Improving the Academic Achievement of the Disadvantaged; Assistance to States for the Education of Children With Disabilities, 50773-50785 [2015-20736]
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Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations
8. Taking of Private Property
This rule will not cause a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
9. Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
10. Protection of Children
We have analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
does not create an environmental risk to
health or risk to safety that may
disproportionately affect children.
11. Indian Tribal Governments
This rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
12. Energy Effects
This action is not a ‘‘significant
energy action’’ under Executive Order
13211, Actions Concerning Regulations
That Significantly Affect Energy Supply,
Distribution, or Use.
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13. Technical Standards
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
14. Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guide the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have determined that this action is one
of a category of actions that do not
individually or cumulatively have a
significant effect on the human
environment. This rule involves a safety
zone. This rule is categorically excluded
from further review under paragraph
34(g) of Figure 2–1 of the Commandant
Instruction. An environmental analysis
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checklist and Categorical Exclusion
Determination was completed for 2015.
The environmental analysis checklist
and Categorical Exclusion
Determination are available in the
docket where indicated under
ADDRESSES. We seek any comments or
information that may lead to the
discovery of a significant environmental
impact from this rule.
List of Subjects in 33 CFR Part 165
Harbors, Marine safety, Navigation
(water), Reporting and recordkeeping
requirements, Security measures,
Waterways.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 165 as follows:
PART 165—REGULATED NAVIGATION
AREAS AND LIMITED ACCESS AREAS
1. The authority citation for part 165
continues to read as follows:
■
Authority: 33 U.S.C. 1226, 1231; 50 U.S.C.
191; 33 CFR 1.05–1, 6.04–1, 6.04–6, and
160.5; and Department of Homeland Security
Delegation No. 0170.1.
2. Add § 165.T07–0276 to read as
follows:
50773
remain within the regulated area may
contact the Captain of the Port
Charleston by telephone at (843) 740–
7050, or a designated representative via
VHF radio on channel 16, to request
authorization. If authorization to enter,
transit through, anchor in, or remain
within the regulated area is granted by
the Captain of the Port Charleston or a
designated representative, all persons
and vessels receiving such authorization
must comply with the instructions of
the Captain of the Port Charleston or a
designated representative.
(3) The Coast Guard will provide
notice of the regulated area by Local
Notice to Mariners, Broadcast Notice to
Mariners, and on-scene designated
representatives.
(d) Effective date. This rule is
effective on September 26, 2015 and
will be enforced from noon until 6 p.m.
Dated: August 3, 2015.
G. L. Tomasulo,
Captain, U.S. Coast Guard, Captain of the
Port Charleston.
[FR Doc. 2015–20737 Filed 8–20–15; 8:45 am]
BILLING CODE 9110–04–P
■
§ 165.T07–0276 Safety Zone, Swim Around
Charleston; Charleston, SC.
(a) Regulated area. The following
regulated area is a moving safety zone:
all waters within a 75-yard radius
around Swim Around Charleston
participant vessels that are officially
associated with the swim. The Swim
Around Charleston swimming race
consists of a 10-mile course that starts
at Remley’s Point on the Wando River
in approximate position 32°48′49″ N.,
79°54′27″ W., crosses the main shipping
channel of Charleston Harbor, and
finishes at the General William B.
Westmoreland Bridge on the Ashley
River in approximate position 32°50′14″
N., 80°01′23″ W. All coordinates are
North American Datum 1983.
(b) Definition. The term ‘‘designated
representative’’ means Coast Guard
Patrol Commanders, including Coast
Guard coxswains, petty officers, and
other officers operating Coast Guard
vessels, and Federal, state, and local
officers designated by or assisting the
Captain of the Port Charleston in the
enforcement of the regulated area.
(c) Regulations. (1) All persons and
vessels are prohibited from entering,
transiting through, anchoring in, or
remaining within the regulated area
unless authorized by the Captain of the
Port Charleston or a designated
representative.
(2) Persons and vessels desiring to
enter, transit through, anchor in, or
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DEPARTMENT OF EDUCATION
34 CFR Parts 200 and 300
RIN 1810–AB16
[Docket ID ED–2012–OESE–0018]
Improving the Academic Achievement
of the Disadvantaged; Assistance to
States for the Education of Children
With Disabilities
Office of Elementary and
Secondary Education, Office of Special
Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
AGENCY:
The Secretary amends the
regulations governing title I, Part A of
the Elementary and Secondary
Education Act of 1965, as amended
(ESEA) (the ‘‘Title I regulations’’), to no
longer authorize a State to define
modified academic achievement
standards and develop alternate
assessments based on those modified
academic achievement standards for
eligible students with disabilities. In
order to make conforming changes to
ensure coordinated administration of
programs under title I of the ESEA and
the Individuals with Disabilities
Education Act (IDEA), the Secretary is
also amending the regulations for Part B
of the IDEA. Note: Nothing in these
regulations changes the ability of States
to develop and administer alternate
assessments based on alternate
SUMMARY:
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academic achievement standards for
students with the most significant
cognitive disabilities or alternate
assessments based on grade-level
academic achievement standards for
other eligible students with disabilities
in accordance with the ESEA and the
IDEA, or changes the authority of IEP
teams to select among these alternate
assessments for eligible students.
DATES: These regulations are effective
September 21, 2015.
FOR FURTHER INFORMATION CONTACT: For
further information regarding the Title I
regulations, contact Monique M. Chism,
U.S. Department of Education, 400
Maryland Avenue SW., Room 3W224,
Washington, DC 20202–6132.
Telephone: (202) 260–0826.
For further information regarding the
IDEA regulations, contact Mary Louise
Dirrigl, U.S. Department of Education,
550 12th St. SW., Potomac Center Plaza,
Room 5156, Washington, DC 20202–
2641. Telephone: (202) 245–7324.
If you use a telecommunications
device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay
Service (FRS), toll free, at 1–800–877–
8339.
SUPPLEMENTARY INFORMATION:
Background
High standards and high expectations
for all students and an accountability
system that provides teachers, parents,
students, and the public with
information about students’ academic
progress are essential to ensure that
students graduate from high school
prepared for college and careers in the
21st century. In 2007, the Department
amended the Title I regulations to
permit States to define modified
academic achievement standards for
eligible students with disabilities and to
assess those students with alternate
assessments based on those modified
academic achievement standards. The
Department promulgated those
regulations based on the understanding
that (1) there was a small group of
students whose disabilities precluded
them from achieving grade-level
proficiency and whose progress was
such that they would not reach gradelevel achievement standards in the same
time frame as other students, and (2) the
regular State assessment would be too
difficult for this group of students and
the assessment based on alternate
academic achievement standards would
be too easy for them. 72 FR 17748 (Apr.
9, 2007). In addition, at that time, the
Department acknowledged that
measuring the academic achievement of
students with disabilities, particularly
those eligible to be assessed based on
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modified academic achievement
standards, was ‘‘an area in which there
is much to learn and improve’’ and
indicated that ‘‘[a]s data and research on
assessments for students with
disabilities improve, the Department
may decide to issue additional
regulations or guidance.’’ 72 FR 17748,
17763 (Apr. 9, 2007).
Since these regulations went into
effect, additional research 1 has
demonstrated that students with
disabilities who struggle in reading and
mathematics can successfully learn
grade-level content and make significant
academic progress when appropriate
instruction, services, and supports are
provided. For example, a research study
conducted a meta-analysis of 70
independent studies investigating the
effects of special education
interventions on student achievement.
The study found that children with
disabilities made significant progress
across different content areas and across
different educational settings when they
received systematic, explicit instruction;
learning strategy instruction; and other
evidence-based instructional strategies
and supports.2
In addition, nearly all States have
developed new college- and careerready standards and new assessments
aligned with those standards. These
new assessments have been designed to
facilitate the valid, reliable, and fair
assessment of most students, including
students with disabilities who
previously took an alternate assessment
based on modified academic
achievement standards. For these
reasons, we believe that the removal of
the authority for States to define
modified academic achievement
standards and to administer assessments
based on those standards is necessary to
ensure that students with disabilities are
held to the same high standards as their
nondisabled peers, and that they benefit
from high expectations, access to the
general education curriculum based on
a State’s academic content standards,
and instruction that will prepare them
for success in college and careers.
Public Comment: On August 23, 2013,
we published in the Federal Register
(78 FR 52467) a notice of proposed
rulemaking (NPRM) that would amend
the Title I regulations to no longer
authorize a State to define modified
academic achievement standards and
1 See discussion of this research in Assessing
Students with Disabilities Based on a State’s
Academic Achievement Standards.
2 See Scruggs, T., Mastropieri, M., Berkeley, S., &
Graetz, J. (2010). Do Special Education
Interventions Improve Learning of Secondary
Content? A Meta-Analysis. Remedial and Special
Education, 31(6), 437–449.
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administer alternate assessments based
on those modified academic
achievement standards for eligible
children with disabilities. The NPRM
established an October 7, 2013, deadline
for the submission of written comments.
Although the Federal eRulemaking
Portal was in operation during the
government shutdown in October 2013,
which included the final seven days of
the original public comment period, we
recognized that interested parties
reasonably may have believed that the
government shutdown resulted in a
suspension of the public comment
period. To ensure that all interested
parties were provided the opportunity
to submit comments, we reopened the
public comment period for seven days.
The final due date for comments was
November 23, 2013.
In response to our invitation in the
NPRM, 156 parties submitted
comments. We group major issues
according to subject. In some cases,
comments addressed issues beyond the
scope of the proposed regulations.
Although we appreciate commenters’
concerns for broader issues affecting the
education of students with disabilities,
because those comments are beyond the
scope of this regulatory action, we do
not discuss them here. Generally, we do
not address technical and other minor
revisions.
Analysis of Comments and Changes:
An analysis of the comments and
changes in the regulations since
publication of the NPRM follows.
General Comments
Comments: Several commenters
stated that general assessments that are
accessible for all students are in the best
interest of students with disabilities and
provide better information about the
achievement of those students for
parents, educators, and the public.
Several commenters pointed to
developments in the field of assessment
that are contributing to general
assessments that are accessible for the
vast majority of students. The
commenters noted that using principles
of ‘‘universal design for learning’’ and
considering accessibility issues when
designing assessments have resulted in
more accessible general assessments and
have eliminated the need for alternate
assessments based on modified
academic achievement standards. A few
commenters urged the Department to
promote the use of universal design for
learning in developing assessments, as
well as to support the development of
accessible assessments and
accommodations for students with
disabilities.
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Discussion: Nearly all States have
developed and are administering new
high-quality general assessments that
are valid and reliable and measure
students with disabilities’ knowledge
and skills against college- and careerready standards. Including students
with disabilities in more accessible
general assessments aligned to collegeand career-ready standards promotes
high expectations for students with
disabilities, ensures that they will have
access to grade-level content, and
supports high-quality instruction
designed to enable students with
disabilities to be involved in, and make
progress in, the general education
curriculum—that is, the same
curriculum as for nondisabled students.
In response to those commenters who
urged the Department to support the
adoption of universal design principles
for student assessments, we note that
the Department has a history of
supporting and promoting universal
design for learning, assessments that are
accessible for all students, and
appropriate accommodations for
students with disabilities. Most
recently, we included ‘‘universal design
for learning’’ in defining ‘‘high-quality
assessments’’ required under the Race to
the Top programs and the ESEA
flexibility initiative.3 We have also
focused funding on improving the
accessibility of assessments through the
General Supervision Enhancement
Grants (GSEG) and Enhanced
Assessment Grants (EAG) programs.
Changes: None.
Comments: Some commenters from
States that administered alternate
assessments based on modified
academic achievement standards
discussed how these assessments were
helpful in meeting the needs of students
with disabilities. One commenter stated
that the assessments improved
instruction and student achievement
while providing students with access to
the general curriculum. A representative
from a State educational agency (SEA)
commented that five years of research
and development went into developing
their State’s alternate assessments,
which are based on grade-level content,
are aligned with college- and careerready standards, and do not
compromise academic rigor and
expectations. The SEA representative
stated that the existing regulations
3 ESEA flexibility refers to the Department’s
initiative to give a State flexibility regarding
specific requirements of the No Child Left Behind
Act of 2001 in exchange for developing a rigorous
and comprehensive plan designed to improve
educational outcomes for all students, close
achievement gaps, increase equity, and improve the
quality of instruction.
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provide the most flexibility for States
and that, without access to the State’s
alternate assessments based on modified
academic achievement standards,
students who would otherwise take the
alternate assessments would no longer
have the opportunity to demonstrate
their knowledge and skills.
Discussion: We recognize that some
States expended considerable resources
to develop alternate assessments based
on modified academic achievement
standards. As one commenter suggests,
these States’ research and development
efforts generated valuable information
on how best to teach and assess students
with disabilities. States may still use
this information to prepare and support
students to take the new general
assessments aligned with college- and
career-ready standards that States have
developed since the Department issued
the regulations in April 2007. Those
assessments are more accessible to
students with disabilities than those in
place at the time States began
developing alternate assessments based
on modified academic achievement
standards. The new general assessments
will facilitate the valid, reliable, and fair
assessment of most students with
disabilities, including those for whom
alternate assessments based on modified
academic achievement standards were
intended. Moreover, we know the key to
successful achievement of students with
disabilities begins with appropriate
instruction, services, and supports.
More than six years of research spurred
by the opportunity that States had to
research, develop, and administer
alternate assessments based on modified
academic achievement standards have
dramatically increased the knowledge
base about students who are struggling
in school. States that received funding
from the Department through the GSEG
and EAG programs to develop alternate
assessments based on modified
academic achievement standards
focused on several topics, including the
characteristics of students who were
participating in such assessments,
barriers to these students’ learning and
performance, and approaches to making
assessments more accessible. For
example, research in several States
found that some students deemed
eligible for taking alternate assessments
based on modified academic
achievement standards may not have
had an opportunity to learn grade-level
content, and that more effort was
needed to support teachers in ensuring
students have meaningful opportunities
to learn grade-level content. Other
research focused on the appropriateness
of test items and identified various ways
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to improve the accessibility of test
items, such as adjusting format
characteristics or content, or carefully
examining the difficulty of the test items
and making items more accessible and
understandable (e.g., reducing
unimportant or extraneous details)
while still measuring grade-level
content.4 Therefore, we believe that
alternate assessments based on modified
academic achievement standards are no
longer needed and, with high-quality
instruction and appropriate
accommodations, students with
disabilities who took an alternate
assessment based on modified academic
achievement standards will be able to
demonstrate their knowledge and skills
by participating in the new general
assessments.
Changes: None.
Comments: A parent whose child
participated in an alternate assessment
based on modified academic
achievement standards expressed
concern that, without the assessment,
the child would not be able to graduate
with a high school diploma. Another
commenter asked that States be allowed
to continue to administer alternate
assessments based on modified
academic achievement standards for
State purposes, such as promotion
decisions and graduation requirements.
One commenter stated that the
assessments allowed students with
disabilities to be successful and meet
State exit exam requirements.
Discussion: Under the final
regulations, a State may no longer
define modified academic achievement
standards and administer alternate
assessments based on modified
academic achievement standards to
meet ESEA requirements. Accordingly,
these regulations do not affect State
promotion decisions and graduation
requirements because the Federal
government does not set promotion or
graduation standards for any students,
including students with disabilities.
Rather, States, and, in some cases, local
educational agencies (LEAs), establish
requirements for high school graduation
and promotion.
However, we note that, regardless of
State or local promotion or graduation
requirements for a regular high school
diploma, in order to ensure a free
appropriate public education (FAPE) is
made available to students with
disabilities under the IDEA,
4 For more information, see: Thurlow, M. L.,
Lazarus, S. S., & Bechard, S. (Eds.). (2013). Lessons
learned in federally funded projects that can
improve the instruction and assessment of low
performing students with disabilities. Minneapolis,
MN: University of Minnesota, National Center on
Educational Outcomes.
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individualized education programs
(IEPs), including IEP goals, must be
aligned with the State’s academic
content standards, and contain the
content required by the IDEA to enable
students with disabilities to be involved
in, and make progress in, the general
education curriculum based on the
State’s academic content standards.
Therefore, in order to ensure that a State
makes FAPE available to all eligible
students with disabilities,5 promotion or
graduation requirements for such
students may not be lowered if doing so
means including goals, special
education and related services, and
supplementary aids and services and
other supports in a student’s IEP that are
not designed to enable the student to be
involved in, and make progress in, the
general education curriculum based on
the State’s academic content standards.
The general education curriculum is the
curriculum that is applicable to all
children and is based on the State’s
academic content standards that apply
to all children within the State.
Changes: None.
Comments: Several commenters who
expressed support for the proposed
regulations noted that they are aligned
with the requirements in several current
Department programs, such as the
requirement that assessments funded
under the Race to the Top Assessment
(RTTA) program be accessible to all
students, including students with
disabilities eligible to participate in an
alternate assessment based on modified
academic achievement standards; the
requirement that State recipients of Race
to the Top grants phase out alternate
assessments based on modified
academic achievement standards; and
the requirement that SEAs phase out
alternate assessments based on modified
academic achievement standards as a
condition of receiving ESEA flexibility.
One commenter who opposed the
proposed regulations expressed an
understanding that they are based on
the premise that States have adopted
Common Core State Standards, joined
an RTTA consortium, or received
waivers under ESEA flexibility. The
commenter stated that aligning the
proposed regulations with these
5 The IDEA prescribes certain requirements for
IEPs for students who take alternate assessments
aligned to alternate academic achievement
standards. 34 CFR 300.160(c)(2)(iii),
300.320(a)(2)(ii), and 300.320(a)(6)(ii). This
approach addresses the educational and assessment
needs of a relatively small percentage of students
with the most significant cognitive disabilities,
estimated at approximately 1% of all students in a
State (approximately 10% of students with
disabilities), who cannot be held to the same
academic achievement standards as students
without the most significant cognitive disabilities.
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initiatives would set policy for all States
based on those participating in
voluntary Department initiatives and
would send a message to States not
participating in these initiatives that
they are disadvantaged for not doing so.
Another commenter expressed concern
that the proposed regulations would
result in permanent regulatory changes
predicated on temporary ESEA
flexibility waivers.
Discussion: The purpose of the these
regulatory changes is to promote high
expectations for students with
disabilities by encouraging teaching and
learning to high academic achievement
standards for the grade in which a
student is enrolled, measured by a
State’s general assessments. These
regulations are driven by research and
advances in the development of general
assessments aligned with college- and
career-ready standards that are more
accessible to students with disabilities
than those in place at the time States
began developing alternate assessments
based on modified academic
achievement standards. The purpose of
the regulations is not, as suggested by
some commenters, to align them with
voluntary Department initiatives. To
clarify, State recipients of Race to the
Top grants were not required to phase
out alternate assessments based on
modified academic achievement
standards as a condition of the grants.
States approved for ESEA flexibility did
agree to phase out those assessments by
school year 2014–2015; however, these
final regulations are not predicated on
that agreement. Rather, the ESEA
flexibility requirement is consistent
with the purpose of the regulations to
promote high expectations for students
with disabilities by encouraging
teaching and learning to high academic
achievement standards for the grade in
which a student is enrolled measured by
a State’s general assessments. Therefore,
we disagree with the commenters who
claimed that the regulations would set
policy based on the Department’s
voluntary initiatives. Likewise, the
regulations do not place any State at a
disadvantage as a result of its decision
not to participate in voluntary
Department initiatives.
Changes: None.
Comments: One commenter expressed
concern that the assessments being
developed by the Partnership for
Assessment of Readiness for College and
Careers (PARCC), although based on
universal design features to make them
more accessible, will not eliminate the
need for alternate assessments.
Discussion: The assessments being
developed by States based on collegeand career-ready standards, including
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those developed by PARCC and the
Smarter Balanced Assessment
Consortium, do not eliminate the
authority or need for States to
administer alternate assessments based
on alternate academic achievement
standards for students with the most
significant cognitive disabilities. States
may also continue to administer
alternate assessments based on gradelevel academic achievement standards,
consistent with 34 CFR
200.6(a)(2)(ii)(A). We note that the
Department is supporting, through the
GSEG program, the development of
alternate assessments based on alternate
academic achievement standards that
will serve as companion assessments to
the general assessments that States are
developing and implementing.
Changes: None.
Comments: One commenter
questioned the Department’s authority
to amend the Title I regulations in light
of the negotiated rulemaking
requirements in section 1901(b) of the
ESEA, including the requirement that
the rulemaking process be conducted in
a timely manner to ensure that final
regulations are issued by the Secretary
not later than one year after the date of
enactment of the No Child Left Behind
Act of 2001 (NCLB). Similarly, the
commenter questioned whether the
proposed regulations meet the
requirement in section 1908 of the ESEA
that the Secretary issue regulations for
sections 1111 and 1116 of the ESEA not
later than six months after the date of
enactment of NCLB.
Discussion: The statutory
requirements for negotiated rulemaking
in section 1901(b) of the ESEA 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. Similarly, with
respect to the timeline for issuing
regulations implementing title I, the
requirements in sections 1901 and 1908
of the ESEA apply only to the issuance
of initial regulations following
enactment of NCLB, not to subsequent
amendments such as these final
regulations.
Changes: None.
Assessing Students With Disabilities
Based on a State’s Academic
Achievement Standards
Comments: We received many
comments on the standards to which
students with disabilities should be
held. Several commenters stated that all
students should be held and taught to
the same standards and that modified
academic achievement standards and
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alternate assessments based on those
standards inappropriately lower
expectations for students with
disabilities and result in instruction that
is less challenging than the instruction
provided to their nondisabled peers.
Other commenters stated that students
with disabilities have the ability to learn
grade-level content and can achieve at
the same levels as their nondisabled
peers when provided with appropriate
instruction, services, and supports. One
commenter stated that, when students
receive instruction based on modified
academic achievement standards, a
negative cycle begins in which the
students never learn what they need to
succeed. One commenter stated that a
State’s standards and assessments
should be designed to be appropriate for
the vast majority of students with
disabilities, with the exception of
students with the most significant
cognitive disabilities. Other commenters
stated that a large number of students
with disabilities taking alternate
assessments based on modified
academic achievement standards creates
a separate education system for students
with disabilities and focuses on
students’ limitations, rather than
strengths.
On the other hand, some commenters
stated that holding students with
disabilities to the same standards as
nondisabled students is unfair because
students who qualify for special
education services have a disability that
affects their academic functioning. They
noted that what may be a high standard
for one student may not necessarily be
the same for another student, and that
students with disabilities should take
assessments that reflect realistic
expectations for them.
Discussion: The importance of
holding all students, including students
with disabilities, to high standards
cannot be over-emphasized. Low
expectations can lead to students with
disabilities receiving less challenging
instruction that reflects below gradelevel achievement standards, and
thereby not learning what they need to
succeed at the grade in which they are
enrolled.
Although the Department agrees that
some students may have a disability that
affects their academic functioning, we
disagree that students with disabilities,
except for those with the most
significant cognitive disabilities, should
be held to different academic
achievement standards than their
nondisabled peers. Research
demonstrates that low-achieving
students with disabilities who struggle
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in reading 6 and low-achieving students
with disabilities who struggle in
mathematics 7 can successfully learn
grade-level content when they have
access to high-quality instruction. The
inclusion of students with disabilities in
the new, more accessible general
assessments will promote high
expectations for students with
disabilities, which research
demonstrates is associated with
improved educational outcomes.8
Therefore, we disagree with
commenters’ statements that it is unfair
to hold students with disabilities, other
than those with the most significant
cognitive disabilities, to the same
academic achievement standards as
their nondisabled peers.
Changes: None.
Comments: Many commenters, mostly
teachers and parents, stated that
modified academic achievement
standards and assessments based on
6 For example, see: Allor, J. H., Mathes, P. G.,
Roberts, J. K., Cheatham, J.P., & Champlin, T. M.
(2010). Comprehensive reading instruction for
students with intellectual disabilities. Psychology in
the Schools, 47, 445–466; Kamps, D., Abbott, M.,
Greenwood, C., Wills, H., Veerkamp, M., &
Kaufman, J. (2008); Mautone, J. A., DuPaul, G. J.,
Jitendra, A. K., Tresco, K. E., Junod, R. V., & Volpe,
R. J. (2009). The relationship between treatment
integrity and acceptability of reading interventions
for children with attention-deficit/hyperactivity
disorder. Psychology in the Schools, 46, 919–931;
and Scammacca, N., Vaughn, S., Roberts, G.,
Wanzek, J., & Torgesen, J. K. (2007). Extensive
reading interventions in grades K–3: From research
to practice. Portsmouth, N.H.: RMC Research
Corporation, Center on Instruction; and Vaughn, S.,
Denton, C. A., & Fletcher, J. M. (2010). Why
intensive interventions are necessary for students
with severe reading difficulties. Psychology in the
Schools, 47, 32–444; Wanzek, J. & Vaughn, S.
(2010). Tier 3 interventions for students with
significant reading problems. Theory Into Practice,
49, 305–314.
7 For example, see: Fuchs, L. S. & Fuchs, D.,
Powell, S. R., Seethaler, P. M., Cirino, P. T., &
Fletcher, J. M. (2008). Intensive intervention for
students with mathematics disabilities: Seven
principles of effective practice. Learning Disabilities
Quarterly, 31, 79–92; and Gersten, R., Beckmann,
S., Clarke, B., Foegen, A., Marsh, L., Star, J. R., &
Witzel, B. (2009). Assisting students struggling with
mathematics: Response to Intervention (RtI) for
elementary and middle schools (NCEE 2009–4060).
Washington, DC: National Center for Education
Evaluation and Regional Assistance, Institute of
Education Sciences, U.S. Department of Education.
Retrieved November 1, 2010 from https://ies.ed.gov/
ncee/wwc/publications/practiceguides/.
8 For example, see Archamboult, I., Janosz, M., &
Chouindard, R. (2012). Teacher beliefs as predictors
of adolescent cognitive engagement and
achievement in mathematics. The Journal of
Educational Research, 105, 319–328; Hinnant, J.,
O’Brien, M., & Ghazarian, S. (2009). The
longitudinal relations of teacher expectations to
achievement in the early school years. Journal of
Educational Psychology, 101(3), 662–670; and
Hornstra, L., Denessen, E., Bakker, J., von den
Bergh, L., & Voeten, M. (2010). Teacher attitudes
toward dyslexia: Effects on teacher expectations
and the academic achievement of students with
dyslexia. Journal of Learning Disabilities, 43(6),
515–529.
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those standards meet the needs of
certain students with disabilities for
whom the general assessment is too
difficult. The commenters stated that
the general assessment does not provide
meaningful data on these students and
that alternate assessments based on
modified academic achievement
standards allow students to demonstrate
their knowledge, show progress, and
experience success.
Several commenters expressed
concern about providing assessments to
students when they know the students
will struggle to complete the general
assessment because, without more
supports, it would be too challenging for
the students. The commenters expressed
concern that this experience would
affect their self-esteem and result in
higher drop-out rates for students with
disabilities.
Discussion: Since the regulations
permitting States to define modified
academic achievement standards and
develop alternate assessments based on
those standards were promulgated in
2007, there has been significant research
and progress in developing assessments
that are appropriate and accessible for
most students, including students with
disabilities for whom alternate
assessments based on modified
academic achievement standards were
intended. As discussed in the NPRM,
the application of universal design
principles, new technologies, and new
research on accommodations has led to
the development of general assessments
that are not only more accessible to
students with disabilities, but also
improve the validity of their scores. As
a number of commenters noted, the
developers of the new generation of
assessments considered the needs of
students with disabilities to ensure that
the assessments are designed to allow
those students to demonstrate their
knowledge.9
The Department shares the goal that
students with disabilities experience
success. Removing the authority for
modified academic achievement
standards and an alternate assessment
based on those standards furthers this
goal because students with disabilities
who are assessed based on grade-level
academic achievement standards will
receive instruction aligned with such an
assessment.
Changes: None.
Comments: Some commenters stated
that it is unfair for students with
9 For additional information on assessment
accommodations, see: PARCC Accessibility
Features and Accommodations Manual (Nov. 2014)
at https://www.parcconline.org/sites/parcc/files/
parcc-accessibility-features-accommodationsmanual-11-14_final.pdf.
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disabilities to have modifications in
instruction during the school year and
then be assessed with a test that is not
modified.
Discussion: For purposes of this
response, we assume ‘‘modifications in
instruction’’ means accommodations
authorized under the IDEA. While the
IDEA does authorize adaptations in the
content, methodology, or delivery of
instruction (34 CFR 300.39(b)(3)), it also
requires appropriate accommodations
during testing (34 CFR 300.160(a) and
300.320(a)(6)(i)). These
accommodations, as agreed upon by a
child’s IEP team, which includes the
child’s parents along with school
officials, may include, among other
things, small group testing, frequent
breaks, a separate or alternate location,
a specified area or seating, and adaptive
and specialized equipment or furniture.
As permitted under the IDEA and
determined appropriate by a student’s
IEP team, the Department believes that
students with disabilities who take a
general assessment based on a State’s
challenging academic achievement
standards should be provided with
accommodations during the assessment
that are similar to the IEP
accommodations they receive for
instructional purposes and for other
academic tests or assessments so that
the students can be involved in, and
make progress in, the general education
curriculum. These regulations will not
prevent the provision of needed
supports to students with disabilities
during general assessments or for other
instructional purposes.
Changes: None.
Comments: One commenter expressed
support for the proposed regulations,
stating that alternate assessments based
on modified academic achievement
standards do not take into account a
student’s disability and the content of
the instruction he or she is provided,
and do not provide meaningful
information to school districts or
accurately measure the student’s
progress. However, the commenter
maintained that the new general
assessments, although more accessible,
may be too difficult for students who
currently participate in an alternate
assessment based on modified academic
achievement standards. Instead, the
commenter recommended allowing
States to base participation in the
general assessment on a student’s
instructional level, rather than
chronological age, with a cap of
counting no more than two percent of
proficient scores for ESEA
accountability purposes.
Discussion: The commenter’s
recommendation to allow States to base
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participation in the general assessment
on a student’s instructional level is
often referred to as ‘‘out-of-level’’ or
‘‘off-grade level’’ testing and generally
refers to the practice of assessing a
student enrolled in one grade using a
measure that was developed for
students in a lower grade. By definition,
an out-of-level assessment cannot meet
the requirements of a grade-level
assessment because it does not measure
mastery of grade-level content or
academic achievement standards. In
addition, out-of-level testing is often
associated with lower expectations for
students with disabilities, tracking such
students into lower-level curricula with
limited opportunities to succeed in the
general education curriculum.
The Department disagrees with the
commenter’s statement that the new
general assessments may be too difficult
for students who currently participate in
an alternate assessment based on
modified academic achievement
standards. We learned through States
that received funding from the
Department through the GSEG and EAG
programs that some students with
disabilities who might be candidates for
an alternate assessment based on
modified academic achievement
standards may not have had an
opportunity to learn grade-level content,
and more effort was needed to support
teachers in ensuring students have
meaningful opportunities to learn gradelevel content. Six of the projects found
that students who might be candidates
for an alternate assessment based on
modified academic achievement
standards had difficulty using printed
materials in certain formats or
demonstrated other specific challenges
related to some components of reading.
Other projects focused on the
appropriateness of test items and
identified various ways to improve the
accessibility of test items, while still
measuring grade-level content.10
Changes: None.
Comments: Some commenters stated
that preparing students to be ‘‘college
ready’’ should not be a goal for all
public school students.
Discussion: We understand that not
all students will enter a four-year
college upon graduating from high
school. However, we strongly believe
that public schools should prepare all
children to be ready for college or the
workforce. According to research from
10 For more information, see: Thurlow, M. L.,
Lazarus, S. S., & Bechard, S. (Eds.). (2013). Lessons
learned in federally funded projects that can
improve the instruction and assessment of low
performing students with disabilities. Minneapolis,
MN: University of Minnesota, National Center on
Educational Outcomes.
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the American Diploma Project, nearly
two-thirds of new jobs require some
form of postsecondary education.11
Therefore, in order to compete in the
21st century, regardless of whether a
student has a disability, some form of
postsecondary training or education is
increasingly important for the student to
become a productive and contributing
adult.
Changes: None.
Responsibilities of IEP Teams and
Students’ Participation in Assessments
Comments: Many commenters
expressed concern that no longer
permitting the use of alternate
assessments based on modified
academic achievement standards and
requiring students to take the general
State assessments conflict with IDEA
requirements. The commenters argued
that the IDEA requires a student’s
education to be individualized in an IEP
and not standardized with an
assessment designed for the general
student population. A few commenters
stated that a student’s IEP team is
responsible for making educational
decisions for the student and should
decide whether an alternate assessment
based on modified academic
achievement standards or a new more
accessible general assessment is the
more appropriate assessment for the
student.
Discussion: The commenters are
correct that the IDEA assigns the IEP
team the responsibility for determining
how a student with a disability
participates in a State or district-wide
assessment, including assessments
required under title I of the ESEA (34
CFR 300.320(a)(6) and 300.160(a)). This
IEP team responsibility is essential,
given the importance of including all
children with disabilities in a State’s
accountability system. These final
regulations do not contravene this IEP
team responsibility.
The IDEA, Part B regulations at 34
CFR 300.320(a)(6) address what each
student’s IEP must contain regarding
participation in State and district-wide
assessments. Each child’s IEP must
include, among other things: (1) A
statement of any individual appropriate
accommodations that are necessary to
measure the academic achievement and
functional performance of the child on
State and district-wide assessments and
(2) if the IEP team determines that a
student with a disability must take an
alternate assessment, a statement of why
11 Achieve. (2012). The Future of the U.S.
Workforce: Middle Skills Jobs and the Growing
Importance of Post Secondary Education. American
Diploma Project, www.achieve.org.
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the child cannot participate in the
regular assessment, and why the
particular alternate assessment selected
is appropriate for the child.
Under these final regulations, to
ensure that students with disabilities are
appropriately included in assessments
conducted under title I, an IEP team will
continue to have the authority and
responsibility to determine whether
students with disabilities should take
the regular assessment with or without
appropriate accommodations, an
alternate assessment based on gradelevel academic achievement standards,
if any, or, for students with the most
significant cognitive disabilities, an
alternate assessment based on alternate
academic achievement standards.
Although an IEP team determines
how a student with a disability
participates in general State and districtwide assessments, States are responsible
for adopting general and alternate
assessments, consistent with applicable
Title I regulations. Accordingly, IEP
teams will continue to determine which
assessment a student with a disability
will take in accordance with 34 CFR
300.320(a)(6), and the final regulations
in 34 CFR 300.160(c) and 200.6(a)(2).
However, under these final regulations,
an IEP team may no longer select an
alternate assessment based on modified
academic achievement standards to
assess students with disabilities under
title I of the ESEA.
Changes: None.
Comments: Many commenters
opposed the proposed amendments
because they oppose standardized tests
for students with disabilities. Some
commenters stated that standardized
tests cannot measure the achievement
and progress of a student with a
disability, particularly a student who is
far behind academically. The
commenters offered several alternatives
to standardized assessments for students
with disabilities including assessments
that are specialized and personalized for
each student; assessments that are based
on each student’s daily class work and
cognitive level, rather than their age;
assessments that use standards for
passing that are developed by a
student’s IEP team; and individualized
assessments that measure growth. Other
commenters suggested allowing States
to use a number of assessments to
measure achievement for students with
disabilities, rather than a single general
assessment. A few commenters
recommended using measures other
than assessments to document the
achievement of students with
disabilities such as data on classroom
performance collected by teachers and a
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student’s progress toward meeting his or
her IEP goals.
Finally, some commenters
recommended that States, districts, and
schools use measures other than
performance on standardized
assessments as evidence of success in
educating students with disabilities. For
example, commenters recommended
using the number of students passing
workforce certification tests, the number
of students employed in a skilled job
after high school, or the number of
students who effectively use a college’s
disability assistance center.
Discussion: The assessment and
accountability provisions of title I
require that all students, including
students with disabilities, be included
in Statewide standardized assessments.
20 U.S.C. 6311(b)(3)(C)(ix); 34 CFR
200.6. Section 612(a)(16)(A) of the IDEA
and 34 CFR 300.160(a) also provide that
all children with disabilities must be
included in all general State and
district-wide assessments, including
assessments described under section
1111 of the ESEA, with appropriate
accommodations and alternate
assessments where necessary and as
indicated in their respective IEPs.
Parents and teachers have the right and
need to know how much progress all
students, including students with
disabilities, are making each year
toward college and career readiness.
That means all students, including
students with disabilities, need to take
annual Statewide assessments.
Accordingly, the commenters’ proposals
of alternative methods to measure the
achievement of students with
disabilities are inconsistent with title I
and IDEA.
Changes: None.
Comments: Some commenters who
supported the proposed regulations
stated that not holding all students to
the same standards has resulted in
excusing districts from their
responsibility to educate students with
disabilities based on the general
curriculum. For example, one parent
whose child participated in an alternate
assessment based on modified academic
achievement standards commented that
the child received instruction that was
not based on the general education
curriculum, contrary to the
requirements of the IDEA.
Discussion: Current IDEA regulations
(34 CFR 300.320(a)(1)(i) and (4)(ii))
require that each child with a disability
must receive instruction designed to
enable the child to be involved in, and
make progress in, the general education
curriculum—i.e., the same curriculum
as for nondisabled students. The
importance of this requirement cannot
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be overemphasized. As the Department
stated in the Analysis of Comments to
the 2006 IDEA, Part B regulations,
‘‘[w]ith regard to the alignment of the
IEP with the State’s content standards,
§ 300.320(a)(1)(i) clarifies that the
general education curriculum means the
same curriculum as all other children.
Therefore, an IEP that focuses on
ensuring that a child is involved in the
general education curriculum will
necessarily be aligned with the State’s
content standards.’’ 71 FR 46540, 46662
(Aug. 14, 2006).
Under section 1111(b)(1)(B) of the
ESEA, a State must apply its challenging
academic content standards to all
children in the State, including all
children with disabilities. Section
§ 200.1(a)–(b) of the current title I
regulations defines State academic
content standards as grade-level
standards. The Title I regulations
permitting a State to define modified
academic achievement standards and to
administer alternate assessments based
on those standards in assessing the
academic progress of students with
disabilities were not intended to change
the requirement that those standards be
based on challenging academic content
standards. In fact, § 200.1(f)(2)(iii) of the
current title I regulations provides that,
if the IEPs of students assessed against
modified academic achievement
standards include goals for the subjects
to be assessed, the IEPs of such students
assessed based on modified academic
achievement standards must include
‘‘goals based on the academic content
standards for the grade in which a
student is enrolled.’’ This provision has
been removed because the authority to
define modified academic achievement
standards and administer alternate
assessments based on those standards,
has been removed. However, IEPs for all
students with disabilities must continue
to be aligned with a State’s academic
content standards and include annual
goals, special education and related
services, and supplementary aids and
services and other supports that are
designed to enable the student to be
involved in, and make progress in, the
general education curriculum based on
the State’s academic content standards.
As explained in the Senate Report
accompanying the 2004 reauthorization
of the IDEA, ‘‘[f]or most students with
disabilities, many of their IEP goals
would likely conform to State and
district wide academic content
standards and progress indicators
consistent with standards based reform
within education and the new
requirements of NCLB. IEPs would also
include other goals that the IEP Team
deemed appropriate for the student,
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such as life skills, self-advocacy, social
skills, and desired post-school activities.
Moreover, since parents will receive
individual student reports on their child
with a disability’s achievement on
assessments under NCLB, they will have
additional information to evaluate how
well their children are doing against
grade-level standards.’’ S. Rep. No. 108–
185, 105th Cong., 1st Sess. 29 (Nov. 3,
2003). Reading the IDEA and ESEA
requirements together, it is incumbent
upon States and school districts to
ensure that the IEPs of students with
disabilities who are being assessed
against grade-level academic
achievement standards include content
and instruction that gives these students
the opportunity to gain the knowledge
and skills necessary for them to meet
those challenging standards. We
strongly urge States and school districts
to provide IEP Teams with technical
assistance on ways to accomplish this,
consistent with the purposes of the
IDEA and the ESEA. Technical
assistance is available from the
following resources: National Center on
Educational Outcomes https://
www.cehd.umn.edu/nceo/default.html
and The Center on Standards and
Assessments Implementation https://
csai-online.org/.
Changes: None.
Timeline To Discontinue Alternate
Assessments Based on Modified
Academic Achievement Standards
Comments: A number of commenters
stated that eliminating the authority of
a State to use alternate assessments
based on modified academic
achievement standards beginning in the
2014–2015 school year is premature.
Some commenters stated that a more
appropriate time to discontinue use of
alternate assessments based on modified
academic achievement standards would
be after the 2014–2015 school year
when many States would have
completed their field tests and
implemented new assessments aligned
with college- and career-ready
standards. One commenter referenced a
report that stated that 10 to 15 percent
of students with disabilities have
disabilities that would preclude them
from meeting new college- and careerready standards. The commenter
concluded that these estimates raise
questions as to whether the new general
assessments will be appropriate for all
students with disabilities (with the
exception of students with the most
significant cognitive disabilities who are
eligible to take an alternate assessment
based on alternate academic
achievement standards). The
commenters asserted that a State should
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retain the authority to administer
alternate assessments based on modified
academic achievement standards until
there is information about how
adequately the new general assessments
include students with disabilities who
currently take an alternate assessment
based on modified academic
achievement standards.
Another commenter raised concerns
about phasing out alternate assessments
based on modified academic
achievement standards at the same time
that States are implementing new
general assessments. The commenter
stated that, at such a time of change,
more flexibility rather than less
flexibility should be provided to States.
One commenter stated that there are
indications that implementation of the
new assessments will be delayed and
that these delays would negatively affect
students with disabilities who currently
take an alternate assessment based on
modified academic achievement
standards.
Discussion: With respect to the
commenters who stated that eliminating
the authority of a State to use alternate
assessments based on modified
academic achievement standards
beginning in the 2014–2015 school year
is premature, we disagree. We continue
to believe that eliminating the authority
for alternate assessments based on
modified academic achievement
standards to assess the academic
progress of students with disabilities
under title I of the ESEA at the same
time those students are included in new
general assessments is in the best
interest of the students. All States that
had implemented alternate assessments
based on modified academic
achievement standards have now
adopted college- and career-ready
standards. These States are all
administering general assessments
aligned to college- and career-ready
standards in 2014–2015. To the extent
those are RTTA assessments, they will
not be delayed. Moreover, the RTTA
assessments were field tested in 2013–
2014 and those field tests included
students assessed with an alternate
assessment based on modified academic
achievement standards. As a result,
students with disabilities who
previously participated in an alternate
assessment based on modified academic
achievement standards are making the
transition to new general assessments
along with their peers and have had the
same benefit as their peers of instruction
designed to meet new college- and
career-ready standards. Therefore, it is
appropriate that students with
disabilities be assessed in 2014–2015
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with the new general assessments that
are aligned with their instruction.
Changes: None.
Comments: None.
Discussion: When the proposed
regulations were published on August
23, 2013 (78 FR 52467), we anticipated
finalizing the regulations prior to the
end of the 2013–2014 school year.
Therefore, we proposed regulations to
allow States that administered alternate
assessments based on modified
academic achievement standards during
the 2013–2014 school year to continue
to administer those assessments and to
use the results for accountability
purposes through the 2013–2014 school
year. Given that the final regulations
were not published prior to the end of
the 2013–2014 school year, several of
the proposed regulations are no longer
necessary. We are, therefore, removing
proposed regulations that refer to the
conditions under which a State could
continue to use modified academic
achievement standards and to
administer alternate assessments based
on those standards until the end of the
2013–2014 school year.
We also are amending current Title I
regulations and making conforming
changes to current IDEA regulations to
remove provisions related to alternate
assessments based on modified
academic achievement standards and
references to ‘‘modified academic
achievement standards.’’ We did not
include these changes in the NPRM
because these provisions were still
necessary during the 2013–2014
transition year provided for in the
proposed regulations. Now that the
transition year has passed, there is no
longer a need to retain references to
‘‘modified academic achievement
standards’’ or alternate assessments
aligned with those standards, except for
the provisions regarding reporting on
the number of students with disabilities
taking alternate assessments based on
modified academic achievement
standards in years prior to 2015–2016.
In assessing the academic progress of
students with disabilities under title I of
the ESEA, a State retains its authority to
continue to administer alternate
assessments based on grade-level
academic achievement standards,
consistent with 34 CFR 200.6(a)(2)(ii)(A)
and revised 300.160(c)(1). Additionally,
a State retains its authority to adopt
alternate academic achievement
standards, as permitted in 34 CFR
200.1(d), and to measure the
achievement of students with the most
significant cognitive disabilities against
those standards, as permitted in 34 CFR
200.6(a)(2)(ii)(B) and 300.160(c)(2)(iii)
(new 300.160(c)(2)(ii)). As described
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below, we are making changes to
§§ 200.1, 200.6, 200.13, and 200.20 in
the Title I regulations and § 300.160 in
the IDEA regulations.
Changes: Changes to § 200.1: We are
removing proposed paragraphs (e)(2)
and (e)(4) (both of which refer to
conditions under which a State could
continue to administer alternate
assessments based on modified
academic achievement standards until
the end of the 2013–2014 school year)
and revising proposed paragraph (e)(1)
(now paragraph (e)) to state that a State
may not define modified academic
achievement standards for any students
with disabilities. We are removing as no
longer necessary current paragraph
(e)(2) (proposed redesignated paragraph
(e)(3)), which sets out the criteria a State
must establish for IEP teams to use to
identify students with disabilities who
were eligible to be assessed based on
modified academic achievement
standards. In addition, we are revising
current paragraph (f) regarding State
guidelines to remove all references to
‘‘modified academic achievement
standards.’’ The requirements in current
paragraph (f) applicable to alternate
academic achievement standards remain
unchanged and fully applicable to a
State that has adopted such standards.
Changes to § 200.6: We are removing
proposed paragraph (a)(3) so that a State
may no longer measure the achievement
of students with disabilities based on
modified academic achievement
standards, redesignating current
paragraph (a)(4) as new paragraph (a)(3),
and revising new paragraph (a)(3)(iv)
(current paragraph (a)(4)(iv)) to require
a State to report to the Secretary the
number and percentage of children with
disabilities, if any, participating in
alternate assessments based on modified
academic achievement standards in
school years prior to 2015–2016.
Changes to current § 200.13: We are
revising current paragraph (c) to remove
references to ‘‘modified academic
achievement standards,’’ references to
the 2.0 percent cap on proficient and
advanced scores of students taking
alternate assessments based on modified
academic achievement standards, and
the Appendix.
The requirements in current
paragraph (c) applicable to alternate
academic achievement standards remain
unchanged and fully applicable to a
State that has adopted such standards.
Changes to current § 200.20: We are
revising current paragraph (c)(3) to
remove the reference to ‘‘modified
academic achievement standards.’’ The
requirements in current paragraph (c)(3)
applicable to alternate academic
achievement standards remain
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unchanged and fully applicable to a
State that has adopted such standards.
We also are removing current paragraph
(g) (which describes a transition
provision related to modified academic
achievement standards) and
redesignating current paragraph (h) as
new paragraph (g).
Changes to current § 300.160: We are
revising § 300.160 of the IDEA
regulations, which addresses
participation of students with
disabilities in assessments, to make
conforming changes with those made in
the Title I regulations. We are removing
current paragraph (c)(2)(ii), which
authorizes alternate assessments based
on modified academic achievement
standards, as permitted in 34 CFR
200.1(e), in assessing the academic
progress of students with disabilities
under title I of the ESEA; and
redesignating current paragraph
(c)(2)(iii) as paragraph (c)(2)(ii). We are
adding a new paragraph (c)(2)(iii) to
make clear that, except as provided in
paragraph (c)(2)(ii), a State’s alternate
assessments, if any, must measure the
achievement of children with
disabilities against the State’s gradelevel academic achievement standards,
consistent with 34 CFR
200.6(a)(2)(ii)(A).
Consistent with 34 CFR 200.1(e), we
are adding paragraph (c)(3) to make
clear that a State may no longer adopt
modified academic achievement
standards for any students with
disabilities under section 602(3) of the
IDEA. We are revising current
paragraphs (d) and (e) to remove
references to ‘‘modified academic
achievement standards’’. Finally, we are
revising current paragraphs (f)(3) and
(f)(5) to require a State to report to the
Secretary the number and performance
results, respectively, of children with
disabilities, if any, participating in
alternate assessments based on modified
academic achievement standards in
school years prior to 2015–2016.
The requirements in current
paragraphs (c), (d), (e), and (f) applicable
to alternate academic achievement
standards for students with the most
significant cognitive disabilities remain
unchanged and fully applicable to a
State that has adopted such standards.
Technical Assistance and Monitoring
Comments: Several commenters
offered suggestions regarding the
technical assistance needed to help
States, teachers, and students transition
from alternate assessments based on
modified academic achievement
standards to new, more accessible
general assessments. Some commenters
recommended providing technical
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50781
assistance to help States develop plans
to phase out alternate assessments based
on modified academic achievement
standards, including support for
technical issues such as measuring
student growth when data on two years
of performance on the same assessment
are not available. Other commenters
stated that technical assistance is
needed to ensure that students with
disabilities receive appropriate
instruction and supports to allow them
to successfully participate in the general
assessment. Commenters also
emphasized the need to provide training
and professional development to all
educators to ensure that students with
disabilities have meaningful access to
the general curriculum, and to
emphasize the importance of educating
IEP teams, including parents, on
determining the appropriate
assessments for students with
disabilities.
Other commenters stated that States
that implemented alternate assessments
based on modified academic
achievement standards learned
important lessons, as did States that
elected not to administer these alternate
assessments and focus on improving
student outcomes. The commenters
recommended that the Department
gather this information and use it to
promote best practices for including
students with disabilities in assessments
required for accountability measures
under the ESEA.
Some commenters encouraged the
Department to monitor schools and
States to ensure that supports are
provided to students with disabilities
who previously participated in alternate
assessments based on modified
academic achievement standards.
Discussion: The Department is
supporting States in their transition to
more accessible general assessment
systems. In February 2014, the
Department’s Office of Elementary and
Secondary Education (OESE) and Office
of Special Education and Rehabilitative
Services (OSERS) sponsored a meeting,
‘‘Successfully Transitioning Away from
the 2% Assessment,’’ for State teams to
jointly learn from and plan for
discontinuing the implementation of
alternate assessments based on modified
academic achievement standards.
Materials from this meeting are posted
at www.cehd.umn.edu/nceo/
AAMAStransition/default.html. The
Department currently funds several
technical assistance centers that provide
resources on students with disabilities
and the instructional supports they need
to access the general curriculum and
participate in the general assessment
(e.g., the Center for Standards and
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50782
Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations
Assessment Implementation; see https://
csai-online.org/). Moreover, several
technical assistance centers provide
resources that specifically address the
needs of students who have persistent
academic and behavioral needs that
require intensive intervention to
succeed in school and prepare them to
be college and career ready (e.g., the
National Center on Intensive
Intervention; see https://
www.intensiveintervention.org/). In
addition, the federally funded Parent
Training and Information Centers
(https://www.parentcenterhub.org/) focus
on ensuring that parents of children
with disabilities have the information
they need to participate effectively in
their child’s education, including
making decisions about the assessments
that are appropriate for their child.
OESE and OSERS will continue to work
collaboratively with the Department’s
federally funded technical assistance
and dissemination partners to ensure
that all students, including students
with disabilities, have the supports and
instruction they need to meet collegeand career-ready standards.
With regard to commenters who
recommended the Department compile
information learned by States that
implemented alternate assessments
based on modified academic
achievement standards, we note that the
work funded by the Department through
the GSEG and EAG programs has
contributed to the knowledge base about
students who are struggling in school.
Projects funded by these programs
focused on a number of topics,
including the characteristics of students
who participated in alternate
assessments based on modified
academic achievement standards,
barriers to their learning and
performance, and approaches to making
assessments more accessible. Several
State projects that focused on
instructional matters found that more
effort was needed to support teachers in
ensuring students with disabilities have
meaningful opportunities to learn gradelevel content. Other projects focused on
the appropriateness of test items and
identified various ways to improve the
accessibility of test items, such as
examining the difficulty of test items
and making items more accessible and
understandable without changing the
knowledge or skill that is being
measured (e.g., reducing unimportant or
extraneous details from test items). The
lessons learned from these projects are
in ‘‘Lessons Learned in Federally
Funded Projects that Can Improve the
Instruction and Assessment of Low
Performing Students with Disabilities,’’
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available at: https://www.cehd.umn.edu/
nceo/onlinepubs/lessonslearned.pdf.
With respect to commenters who
urged the Department to monitor to
ensure that supports are provided to
students with disabilities who
previously participated in alternate
assessments based on modified
academic achievement standards,
pursuant to 34 CFR 300.149(b) and
300.600, an SEA must monitor public
agencies’ implementation of the Act and
Part B regulations and ensure timely
correction of any identified
noncompliance. We expect, therefore,
that SEAs will monitor compliance with
the provisions in 34 CFR 300.160.
Changes: None.
Comments: A few commenters
advised the Department to monitor data
on the percentage of students
participating in alternate assessments
based on alternate academic
achievement standards following the
phase out of alternate assessments based
on modified academic achievement
standards. One commenter stated that
the Department should publish the
assessment data from the 2012–2013
school year as part of the final
regulations, including the number and
percentage of students with disabilities
who took the general assessment and
the number and percentage of students
who took an alternate assessment based
on modified academic achievement
standards, and the proficiency rates for
each group.
Discussion: Pursuant to the authority
of section 618(a)(3) of the IDEA, the
Secretary requires States to report the
number of students with disabilities
who took (1) the general assessment,
with and without accommodations; (2)
the alternate assessment based on
modified academic achievement
standards; (3) the alternate assessment
based on grade-level academic
achievement standards; and (4) the
alternate assessment based on alternate
academic achievement standards. These
data will help SEAs monitor whether
the number of students who take an
alternate assessment based on alternate
academic achievement standards
increases significantly with the
elimination of alternate assessments
based on modified academic
achievement standards.
Under title I and IDEA, States also are
required to report the number of
students with disabilities who scored at
each academic achievement
(performance) level (e.g., basic,
proficient, above proficient). These
numbers can be aggregated to derive the
number of students with disabilities
who scored at or above proficient on
each assessment. However, States are
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not required to report the percentages of
students with disabilities who scored at
or above proficient on each assessment.
The most recent year for which data are
available is 2011–2012. For additional
information on these data and links to
the data files see: https://
inventory.data.gov/dataset/95ca118769f5-4e70-9f8c-6bbbb3d6d94a/resource/
446d130d-5160-4c27-a428317c6333b38f. In addition, the
Department routinely publishes on its
Web site States’ Consolidated State
Performance Reports (CSPR), which
include data on the number and
percentage of students with disabilities
who participate in the general
assessment and each type of alternate
assessment (i.e., an alternate assessment
based on alternate academic
achievement standards, an alternate
assessment based on modified academic
achievement standards, and an alternate
assessment based on grade-level
academic achievement standards). The
percentage of students with disabilities
who score at or above proficient is also
reported, but is not disaggregated by
type of assessment (general versus
alternate assessment). These data are
posted at: www2.ed.gov/admins/lead/
account/consolidated/.
Therefore, we decline to include the
assessment data from the 2012–2013
school year in the final regulations, as
requested by one commenter.
Changes: None.
Alternate Assessments Based on
Alternate Academic Achievement
Standards
Comments: Several commenters wrote
about the need for alternate assessments
for students with the most significant
cognitive disabilities. One commenter
asked how the proposed regulations
would affect students with the most
significant cognitive disabilities who
take alternate assessments based on
alternate academic achievement
standards.
Discussion: The proposed regulations
do not affect the assessment of students
with the most significant cognitive
disabilities. A State continues to have
the authority under 34 CFR 200.1(d) and
200.6(a)(2)(ii)(B) to define alternate
academic achievement standards,
administer alternate assessments based
on those alternate academic
achievement standards, and, subject to
the one percent limitation on the
number of proficient scores that may be
counted for accountability purposes,
include the results in accountability
determinations.
Changes: None.
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Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations
Executive Orders 12866 and 13563
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Regulatory Impact Analysis
Under Executive Order 12866, the
Secretary must determine whether this
regulatory action is ‘‘significant’’ and,
therefore, subject to the requirements of
the Executive order and subject to
review by the Office of Management and
Budget (OMB). Section 3(f) of Executive
Order 12866 defines a ‘‘significant
regulatory action’’ as an action likely to
result in a rule that may—
(1) Have an annual effect on the
economy of $100 million or more, or
adversely affect a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities in a material way (also
referred to as an ‘‘economically
significant’’ rule);
(2) Create serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impacts of entitlement grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
stated in the Executive order.
This final regulatory action is a
significant regulatory action subject to
review by OMB under section 3(f) of
Executive Order 12866.
We have also reviewed these
regulations under Executive Order
13563, which supplements and
explicitly reaffirms the principles,
structures, and definitions governing
regulatory review established in
Executive Order 12866. To the extent
permitted by law, Executive Order
13563 requires that an agency—
(1) Propose or adopt regulations only
on a reasoned determination that their
benefits justify their costs (recognizing
that some benefits and costs are difficult
to quantify);
(2) Tailor its regulations to impose the
least burden on society, consistent with
obtaining regulatory objectives and
taking into account—among other things
and to the extent practicable—the costs
of cumulative regulations;
(3) In choosing among alternative
regulatory approaches, select those
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety,
and other advantages; distributive
impacts; and equity);
(4) To the extent feasible, specify
performance objectives, rather than the
behavior or manner of compliance a
regulated entity must adopt; and
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(5) Identify and assess available
alternatives to direct regulation,
including economic incentives—such as
user fees or marketable permits—to
encourage the desired behavior, or
provide information that enables the
public to make choices.
Executive Order 13563 also requires
an agency ‘‘to use the best available
techniques to quantify anticipated
present and future benefits and costs as
accurately as possible.’’ The Office of
Information and Regulatory Affairs of
OMB has emphasized that these
techniques may include ‘‘identifying
changing future compliance costs that
might result from technological
innovation or anticipated behavioral
changes.’’
We are issuing these final regulations
only on a reasoned determination that
their benefits justify their costs. In
choosing among alternative regulatory
approaches, we selected those
approaches that maximize net benefits.
Based on the analysis that follows, the
Department believes that these final
regulations are consistent with the
principles in Executive Order 13563.
We also have determined that this
regulatory action does not unduly
interfere with State, local, or tribal
governments in the exercise of their
governmental functions.
In accordance with both Executive
orders, the Department has assessed the
potential costs and benefits, both
quantitative and qualitative, of this
regulatory action. The potential costs
associated with this regulatory action
are those resulting from statutory
requirements and those we have
determined are necessary for
administering the Department’s
programs and activities.
Potential Costs and Benefits: Under
Executive Order 12866, we have
assessed the potential costs and benefits
of this regulatory action and have
determined that these regulations would
not impose additional costs to States
and LEAs or to the Federal government.
For example, forty-two States, the
District of Columbia, and Puerto Rico
agreed, in order to receive ESEA
flexibility, to phase out their use of
alternate assessments based on modified
academic achievement standards, if they
had those assessments, by the 2014–
2015 school year. Only two States have
an alternate assessment based on
modified academic achievement
standards but have not received ESEA
flexibility. Moreover, these regulations
do not impose additional costs or
administrative burdens because States,
including the two discussed in the
preceding sentence, are already
developing and implementing general
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50783
assessments aligned with college- and
career-ready standards that will be more
accessible to students with disabilities
than those in place at the time States
began developing alternate assessments
based on modified academic
achievement standards. These new
assessments must be valid, reliable, and
fair for all student subgroups, including
students with disabilities, with the
exception of students with the most
significant cognitive disabilities who are
eligible to participate in alternate
assessments based on alternate
academic achievement standards
consistent with 34 CFR 200.6(a)(2)(ii)(B)
(see 75 FR 18171, 18173 (Apr. 9, 2010)).
In this context, these regulations
largely reflect already planned and
funded changes in assessment practices
and do not impose additional costs on
States or LEAs or the Federal
government. On the contrary, to the
extent that these regulations reinforce
the transition to State assessment
systems with fewer components, the
Department believes these regulations
ultimately will reduce the costs of
complying with ESEA assessment
requirements, because States would no
longer develop and implement separate
alternate assessments based on modified
academic achievement standards based
on the new college- and career-ready
standards.
Further, to the extent that States must
transition students with disabilities who
took an alternate assessment based on
modified academic achievement
standards to new general assessments,
funding to support such a transition is
available through existing ESEA
programs, such as the Grants for State
Assessments program, which made
available $378 million in State formula
grant assistance in fiscal year 2015.
In sum, any additional costs imposed
on States by these final regulations are
estimated to be negligible, primarily
because they reflect changes already
under way in State assessment systems
under the ESEA. Moreover, we believe
any costs will be significantly
outweighed by the potential educational
benefits of increasing the access of
students with disabilities to the general
assessments as States develop new,
more accessible assessments, including
assessments aligned with college- and
career-ready standards.
Regulatory Alternatives Considered
An alternative to these final
regulations would be for the Secretary to
leave in place the existing regulations
permitting a State to define modified
academic achievement standards and to
develop and administer alternate
assessments based on those standards.
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Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations
However, the Secretary believes that
these amended regulations are needed
to help refocus assessment efforts and
resources on the development of new
general assessments that are accessible
to a broader range of students with
disabilities. Such new general
assessments will eliminate the
usefulness of separate alternate
assessments based on modified
academic achievement standards for
eligible students with disabilities.
Paperwork Reduction Act of 1995
These regulations do not contain any
information collection requirements.
Assessment of Educational Impact
Based on the response to the NPRM
and on our review, we have determined
that these final regulations do not
require transmission of information that
any other agency or authority of the
United States gathers or makes
available.
Accessible Format: Individuals with
disabilities can obtain this document in
an accessible format (e.g., braille, large
print, audiotape, or compact disc) on
request to either of the program contact
persons listed under FOR FURTHER
INFORMATION CONTACT.
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. Free Internet access to the
official edition of the Federal Register
and the Code of Federal Regulations is
available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you
can view this document, as well as all
other documents of this Department
published in the Federal Register, in
text or Adobe Portable Document
Format (PDF). To use PDF you must
have Adobe Acrobat Reader, which is
available free at the site.
You may also access documents of the
Department published in the Federal
Register by using the article search
feature at: www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.
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List of Subjects
34 CFR Part 200
Education of disadvantaged,
Elementary and secondary education,
Grant programs—education, Indians—
education, Infants and children,
Juvenile delinquency, Migrant labor,
Private schools, Reporting and
recordkeeping requirements.
34 CFR Part 300
Administrative practice and
procedure, Education of individuals
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Jkt 235001
with disabilities, Elementary and
secondary education, Equal educational
opportunity, Grant programs—
education, Privacy, Private schools,
Reporting and recordkeeping
requirements.
Dated: August 18, 2015.
Arne Duncan,
Secretary of Education.
For the reasons discussed in the
preamble, the Secretary amends parts
200 and 300 of title 34 of the Code of
Federal Regulations as follows:
PART 200—TITLE I—IMPROVING THE
ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
1. The authority citation for part 200
continues to read as follows:
■
Authority: 20 U.S.C. 6301 through 6578,
unless otherwise noted.
2. Section 200.1 is amended by:
A. In paragraph (a)(1), removing the
words ‘‘paragraphs (d) and (e) of this
section, which apply’’ and adding, in
their place, the words ‘‘paragraph (d) of
this section, which applies’’.
■ B. In paragraph (a)(2), removing the
words ‘‘paragraphs (d) and (e)’’ and
adding, in their place, the words
‘‘paragraph (d)’’.
■ C. Revising paragraphs (e) and (f).
The revisions read as follows:
■
■
§ 200.1 State responsibilities for
developing challenging academic
standards.
*
*
*
*
*
(e) Modified academic achievement
standards. A State may not define
modified academic achievement
standards for any students with
disabilities under section 602(3) of the
Individuals with Disabilities Education
Act (IDEA).
(f) State guidelines. If a State defines
alternate academic achievement
standards under paragraph (d) of this
section, the State must do the following:
(1) Establish and monitor
implementation of clear and appropriate
guidelines for IEP teams to apply in
determining students with the most
significant cognitive disabilities who
will be assessed based on alternate
academic achievement standards.
(2) Inform IEP teams that students
eligible to be assessed based on alternate
academic achievement standards may
be from any of the disability categories
listed in the IDEA.
(3) Provide to IEP teams a clear
explanation of the differences between
assessments based on grade-level
academic achievement standards and
those based on alternate academic
achievement standards, including any
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effects of State and local policies on the
student’s education resulting from
taking an alternate assessment based on
alternate academic achievement
standards (such as whether only
satisfactory performance on a regular
assessment would qualify a student for
a regular high school diploma).
(4) Ensure that parents of students
selected to be assessed based on
alternate academic achievement
standards under the State’s guidelines
in this paragraph are informed that their
child’s achievement will be measured
based on alternate academic
achievement standards.
*
*
*
*
*
■ 3. Section 200.6 is amended by:
■ A. Removing paragraph (a)(3).
■ B. Redesignating paragraph (a)(4) as
(a)(3).
■ C. Revising newly redesignated
paragraph (a)(3)(iv).
The revision reads as follows:
§ 200.6
Inclusion of all students.
*
*
*
*
*
(a) * * *
(3) * * *
(iv) Alternate assessments based on
modified academic achievement
standards in school years prior to 2015–
2016; and
*
*
*
*
*
■ 4. Section 200.13 is amended by:
■ A. Revising paragraph (c).
■ B. Removing the Appendix.
The revision reads as follows:
§ 200.13 Adequate yearly progress in
general.
*
*
*
*
*
(c)(1) In calculating AYP for schools,
LEAs, and the State, a State must,
consistent with § 200.7(a), include the
scores of all students with disabilities.
(2) A State may include the proficient
and advanced scores of students with
the most significant cognitive
disabilities based on the alternate
academic achievement standards
described in § 200.1(d), provided that
the number of those scores at the LEA
and at the State levels, separately, does
not exceed 1.0 percent of all students in
the grades assessed in reading/language
arts and in mathematics.
(3) A State may not request from the
Secretary an exception permitting it to
exceed the cap on proficient and
advanced scores based on alternate
academic achievement standards under
paragraph (c)(2) of this section.
(4)(i) A State may grant an exception
to an LEA permitting it to exceed the 1.0
percent cap on proficient and advanced
scores based on the alternate academic
achievement standards described in
paragraph (c)(2) of this section only if—
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Federal Register / Vol. 80, No. 162 / Friday, August 21, 2015 / Rules and Regulations
(A) The LEA demonstrates that the
incidence of students with the most
significant cognitive disabilities exceeds
1.0 percent of all students in the
combined grades assessed;
(B) The LEA explains why the
incidence of such students exceeds 1.0
percent of all students in the combined
grades assessed, such as school,
community, or health programs in the
LEA that have drawn large numbers of
families of students with the most
significant cognitive disabilities, or that
the LEA has such a small overall
student population that it would take
only a few students with such
disabilities to exceed the 1.0 percent
cap; and
(C) The LEA documents that it is
implementing the State’s guidelines
under § 200.1(f).
(ii) The State must review regularly
whether an LEA’s exception to the 1.0
percent cap is still warranted.
(5) In calculating AYP, if the
percentage of proficient and advanced
scores based on alternate academic
achievement standards under § 200.1(d)
exceeds the cap in paragraph (c)(2) of
this section at the State or LEA level, the
State must do the following:
(i) Consistent with § 200.7(a), include
all scores based on alternate academic
achievement standards.
(ii) Count as non-proficient the
proficient and advanced scores that
exceed the cap in paragraph (c)(2) of
this section.
(iii) Determine which proficient and
advanced scores to count as nonproficient in schools and LEAs
responsible for students who are
assessed based on alternate academic
achievement standards.
(iv) Include non-proficient scores that
exceed the cap in paragraph (c)(2) of
this section in each applicable subgroup
at the school, LEA, and State level.
(v) Ensure that parents of a child who
is assessed based on alternate academic
achievement standards are informed of
the actual academic achievement levels
of their child.
*
*
*
*
*
■ 5. Section 200.20 is amended by:
■ A. Revising paragraph (c)(3).
■ B. Removing paragraph (g).
■ C. Redesignating paragraph (h) as
paragraph (g).
The revision reads as follows:
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§ 200.20
Making adequate yearly progress.
*
*
*
*
*
(c) * * *
(3) To count a student who is assessed
based on alternate academic
achievement standards described in
§ 200.1(d) as a participant for purposes
of meeting the requirements of this
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Jkt 235001
paragraph, the State must have, and
ensure that its LEAs adhere to,
guidelines that meet the requirements of
§ 200.1(f).
*
*
*
*
*
PART 300—ASSISTANCE TO STATES
FOR THE EDUCATION OF CHILDREN
WITH DISABILITIES
6. The authority citation for part 300
continues to read as follows:
■
Authority: 20 U.S.C. 1221e–3, 1406, 1411–
1419, 3474, unless otherwise noted.
7. Section 300.160 is amended by:
A. Removing paragraph (c)(2)(ii).
B. Redesignating paragraph (c)(2)(iii)
as (c)(2)(ii).
■ C. In newly redesignated paragraph
(c)(2)(ii), removing the final punctuation
‘‘.’’ and adding, in its place, ‘‘; and’’.
■ D. Adding a new paragraph (c)(2)(iii).
■ E. Adding a new paragraph (c)(3).
■ F. Revising paragraphs (d), (e), (f)(3),
and (f)(5) introductory text.
The revisions and additions read as
follows:
■
■
■
§ 300.160
Participation in assessments.
*
*
*
*
*
(c) * * *
(2) * * *
(iii) Except as provided in paragraph
(c)(2)(ii) of this section, a State’s
alternate assessments, if any, must
measure the achievement of children
with disabilities against the State’s
grade-level academic achievement
standards, consistent with 34 CFR
200.6(a)(2)(ii)(A).
(3) Consistent with 34 CFR 200.1(e), a
State may not adopt modified academic
achievement standards for any students
with disabilities under section 602(3) of
the Act.
(d) Explanation to IEP teams. A State
(or in the case of a district-wide
assessment, an LEA) must provide IEP
teams with a clear explanation of the
differences between assessments based
on grade-level academic achievement
standards and those based on 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 academic
achievement standards (such as whether
only satisfactory performance on a
regular assessment would qualify a
student for a regular high school
diploma).
(e) Inform parents. A State (or in the
case of a district-wide assessment, an
LEA) must ensure that parents of
students selected to be assessed based
on alternate academic achievement
standards are informed that their child’s
PO 00000
Frm 00029
Fmt 4700
Sfmt 4700
50785
achievement will be measured based on
alternate academic achievement
standards.
(f) * * *
(3) The number of children with
disabilities, if any, participating in
alternate assessments based on modified
academic achievement standards in
school years prior to 2015–2016.
*
*
*
*
*
(5) Compared with the achievement of
all children, including children with
disabilities, the performance results of
children with disabilities on regular
assessments, alternate assessments
based on grade-level academic
achievement standards, alternate
assessments based on modified
academic achievement standards (prior
to 2015–2016), and alternate
assessments based on alternate
academic achievement standards if—
*
*
*
*
*
[FR Doc. 2015–20736 Filed 8–20–15; 8:45 am]
BILLING CODE 4000–01–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R03–OAR–2015–0537; FRL–9932–55–
Region 3]
Approval and Promulgation of Air
Quality Implementation Plans; District
of Columbia; Interstate Pollution
Transport Requirements for the 2006
24-Hour Fine Particulate Matter
Standard
Environmental Protection
Agency (EPA).
ACTION: Direct final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is taking direct final
action to approve a revision to the
District of Columbia State
Implementation Plan (SIP). The revision
addresses the infrastructure
requirements for interstate transport
pollution with respect to the 2006 24hour fine particulate matter (PM2.5)
National Ambient Air Quality Standards
(NAAQS). EPA is approving this
revision in accordance with the
requirements of the Clean Air Act
(CAA).
SUMMARY:
This rule is effective on October
20, 2015 without further notice, unless
EPA receives adverse written comment
by September 21, 2015. If EPA receives
such comments, it will publish a timely
withdrawal of the direct final rule in the
Federal Register and inform the public
that the rule will not take effect.
DATES:
E:\FR\FM\21AUR1.SGM
21AUR1
Agencies
[Federal Register Volume 80, Number 162 (Friday, August 21, 2015)]
[Rules and Regulations]
[Pages 50773-50785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20736]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF EDUCATION
34 CFR Parts 200 and 300
RIN 1810-AB16
[Docket ID ED-2012-OESE-0018]
Improving the Academic Achievement of the Disadvantaged;
Assistance to States for the Education of Children With Disabilities
AGENCY: Office of Elementary and Secondary Education, Office of Special
Education and Rehabilitative Services, Department of Education.
ACTION: Final regulations.
-----------------------------------------------------------------------
SUMMARY: The Secretary amends the regulations governing title I, Part A
of the Elementary and Secondary Education Act of 1965, as amended
(ESEA) (the ``Title I regulations''), to no longer authorize a State to
define modified academic achievement standards and develop alternate
assessments based on those modified academic achievement standards for
eligible students with disabilities. In order to make conforming
changes to ensure coordinated administration of programs under title I
of the ESEA and the Individuals with Disabilities Education Act (IDEA),
the Secretary is also amending the regulations for Part B of the IDEA.
Note: Nothing in these regulations changes the ability of States to
develop and administer alternate assessments based on alternate
[[Page 50774]]
academic achievement standards for students with the most significant
cognitive disabilities or alternate assessments based on grade-level
academic achievement standards for other eligible students with
disabilities in accordance with the ESEA and the IDEA, or changes the
authority of IEP teams to select among these alternate assessments for
eligible students.
DATES: These regulations are effective September 21, 2015.
FOR FURTHER INFORMATION CONTACT: For further information regarding the
Title I regulations, contact Monique M. Chism, U.S. Department of
Education, 400 Maryland Avenue SW., Room 3W224, Washington, DC 20202-
6132. Telephone: (202) 260-0826.
For further information regarding the IDEA regulations, contact
Mary Louise Dirrigl, U.S. Department of Education, 550 12th St. SW.,
Potomac Center Plaza, Room 5156, Washington, DC 20202-2641. Telephone:
(202) 245-7324.
If you use a telecommunications device for the deaf (TDD) or a text
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
High standards and high expectations for all students and an
accountability system that provides teachers, parents, students, and
the public with information about students' academic progress are
essential to ensure that students graduate from high school prepared
for college and careers in the 21st century. In 2007, the Department
amended the Title I regulations to permit States to define modified
academic achievement standards for eligible students with disabilities
and to assess those students with alternate assessments based on those
modified academic achievement standards. The Department promulgated
those regulations based on the understanding that (1) there was a small
group of students whose disabilities precluded them from achieving
grade-level proficiency and whose progress was such that they would not
reach grade-level achievement standards in the same time frame as other
students, and (2) the regular State assessment would be too difficult
for this group of students and the assessment based on alternate
academic achievement standards would be too easy for them. 72 FR 17748
(Apr. 9, 2007). In addition, at that time, the Department acknowledged
that measuring the academic achievement of students with disabilities,
particularly those eligible to be assessed based on modified academic
achievement standards, was ``an area in which there is much to learn
and improve'' and indicated that ``[a]s data and research on
assessments for students with disabilities improve, the Department may
decide to issue additional regulations or guidance.'' 72 FR 17748,
17763 (Apr. 9, 2007).
Since these regulations went into effect, additional research \1\
has demonstrated that students with disabilities who struggle in
reading and mathematics can successfully learn grade-level content and
make significant academic progress when appropriate instruction,
services, and supports are provided. For example, a research study
conducted a meta-analysis of 70 independent studies investigating the
effects of special education interventions on student achievement. The
study found that children with disabilities made significant progress
across different content areas and across different educational
settings when they received systematic, explicit instruction; learning
strategy instruction; and other evidence-based instructional strategies
and supports.\2\
---------------------------------------------------------------------------
\1\ See discussion of this research in Assessing Students with
Disabilities Based on a State's Academic Achievement Standards.
\2\ See Scruggs, T., Mastropieri, M., Berkeley, S., & Graetz, J.
(2010). Do Special Education Interventions Improve Learning of
Secondary Content? A Meta-Analysis. Remedial and Special Education,
31(6), 437-449.
---------------------------------------------------------------------------
In addition, nearly all States have developed new college- and
career-ready standards and new assessments aligned with those
standards. These new assessments have been designed to facilitate the
valid, reliable, and fair assessment of most students, including
students with disabilities who previously took an alternate assessment
based on modified academic achievement standards. For these reasons, we
believe that the removal of the authority for States to define modified
academic achievement standards and to administer assessments based on
those standards is necessary to ensure that students with disabilities
are held to the same high standards as their nondisabled peers, and
that they benefit from high expectations, access to the general
education curriculum based on a State's academic content standards, and
instruction that will prepare them for success in college and careers.
Public Comment: On August 23, 2013, we published in the Federal
Register (78 FR 52467) a notice of proposed rulemaking (NPRM) that
would amend the Title I regulations to no longer authorize a State to
define modified academic achievement standards and administer alternate
assessments based on those modified academic achievement standards for
eligible children with disabilities. The NPRM established an October 7,
2013, deadline for the submission of written comments. Although the
Federal eRulemaking Portal was in operation during the government
shutdown in October 2013, which included the final seven days of the
original public comment period, we recognized that interested parties
reasonably may have believed that the government shutdown resulted in a
suspension of the public comment period. To ensure that all interested
parties were provided the opportunity to submit comments, we reopened
the public comment period for seven days. The final due date for
comments was November 23, 2013.
In response to our invitation in the NPRM, 156 parties submitted
comments. We group major issues according to subject. In some cases,
comments addressed issues beyond the scope of the proposed regulations.
Although we appreciate commenters' concerns for broader issues
affecting the education of students with disabilities, because those
comments are beyond the scope of this regulatory action, we do not
discuss them here. Generally, we do not address technical and other
minor revisions.
Analysis of Comments and Changes: An analysis of the comments and
changes in the regulations since publication of the NPRM follows.
General Comments
Comments: Several commenters stated that general assessments that
are accessible for all students are in the best interest of students
with disabilities and provide better information about the achievement
of those students for parents, educators, and the public. Several
commenters pointed to developments in the field of assessment that are
contributing to general assessments that are accessible for the vast
majority of students. The commenters noted that using principles of
``universal design for learning'' and considering accessibility issues
when designing assessments have resulted in more accessible general
assessments and have eliminated the need for alternate assessments
based on modified academic achievement standards. A few commenters
urged the Department to promote the use of universal design for
learning in developing assessments, as well as to support the
development of accessible assessments and accommodations for students
with disabilities.
[[Page 50775]]
Discussion: Nearly all States have developed and are administering
new high-quality general assessments that are valid and reliable and
measure students with disabilities' knowledge and skills against
college- and career-ready standards. Including students with
disabilities in more accessible general assessments aligned to college-
and career-ready standards promotes high expectations for students with
disabilities, ensures that they will have access to grade-level
content, and supports high-quality instruction designed to enable
students with disabilities to be involved in, and make progress in, the
general education curriculum--that is, the same curriculum as for
nondisabled students.
In response to those commenters who urged the Department to support
the adoption of universal design principles for student assessments, we
note that the Department has a history of supporting and promoting
universal design for learning, assessments that are accessible for all
students, and appropriate accommodations for students with
disabilities. Most recently, we included ``universal design for
learning'' in defining ``high-quality assessments'' required under the
Race to the Top programs and the ESEA flexibility initiative.\3\ We
have also focused funding on improving the accessibility of assessments
through the General Supervision Enhancement Grants (GSEG) and Enhanced
Assessment Grants (EAG) programs.
---------------------------------------------------------------------------
\3\ ESEA flexibility refers to the Department's initiative to
give a State flexibility regarding specific requirements of the No
Child Left Behind Act of 2001 in exchange for developing a rigorous
and comprehensive plan designed to improve educational outcomes for
all students, close achievement gaps, increase equity, and improve
the quality of instruction.
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters from States that administered alternate
assessments based on modified academic achievement standards discussed
how these assessments were helpful in meeting the needs of students
with disabilities. One commenter stated that the assessments improved
instruction and student achievement while providing students with
access to the general curriculum. A representative from a State
educational agency (SEA) commented that five years of research and
development went into developing their State's alternate assessments,
which are based on grade-level content, are aligned with college- and
career-ready standards, and do not compromise academic rigor and
expectations. The SEA representative stated that the existing
regulations provide the most flexibility for States and that, without
access to the State's alternate assessments based on modified academic
achievement standards, students who would otherwise take the alternate
assessments would no longer have the opportunity to demonstrate their
knowledge and skills.
Discussion: We recognize that some States expended considerable
resources to develop alternate assessments based on modified academic
achievement standards. As one commenter suggests, these States'
research and development efforts generated valuable information on how
best to teach and assess students with disabilities. States may still
use this information to prepare and support students to take the new
general assessments aligned with college- and career-ready standards
that States have developed since the Department issued the regulations
in April 2007. Those assessments are more accessible to students with
disabilities than those in place at the time States began developing
alternate assessments based on modified academic achievement standards.
The new general assessments will facilitate the valid, reliable, and
fair assessment of most students with disabilities, including those for
whom alternate assessments based on modified academic achievement
standards were intended. Moreover, we know the key to successful
achievement of students with disabilities begins with appropriate
instruction, services, and supports. More than six years of research
spurred by the opportunity that States had to research, develop, and
administer alternate assessments based on modified academic achievement
standards have dramatically increased the knowledge base about students
who are struggling in school. States that received funding from the
Department through the GSEG and EAG programs to develop alternate
assessments based on modified academic achievement standards focused on
several topics, including the characteristics of students who were
participating in such assessments, barriers to these students' learning
and performance, and approaches to making assessments more accessible.
For example, research in several States found that some students deemed
eligible for taking alternate assessments based on modified academic
achievement standards may not have had an opportunity to learn grade-
level content, and that more effort was needed to support teachers in
ensuring students have meaningful opportunities to learn grade-level
content. Other research focused on the appropriateness of test items
and identified various ways to improve the accessibility of test items,
such as adjusting format characteristics or content, or carefully
examining the difficulty of the test items and making items more
accessible and understandable (e.g., reducing unimportant or extraneous
details) while still measuring grade-level content.\4\ Therefore, we
believe that alternate assessments based on modified academic
achievement standards are no longer needed and, with high-quality
instruction and appropriate accommodations, students with disabilities
who took an alternate assessment based on modified academic achievement
standards will be able to demonstrate their knowledge and skills by
participating in the new general assessments.
---------------------------------------------------------------------------
\4\ For more information, see: Thurlow, M. L., Lazarus, S. S., &
Bechard, S. (Eds.). (2013). Lessons learned in federally funded
projects that can improve the instruction and assessment of low
performing students with disabilities. Minneapolis, MN: University
of Minnesota, National Center on Educational Outcomes.
---------------------------------------------------------------------------
Changes: None.
Comments: A parent whose child participated in an alternate
assessment based on modified academic achievement standards expressed
concern that, without the assessment, the child would not be able to
graduate with a high school diploma. Another commenter asked that
States be allowed to continue to administer alternate assessments based
on modified academic achievement standards for State purposes, such as
promotion decisions and graduation requirements. One commenter stated
that the assessments allowed students with disabilities to be
successful and meet State exit exam requirements.
Discussion: Under the final regulations, a State may no longer
define modified academic achievement standards and administer alternate
assessments based on modified academic achievement standards to meet
ESEA requirements. Accordingly, these regulations do not affect State
promotion decisions and graduation requirements because the Federal
government does not set promotion or graduation standards for any
students, including students with disabilities. Rather, States, and, in
some cases, local educational agencies (LEAs), establish requirements
for high school graduation and promotion.
However, we note that, regardless of State or local promotion or
graduation requirements for a regular high school diploma, in order to
ensure a free appropriate public education (FAPE) is made available to
students with disabilities under the IDEA,
[[Page 50776]]
individualized education programs (IEPs), including IEP goals, must be
aligned with the State's academic content standards, and contain the
content required by the IDEA to enable students with disabilities to be
involved in, and make progress in, the general education curriculum
based on the State's academic content standards. Therefore, in order to
ensure that a State makes FAPE available to all eligible students with
disabilities,\5\ promotion or graduation requirements for such students
may not be lowered if doing so means including goals, special education
and related services, and supplementary aids and services and other
supports in a student's IEP that are not designed to enable the student
to be involved in, and make progress in, the general education
curriculum based on the State's academic content standards. The general
education curriculum is the curriculum that is applicable to all
children and is based on the State's academic content standards that
apply to all children within the State.
---------------------------------------------------------------------------
\5\ The IDEA prescribes certain requirements for IEPs for
students who take alternate assessments aligned to alternate
academic achievement standards. 34 CFR 300.160(c)(2)(iii),
300.320(a)(2)(ii), and 300.320(a)(6)(ii). This approach addresses
the educational and assessment needs of a relatively small
percentage of students with the most significant cognitive
disabilities, estimated at approximately 1% of all students in a
State (approximately 10% of students with disabilities), who cannot
be held to the same academic achievement standards as students
without the most significant cognitive disabilities.
---------------------------------------------------------------------------
Changes: None.
Comments: Several commenters who expressed support for the proposed
regulations noted that they are aligned with the requirements in
several current Department programs, such as the requirement that
assessments funded under the Race to the Top Assessment (RTTA) program
be accessible to all students, including students with disabilities
eligible to participate in an alternate assessment based on modified
academic achievement standards; the requirement that State recipients
of Race to the Top grants phase out alternate assessments based on
modified academic achievement standards; and the requirement that SEAs
phase out alternate assessments based on modified academic achievement
standards as a condition of receiving ESEA flexibility.
One commenter who opposed the proposed regulations expressed an
understanding that they are based on the premise that States have
adopted Common Core State Standards, joined an RTTA consortium, or
received waivers under ESEA flexibility. The commenter stated that
aligning the proposed regulations with these initiatives would set
policy for all States based on those participating in voluntary
Department initiatives and would send a message to States not
participating in these initiatives that they are disadvantaged for not
doing so. Another commenter expressed concern that the proposed
regulations would result in permanent regulatory changes predicated on
temporary ESEA flexibility waivers.
Discussion: The purpose of the these regulatory changes is to
promote high expectations for students with disabilities by encouraging
teaching and learning to high academic achievement standards for the
grade in which a student is enrolled, measured by a State's general
assessments. These regulations are driven by research and advances in
the development of general assessments aligned with college- and
career-ready standards that are more accessible to students with
disabilities than those in place at the time States began developing
alternate assessments based on modified academic achievement standards.
The purpose of the regulations is not, as suggested by some commenters,
to align them with voluntary Department initiatives. To clarify, State
recipients of Race to the Top grants were not required to phase out
alternate assessments based on modified academic achievement standards
as a condition of the grants. States approved for ESEA flexibility did
agree to phase out those assessments by school year 2014-2015; however,
these final regulations are not predicated on that agreement. Rather,
the ESEA flexibility requirement is consistent with the purpose of the
regulations to promote high expectations for students with disabilities
by encouraging teaching and learning to high academic achievement
standards for the grade in which a student is enrolled measured by a
State's general assessments. Therefore, we disagree with the commenters
who claimed that the regulations would set policy based on the
Department's voluntary initiatives. Likewise, the regulations do not
place any State at a disadvantage as a result of its decision not to
participate in voluntary Department initiatives.
Changes: None.
Comments: One commenter expressed concern that the assessments
being developed by the Partnership for Assessment of Readiness for
College and Careers (PARCC), although based on universal design
features to make them more accessible, will not eliminate the need for
alternate assessments.
Discussion: The assessments being developed by States based on
college- and career-ready standards, including those developed by PARCC
and the Smarter Balanced Assessment Consortium, do not eliminate the
authority or need for States to administer alternate assessments based
on alternate academic achievement standards for students with the most
significant cognitive disabilities. States may also continue to
administer alternate assessments based on grade-level academic
achievement standards, consistent with 34 CFR 200.6(a)(2)(ii)(A). We
note that the Department is supporting, through the GSEG program, the
development of alternate assessments based on alternate academic
achievement standards that will serve as companion assessments to the
general assessments that States are developing and implementing.
Changes: None.
Comments: One commenter questioned the Department's authority to
amend the Title I regulations in light of the negotiated rulemaking
requirements in section 1901(b) of the ESEA, including the requirement
that the rulemaking process be conducted in a timely manner to ensure
that final regulations are issued by the Secretary not later than one
year after the date of enactment of the No Child Left Behind Act of
2001 (NCLB). Similarly, the commenter questioned whether the proposed
regulations meet the requirement in section 1908 of the ESEA that the
Secretary issue regulations for sections 1111 and 1116 of the ESEA not
later than six months after the date of enactment of NCLB.
Discussion: The statutory requirements for negotiated rulemaking in
section 1901(b) of the ESEA 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. Similarly, with respect to the timeline for issuing
regulations implementing title I, the requirements in sections 1901 and
1908 of the ESEA apply only to the issuance of initial regulations
following enactment of NCLB, not to subsequent amendments such as these
final regulations.
Changes: None.
Assessing Students With Disabilities Based on a State's Academic
Achievement Standards
Comments: We received many comments on the standards to which
students with disabilities should be held. Several commenters stated
that all students should be held and taught to the same standards and
that modified academic achievement standards and
[[Page 50777]]
alternate assessments based on those standards inappropriately lower
expectations for students with disabilities and result in instruction
that is less challenging than the instruction provided to their
nondisabled peers. Other commenters stated that students with
disabilities have the ability to learn grade-level content and can
achieve at the same levels as their nondisabled peers when provided
with appropriate instruction, services, and supports. One commenter
stated that, when students receive instruction based on modified
academic achievement standards, a negative cycle begins in which the
students never learn what they need to succeed. One commenter stated
that a State's standards and assessments should be designed to be
appropriate for the vast majority of students with disabilities, with
the exception of students with the most significant cognitive
disabilities. Other commenters stated that a large number of students
with disabilities taking alternate assessments based on modified
academic achievement standards creates a separate education system for
students with disabilities and focuses on students' limitations, rather
than strengths.
On the other hand, some commenters stated that holding students
with disabilities to the same standards as nondisabled students is
unfair because students who qualify for special education services have
a disability that affects their academic functioning. They noted that
what may be a high standard for one student may not necessarily be the
same for another student, and that students with disabilities should
take assessments that reflect realistic expectations for them.
Discussion: The importance of holding all students, including
students with disabilities, to high standards cannot be over-
emphasized. Low expectations can lead to students with disabilities
receiving less challenging instruction that reflects below grade-level
achievement standards, and thereby not learning what they need to
succeed at the grade in which they are enrolled.
Although the Department agrees that some students may have a
disability that affects their academic functioning, we disagree that
students with disabilities, except for those with the most significant
cognitive disabilities, should be held to different academic
achievement standards than their nondisabled peers. Research
demonstrates that low-achieving students with disabilities who struggle
in reading \6\ and low-achieving students with disabilities who
struggle in mathematics \7\ can successfully learn grade-level content
when they have access to high-quality instruction. The inclusion of
students with disabilities in the new, more accessible general
assessments will promote high expectations for students with
disabilities, which research demonstrates is associated with improved
educational outcomes.\8\ Therefore, we disagree with commenters'
statements that it is unfair to hold students with disabilities, other
than those with the most significant cognitive disabilities, to the
same academic achievement standards as their nondisabled peers.
---------------------------------------------------------------------------
\6\ For example, see: Allor, J. H., Mathes, P. G., Roberts, J.
K., Cheatham, J.P., & Champlin, T. M. (2010). Comprehensive reading
instruction for students with intellectual disabilities. Psychology
in the Schools, 47, 445-466; Kamps, D., Abbott, M., Greenwood, C.,
Wills, H., Veerkamp, M., & Kaufman, J. (2008); Mautone, J. A.,
DuPaul, G. J., Jitendra, A. K., Tresco, K. E., Junod, R. V., &
Volpe, R. J. (2009). The relationship between treatment integrity
and acceptability of reading interventions for children with
attention-deficit/hyperactivity disorder. Psychology in the Schools,
46, 919-931; and Scammacca, N., Vaughn, S., Roberts, G., Wanzek, J.,
& Torgesen, J. K. (2007). Extensive reading interventions in grades
K-3: From research to practice. Portsmouth, N.H.: RMC Research
Corporation, Center on Instruction; and Vaughn, S., Denton, C. A., &
Fletcher, J. M. (2010). Why intensive interventions are necessary
for students with severe reading difficulties. Psychology in the
Schools, 47, 32-444; Wanzek, J. & Vaughn, S. (2010). Tier 3
interventions for students with significant reading problems. Theory
Into Practice, 49, 305-314.
\7\ For example, see: Fuchs, L. S. & Fuchs, D., Powell, S. R.,
Seethaler, P. M., Cirino, P. T., & Fletcher, J. M. (2008). Intensive
intervention for students with mathematics disabilities: Seven
principles of effective practice. Learning Disabilities Quarterly,
31, 79-92; and Gersten, R., Beckmann, S., Clarke, B., Foegen, A.,
Marsh, L., Star, J. R., & Witzel, B. (2009). Assisting students
struggling with mathematics: Response to Intervention (RtI) for
elementary and middle schools (NCEE 2009-4060). Washington, DC:
National Center for Education Evaluation and Regional Assistance,
Institute of Education Sciences, U.S. Department of Education.
Retrieved November 1, 2010 from https://ies.ed.gov/ncee/wwc/publications/practiceguides/.
\8\ For example, see Archamboult, I., Janosz, M., & Chouindard,
R. (2012). Teacher beliefs as predictors of adolescent cognitive
engagement and achievement in mathematics. The Journal of
Educational Research, 105, 319-328; Hinnant, J., O'Brien, M., &
Ghazarian, S. (2009). The longitudinal relations of teacher
expectations to achievement in the early school years. Journal of
Educational Psychology, 101(3), 662-670; and Hornstra, L., Denessen,
E., Bakker, J., von den Bergh, L., & Voeten, M. (2010). Teacher
attitudes toward dyslexia: Effects on teacher expectations and the
academic achievement of students with dyslexia. Journal of Learning
Disabilities, 43(6), 515-529.
---------------------------------------------------------------------------
Changes: None.
Comments: Many commenters, mostly teachers and parents, stated that
modified academic achievement standards and assessments based on those
standards meet the needs of certain students with disabilities for whom
the general assessment is too difficult. The commenters stated that the
general assessment does not provide meaningful data on these students
and that alternate assessments based on modified academic achievement
standards allow students to demonstrate their knowledge, show progress,
and experience success.
Several commenters expressed concern about providing assessments to
students when they know the students will struggle to complete the
general assessment because, without more supports, it would be too
challenging for the students. The commenters expressed concern that
this experience would affect their self-esteem and result in higher
drop-out rates for students with disabilities.
Discussion: Since the regulations permitting States to define
modified academic achievement standards and develop alternate
assessments based on those standards were promulgated in 2007, there
has been significant research and progress in developing assessments
that are appropriate and accessible for most students, including
students with disabilities for whom alternate assessments based on
modified academic achievement standards were intended. As discussed in
the NPRM, the application of universal design principles, new
technologies, and new research on accommodations has led to the
development of general assessments that are not only more accessible to
students with disabilities, but also improve the validity of their
scores. As a number of commenters noted, the developers of the new
generation of assessments considered the needs of students with
disabilities to ensure that the assessments are designed to allow those
students to demonstrate their knowledge.\9\
---------------------------------------------------------------------------
\9\ For additional information on assessment accommodations,
see: PARCC Accessibility Features and Accommodations Manual (Nov.
2014) at https://www.parcconline.org/sites/parcc/files/parcc-accessibility-features-accommodations-manual-11-14_final.pdf.
---------------------------------------------------------------------------
The Department shares the goal that students with disabilities
experience success. Removing the authority for modified academic
achievement standards and an alternate assessment based on those
standards furthers this goal because students with disabilities who are
assessed based on grade-level academic achievement standards will
receive instruction aligned with such an assessment.
Changes: None.
Comments: Some commenters stated that it is unfair for students
with
[[Page 50778]]
disabilities to have modifications in instruction during the school
year and then be assessed with a test that is not modified.
Discussion: For purposes of this response, we assume
``modifications in instruction'' means accommodations authorized under
the IDEA. While the IDEA does authorize adaptations in the content,
methodology, or delivery of instruction (34 CFR 300.39(b)(3)), it also
requires appropriate accommodations during testing (34 CFR 300.160(a)
and 300.320(a)(6)(i)). These accommodations, as agreed upon by a
child's IEP team, which includes the child's parents along with school
officials, may include, among other things, small group testing,
frequent breaks, a separate or alternate location, a specified area or
seating, and adaptive and specialized equipment or furniture. As
permitted under the IDEA and determined appropriate by a student's IEP
team, the Department believes that students with disabilities who take
a general assessment based on a State's challenging academic
achievement standards should be provided with accommodations during the
assessment that are similar to the IEP accommodations they receive for
instructional purposes and for other academic tests or assessments so
that the students can be involved in, and make progress in, the general
education curriculum. These regulations will not prevent the provision
of needed supports to students with disabilities during general
assessments or for other instructional purposes.
Changes: None.
Comments: One commenter expressed support for the proposed
regulations, stating that alternate assessments based on modified
academic achievement standards do not take into account a student's
disability and the content of the instruction he or she is provided,
and do not provide meaningful information to school districts or
accurately measure the student's progress. However, the commenter
maintained that the new general assessments, although more accessible,
may be too difficult for students who currently participate in an
alternate assessment based on modified academic achievement standards.
Instead, the commenter recommended allowing States to base
participation in the general assessment on a student's instructional
level, rather than chronological age, with a cap of counting no more
than two percent of proficient scores for ESEA accountability purposes.
Discussion: The commenter's recommendation to allow States to base
participation in the general assessment on a student's instructional
level is often referred to as ``out-of-level'' or ``off-grade level''
testing and generally refers to the practice of assessing a student
enrolled in one grade using a measure that was developed for students
in a lower grade. By definition, an out-of-level assessment cannot meet
the requirements of a grade-level assessment because it does not
measure mastery of grade-level content or academic achievement
standards. In addition, out-of-level testing is often associated with
lower expectations for students with disabilities, tracking such
students into lower-level curricula with limited opportunities to
succeed in the general education curriculum.
The Department disagrees with the commenter's statement that the
new general assessments may be too difficult for students who currently
participate in an alternate assessment based on modified academic
achievement standards. We learned through States that received funding
from the Department through the GSEG and EAG programs that some
students with disabilities who might be candidates for an alternate
assessment based on modified academic achievement standards may not
have had an opportunity to learn grade-level content, and more effort
was needed to support teachers in ensuring students have meaningful
opportunities to learn grade-level content. Six of the projects found
that students who might be candidates for an alternate assessment based
on modified academic achievement standards had difficulty using printed
materials in certain formats or demonstrated other specific challenges
related to some components of reading. Other projects focused on the
appropriateness of test items and identified various ways to improve
the accessibility of test items, while still measuring grade-level
content.\10\
---------------------------------------------------------------------------
\10\ For more information, see: Thurlow, M. L., Lazarus, S. S.,
& Bechard, S. (Eds.). (2013). Lessons learned in federally funded
projects that can improve the instruction and assessment of low
performing students with disabilities. Minneapolis, MN: University
of Minnesota, National Center on Educational Outcomes.
---------------------------------------------------------------------------
Changes: None.
Comments: Some commenters stated that preparing students to be
``college ready'' should not be a goal for all public school students.
Discussion: We understand that not all students will enter a four-
year college upon graduating from high school. However, we strongly
believe that public schools should prepare all children to be ready for
college or the workforce. According to research from the American
Diploma Project, nearly two-thirds of new jobs require some form of
postsecondary education.\11\ Therefore, in order to compete in the 21st
century, regardless of whether a student has a disability, some form of
postsecondary training or education is increasingly important for the
student to become a productive and contributing adult.
---------------------------------------------------------------------------
\11\ Achieve. (2012). The Future of the U.S. Workforce: Middle
Skills Jobs and the Growing Importance of Post Secondary Education.
American Diploma Project, www.achieve.org.
---------------------------------------------------------------------------
Changes: None.
Responsibilities of IEP Teams and Students' Participation in
Assessments
Comments: Many commenters expressed concern that no longer
permitting the use of alternate assessments based on modified academic
achievement standards and requiring students to take the general State
assessments conflict with IDEA requirements. The commenters argued that
the IDEA requires a student's education to be individualized in an IEP
and not standardized with an assessment designed for the general
student population. A few commenters stated that a student's IEP team
is responsible for making educational decisions for the student and
should decide whether an alternate assessment based on modified
academic achievement standards or a new more accessible general
assessment is the more appropriate assessment for the student.
Discussion: The commenters are correct that the IDEA assigns the
IEP team the responsibility for determining how a student with a
disability participates in a State or district-wide assessment,
including assessments required under title I of the ESEA (34 CFR
300.320(a)(6) and 300.160(a)). This IEP team responsibility is
essential, given the importance of including all children with
disabilities in a State's accountability system. These final
regulations do not contravene this IEP team responsibility.
The IDEA, Part B regulations at 34 CFR 300.320(a)(6) address what
each student's IEP must contain regarding participation in State and
district-wide assessments. Each child's IEP must include, among other
things: (1) A statement of any individual appropriate accommodations
that are necessary to measure the academic achievement and functional
performance of the child on State and district-wide assessments and (2)
if the IEP team determines that a student with a disability must take
an alternate assessment, a statement of why
[[Page 50779]]
the child cannot participate in the regular assessment, and why the
particular alternate assessment selected is appropriate for the child.
Under these final regulations, to ensure that students with
disabilities are appropriately included in assessments conducted under
title I, an IEP team will continue to have the authority and
responsibility to determine whether students with disabilities should
take the regular assessment with or without appropriate accommodations,
an alternate assessment based on grade-level academic achievement
standards, if any, or, for students with the most significant cognitive
disabilities, an alternate assessment based on alternate academic
achievement standards.
Although an IEP team determines how a student with a disability
participates in general State and district-wide assessments, States are
responsible for adopting general and alternate assessments, consistent
with applicable Title I regulations. Accordingly, IEP teams will
continue to determine which assessment a student with a disability will
take in accordance with 34 CFR 300.320(a)(6), and the final regulations
in 34 CFR 300.160(c) and 200.6(a)(2). However, under these final
regulations, an IEP team may no longer select an alternate assessment
based on modified academic achievement standards to assess students
with disabilities under title I of the ESEA.
Changes: None.
Comments: Many commenters opposed the proposed amendments because
they oppose standardized tests for students with disabilities. Some
commenters stated that standardized tests cannot measure the
achievement and progress of a student with a disability, particularly a
student who is far behind academically. The commenters offered several
alternatives to standardized assessments for students with disabilities
including assessments that are specialized and personalized for each
student; assessments that are based on each student's daily class work
and cognitive level, rather than their age; assessments that use
standards for passing that are developed by a student's IEP team; and
individualized assessments that measure growth. Other commenters
suggested allowing States to use a number of assessments to measure
achievement for students with disabilities, rather than a single
general assessment. A few commenters recommended using measures other
than assessments to document the achievement of students with
disabilities such as data on classroom performance collected by
teachers and a student's progress toward meeting his or her IEP goals.
Finally, some commenters recommended that States, districts, and
schools use measures other than performance on standardized assessments
as evidence of success in educating students with disabilities. For
example, commenters recommended using the number of students passing
workforce certification tests, the number of students employed in a
skilled job after high school, or the number of students who
effectively use a college's disability assistance center.
Discussion: The assessment and accountability provisions of title I
require that all students, including students with disabilities, be
included in Statewide standardized assessments. 20 U.S.C.
6311(b)(3)(C)(ix); 34 CFR 200.6. Section 612(a)(16)(A) of the IDEA and
34 CFR 300.160(a) also provide that all children with disabilities must
be included in all general State and district-wide assessments,
including assessments described under section 1111 of the ESEA, with
appropriate accommodations and alternate assessments where necessary
and as indicated in their respective IEPs. Parents and teachers have
the right and need to know how much progress all students, including
students with disabilities, are making each year toward college and
career readiness. That means all students, including students with
disabilities, need to take annual Statewide assessments. Accordingly,
the commenters' proposals of alternative methods to measure the
achievement of students with disabilities are inconsistent with title I
and IDEA.
Changes: None.
Comments: Some commenters who supported the proposed regulations
stated that not holding all students to the same standards has resulted
in excusing districts from their responsibility to educate students
with disabilities based on the general curriculum. For example, one
parent whose child participated in an alternate assessment based on
modified academic achievement standards commented that the child
received instruction that was not based on the general education
curriculum, contrary to the requirements of the IDEA.
Discussion: Current IDEA regulations (34 CFR 300.320(a)(1)(i) and
(4)(ii)) require that each child with a disability must receive
instruction designed to enable the child to be involved in, and make
progress in, the general education curriculum--i.e., the same
curriculum as for nondisabled students. The importance of this
requirement cannot be overemphasized. As the Department stated in the
Analysis of Comments to the 2006 IDEA, Part B regulations, ``[w]ith
regard to the alignment of the IEP with the State's content standards,
Sec. 300.320(a)(1)(i) clarifies that the general education curriculum
means the same curriculum as all other children. Therefore, an IEP that
focuses on ensuring that a child is involved in the general education
curriculum will necessarily be aligned with the State's content
standards.'' 71 FR 46540, 46662 (Aug. 14, 2006).
Under section 1111(b)(1)(B) of the ESEA, a State must apply its
challenging academic content standards to all children in the State,
including all children with disabilities. Section Sec. 200.1(a)-(b) of
the current title I regulations defines State academic content
standards as grade-level standards. The Title I regulations permitting
a State to define modified academic achievement standards and to
administer alternate assessments based on those standards in assessing
the academic progress of students with disabilities were not intended
to change the requirement that those standards be based on challenging
academic content standards. In fact, Sec. 200.1(f)(2)(iii) of the
current title I regulations provides that, if the IEPs of students
assessed against modified academic achievement standards include goals
for the subjects to be assessed, the IEPs of such students assessed
based on modified academic achievement standards must include ``goals
based on the academic content standards for the grade in which a
student is enrolled.'' This provision has been removed because the
authority to define modified academic achievement standards and
administer alternate assessments based on those standards, has been
removed. However, IEPs for all students with disabilities must continue
to be aligned with a State's academic content standards and include
annual goals, special education and related services, and supplementary
aids and services and other supports that are designed to enable the
student to be involved in, and make progress in, the general education
curriculum based on the State's academic content standards.
As explained in the Senate Report accompanying the 2004
reauthorization of the IDEA, ``[f]or most students with disabilities,
many of their IEP goals would likely conform to State and district wide
academic content standards and progress indicators consistent with
standards based reform within education and the new requirements of
NCLB. IEPs would also include other goals that the IEP Team deemed
appropriate for the student,
[[Page 50780]]
such as life skills, self-advocacy, social skills, and desired post-
school activities. Moreover, since parents will receive individual
student reports on their child with a disability's achievement on
assessments under NCLB, they will have additional information to
evaluate how well their children are doing against grade-level
standards.'' S. Rep. No. 108-185, 105th Cong., 1st Sess. 29 (Nov. 3,
2003). Reading the IDEA and ESEA requirements together, it is incumbent
upon States and school districts to ensure that the IEPs of students
with disabilities who are being assessed against grade-level academic
achievement standards include content and instruction that gives these
students the opportunity to gain the knowledge and skills necessary for
them to meet those challenging standards. We strongly urge States and
school districts to provide IEP Teams with technical assistance on ways
to accomplish this, consistent with the purposes of the IDEA and the
ESEA. Technical assistance is available from the following resources:
National Center on Educational Outcomes https://www.cehd.umn.edu/nceo/default.html and The Center on Standards and Assessments Implementation
https://csai-online.org/.
Changes: None.
Timeline To Discontinue Alternate Assessments Based on Modified
Academic Achievement Standards
Comments: A number of commenters stated that eliminating the
authority of a State to use alternate assessments based on modified
academic achievement standards beginning in the 2014-2015 school year
is premature. Some commenters stated that a more appropriate time to
discontinue use of alternate assessments based on modified academic
achievement standards would be after the 2014-2015 school year when
many States would have completed their field tests and implemented new
assessments aligned with college- and career-ready standards. One
commenter referenced a report that stated that 10 to 15 percent of
students with disabilities have disabilities that would preclude them
from meeting new college- and career-ready standards. The commenter
concluded that these estimates raise questions as to whether the new
general assessments will be appropriate for all students with
disabilities (with the exception of students with the most significant
cognitive disabilities who are eligible to take an alternate assessment
based on alternate academic achievement standards). The commenters
asserted that a State should retain the authority to administer
alternate assessments based on modified academic achievement standards
until there is information about how adequately the new general
assessments include students with disabilities who currently take an
alternate assessment based on modified academic achievement standards.
Another commenter raised concerns about phasing out alternate
assessments based on modified academic achievement standards at the
same time that States are implementing new general assessments. The
commenter stated that, at such a time of change, more flexibility
rather than less flexibility should be provided to States. One
commenter stated that there are indications that implementation of the
new assessments will be delayed and that these delays would negatively
affect students with disabilities who currently take an alternate
assessment based on modified academic achievement standards.
Discussion: With respect to the commenters who stated that
eliminating the authority of a State to use alternate assessments based
on modified academic achievement standards beginning in the 2014-2015
school year is premature, we disagree. We continue to believe that
eliminating the authority for alternate assessments based on modified
academic achievement standards to assess the academic progress of
students with disabilities under title I of the ESEA at the same time
those students are included in new general assessments is in the best
interest of the students. All States that had implemented alternate
assessments based on modified academic achievement standards have now
adopted college- and career-ready standards. These States are all
administering general assessments aligned to college- and career-ready
standards in 2014-2015. To the extent those are RTTA assessments, they
will not be delayed. Moreover, the RTTA assessments were field tested
in 2013-2014 and those field tests included students assessed with an
alternate assessment based on modified academic achievement standards.
As a result, students with disabilities who previously participated in
an alternate assessment based on modified academic achievement
standards are making the transition to new general assessments along
with their peers and have had the same benefit as their peers of
instruction designed to meet new college- and career-ready standards.
Therefore, it is appropriate that students with disabilities be
assessed in 2014-2015 with the new general assessments that are aligned
with their instruction.
Changes: None.
Comments: None.
Discussion: When the proposed regulations were published on August
23, 2013 (78 FR 52467), we anticipated finalizing the regulations prior
to the end of the 2013-2014 school year. Therefore, we proposed
regulations to allow States that administered alternate assessments
based on modified academic achievement standards during the 2013-2014
school year to continue to administer those assessments and to use the
results for accountability purposes through the 2013-2014 school year.
Given that the final regulations were not published prior to the end of
the 2013-2014 school year, several of the proposed regulations are no
longer necessary. We are, therefore, removing proposed regulations that
refer to the conditions under which a State could continue to use
modified academic achievement standards and to administer alternate
assessments based on those standards until the end of the 2013-2014
school year.
We also are amending current Title I regulations and making
conforming changes to current IDEA regulations to remove provisions
related to alternate assessments based on modified academic achievement
standards and references to ``modified academic achievement
standards.'' We did not include these changes in the NPRM because these
provisions were still necessary during the 2013-2014 transition year
provided for in the proposed regulations. Now that the transition year
has passed, there is no longer a need to retain references to
``modified academic achievement standards'' or alternate assessments
aligned with those standards, except for the provisions regarding
reporting on the number of students with disabilities taking alternate
assessments based on modified academic achievement standards in years
prior to 2015-2016. In assessing the academic progress of students with
disabilities under title I of the ESEA, a State retains its authority
to continue to administer alternate assessments based on grade-level
academic achievement standards, consistent with 34 CFR
200.6(a)(2)(ii)(A) and revised 300.160(c)(1). Additionally, a State
retains its authority to adopt alternate academic achievement
standards, as permitted in 34 CFR 200.1(d), and to measure the
achievement of students with the most significant cognitive
disabilities against those standards, as permitted in 34 CFR
200.6(a)(2)(ii)(B) and 300.160(c)(2)(iii) (new 300.160(c)(2)(ii)). As
described
[[Page 50781]]
below, we are making changes to Sec. Sec. 200.1, 200.6, 200.13, and
200.20 in the Title I regulations and Sec. 300.160 in the IDEA
regulations.
Changes: Changes to Sec. 200.1: We are removing proposed
paragraphs (e)(2) and (e)(4) (both of which refer to conditions under
which a State could continue to administer alternate assessments based
on modified academic achievement standards until the end of the 2013-
2014 school year) and revising proposed paragraph (e)(1) (now paragraph
(e)) to state that a State may not define modified academic achievement
standards for any students with disabilities. We are removing as no
longer necessary current paragraph (e)(2) (proposed redesignated
paragraph (e)(3)), which sets out the criteria a State must establish
for IEP teams to use to identify students with disabilities who were
eligible to be assessed based on modified academic achievement
standards. In addition, we are revising current paragraph (f) regarding
State guidelines to remove all references to ``modified academic
achievement standards.'' The requirements in current paragraph (f)
applicable to alternate academic achievement standards remain unchanged
and fully applicable to a State that has adopted such standards.
Changes to Sec. 200.6: We are removing proposed paragraph (a)(3)
so that a State may no longer measure the achievement of students with
disabilities based on modified academic achievement standards,
redesignating current paragraph (a)(4) as new paragraph (a)(3), and
revising new paragraph (a)(3)(iv) (current paragraph (a)(4)(iv)) to
require a State to report to the Secretary the number and percentage of
children with disabilities, if any, participating in alternate
assessments based on modified academic achievement standards in school
years prior to 2015-2016.
Changes to current Sec. 200.13: We are revising current paragraph
(c) to remove references to ``modified academic achievement
standards,'' references to the 2.0 percent cap on proficient and
advanced scores of students taking alternate assessments based on
modified academic achievement standards, and the Appendix.
The requirements in current paragraph (c) applicable to alternate
academic achievement standards remain unchanged and fully applicable to
a State that has adopted such standards.
Changes to current Sec. 200.20: We are revising current paragraph
(c)(3) to remove the reference to ``modified academic achievement
standards.'' The requirements in current paragraph (c)(3) applicable to
alternate academic achievement standards remain unchanged and fully
applicable to a State that has adopted such standards. We also are
removing current paragraph (g) (which describes a transition provision
related to modified academic achievement standards) and redesignating
current paragraph (h) as new paragraph (g).
Changes to current Sec. 300.160: We are revising Sec. 300.160 of
the IDEA regulations, which addresses participation of students with
disabilities in assessments, to make conforming changes with those made
in the Title I regulations. We are removing current paragraph
(c)(2)(ii), which authorizes alternate assessments based on modified
academic achievement standards, as permitted in 34 CFR 200.1(e), in
assessing the academic progress of students with disabilities under
title I of the ESEA; and redesignating current paragraph (c)(2)(iii) as
paragraph (c)(2)(ii). We are adding a new paragraph (c)(2)(iii) to make
clear that, except as provided in paragraph (c)(2)(ii), a State's
alternate assessments, if any, must measure the achievement of children
with disabilities against the State's grade-level academic achievement
standards, consistent with 34 CFR 200.6(a)(2)(ii)(A).
Consistent with 34 CFR 200.1(e), we are adding paragraph (c)(3) to
make clear that a State may no longer adopt modified academic
achievement standards for any students with disabilities under section
602(3) of the IDEA. We are revising current paragraphs (d) and (e) to
remove references to ``modified academic achievement standards''.
Finally, we are revising current paragraphs (f)(3) and (f)(5) to
require a State to report to the Secretary the number and performance
results, respectively, of children with disabilities, if any,
participating in alternate assessments based on modified academic
achievement standards in school years prior to 2015-2016.
The requirements in current paragraphs (c), (d), (e), and (f)
applicable to alternate academic achievement standards for students
with the most significant cognitive disabilities remain unchanged and
fully applicable to a State that has adopted such standards.
Technical Assistance and Monitoring
Comments: Several commenters offered suggestions regarding the
technical assistance needed to help States, teachers, and students
transition from alternate assessments based on modified academic
achievement standards to new, more accessible general assessments. Some
commenters recommended providing technical assistance to help States
develop plans to phase out alternate assessments based on modified
academic achievement standards, including support for technical issues
such as measuring student growth when data on two years of performance
on the same assessment are not available. Other commenters stated that
technical assistance is needed to ensure that students with
disabilities receive appropriate instruction and supports to allow them
to successfully participate in the general assessment. Commenters also
emphasized the need to provide training and professional development to
all educators to ensure that students with disabilities have meaningful
access to the general curriculum, and to emphasize the importance of
educating IEP teams, including parents, on determining the appropriate
assessments for students with disabilities.
Other commenters stated that States that implemented alternate
assessments based on modified academic achievement standards learned
important lessons, as did States that elected not to administer these
alternate assessments and focus on improving student outcomes. The
commenters recommended that the Department gather this information and
use it to promote best practices for including students with
disabilities in assessments required for accountability measures under
the ESEA.
Some commenters encouraged the Department to monitor schools and
States to ensure that supports are provided to students with
disabilities who previously participated in alternate assessments based
on modified academic achievement standards.
Discussion: The Department is supporting States in their transition
to more accessible general assessment systems. In February 2014, the
Department's Office of Elementary and Secondary Education (OESE) and
Office of Special Education and Rehabilitative Services (OSERS)
sponsored a meeting, ``Successfully Transitioning Away from the 2%
Assessment,'' for State teams to jointly learn from and plan for
discontinuing the implementation of alternate assessments based on
modified academic achievement standards. Materials from this meeting
are posted at www.cehd.umn.edu/nceo/AAMAStransition/default.html. The
Department currently funds several technical assistance centers that
provide resources on students with disabilities and the instructional
supports they need to access the general curriculum and participate in
the general assessment (e.g., the Center for Standards and
[[Page 50782]]
Assessment Implementation; see https://csai-online.org/). Moreover,
several technical assistance centers provide resources that
specifically address the needs of students who have persistent academic
and behavioral needs that require intensive intervention to succeed in
school and prepare them to be college and career ready (e.g., the
National Center on Intensive Intervention; see https://www.intensiveintervention.org/). In addition, the federally funded
Parent Training and Information Centers (https://www.parentcenterhub.org/) focus on ensuring that parents of children
with disabilities have the information they need to participate
effectively in their child's education, including making decisions
about the assessments that are appropriate for their child. OESE and
OSERS will continue to work collaboratively with the Department's
federally funded technical assistance and dissemination partners to
ensure that all students, including students with disabilities, have
the supports and instruction they need to meet college- and career-
ready standards.
With regard to commenters who recommended the Department compile
information learned by States that implemented alternate assessments
based on modified academic achievement standards, we note that the work
funded by the Department through the GSEG and EAG programs has
contributed to the knowledge base about students who are struggling in
school. Projects funded by these programs focused on a number of
topics, including the characteristics of students who participated in
alternate assessments based on modified academic achievement standards,
barriers to their learning and performance, and approaches to making
assessments more accessible. Several State projects that focused on
instructional matters found that more effort was needed to support
teachers in ensuring students with disabilities have meaningful
opportunities to learn grade-level content. Other projects focused on
the appropriateness of test items and identified various ways to
improve the accessibility of test items, such as examining the
difficulty of test items and making items more accessible and
understandable without changing the knowledge or skill that is being
measured (e.g., reducing unimportant or extraneous details from test
items). The lessons learned from these projects are in ``Lessons
Learned in Federally Funded Projects that Can Improve the Instruction
and Assessment of Low Performing Students with Disabilities,''
available at: https://www.cehd.umn.edu/nceo/onlinepubs/lessonslearned.pdf.
With respect to commenters who urged the Department to monitor to
ensure that supports are provided to students with disabilities who
previously participated in alternate assessments based on modified
academic achievement standards, pursuant to 34 CFR 300.149(b) and
300.600, an SEA must monitor public agencies' implementation of the Act
and Part B regulations and ensure timely correction of any identified
noncompliance. We expect, therefore, that SEAs will monitor compliance
with the provisions in 34 CFR 300.160.
Changes: None.
Comments: A few commenters advised the Department to monitor data
on the percentage of students participating in alternate assessments
based on alternate academic achievement standards following the phase
out of alternate assessments based on modified academic achievement
standards. One commenter stated that the Department should publish the
assessment data from the 2012-2013 school year as part of the final
regulations, including the number and percentage of students with
disabilities who took the general assessment and the number and
percentage of students who took an alternate assessment based on
modified academic achievement standards, and the proficiency rates for
each group.
Discussion: Pursuant to the authority of section 618(a)(3) of the
IDEA, the Secretary requires States to report the number of students
with disabilities who took (1) the general assessment, with and without
accommodations; (2) the alternate assessment based on modified academic
achievement standards; (3) the alternate assessment based on grade-
level academic achievement standards; and (4) the alternate assessment
based on alternate academic achievement standards. These data will help
SEAs monitor whether the number of students who take an alternate
assessment based on alternate academic achievement standards increases
significantly with the elimination of alternate assessments based on
modified academic achievement standards.
Under title I and IDEA, States also are required to report the
number of students with disabilities who scored at each academic
achievement (performance) level (e.g., basic, proficient, above
proficient). These numbers can be aggregated to derive the number of
students with disabilities who scored at or above proficient on each
assessment. However, States are not required to report the percentages
of students with disabilities who scored at or above proficient on each
assessment. The most recent year for which data are available is 2011-
2012. For additional information on these data and links to the data
files see: https://inventory.data.gov/dataset/95ca1187-69f5-4e70-9f8c-6bbbb3d6d94a/resource/446d130d-5160-4c27-a428-317c6333b38f. In
addition, the Department routinely publishes on its Web site States'
Consolidated State Performance Reports (CSPR), which include data on
the number and percentage of students with disabilities who participate
in the general assessment and each type of alternate assessment (i.e.,
an alternate assessment based on alternate academic achievement
standards, an alternate assessment based on modified academic
achievement standards, and an alternate assessment based on grade-level
academic achievement standards). The percentage of students with
disabilities who score at or above proficient is also reported, but is
not disaggregated by type of assessment (general versus alternate
assessment). These data are posted at: www2.ed.gov/admins/lead/account/consolidated/. Therefore, we decline to include the
assessment data from the 2012-2013 school year in the final
regulations, as requested by one commenter.
Changes: None.
Alternate Assessments Based on Alternate Academic Achievement Standards
Comments: Several commenters wrote about the need for alternate
assessments for students with the most significant cognitive
disabilities. One commenter asked how the proposed regulations would
affect students with the most significant cognitive disabilities who
take alternate assessments based on alternate academic achievement
standards.
Discussion: The proposed regulations do not affect the assessment
of students with the most significant cognitive disabilities. A State
continues to have the authority under 34 CFR 200.1(d) and
200.6(a)(2)(ii)(B) to define alternate academic achievement standards,
administer alternate assessments based on those alternate academic
achievement standards, and, subject to the one percent limitation on
the number of proficient scores that may be counted for accountability
purposes, include the results in accountability determinations.
Changes: None.
[[Page 50783]]
Executive Orders 12866 and 13563
Regulatory Impact Analysis
Under Executive Order 12866, the Secretary must determine whether
this regulatory action is ``significant'' and, therefore, subject to
the requirements of the Executive order and subject to review by the
Office of Management and Budget (OMB). Section 3(f) of Executive Order
12866 defines a ``significant regulatory action'' as an action likely
to result in a rule that may--
(1) Have an annual effect on the economy of $100 million or more,
or adversely affect a sector of the economy, productivity, competition,
jobs, the environment, public health or safety, or State, local, or
tribal governments or communities in a material way (also referred to
as an ``economically significant'' rule);
(2) Create serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles stated in the
Executive order.
This final regulatory action is a significant regulatory action
subject to review by OMB under section 3(f) of Executive Order 12866.
We have also reviewed these regulations under Executive Order
13563, which supplements and explicitly reaffirms the principles,
structures, and definitions governing regulatory review established in
Executive Order 12866. To the extent permitted by law, Executive Order
13563 requires that an agency--
(1) Propose or adopt regulations only on a reasoned determination
that their benefits justify their costs (recognizing that some benefits
and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society,
consistent with obtaining regulatory objectives and taking into
account--among other things and to the extent practicable--the costs of
cumulative regulations;
(3) In choosing among alternative regulatory approaches, select
those approaches that maximize net benefits (including potential
economic, environmental, public health and safety, and other
advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather
than the behavior or manner of compliance a regulated entity must
adopt; and
(5) Identify and assess available alternatives to direct
regulation, including economic incentives--such as user fees or
marketable permits--to encourage the desired behavior, or provide
information that enables the public to make choices.
Executive Order 13563 also requires an agency ``to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible.'' The Office of
Information and Regulatory Affairs of OMB has emphasized that these
techniques may include ``identifying changing future compliance costs
that might result from technological innovation or anticipated
behavioral changes.''
We are issuing these final regulations only on a reasoned
determination that their benefits justify their costs. In choosing
among alternative regulatory approaches, we selected those approaches
that maximize net benefits. Based on the analysis that follows, the
Department believes that these final regulations are consistent with
the principles in Executive Order 13563.
We also have determined that this regulatory action does not unduly
interfere with State, local, or tribal governments in the exercise of
their governmental functions.
In accordance with both Executive orders, the Department has
assessed the potential costs and benefits, both quantitative and
qualitative, of this regulatory action. The potential costs associated
with this regulatory action are those resulting from statutory
requirements and those we have determined are necessary for
administering the Department's programs and activities.
Potential Costs and Benefits: Under Executive Order 12866, we have
assessed the potential costs and benefits of this regulatory action and
have determined that these regulations would not impose additional
costs to States and LEAs or to the Federal government. For example,
forty-two States, the District of Columbia, and Puerto Rico agreed, in
order to receive ESEA flexibility, to phase out their use of alternate
assessments based on modified academic achievement standards, if they
had those assessments, by the 2014-2015 school year. Only two States
have an alternate assessment based on modified academic achievement
standards but have not received ESEA flexibility. Moreover, these
regulations do not impose additional costs or administrative burdens
because States, including the two discussed in the preceding sentence,
are already developing and implementing general assessments aligned
with college- and career-ready standards that will be more accessible
to students with disabilities than those in place at the time States
began developing alternate assessments based on modified academic
achievement standards. These new assessments must be valid, reliable,
and fair for all student subgroups, including students with
disabilities, with the exception of students with the most significant
cognitive disabilities who are eligible to participate in alternate
assessments based on alternate academic achievement standards
consistent with 34 CFR 200.6(a)(2)(ii)(B) (see 75 FR 18171, 18173 (Apr.
9, 2010)).
In this context, these regulations largely reflect already planned
and funded changes in assessment practices and do not impose additional
costs on States or LEAs or the Federal government. On the contrary, to
the extent that these regulations reinforce the transition to State
assessment systems with fewer components, the Department believes these
regulations ultimately will reduce the costs of complying with ESEA
assessment requirements, because States would no longer develop and
implement separate alternate assessments based on modified academic
achievement standards based on the new college- and career-ready
standards.
Further, to the extent that States must transition students with
disabilities who took an alternate assessment based on modified
academic achievement standards to new general assessments, funding to
support such a transition is available through existing ESEA programs,
such as the Grants for State Assessments program, which made available
$378 million in State formula grant assistance in fiscal year 2015.
In sum, any additional costs imposed on States by these final
regulations are estimated to be negligible, primarily because they
reflect changes already under way in State assessment systems under the
ESEA. Moreover, we believe any costs will be significantly outweighed
by the potential educational benefits of increasing the access of
students with disabilities to the general assessments as States develop
new, more accessible assessments, including assessments aligned with
college- and career-ready standards.
Regulatory Alternatives Considered
An alternative to these final regulations would be for the
Secretary to leave in place the existing regulations permitting a State
to define modified academic achievement standards and to develop and
administer alternate assessments based on those standards.
[[Page 50784]]
However, the Secretary believes that these amended regulations are
needed to help refocus assessment efforts and resources on the
development of new general assessments that are accessible to a broader
range of students with disabilities. Such new general assessments will
eliminate the usefulness of separate alternate assessments based on
modified academic achievement standards for eligible students with
disabilities.
Paperwork Reduction Act of 1995
These regulations do not contain any information collection
requirements.
Assessment of Educational Impact
Based on the response to the NPRM and on our review, we have
determined that these final regulations do not require transmission of
information that any other agency or authority of the United States
gathers or makes available.
Accessible Format: Individuals with disabilities can obtain this
document in an accessible format (e.g., braille, large print,
audiotape, or compact disc) on request to either of the program contact
persons listed under FOR FURTHER INFORMATION CONTACT.
Electronic Access to This Document: The official version of this
document is the document published in the Federal Register. Free
Internet access to the official edition of the Federal Register and the
Code of Federal Regulations is available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you can view this document, as well
as all other documents of this Department published in the Federal
Register, in text or Adobe Portable Document Format (PDF). To use PDF
you must have Adobe Acrobat Reader, which is available free at the
site.
You may also access documents of the Department published in the
Federal Register by using the article search feature at:
www.federalregister.gov. Specifically, through the advanced search
feature at this site, you can limit your search to documents published
by the Department.
List of Subjects
34 CFR Part 200
Education of disadvantaged, Elementary and secondary education,
Grant programs--education, Indians--education, Infants and children,
Juvenile delinquency, Migrant labor, Private schools, Reporting and
recordkeeping requirements.
34 CFR Part 300
Administrative practice and procedure, Education of individuals
with disabilities, Elementary and secondary education, Equal
educational opportunity, Grant programs--education, Privacy, Private
schools, Reporting and recordkeeping requirements.
Dated: August 18, 2015.
Arne Duncan,
Secretary of Education.
For the reasons discussed in the preamble, the Secretary amends
parts 200 and 300 of title 34 of the Code of Federal Regulations as
follows:
PART 200--TITLE I--IMPROVING THE ACADEMIC ACHIEVEMENT OF THE
DISADVANTAGED
0
1. The authority citation for part 200 continues to read as follows:
Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.
0
2. Section 200.1 is amended by:
0
A. In paragraph (a)(1), removing the words ``paragraphs (d) and (e) of
this section, which apply'' and adding, in their place, the words
``paragraph (d) of this section, which applies''.
0
B. In paragraph (a)(2), removing the words ``paragraphs (d) and (e)''
and adding, in their place, the words ``paragraph (d)''.
0
C. Revising paragraphs (e) and (f).
The revisions read as follows:
Sec. 200.1 State responsibilities for developing challenging academic
standards.
* * * * *
(e) Modified academic achievement standards. A State may not define
modified academic achievement standards for any students with
disabilities under section 602(3) of the Individuals with Disabilities
Education Act (IDEA).
(f) State guidelines. If a State defines alternate academic
achievement standards under paragraph (d) of this section, the State
must do the following:
(1) Establish and monitor implementation of clear and appropriate
guidelines for IEP teams to apply in determining students with the most
significant cognitive disabilities who will be assessed based on
alternate academic achievement standards.
(2) Inform IEP teams that students eligible to be assessed based on
alternate academic achievement standards may be from any of the
disability categories listed in the IDEA.
(3) Provide to IEP teams a clear explanation of the differences
between assessments based on grade-level academic achievement standards
and those based on 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
academic achievement standards (such as whether only satisfactory
performance on a regular assessment would qualify a student for a
regular high school diploma).
(4) Ensure that parents of students selected to be assessed based
on alternate academic achievement standards under the State's
guidelines in this paragraph are informed that their child's
achievement will be measured based on alternate academic achievement
standards.
* * * * *
0
3. Section 200.6 is amended by:
0
A. Removing paragraph (a)(3).
0
B. Redesignating paragraph (a)(4) as (a)(3).
0
C. Revising newly redesignated paragraph (a)(3)(iv).
The revision reads as follows:
Sec. 200.6 Inclusion of all students.
* * * * *
(a) * * *
(3) * * *
(iv) Alternate assessments based on modified academic achievement
standards in school years prior to 2015-2016; and
* * * * *
0
4. Section 200.13 is amended by:
0
A. Revising paragraph (c).
0
B. Removing the Appendix.
The revision reads as follows:
Sec. 200.13 Adequate yearly progress in general.
* * * * *
(c)(1) In calculating AYP for schools, LEAs, and the State, a State
must, consistent with Sec. 200.7(a), include the scores of all
students with disabilities.
(2) A State may include the proficient and advanced scores of
students with the most significant cognitive disabilities based on the
alternate academic achievement standards described in Sec. 200.1(d),
provided that the number of those scores at the LEA and at the State
levels, separately, does not exceed 1.0 percent of all students in the
grades assessed in reading/language arts and in mathematics.
(3) A State may not request from the Secretary an exception
permitting it to exceed the cap on proficient and advanced scores based
on alternate academic achievement standards under paragraph (c)(2) of
this section.
(4)(i) A State may grant an exception to an LEA permitting it to
exceed the 1.0 percent cap on proficient and advanced scores based on
the alternate academic achievement standards described in paragraph
(c)(2) of this section only if--
[[Page 50785]]
(A) The LEA demonstrates that the incidence of students with the
most significant cognitive disabilities exceeds 1.0 percent of all
students in the combined grades assessed;
(B) The LEA explains why the incidence of such students exceeds 1.0
percent of all students in the combined grades assessed, such as
school, community, or health programs in the LEA that have drawn large
numbers of families of students with the most significant cognitive
disabilities, or that the LEA has such a small overall student
population that it would take only a few students with such
disabilities to exceed the 1.0 percent cap; and
(C) The LEA documents that it is implementing the State's
guidelines under Sec. 200.1(f).
(ii) The State must review regularly whether an LEA's exception to
the 1.0 percent cap is still warranted.
(5) In calculating AYP, if the percentage of proficient and
advanced scores based on alternate academic achievement standards under
Sec. 200.1(d) exceeds the cap in paragraph (c)(2) of this section at
the State or LEA level, the State must do the following:
(i) Consistent with Sec. 200.7(a), include all scores based on
alternate academic achievement standards.
(ii) Count as non-proficient the proficient and advanced scores
that exceed the cap in paragraph (c)(2) of this section.
(iii) Determine which proficient and advanced scores to count as
non-proficient in schools and LEAs responsible for students who are
assessed based on alternate academic achievement standards.
(iv) Include non-proficient scores that exceed the cap in paragraph
(c)(2) of this section in each applicable subgroup at the school, LEA,
and State level.
(v) Ensure that parents of a child who is assessed based on
alternate academic achievement standards are informed of the actual
academic achievement levels of their child.
* * * * *
0
5. Section 200.20 is amended by:
0
A. Revising paragraph (c)(3).
0
B. Removing paragraph (g).
0
C. Redesignating paragraph (h) as paragraph (g).
The revision reads as follows:
Sec. 200.20 Making adequate yearly progress.
* * * * *
(c) * * *
(3) To count a student who is assessed based on alternate academic
achievement standards described in Sec. 200.1(d) as a participant for
purposes of meeting the requirements of this paragraph, the State must
have, and ensure that its LEAs adhere to, guidelines that meet the
requirements of Sec. 200.1(f).
* * * * *
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES
0
6. The authority citation for part 300 continues to read as follows:
Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, 3474, unless
otherwise noted.
0
7. Section 300.160 is amended by:
0
A. Removing paragraph (c)(2)(ii).
0
B. Redesignating paragraph (c)(2)(iii) as (c)(2)(ii).
0
C. In newly redesignated paragraph (c)(2)(ii), removing the final
punctuation ``.'' and adding, in its place, ``; and''.
0
D. Adding a new paragraph (c)(2)(iii).
0
E. Adding a new paragraph (c)(3).
0
F. Revising paragraphs (d), (e), (f)(3), and (f)(5) introductory text.
The revisions and additions read as follows:
Sec. 300.160 Participation in assessments.
* * * * *
(c) * * *
(2) * * *
(iii) Except as provided in paragraph (c)(2)(ii) of this section, a
State's alternate assessments, if any, must measure the achievement of
children with disabilities against the State's grade-level academic
achievement standards, consistent with 34 CFR 200.6(a)(2)(ii)(A).
(3) Consistent with 34 CFR 200.1(e), a State may not adopt modified
academic achievement standards for any students with disabilities under
section 602(3) of the Act.
(d) Explanation to IEP teams. A State (or in the case of a
district-wide assessment, an LEA) must provide IEP teams with a clear
explanation of the differences between assessments based on grade-level
academic achievement standards and those based on 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 academic achievement standards (such as
whether only satisfactory performance on a regular assessment would
qualify a student for a regular high school diploma).
(e) Inform parents. A State (or in the case of a district-wide
assessment, an LEA) must ensure that parents of students selected to be
assessed based on alternate academic achievement standards are informed
that their child's achievement will be measured based on alternate
academic achievement standards.
(f) * * *
(3) The number of children with disabilities, if any, participating
in alternate assessments based on modified academic achievement
standards in school years prior to 2015-2016.
* * * * *
(5) Compared with the achievement of all children, including
children with disabilities, the performance results of children with
disabilities on regular assessments, alternate assessments based on
grade-level academic achievement standards, alternate assessments based
on modified academic achievement standards (prior to 2015-2016), and
alternate assessments based on alternate academic achievement standards
if--
* * * * *
[FR Doc. 2015-20736 Filed 8-20-15; 8:45 am]
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