children with disabilities are included in all general State 
and district-wide assessments with appropriate accommodations and 
alternate assessments, if necessary, as indicated in their respective 
IEPs. The State (or LEA, for district-wide assessments) must develop 
guidelines for the provision of appropriate accommodations and must 
develop and implement guidelines for the participation of children with 
disabilities in alternate assessments for those children who cannot 
participate in the regular assessments, even with accommodations, as 
indicated in their IEPs. A State's alternate assessment guidelines must 
provide for alternate assessments that are aligned with the State's 
challenging academic content and achievement standards and, if the 
State has adopted alternate academic achievement standards permitted 
under the Title I regulations, measure the achievement of children with 
disabilities against those standards.
    The State (or LEA, for a district-wide assessment) must make 
available to the public data on the participation of children with 
disabilities and report to the public, with the same frequency and 
detail as it reports on the assessment of nondisabled children,
     The number of children with disabilities participating in 
regular assessments, and the number of those children who were provided 
accommodations to participate in the regular assessment,
     The number of children with disabilities participating in 
alternate assessments based on grade-level academic achievement 
standards, and
     The number of children with disabilities participating in 
alternate assessments based on alternate academic achievement 
standards.

[[Page 74632]]

    A State must also report on the performance of children with 
disabilities on regular assessments and on alternate assessments, 
compared to the achievement of all children.
    Reporting on performance is not required if the number of children 
with disabilities is not sufficient to yield statistically reliable 
information or if reporting that information would reveal personally 
identifiable information. The State (or LEA, in the case of a district-
wide assessment) must, to the extent feasible, use universal design 
principles in developing and administering any State or district-wide 
assessments.
    Current regulations: On June 21, 2005, we issued a notice of 
proposed rulemaking (NPRM) to implement section 612 and other 
provisions of the IDEA, as recently amended and authorized by the 
Individuals with Disabilities Education Improvement Act of 2004, Pub. 
L. No. 108-446. The IDEA NPRM included proposed language in Sec.  
300.160, that would implement the provisions of section 612(a)(16) of 
the IDEA regarding assessments, and we indicated in the preamble to the 
IDEA NPRM that proposed Sec.  300.160 would replace Sec. Sec.  300.138 
and 300.139 of the current regulations. The language we propose in this 
notice would supercede the language we proposed in the IDEA NPRM.
    Proposed regulations: Proposed Sec.  300.160(a) and (b)(1) would 
incorporate the statutory requirements regarding the participation of 
children with disabilities in State and district-wide assessments and 
the development of guidelines for the provision of appropriate 
accommodations. Proposed Sec.  300.160(b)(2) would require that State 
(or, in the case of a district-wide assessment, LEA) guidelines require 
that each child be validly assessed and identify any accommodations 
that would result in an invalid score. Consistent with the changes to 
the Title I regulations regarding modified achievement standards, 
proposed Sec.  300.160(c) would require that States that have adopted 
modified academic achievement standards as permitted under the Title I 
regulations have guidelines for the participation of children with 
disabilities in assessments based on those modified achievement 
standards. Proposed Sec.  300.160(d) would incorporate the statutory 
requirements regarding alternate assessment guidelines and requirements 
for conducting alternate assessments. It also would clarify that the 
requirements for alternate assessments aligned to challenging academic 
content standards and academic achievement standards and alternate 
assessments based on alternate academic achievement standards apply 
only to assessments of student academic progress under Title I of the 
ESEA.
    Proposed Sec.  300.160(e) would incorporate the statutory 
requirements regarding reporting on assessments, would clarify in 
proposed Sec.  300.160(e)(1) that reports must include only the number 
of children provided accommodations that did not invalidate the score, 
and would add a requirement, in proposed Sec.  300.160(e)(4), that 
States (or LEAs, in the case of district-wide assessments) also must 
report on the number of children with disabilities who are assessed 
based on modified academic achievement standards. Proposed Sec.  
300.160(f) would adopt the statutory requirement regarding use of 
universal design principles in developing and administering 
assessments. We are also proposing to revise the auth