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, 17748-17781 [07-1700]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 72, Number 67 (Monday, April 9, 2007)]
[Rules and Regulations]
[Pages 17748-17781]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-1700]



[[Page 17747]]

-----------------------------------------------------------------------

Part IV





Department of Education





-----------------------------------------------------------------------



34 CFR Parts 200 and 300



Title I--Improving the Academic Achievement of the Disadvantaged; 
Individuals With Disabilities Education Act (IDEA); Final Rule

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

[[Page 17748]]


-----------------------------------------------------------------------

DEPARTMENT OF EDUCATION

34 CFR Parts 200 and 300

RIN 1810-AA98


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

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

ACTION: Final regulations.

-----------------------------------------------------------------------

SUMMARY: The Secretary amends the regulations governing programs 
administered under Title I of the Elementary and Secondary Education 
Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001 
(NCLB) (referred to in these regulations as the Title I program) and 
the regulations governing programs under Part B of the Individuals with 
Disabilities Education Act (IDEA) (referred to in these regulations as 
the IDEA program). These regulations provide States with additional 
flexibility regarding State, local educational agency (LEA), and school 
accountability for the achievement of a small group of students with 
disabilities whose progress is such that, even after receiving 
appropriate instruction, including special education and related 
services designed to address the students' individual needs, the 
students' individualized education program (IEP) teams (IEP Teams) are 
reasonably certain that the students will not achieve grade-level 
proficiency within the year covered by the students' IEPs.

DATES: These regulations are effective May 9, 2007.

FOR FURTHER INFORMATION CONTACT: Regarding Part 200, Jacquelyn C. 
Jackson, Ed.D., Director, Student Achievement and School Accountability 
Programs, Office of Elementary and Secondary Education, U.S. Department 
of Education, 400 Maryland Avenue, SW., room 3W202, FB-6, Washington, 
DC 20202-6132. Telephone: (202) 260-0826. Regarding Part 300, Alexa 
Posny, Ph.D., Director, Office of Special Education Programs, Office of 
Special Education and Rehabilitative Services, U.S. Department of 
Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC 
20202-2641. Telephone: (202) 245-7459, Ext. 3.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to one of the contact persons listed in the 
preceding paragraph.

SUPPLEMENTARY INFORMATION: These regulations amend regulations in 34 
CFR part 200, implementing certain provisions of Title I, Part A of the 
ESEA, as amended by NCLB, which are designed to help disadvantaged 
children meet high academic standards. They also amend regulations in 
34 CFR part 300, implementing programs for students with disabilities 
under Part B of the IDEA. On December 15, 2005, the Secretary published 
a notice of proposed rulemaking (NPRM) for these programs in the 
Federal Register (70 FR 74624).
    These regulations build upon flexibility that currently is 
available under the Title I regulations in 34 CFR part 200 for 
measuring the achievement of students with the most significant 
cognitive disabilities. Those Title I regulations permit a State to 
develop alternate academic achievement standards for students with the 
most significant cognitive disabilities and to include those students' 
proficient and advanced scores on alternate assessments based on 
alternate academic achievement standards in measuring adequate yearly 
progress (AYP), subject to a cap of 1.0 percent of all students 
assessed at the State and district levels. Since those regulations were 
published, the experiences of many States, as well as recent research, 
indicate that in addition to students with the most significant 
cognitive disabilities, there is a small group of students whose 
disability has precluded them from achieving grade-level proficiency 
and whose progress is such that they will not reach grade-level 
achievement standards in the same time frame as other students. 
Currently, these students must take either a grade-level assessment or 
an alternate assessment based on alternate academic achievement 
standards. Neither of these options provides an accurate assessment of 
what these students know and can do. A grade-level assessment is too 
difficult and, therefore, does not provide data about a student's 
abilities or information that would be helpful to guide instruction. An 
alternate assessment based on alternate academic achievement standards 
is too easy and is not intended to assess a student's achievement 
across the full range of grade-level content. Such an assessment, 
therefore, would not provide teachers and parents with information to 
help these students progress toward grade-level achievement.
    These regulations permit States to develop an assessment that is 
appropriately challenging for this group of students as part of their 
State accountability and assessment systems under Title I of the ESEA, 
as amended by NCLB. This assessment is based on modified academic 
achievement standards that cover grade-level content. The requirement 
that modified academic achievement standards be aligned with grade-
level content standards is important--in order for these students to 
have an opportunity to achieve at grade level, they must have access 
to, and instruction in, grade-level content. The regulations include a 
number of safeguards to ensure that students assessed based on modified 
academic achievement standards have access to grade-level content so 
that they can work toward grade-level achievement, such as the 
requirement that their IEPs include goals that are based on grade-level 
content standards and provide for monitoring of the students' progress 
in achieving those goals. In addition to ensuring that students with 
disabilities are appropriately assessed, these regulations also will 
give teachers and schools credit for the work that they do with these 
students to help them progress toward grade-level achievement.

Major Concepts Regarding Modified Academic Achievement Standards in 
These Regulations

    What are modified academic achievement standards? The NPRM 
described modified academic achievement standards as academic 
achievement standards aligned with grade-level content standards, but 
modified in such a manner that they reflect reduced breadth or depth of 
grade-level content. Based on the comments we received, it was clear 
that this language was confusing and did not sufficiently convey our 
intent that only the academic achievement standards for students are to 
be modified, not the content standards on which those modified academic 
achievement standards are based. The final regulations make clear that 
modified academic achievement standards are challenging for eligible 
students, but are a less rigorous expectation of mastery of grade-level 
academic content standards. Notably, modified academic achievement 
standards must be based on a State's grade-level academic content 
standards for the grade in which an eligible student with disabilities 
is

[[Page 17749]]

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

[[Page 17750]]

academic achievement standards may be included in calculating AYP.
    What assessments measure performance based on modified academic 
achievement standards? Because a student eligible to be assessed based 
on modified academic achievement standards must have access to a 
curriculum based on the State's academic content standards for the 
grade in which the student is enrolled, that student must be assessed 
with a measure that is also based on those same grade-level academic 
content standards, although the assessment may be less difficult than 
the State's regular assessment. An out-of-level assessment cannot be 
used as an alternate assessment based on modified academic achievement 
standards because, by definition, an out-of-level assessment does not 
cover the same content as an assessment based on grade-level academic 
content standards.
    The final regulations in Sec.  200.6(a)(3) make clear that a State 
may develop a new alternate assessment based on modified academic 
achievement standards or adapt its general assessment. Consistent with 
Sec.  200.6(a)(3)(ii), an alternate assessment based on modified 
academic achievement standards must cover the same grade-level content 
as the regular assessment. Beyond this essential requirement, a State 
may employ a variety of strategies to design an alternate assessment 
based on modified academic achievement standards. For example, it might 
replace the most difficult items on a State's general assessment with 
simpler items while retaining coverage of the State's academic content 
standards or modify the same items that appear on the grade-level 
assessment by eliminating one of the incorrect answers in a multiple 
choice test. Alternatively, a State might choose to develop a unique 
assessment based on grade-level academic content standards that 
provides flexibility in the presentation of test items, for example, by 
using technology to allow students to access items via print, spoken, 
and pictorial form. Or States may permit students to respond to test 
items by dictating responses or using mathematics manipulatives to 
illustrate conceptual or procedural knowledge. Regardless of whether a 
State chooses to construct a unique assessment or to adapt its general 
assessment, any alternate assessment based on modified academic 
achievement standards must meet the requirements for high technical 
quality set forth in Sec. Sec.  200.2(b) and 200.3(a)(1) (including 
validity, reliability, accessibility, objectivity, and consistency with 
nationally recognized professional and technical standards) and be 
based on modified academic achievement standards that have been 
developed through a documented and validated standards-setting process 
that includes broad stakeholder input, consistent with new Sec.  
200.1(e)(1)(iv).

Other Provisions Addressed in These Regulations

    These regulations also finalize several other provisions under 
Title I and the IDEA that were proposed in the NPRM, including the 
following:
    Minimum group size. The final Title I regulations in Sec.  
200.7(a)(2)(ii) prohibit a State, beginning in the 2007-08 school year, 
from establishing a different minimum number (group size or ``n size'') 
of students across the required AYP subgroups for purposes of 
calculating AYP. This requirement applies to all States, not just those 
that choose to develop and administer an alternate assessment based on 
modified academic achievement standards.
    Multiple test administrations. With the removal of current Sec.  
200.20(c)(3), States will now be permitted to administer their State 
assessments (including regular and alternate assessments) more than 
once and include the student's best score in determining AYP.
    Guidelines for IEP Teams. Title I requires a State to administer 
assessments that are valid and reliable for the purposes for which they 
are used. Accordingly, students, including students with disabilities, 
who are assessed with assessments that are not valid and reliable are 
not ``participants'' for purposes of calculating participation rates in 
determining AYP. The final IDEA regulations that are included in these 
regulations provide that a State's (or in the case of district-wide 
assessments, an LEA's) guidelines require each child to be validly 
assessed and identify, for each assessment, any accommodations that 
would result in an invalid score. Consistent with Title I, a student 
with disabilities must receive a valid score in order to be counted as 
a participant under the IDEA.
    The final Title I regulations in Sec.  200.1(f) place 
responsibility on a State to develop guidelines for IEP Teams and in 
new Sec.  200.20(c)(3) make clear that, to count a student who is 
assessed based on alternate or modified academic achievement standards 
as a participant for purposes of meeting the 95 percent assessment 
participation requirement, a State must have guidelines for IEP Teams 
to use to determine appropriately which students should participate in 
alternate assessments based on alternate or modified academic 
achievement standards that meet the requirements of these regulations.
    Former students with disabilities. The final regulations in Sec.  
200.20(f)(2) provide additional flexibility in calculating AYP for the 
students with disabilities subgroup. Under the final regulations, a 
State may include, for a period of up to two years, the scores of 
students who were previously identified with a disability under the 
IDEA but who no longer receive special education services. A State, 
however, would not be able to include the scores of former students 
with disabilities as part of the students with disabilities subgroup in 
reporting any other information (e.g., participation rates) under Title 
I.
    Assessment of students with disabilities under the IDEA. To ensure 
a coordinated administration of the IDEA and Title I programs, the 
final IDEA regulations on assessment in Sec.  300.160, which are 
included in this regulations package, incorporate provisions regarding 
modified academic achievement standards that are consistent with the 
changes to the regulations under Title I of the ESEA. In addition, the 
final IDEA regulations provide that a State's (or in the case of a 
district-wide assessment, an LEA's) guidelines must require each child 
to be validly assessed and must identify, for each assessment, 
accommodations that would result in an invalid score. Consistent with 
Title I, these final regulations also provide in Sec.  300.160(f)(1) 
that a student taking an assessment with an accommodation that 
invalidates the score would not be reported as a participant under the 
IDEA. This coordination of the regulations for the IDEA and Title I 
programs should avoid confusion among parents, teachers, and 
administrators, and reinforce IDEA's and Title I's shared goal of high 
expectations and accountability for all students.

Major Changes in the Regulations

    The following is a summary of the major substantive changes in 
these final regulations from the regulations proposed in the NRPM (the 
rationale for each of these changes is discussed in the Analysis of 
Comments and Changes section elsewhere in this preamble).

PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE 
DISADVANTAGED

State Responsibilities for Developing Challenging Academic Standards 
(Sec.  200.1(a))

     Section 200.1(a)(1) and (a)(2) have been revised to 
clarify that the same

[[Page 17751]]

academic content standards apply to all public schools and all public 
school students and that the authority to develop alternate and 
modified academic achievement standards for eligible students with 
disabilities does not apply to academic content standards. Proposed 
paragraph (b)(1)(i) is redundant with these changes and has been 
removed.

Modified Academic Achievement Standards (Sec.  200.1(e))

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

State Guidelines (Sec.  200.1(f))

     Proposed Sec.  200.1(f), regarding the requirements for 
State guidelines, has been restructured into new paragraphs (f)(1) and 
(f)(2). New paragraph (f)(1) includes the requirements for State 
guidelines for students who are assessed based on either alternate or 
modified academic achievement standards. New paragraph (f)(2) includes 
additional requirements for State guidelines for students who are 
assessed based on modified academic achievement standards.
     Proposed Sec.  200.1(f)(1), which would have required a 
State to establish and ensure implementation of clear and appropriate 
guidelines for IEP Teams to determine if students are to be assessed 
based on alternate or modified academic achievement standards, has been 
expanded to require a State to establish and monitor implementation of 
clear and appropriate guidelines for IEP Teams. Proposed Sec. Sec.  
200.1(f)(1) and 200.1(f)(1)(i) have been redesignated as new Sec. Sec.  
200.1(f)(1)(i) and 200.1(f)(1)(i)(A), respectively.
     Proposed Sec.  200.1(f)(1)(ii), which requires a State to 
establish guidelines for IEP Teams to use in determining if students 
are to be assessed based on modified academic achievement standards, 
has been revised to clarify that students may be assessed based on 
modified academic achievement standards in one or more of the subjects 
tested under Title I. Proposed Sec.  200.1(f)(1)(ii) has been 
redesignated as new Sec.  200.1(f)(1)(i)(B).
     A new Sec.  200.1(f)(1)(ii) has been added to require a 
State to inform IEP Teams that students eligible to be

[[Page 17752]]

assessed based on alternate or modified academic achievement standards 
may be from any of the disability categories listed in the IDEA.
     A new Sec.  200.1(f)(1)(iii) has been added to require a 
State to provide IEP Teams with a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on modified or alternate academic achievement 
standards, including any effects of State and local policies on a 
student's education resulting from taking an alternate assessment based 
on alternate or modified academic achievement standards (such as 
whether only satisfactory performance on a regular assessment would 
qualify a student for a regular high school diploma).
     Proposed Sec.  200.1(f)(2), which would have required that 
parents of a student selected to be assessed based on alternate or 
modified academic achievement standards are informed that their child's 
achievement will be measured based on alternate or modified academic 
achievement standards, has been redesignated as Sec.  200.1(f)(1)(iv).
     A new Sec.  200.1(f)(2), regarding requirements for State 
guidelines for a student who is assessed based on modified academic 
achievement standards, has been added and includes the following:
    (1) New paragraph (f)(2)(i) in Sec.  200.1 requires a State to 
inform IEP Teams that a student may be assessed based on modified 
academic achievement standards in one or more subjects for which 
assessments are administered under Title I.
    (2) New paragraph (f)(2)(ii) in Sec.  200.1 requires a State to 
establish and monitor the implementation of clear and appropriate 
guidelines for an IEP Team to apply in developing and implementing an 
IEP for a student who is assessed based on modified academic 
achievement standards. New paragraph (f)(2)(ii)(A) and (B) requires 
that the IEP of a student assessed based on modified academic 
achievement standards include IEP goals that are based on the academic 
content standards for the grade in which the student is enrolled, and 
be designed to monitor the student's progress in achieving the 
student's standards-based goals.
    (3) New paragraph (f)(2)(iii) in Sec.  200.1 requires a State to 
ensure that a student who is assessed based on modified academic 
achievement standards has access to the curriculum, including 
instruction, for the grade in which the student is enrolled.
    (4) New paragraph (f)(2)(iv) in Sec.  200.1 requires a State to 
ensure that a student who takes an alternate assessment based on 
modified academic achievement standards is not precluded from 
attempting to complete the requirements, as defined by the State, for a 
regular high school diploma.
    (5) New paragraph (f)(2)(v) in Sec.  200.1 ensures that each IEP 
Team reviews annually for each subject its decision to assess a student 
based on modified academic achievement standards.

Inclusion of All Students (Sec.  200.6)

     Section 200.6(a)(1)(ii)(A) has been revised to clarify 
that a State must develop, disseminate information on, and promote the 
use of appropriate accommodations to increase the number of students 
who are tested against academic achievement standards for the grade in 
which a student is enrolled.
     Section 200.6(a)(2)(iii), which requires a State to 
document that a student with the most significant cognitive 
disabilities is, to the maximum extent possible, included in the 
general curriculum, has been changed by deleting the word ``maximum.''
     Section 200.6(a)(3), regarding alternate assessments based 
on modified academic achievement standards, has been revised as 
follows:
    (1) The heading in Sec.  200.6(a)(3) has been changed to clarify 
that an assessment based on modified academic achievement standards is 
an ``alternate'' assessment.
    (2) Section 200.6(a)(3) has been revised by removing the regulatory 
references to grade-level assessments and alternate assessments.
    (3) A new Sec.  200.6(a)(3)(i) has been added to clarify that a 
State may develop a new alternate assessment or adapt a grade-level 
assessment to assess a student based on modified academic achievement 
standards.
    (4) A new Sec.  200.6(a)(3)(ii) has been added to include the 
requirements for alternate assessments based on modified academic 
achievement standards. Proposed Sec.  200.6(a)(3)(i) through 
(a)(3)(iv), which included the requirements for alternate assessments 
based on modified academic achievement standards, has been redesignated 
as new Sec.  200.6(a)(3)(ii)(A) through (a)(3)(ii)(D).
     Section 200.6(a)(4), regarding the reporting requirements 
under section 1111(h)(4) of Title I, has been changed by redesignating 
(A) proposed paragraph (a)(4)(iv), regarding alternate assessments 
based on grade-level academic achievement standards, as new paragraph 
(a)(4)(iii); and (B) proposed paragraph (a)(4)(iii), regarding 
alternate assessments based on modified academic achievement standards, 
as new paragraph (a)(4)(iv). In addition, ``to the Secretary'' has been 
added to the introductory sentence in Sec.  200.6(a)(4) to clarify to 
whom States must report the data collected under section 1111(h)(4) of 
the Act.

Disaggregation of Data (Sec.  200.7)

     Section 200.7(a)(ii), providing that a State may not 
establish a different minimum number of students for separate 
subgroups, has been revised by clarifying that this provision also 
applies to the school as a whole. In addition, the final regulations 
make clear that this provision takes effect for AYP determinations 
based on 2007-08 assessment data.

Making Adequate Yearly Progress (Sec.  200.20(f))

     Proposed Sec.  200.20(f)(1), which permits a State to 
include, for a period of up to two years, the scores of students who 
were previously identified with a disability in AYP calculations, has 
been incorporated into current Sec.  200.20(f)(2), which codifies the 
final regulations on accountability for former limited English 
proficient (LEP) students published in the Federal Register on 
September 13, 2006 (71 FR 54187).
     Proposed Sec.  200.20(f)(2) has been changed to clarify 
that if a State includes the scores of former students with 
disabilities in calculating AYP, it must include the scores of all such 
students. Proposed Sec.  200.20(f)(2) has been incorporated into new 
Sec.  200.20(f)(2)(ii).

Transition Provision Regarding Modified Academic Achievement Standards 
(Sec.  200.20(g))

     A new Sec.  200.20(g) has been added to make explicit that 
the Secretary may provide States flexibility in accounting for the 
achievement of some students with disabilities in AYP determinations 
that are based on assessments administered in 2007-08 and 2008-09. 
States must demonstrate, for each year for which flexibility is 
available, that they are expeditiously moving to adopt and administer 
assessments based on modified academic achievement standards consistent 
with these regulations and meet other criteria, as the Secretary 
determines appropriate, in order to be considered for this flexibility.

[[Page 17753]]

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH 
DISABILTIES

Participation in Assessments (Sec.  300.160)

     Section 300.160(b)(2), regarding accommodation guidelines 
that a State must develop, has been revised to clarify that the State 
guidelines must (A) identify the accommodations for each assessment 
that do not invalidate the score; and (B) instruct IEP Teams to select, 
for each assessment, only those accommodations that do not invalidate 
the score.
     Proposed Sec.  300.160(c), which would have required a 
State that has adopted modified academic achievement standards to have 
guidelines for the participation of students with disabilities in 
assessments based on those standards, has been removed. With the 
clarification in Sec.  200.6(a)(3) that assessments based on modified 
academic achievement standards are alternate assessments, proposed 
Sec.  300.160(c) is redundant with new Sec.  300.160(c) (proposed Sec.  
300.160(d)).
     Proposed Sec.  300.160(d)(1), which requires a State (or 
in the case of a district-wide assessment, an LEA) to develop and 
implement alternate assessments and guidelines for children who cannot 
participate in regular assessments, even with accommodations, has been 
redesignated as new Sec.  300.160(c)(1).
     Proposed Sec.  300.160(d)(2)(ii), which would have 
required a State to measure the achievement of children based on 
alternate academic achievement standards if a State has adopted those 
standards, has been changed by replacing ``alternate academic 
achievement standards'' with ``modified academic achievement 
standards,'' and clarifying that modified academic achievement 
standards are permitted for children who meet the State's criteria 
under Sec.  200.1(e)(2). Proposed Sec.  300.160(d)(2)(ii) has been 
redesignated as Sec.  300.160(c)(2)(ii).
     A new Sec.  300.160(c)(2)(iii) has been added, providing 
that, if a State has adopted alternate academic achievement standards, 
the State must measure the achievement of children with the most 
significant cognitive disabilities against those standards.
     A new paragraph (d) has been added, requiring a State to 
provide IEP Teams with a clear explanation of the differences between 
assessments based on grade-level academic achievement standards and 
those based on modified or alternate academic achievement standards, 
including any effects of State or local policies on the student's 
education resulting from taking an alternate assessment based on 
alternate or modified academic achievement standards (such as whether 
only satisfactory performance on a regular assessment would qualify a 
student for a regular high school diploma).
     A new paragraph (e) has been added, requiring a State to 
ensure that parents of a student selected to be assessed based on 
alternate or modified academic achievement standards are informed that 
their child's achievement will be measured based on alternate or 
modified academic achievement standards.
     Proposed Sec.  300.160(e), regarding reports on the 
assessment of students with disabilities, has been redesignated as 
Sec.  300.160(f) and changed as follows:
    (1) Proposed paragraph (e)(1) in Sec.  300.160, which requires a 
State to report on the number of children with disabilities 
participating in regular assessments, and the number of those children 
who were provided accommodations that did not result in an invalid 
score, has been redesignated as Sec.  300.160(f)(1).
    (2) Proposed paragraph (e)(2) in Sec.  300.160 has been 
redesignated as Sec.  300.160(f)(2) and revised to require a State to 
report on the number of children participating in alternate assessments 
based on grade-level academic achievement standards.
    (3) Proposed paragraph (e)(3) in Sec.  300.160, which requires a 
State to report on the number of children with disabilities who are 
assessed based on alternate academic achievement standards, has been 
changed to require a State to report on the number of children with 
disabilities, if any, who are assessed based on modified academic 
achievement standards. The regulatory reference to alternate 
assessments based on alternate academic achievement standards has been 
deleted and proposed Sec.  300.160(e)(3) has been redesignated as Sec.  
300.160(f)(3).
    (4) Proposed paragraph (e)(4) in Sec.  300.160, which requires a 
State to report on the number of children with disabilities who are 
assessed based on modified academic achievement standards, has been 
changed to require a State to report on the number of children with 
disabilities, if any, who are assessed based on alternate academic 
achievement standards. The regulatory reference to modified academic 
achievement standards has been deleted and proposed Sec.  300.160(e)(4) 
has been redesignated as Sec.  300.160(f)(4).
    (5) Proposed paragraph (e)(5) in Sec.  300.160, which required a 
State to report on the performance results of children with 
disabilities on regular assessments and on alternate assessments, has 
been clarified by specifically identifying alternate assessments based 
on grade-level academic achievement standards; alternate assessments 
based on modified academic achievement standards; and alternate 
assessments based on alternate academic achievement standards. It also 
has been revised to require that performance results for children with 
disabilities be compared to the achievement of all students, including 
children with disabilities. Proposed Sec.  300.160(e)(5) has been 
redesignated as Sec.  300.160(f)(5).
     Proposed Sec.  300.160(f), regarding universal design, has 
been redesignated as Sec.  300.160(g).

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, more than 
300 parties submitted comments on the proposed regulations, many of 
which were substantially similar. An analysis of the comments and 
changes in the regulations since publication of the NPRM follows.
    We discuss substantive issues under the sections of the regulations 
to which they pertain. Generally, we do not address technical or minor 
changes, and suggested changes that we are not authorized to make under 
the law. We also do not address comments on Title I or IDEA regulations 
that were not part of the NPRM published on December 15, 2005 (70 FR 
74624), such as comments concerning the regulations regarding alternate 
academic achievement standards.

Interim Flexibility

    Comment: Several commenters made recommendations regarding the 
Department's interim flexibility, which gave eligible States the 
flexibility to provide credit to schools or districts that missed AYP 
solely because of the achievement of the students with disabilities 
subgroup. Some commenters opposed this flexibility; most others 
suggested extending the flexibility until the final regulations on 
modified academic achievement standards are in effect or until States 
have had time to develop modified academic achievement standards and 
aligned alternate assessments. One commenter recommended that the 
interim flexibility be made permanent instead of the Department 
regulating to permit States to establish modified academic achievement 
standards. Finally, one commenter stated that offering interim 
flexibility prior to rulemaking violated

[[Page 17754]]

Title I negotiated rulemaking requirements.
    Discussion: The Department permitted States that expressed interest 
in developing modified academic achievement standards and assessments 
based on those standards to take advantage of interim flexibility while 
the Department drafted the proposed regulations. This flexibility was 
granted for the 2004-05 school year and then extended for a second year 
(2005-06) to cover the period of time when members of the public were 
commenting on the proposed regulations and while the Department 
developed the final regulations. The interim flexibility will be 
extended for the 2006-07 school year for States that can show evidence 
of a commitment to develop modified academic achievement standards.
    We believe that the flexibility to develop modified academic 
achievement standards provides a means to assess appropriately some 
students with disabilities and include them in State accountability 
systems. Therefore, we do not believe the interim flexibility should be 
used in lieu of setting modified academic achievement standards, as 
recommended by one commenter.
    We do not believe that offering interim flexibility prior to 
rulemaking violated negotiated rulemaking requirements. We understand 
the statutory requirements for negotiated rulemaking in section 1901 of 
the ESEA to apply to Title I standards and assessment regulations 
required to be implemented within one year of enactment of NCLB, not to 
subsequent regulatory amendments such as those included in these 
regulations.
    The Department recognizes that some States may need time beyond the 
2006-07 school year to develop and implement alternate assessments 
based on modified academic achievement standards. Therefore, we are 
adding a new Sec.  200.20(g) providing that the Secretary may give 
flexibility for two additional years (through the 2008-09 school year) 
to States that are developing alternate assessments based on modified 
academic achievement standards consistent with these regulations.
    Changes: We have added a new Sec.  200.20(g) specifying that the 
Secretary may provide a State that is moving expeditiously to adopt and 
administer alternate assessments based on modified academic achievement 
standards flexibility in accounting for the achievement of students 
with disabilities in AYP determinations that are based on assessments 
administered in school years 2007-08 and 2008-09. To be eligible for 
this flexibility, a State must meet criteria, as the Secretary 
determines appropriate, for each year for which the flexibility is 
available.

State Responsibilities for Developing Challenging Academic Standards 
(Sec.  200.1)

    Comment: A few commenters recommended revising Sec.  200.1(a)(1) to 
clarify when the regulation applies to academic content standards 
versus academic achievement standards. The commenters noted that the 
authority to develop modified and alternate academic achievement 
standards appears erroneously also to apply to academic content 
standards.
    Discussion: We agree that the regulation in Sec.  200.1(a)(1) 
should be more specific when referring to academic standards. 
Therefore, we have clarified that the same academic content standards 
apply to all public schools and all public school students in a State 
and that the authority to develop alternate academic achievement 
standards in paragraph (d) and modified academic achievement standards 
in paragraph (e) for eligible students with disabilities does not apply 
to academic content standards. We also have modified paragraph (a)(2) 
to be consistent with these changes. Section 200.1(b)(1)(i) is 
redundant with these changes and has been removed.
    Changes: We have made the following changes in Sec.  200.1(a)(1): 
(1) Added ``content and academic achievement'' before ``standards'; and 
(2) added ``which apply only to the State's academic achievement 
standards'' at the end of the sentence in paragraph (a)(1). Consistent 
with these changes, we have revised paragraph (a)(2) to read, ``Include 
the same knowledge and skills expected of all students and the same 
levels of achievement of all students, except as provided in paragraphs 
(d) and (e) of this section.'' We have removed Sec.  200.1(b)(1)(i).
    Modified Academic Achievement Standards (Sec.  200.1(e))
    Comment: Several commenters recommended that the regulations 
provide more detail on the essential components of the documented and 
validated standards-setting process required in Sec.  200.1(e)(1). 
These commenters stated that the process should include broad 
stakeholder input. One commenter requested that the regulations require 
a State to explain to the public how it proposes to change its content 
standards to coincide with modified academic achievement standards. A 
few commenters requested that the regulations specify the persons who 
should define the standards and participate in the standards-setting 
process, and include information about how parents and specialists 
should be involved.
    Discussion: We do not believe that it is necessary to include the 
details of a validated standards-setting process in these regulations 
because the field generally agrees that the process should be 
consistent with the standards for educational and psychological testing 
(1999).\1\ This process relies on both empirical data and the informed 
judgments of persons familiar with academic content as well as with the 
students with disabilities to be assessed. We agree with the commenters 
that the development of achievement standards typically benefits from 
broad stakeholder involvement to ensure consensus regarding the 
knowledge and skills essential for all students and have clarified this 
in the regulations. In response to the request to define who should be 
involved in the standards-setting process for modified academic 
achievement standards, we believe that the process should include 
persons who are knowledgeable about the State's academic content 
standards and experienced in standards setting, as well as special 
educators who are most knowledgeable about the academic abilities and 
achievement of students with disabilities, and we have added clarifying 
language in the regulations. We decline to comment on how parents and 
specialists should be involved in the process. These determinations are 
best left to State and local officials.
---------------------------------------------------------------------------

    \1\ AERA, APA, & NCME. (1999). (American Educational Research 
Association, American Psychological Association, & National Council 
on Measurement in Education) Joint Committee on Standards for 
Educational and Psychological Testing. Standards for educational and 
psychological testing. Washington, DC: AERA.
---------------------------------------------------------------------------

    With regard to the commenter who requested that the regulations 
require a State to explain to the public how it proposes to change its 
content standards to coincide with modified academic achievement 
standards, we note that a State that intends to develop modified 
academic achievement standards consistent with these regulations would 
not propose to change its academic content standards. As required in 
Sec.  200.1(e)(1), modified academic achievement standards must be 
aligned with the State's academic content standards.
    Changes: We have removed the phrase ``through a documented and 
validated standards-setting process'' in proposed Sec.  200.1(e)(1) and 
have added a new Sec.  200.1(e)(1)(iv) to require that modified 
academic achievement standards be developed through a

[[Page 17755]]

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

[[Page 17756]]

earning a regular high school diploma. Several commenters stated that 
it would be an intrusion into State graduation standards if a State was 
required to diminish its standards for a regular diploma to include 
students who are assessed on modified academic achievement standards.
    Discussion: The intent of proposed Sec.  200.1(e)(1)(iii) was not 
to require States to alter their graduation requirements or to provide 
a regular high school diploma to a student who scores proficient on an 
alternate assessment based on modified academic achievement standards. 
Rather, we wanted to ensure that a student is not automatically 
precluded from attempting to earn a regular high school diploma simply 
because the student was assessed based on modified academic achievement 
standards. For example, if a State requires students to pass a State 
graduation test in order to obtain a regular high school diploma, we 
did not want the fact that a student was assessed based on modified 
academic achievement standards to automatically prevent the student 
from attempting to pass the State's graduation test.
    An important requirement for modified academic achievement 
standards is that they be aligned with the State's grade-level academic 
content standards and provide access to grade-level curriculum. 
Therefore, we believe it is reasonable that students assessed based on 
modified academic achievement standards have the opportunity to attempt 
to earn a regular high school diploma. We recognize that proposed Sec.  
200.1(e)(1)(iii) could be misconstrued and, therefore, have changed the 
language to make clear that States may not prevent a student from 
attempting to complete the requirements, as defined by the State, for a 
regular high school diploma simply because the student participates in 
an alternate assessment based on modified academic achievement 
standards.
    Changes: Proposed Sec.  200.1(e)(1)(iii) has been removed. A new 
Sec.  200.1(f)(2)(iv) has been added to require a State to ensure that 
students who take alternate assessments based on modified academic 
achievement standards are not precluded from attempting to complete the 
requirements, as defined by the State, for a regular high school 
diploma.
    Comment: Many commenters requested additional guidance on the 
development of modified academic achievement standards. A few 
commenters requested guidance on addressing the technical issues 
regarding the development of modified academic achievement standards.
    Discussion: The Department recognizes the need to provide States 
with additional guidance on the development and implementation of 
modified academic achievement standards and will provide nonregulatory 
guidance, along with technical assistance and support to States on 
modified academic achievement standards following the release of these 
final regulations.
    Changes: None.

Criteria for Defining Eligible Students (Sec.  200.1(e)(2))

    Comment: Several commenters recommended that the regulations 
clearly state that a student's IEP Team is responsible for determining 
whether the student should be assessed based on modified academic 
achievement standards. One commenter added that LEAs should not be able 
to unilaterally change an IEP Team's decision. Many commenters 
recommended requiring that parents be included in this decision and 
informed in writing of any potential consequences of such decisions. 
Several commenters stated that the information should be provided to 
parents in the parent's native language and in language that is easily 
understandable.
    Discussion: We agree that it would be helpful to clarify that the 
State guidelines are for IEP Teams to use in determining which students 
with disabilities are eligible to be assessed based on modified 
academic achievement standards and have made this change in Sec.  
200.1(e)(2) and (e)(2)(ii)(A). Consistent with Sec.  200.1(f)(1)(i), 
States have an important role in providing clear and appropriate 
guidelines for IEP Teams to use in determining who will be assessed 
based on modified academic achievement standards and in monitoring the 
implementation of these guidelines by IEP Teams. We also agree that an 
LEA cannot unilaterally change an IEP Team's decision regarding whether 
a child will be assessed based on modified academic achievement 
standards. Section 300.320(a)(6), consistent with section 
614(d)(1)(A)(i)(VI) of the IDEA, already provides that it is the 
child's IEP Team, not the LEA, that is responsible for determining how 
the child will participate in State and dist