Title I-Improving the Academic Achievement of the Disadvantaged-Academic Assessments, 88886-88938 [2016-29128]

Agencies

• DEPARTMENT OF EDUCATION

[Federal Register Volume 81, Number 236 (Thursday, December 8, 2016)]
[Rules and Regulations]
[Pages 88886-88938]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29128]



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Vol. 81

Thursday,

No. 236

December 8, 2016

Part VI





Department of Education





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34 CFR Part 200





Title I--Improving the Academic Achievement of the Disadvantaged--
Academic Assessments; Final Rule

Federal Register / Vol. 81 , No. 236 / Thursday, December 8, 2016 / 
Rules and Regulations

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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810-AB32
[Docket ID ED-2016-OESE-0053]


Title I--Improving the Academic Achievement of the 
Disadvantaged--Academic Assessments

AGENCY: Office of Elementary and Secondary Education, Department of 
Education.

ACTION: Final regulations.

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SUMMARY: The Secretary amends the regulations implementing academic 
assessment requirements under title I, part A of the Elementary and 
Secondary Education Act of 1965 (ESEA) to implement changes to the ESEA 
by the Every Student Succeeds Act (ESSA) enacted on December 10, 2015.

DATES: These regulations are effective January 9, 2017.

FOR FURTHER INFORMATION CONTACT: Jessica McKinney, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 3W107, Washington, DC 20202-
2800. Telephone: (202) 401-1960 or by email: jessica.mckinney@ed.gov.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    Purpose of This Regulatory Action: On December 10, 2015, President 
Barack Obama signed the ESSA into law. The ESSA reauthorizes the ESEA, 
which provides Federal funds to improve elementary and secondary 
education in the Nation's public schools. The ESSA builds on the ESEA's 
legacy as a civil rights law and seeks to ensure every child, 
regardless of race, socioeconomic status, disability, English 
proficiency, background, or residence, has an equal opportunity to 
obtain a high-quality education. Though the reauthorization made 
significant changes to the ESEA for the first time since the ESEA was 
reauthorized through the No Child Left Behind Act of 2001 (NCLB), 
including significant changes to title I, it made limited changes to 
the academic assessment provisions of part A of title I. Many of these 
changes were aligned with President Obama's Testing Action Plan 
released in October 2015, which was designed to make assessments fewer, 
better and fairer.\1\ In particular, the ESSA added new exceptions to 
allow a State to approve its local educational agencies (LEAs) to 
administer a locally selected, nationally recognized high school 
academic assessment in lieu of the statewide high school assessment 
and, to reduce the burden of unnecessary testing, to allow a State to 
avoid double-testing eighth graders taking advanced mathematics 
coursework. In the spirit of making assessments as fair as possible and 
inclusive of all students, the ESSA also imposed a cap to limit, to 1.0 
percent of the total number of students who are assessed in a State in 
each assessed subject, the number of students with the most significant 
cognitive disabilities whose performance may be assessed with an 
alternate assessment aligned with alternate academic achievement 
standards (AA-AAAS), if the State has adopted alternate academic 
achievement standards. With the goal of making tests better, the ESSA 
also included special considerations for computer-adaptive assessments. 
Finally, also with the goal of making assessments fair, the ESSA 
amended the provisions of the ESEA related to assessing English 
learners in their native language. Unless otherwise noted, references 
in this document to the ESEA refer to the ESEA, as amended by the ESSA.
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    \1\ For more information regarding President Obama's Testing 
Action Plan, please see: https://www2.ed.gov/admins/lead/account/saa.html; see also: www.ed.gov/news/press-releases/fact-sheet-testing-action-plan.
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    We amend Sec. Sec.  200.2-200.6 and Sec. Sec.  200.8-200.9 of title 
34 of the Code of Federal Regulations (CFR) in order to implement these 
statutory changes, as well as other key statutory provisions, including 
those related to the assessment of English learners and students in 
Native American language schools and programs. We are changing these 
regulations to provide clarity and support to State educational 
agencies (SEAs), LEAs, and schools as they implement the ESEA 
requirements regarding statewide assessment systems, and to ensure that 
key requirements in title I of the ESEA are implemented in a manner 
consistent with the purposes of the law--``to provide all children 
significant opportunity to receive a fair, equitable, and high-quality 
education, and to close educational achievement gaps.''
    Section 1601(b) of the ESEA required the Secretary, before 
publishing proposed regulations on the assessment requirements under 
title I, part A of the ESEA, to establish a negotiated rulemaking 
process. Consistent with this section, the Department subjected the 
proposed assessment regulations to a negotiated rulemaking process, 
through which the Department convened a diverse committee of 
stakeholders representing Federal, State, and local administrators, 
tribal leaders, teachers and paraprofessionals, principals and other 
school leaders, parents, the civil rights community, and the business 
community that met in three sessions during March and April 2016. The 
negotiating committee's protocols provided that it would operate by 
consensus, which meant unanimous agreement--that is, with no dissent by 
any voting member. Under the protocols, if the negotiating committee 
reached final consensus on regulatory language for assessments, the 
Department would use the consensus language in the proposed 
regulations. The negotiating committee reached consensus on all of the 
proposed regulations related to assessments. Accordingly, the 
Department published the consensus language to which the negotiated 
rulemaking committee agreed as a notice of proposed rulemaking (NPRM) 
and took public comment from July 11 through September 9, 2016.
    Summary of the Major Provisions of This Regulatory Action: The 
following is a summary of the major substantive changes in these final 
regulations from the regulations proposed in the NPRM. The rationale 
for each of these changes is discussed in the Analysis of Comments and 
Changes section elsewhere in this preamble.
     Section 200.2(b)(7) has been revised to provide a number 
of examples to describe higher-order thinking skills.
     Section 200.3(b)(1)(v) has been revised to clarify that 
comparability between a locally selected, nationally recognized high 
school academic assessment and the statewide assessment is expected at 
each academic achievement level.
     Section 200.3(b)(3) has been revised to explicitly permit 
an SEA to disapprove or revoke approval of, for good cause, an LEA's 
request to administer a locally selected, nationally recognized high 
school academic assessment.
     Section 200.5(a)(2) has been revised to clarify that a 
State must administer its English language proficiency (ELP) 
assessments annually to all English learners in schools served by the 
State, kindergarten through grade 12.
     Section 200.6(b)(2)(i) has been revised to clarify that a 
State must develop appropriate accommodations for students with 
disabilities; disseminate information and resources about such 
accommodations to, at a minimum, LEAs, schools, and parents; and 
promote the use of those

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accommodations to ensure that all students with disabilities are able 
to participate in academic instruction and assessments.
     Section 200.6(b)(2)(ii) has been revised to include 
teachers of English learners among those who should receive necessary 
training regarding administering assessments, including training on how 
to administer appropriate accommodations and alternate assessments.
     Section 200.6(c)(4) has been revised by making a number of 
changes to the list of criteria a State would need to meet in seeking a 
waiver to exceed the State-level cap on the number of students with the 
most significant cognitive disabilities taking an AA-AAAS in each 
subject area:
     Section 200.6(c)(4)(i) has been revised to clarify that a 
State must submit a waiver request 90 days prior to the start of the 
testing window for the relevant subject.
     Section 200.6(c)(4)(iii) has been revised to require that 
a State only verify that each LEA that the State anticipates will 
assess more than 1.0 percent of its assessed students in a subject 
using an AA-AAAS followed the State's guidelines and will address 
disproportionality in use of the AA-AAAS.
     Proposed Sec.  200.6(c)(4)(iii)(B) has been removed to no 
longer require a State to verify that an LEA that the State anticipates 
will exceed the State cap on using an AA-AAAS will not significantly 
increase that use from the prior year.
     Section 200.6(c)(4)(iv)(B) has been revised to require 
that a State only include a plan and timeline to support and provide 
appropriate oversight to each LEA that the State anticipates will 
exceed the State cap using an AA-AAAS.
     Section 200.6(d)(1)(i) has been clarified so that a 
student's status as an English learner may not determine whether the 
student is a ``student with the most significant cognitive 
disabilities,'' as defined by each State.
     Proposed Sec.  200.6(f)-(h) has been renumbered and 
reorganized as Sec.  200.6(f)-(k) to contain all the requirements 
regarding English learners and students in Native American language 
schools and programs. Proposed Sec.  200.6(i) regarding highly mobile 
student populations has also been moved to new Sec.  
200.2(b)(1)(ii)(A)-(D). Revisions to the renumbered paragraphs are 
described below.
     Section 200.6(f)(1)(i) has been added to require a State 
to develop appropriate accommodations for English learners; disseminate 
information and resources about such accommodations to, at a minimum, 
LEAs, schools, and parents; and promote the use of those appropriate 
accommodations to ensure that all English learners are able to 
participate in academic instruction and assessments.
     Section 200.6(h)(4)(ii) (proposed Sec.  200.6(f)(3)(iv)) 
has been revised to clarify that where a determination has been made, 
on an individualized basis by the student's IEP team, 504 team, or for 
students covered under title II of the ADA, by the team or individual 
designated by the LEA to make those decisions, as set forth in Sec.  
200.6(b)(1), that an English learner has a disability that precludes 
assessment of the student in one or more domains of the English 
language proficiency (ELP) assessment such that there are no 
appropriate accommodations for the affected domain(s), a State must 
assess the student's English proficiency based on the remaining domains 
in which it is possible to assess the student.
     Section 200.6(j) (proposed Sec.  200.6(g)) permits 
students in Native American language schools and programs to be 
assessed in their Native American language in any subject area, 
including reading/language arts, mathematics, and science, with 
evidence pertaining to these assessments required to be submitted for 
assessment peer review and approval, consistent with Sec.  200.2(d).
     Section 200.6(j)(2) (proposed Sec.  200.6(g)) requires 
assessment of students in Native American language schools and programs 
in reading/language arts in English in at least high school, instead of 
beginning in eighth grade.
    Please refer to the Analysis of Comments and Changes section of 
this preamble for a detailed discussion of the comments received and 
changes made in the final regulations.
    Costs and Benefits: The Department believes that the benefits of 
this regulatory action outweigh any associated costs to States and 
LEAs, which would be financed with Federal education funds. These 
benefits include the administration of assessments that produce valid 
and reliable information on the achievement of all students, including 
English learners and students with disabilities. States can use this 
information to effectively measure school performance and identify 
underperforming schools; LEAs and schools can use it to inform and 
improve classroom instruction and student supports; and parents and 
other stakeholders can use it to hold schools accountable for progress, 
ultimately leading to improved academic outcomes and the closing of 
achievement gaps, consistent with the purpose of title I of the ESEA. 
In addition, the regulations address statutory provisions intended to 
limit assessment burden, including by avoiding the double testing of 
eighth-grade students taking advanced mathematics coursework in certain 
circumstances. Please refer to the Regulatory Impact Analysis section 
of this document for a more detailed discussion of costs and benefits. 
Consistent with Executive Order 12866, the Office of Management and 
Budget (OMB) has determined that this action is significant and, thus, 
is subject to review by OMB under the Executive order.
    Public Comment: In response to our invitation to comment in the 
NPRM, 232 parties submitted comments on the proposed regulations 
(including Tribal Consultation, further described below, as a comment).
    We discuss substantive issues under the sections of the regulations 
to which they pertain, with the exception of a number of cross-cutting 
issues, which are discussed together under the heading ``Cross-Cutting 
Issues.'' Generally, we do not address technical and other minor 
changes, or suggested changes the law does not authorize us to make 
under the applicable statutory authority. In addition, we do not 
address general comments that raised concerns not directly related to 
the proposed regulations or that were otherwise outside the scope of 
the regulations, including comments that raised concerns pertaining to 
particular sets of academic standards or assessments or the 
Department's authority to require a State to adopt a particular set of 
academic standards or assessments, as well as comments pertaining to 
the Department's regulations on statewide accountability systems.
    Tribal Consultation: The Department held four tribal consultation 
sessions on April 24, April 28, May 12, and June 27, 2016, pursuant to 
Executive Order 13175 (``Consultation and Coordination with Indian 
Tribal Governments''). The purpose of these tribal consultation 
sessions was to solicit tribal input on the ESEA, including input on 
several changes that the ESSA made to the ESEA that directly affect 
Indian students and tribal communities. The Department specifically 
sought input on: The new grant program for Native language immersion 
schools and projects; the report on Native American language medium 
education; and the report on responses to Indian student suicides. The 
Department announced the tribal consultation sessions via

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listserv emails and Web site postings on 
www.edtribalconsultations.org/. The Department considered the input 
provided during the consultation sessions in developing the proposed 
regulations.
    Analysis of Comments and Changes: An analysis of the comments and 
of the changes in the regulations since publication of the NPRM 
follows.

Cross-Cutting Issues

Parental Rights
    Comments: One commenter noted the importance of parental 
involvement in issues pertaining to required State assessments, 
including test design, reporting, and use, and voiced support for a 
parent's right to make decisions regarding a child's participation in 
State assessments. However, the commenter did not provide any suggested 
changes to the proposed regulations in this area.
    Discussion: We agree that seeking and considering input from 
parents when designing and implementing State assessment systems and 
policies is important in ensuring tests are fair and worth-taking. In 
fact, because a State assessment system is part of the State plan, 
section 1111(a)(1)(A) of the ESEA requires a State to consult with a 
wide variety of stakeholders, including parents, in designing and 
implementing its system. Moreover, section 1111(b)(2)(B)(x) requires a 
State assessment system to produce and provide individual student 
interpretive, descriptive, and diagnostic reports to parents so that 
they understand their child's specific academic needs. In addition, the 
new authority for an LEA to request to administer a locally selected, 
nationally recognized high school academic assessment in place of the 
statewide high school assessment requires the LEA to notify parents of 
its decision to administer such an assessment. See section 
1111(b)(2)(H)(vi) of the ESEA and Sec.  200.3(c). Accordingly, we 
believe no further clarification is needed in the regulations. We also 
note that, under section 1111(b)(2)(K) of the ESEA, the requirements 
for State assessment systems do not pre-empt a State or local law 
regarding parental decisions related to their child's participation in 
those assessments.
    Changes: None.
Overtesting
    Comments: One commenter noted that the ESEA expands opportunities 
to reduce testing, including allowing States to exempt eighth graders 
taking advanced mathematics coursework from double testing and allowing 
LEAs to administer a locally selected, nationally recognized assessment 
instead of the statewide assessment, so long as the State approves use 
of such an assessment. This commenter encouraged SEAs to consider the 
Administration's recommendation to reduce the overuse and misuse of 
tests, and recommended the Department continue to promote this message 
as it enforces the assessment regulations. Other commenters articulated 
concerns about the total time students spend taking assessments 
required by Federal, State, and local entities, including some 
commenters who expressed these concerns regarding particular grade 
levels or subject areas. One commenter proposed replacing standardized 
testing with testing related to the Response to Intervention framework. 
Other commenters advocated that States, and not the Federal government, 
be the ones selecting academic standards and assessments, or that there 
be no Federal testing requirements at all. One commenter requested 
reductions in testing to allow for instructional time in social 
studies.
    Discussion: We strongly agree with the commenter who expressed 
that, while the ESEA presents States with opportunities to streamline 
testing, each State and LEA should continue to consider additional 
action it may take to reduce burdensome or unnecessary testing. Annual 
assessments, as required by the ESEA, are tools for learning and 
promoting equity when they are done well and thoughtfully. When 
assessments are done poorly, in excess, or without a clear purpose, 
they take time away from teaching and learning. As discussed 
previously, President Obama's Testing Action Plan provides a set of 
principles and actions that can help protect the vital role that good 
assessment plays in guiding progress for students and evaluating 
schools, while providing help in reducing practices that have burdened 
classroom time or not served students or educators well (see footnote 
1).
    We do wish to clarify, however, that the ESEA does include Federal 
testing requirements under section 1111(b)(2)(B)(v)(I)-(II), to assess 
all students in a State annually in reading/language arts and 
mathematics in grades 3-8 and once in grades 9-12 and to assess all 
students in the State in science at least once in each grade span 
(i.e., grades 3-5, 6-9, and 10-12). It would be inconsistent with the 
statute for the Department to use its regulatory authority to relieve 
States of these requirements, which provide important information to 
support teaching and learning, increase transparency, and protect civil 
rights benefits when used appropriately. The Department does not now, 
and never has, required any specific set of standards or assessments 
under title I, part A. Similarly, nothing in these regulations promotes 
any particular set of standards or assessments; rather, the regulations 
define requirements, based in the statute that a State-determined 
assessment must meet.
    Changes: None.
Plain Language
    Comments: One commenter requested that the Department simplify the 
language of the regulation, indicating concern that the average teacher 
or parent may not understand the text. Specifically, the commenter 
requested that the regulation be written at a sixth grade reading 
level.
    Discussion: While we appreciate that this regulation is specific 
and, at times, technical, we note that the language is intended to be 
both accessible and clear. We further note that, in negotiated 
rulemaking, representatives of both teachers and parents participated 
on the negotiated rulemaking committee and actively engaged in drafting 
and developing the language of the proposed regulation on which this 
final rule is based.
    Changes: None.

Section 200.2 State Responsibilities for Assessment

Accessibility
    Comments: Multiple commenters wrote in support of provisions in 
Sec.  200.2(b)(2) related to developing assessments, to the extent 
practicable, consistent with the principles of universal design for 
learning (UDL) as a way to promote greater test accessibility for 
students with disabilities.
    Discussion: Section 1111(b)(2)(B)(xiii) of the ESEA requires a 
State to develop its assessment system, to the extent practicable, 
using the principles of UDL. Using principles of UDL can help ensure 
that all students, including students with disabilities and English 
learners, are able to access high-quality State assessment systems, and 
we appreciate the commenters' support.
    Changes: None.
    Comments: One commenter requested a change in Sec.  200.2(b)(2)(ii) 
regarding the meaning of UDL. Specifically, the commenter asked that we 
add language regarding UDL to require that assessments designed in 
accordance with the principles of UDL maintain high standards, 
validity, and reliability.
    Discussion: The Department declines to make the requested change 
for three

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reasons. First, all assessments under this subpart must be valid and 
reliable, as set forth in Sec.  200.2(b)(4)(i). Therefore, it is 
unnecessary to restate such a requirement with regard to use of the 
principles of UDL in assessment development. Second, section 8101(51) 
of the ESEA states that the term ``universal design for learning'' as 
used in the ESEA has the meaning given it in section 103 of the Higher 
Education Act of 1965, the definition of which we incorporated directly 
into Sec.  200.2(b)(2)(ii). Since the statute defines this term, we 
decline to make any edits to that definition. Finally, while we agree 
with the commenter that it is critical to hold all students to high 
standards, we believe this is clear throughout the regulation, 
particularly as required in Sec. Sec.  200.2 and 200.6.
    Changes: None.
Alignment With State Academic Standards
    Comments: Numerous commenters expressed support for the 
requirements in Sec.  200.2(b)(3)(i)(B), (b)(3)(ii)(A)(2), and 
(c)(1)(i) that require a State's assessments, including computer-
adaptive assessments, to provide information about student attainment 
of the full depth and breadth of the State's academic content standards 
and how students are performing against the State's academic 
achievement standards for the grade in which they are enrolled. Several 
commenters, as described in response to comments on Sec.  200.6, 
believed these provisions were particularly important for students with 
disabilities, for whom expectations were in the past lower than for 
their peers. A few commenters noted that these provisions will help 
build consistency with the statutory requirement to use a measure of 
grade-level proficiency for school accountability and reporting, 
without limiting a State's ability to consider measures of growth or 
the achievement of students who are above or below grade-level 
proficiency. One commenter expressed specific concern about whether the 
instructional standards were aligned to the assessment used in the 
commenter's State, particularly at the high school level. An additional 
commenter expressed a preference for more consistency across State 
standards in order to better support highly mobile students whose 
parents are in the military. Another commenter, however, felt the focus 
on grade-level proficiency was inappropriate and would prefer for 
assessments to match a student's level of instruction, rather than the 
grade in which the student is enrolled.
    Discussion: We agree with the commenters that it is critically 
important for all students, including children with disabilities, to 
have access to the same challenging, grade-level academic content 
standards and be assessed against the same high standards for their 
academic achievement, except as noted below. Further, we believe that 
requiring State assessment systems to measure the depth and breadth of 
the academic content standards is one way to ensure that these goals of 
equitable access to challenging content and high achievement standards 
are met. We note that although students with the most significant 
cognitive disabilities must be assessed against the State's academic 
content standards for the grade in which a student is enrolled, the 
performance of these students may be assessed with an AA-AAAS if a 
State has adopted such alternate academic achievement standards. We 
strongly disagree with the commenter who felt it would be more 
appropriate for assessments to match a student's instructional level, 
as this could stifle educational opportunity and access to grade-level 
content for student populations, such as students from minority 
backgrounds, students from low-income families, English learners, and 
students with disabilities, who have been historically underserved and 
not given instruction aligned with academic content standards for the 
grade in which they are enrolled. Further, allowing out-of-level 
assessments would be inconsistent with section 1111(b)(2)(B)(ii) of the 
ESEA, which provides that the assessment system must be aligned with 
the State's challenging academic standards and provide information 
about whether a student has attained such standards and whether the 
student is performing ``at the student's grade level.'' We are unable 
to comment on whether the academic standards and assessments in a 
particular State are aligned. Instead, the assessment peer review 
process offers an opportunity for the Department to provide feedback on 
technical evidence regarding State assessment systems, including 
alignment, based on outside experts' review of State-submitted 
evidence. While we acknowledge the commenter's point regarding the 
utility of consistent standards and assessments across States for 
military families, we reaffirm that each State has the sole discretion 
to develop and adopt its own challenging State academic standards, 
provided they meet the relevant statutory and regulatory requirements.
    Changes: None.
    Comments: One commenter recommended adding to Sec.  
200.2(b)(3)(ii)(A) a requirement that each State document continued 
alignment with its State academic content standards over time, 
indicating that such an addition is necessary to ensure the Department 
receives appropriate evidence that a State's assessment system is 
aligned to the full depth and breadth of the State's academic content 
standards.
    Discussion: We agree with the commenter that a State is 
continuously responsible for ensuring that its assessments are aligned 
with its challenging State academic content standards. We believe that 
these issues are sufficiently addressed in the technical requirements 
for assessments in Sec.  200.2. Moreover, section 1111(a)(6)(B)(i) of 
the ESEA, clearly requires a State to submit its assessment system for 
assessment peer review if the State makes significant changes such as 
the adoption of new challenging State academic standards or new 
academic assessments, which is reflected in the Department's Peer 
Review of State Assessment Systems Non-regulatory Guidance for States 
(see https://www2.ed.gov/policy/elsec/guid/assessguid15.pdf). The 
Department anticipates updating this non-regulatory assessment peer 
review guidance in the future to fully incorporate changes to the ESEA 
made by the ESSA and to align with these regulations.
    Changes: None.
    Comments: Some commenters strongly supported Sec.  
200.2(b)(3)(ii)(B), which requires assessment systems to be based on 
challenging State academic achievement standards that are aligned with 
entrance requirements for credit-bearing coursework in the State's 
system of public higher education and relevant career and technical 
education standards, asserting that setting standards and aligning 
assessments to meet expectations for student readiness in postsecondary 
coursework is appropriate and necessary for States to ensure students 
acquire the knowledge and skills they will need to be successful beyond 
high school. However, one commenter stated that the provision severely 
narrows the goals of schooling and overlooks many important skills that 
students need to be successful.
    Discussion: We appreciate the support for this provision, and agree 
that it is appropriate for State assessment systems to be aligned to 
standards that measure students' college and career readiness. In 
response to the commenter's concern that this provision narrows certain 
goals and overlooks

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important skills, we note that section 1111(b)(1)(D)(i) of the ESEA 
requires a State to demonstrate that its challenging State academic 
standards are aligned with entrance requirements for credit-bearing 
coursework in the system of public higher education in the State and 
relevant State career and technical education standards. Furthermore, 
because a State assessment system must be aligned to the State's 
challenging academic standards under section 1111(b)(2)(B)(ii) of the 
ESEA, Sec.  200.2(b)(3)(ii)(B) is fully consistent with the law.
    Changes: None.
    Comments: Several commenters strongly supported Sec.  
200.2(b)(3)(ii)(B)(2), which specifies that a State's AA-AAAS for 
students with the most significant cognitive disabilities measure 
performance in such a way that a student who meets those standards is 
on track to pursue postsecondary education or competitive integrated 
employment, consistent with the purposes of the Rehabilitation Act of 
1973, as amended by the Workforce Innovation and Opportunity Act 
(WIOA). They contended such a requirement will greatly benefit students 
with the most significant cognitive disabilities who have often been 
held to lower standards and given few opportunities beyond ``sheltered 
workshops.''
    However, a few commenters objected to the proposed regulation, 
contending it would narrow the focus of education for these students to 
employability and would ignore important outcomes other than 
competitive integrated employment that they felt were more fair and 
attainable for some students with the most significant cognitive 
disabilities. One commenter also noted that the statute requires 
alignment of academic achievement standards to the purposes of the 
Rehabilitation Act and that competitive integrated employment is but 
one of those purposes. These commenters recommended that the final 
regulations only include the statutory language and reference the 
purposes, generally, of WIOA.
    Discussion: Section 200.2(b)(3)(ii)(B)(2) requires that an AA-AAAS 
for students with the most significant cognitive disabilities measure 
student performance based on alternate academic achievement standards 
defined by the State that reflect professional judgment as to the 
highest possible standards achievable by such students to ensure that a 
student who meets the standards is on track to pursue postsecondary 
education or competitive integrated employment, consistent with the 
purposes of the Rehabilitation Act of 1973, as amended by WIOA. The 
Department believes it is critical to maintain a focus on the highest 
expectations for all students in order to ensure that students have the 
greatest possible opportunities. Higher expectations have been shown to 
lead to better results for students.\2\ The focus on competitive 
integrated employment is critical to emphasize that standards for 
students with the most significant cognitive disabilities must be 
rigorous and structured such that the students are prepared to earn 
competitive wages alongside their peers without disabilities. Such 
language is intended to clarify the connection between alternate 
academic achievement standards and preparation for competitive 
integrated employment, recognizing there was significance to this 
heightened expectation as expressed throughout the Rehabilitation Act, 
as amended by WIOA, and the importance of maintaining high expectations 
for students with the most significant cognitive disabilities in the 
ESEA.
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    \2\ U.S. Department of Education (2015). Improving the Academic 
Achievement of the Disadvantaged; Assistance to States for the 
Education of Children with Disabilities. 80 FR 50774-50775 and 
50777. Available at https://www.federalregister.gov/documents/2015/08/21/2015-20736/improving-the-academic-achievement-of-the-disadvantaged-assistance-to-states-for-the-education-of.
    Rubie-Davies, C.M., Peterson, E.R., Sibley, C.G., & Rosenthal, 
R. (2015). A teacher expectation intervention: Modelling the 
practices of high expectation teachers. Contemporary Educational 
Psychology, 40, 72-85.
    Klehm, M. (2014). The effects of teacher beliefs on teaching 
practices and achievement of students with disabilities. Teacher 
Education and Special Education, 37(3), 216-240.
    Courtade, G, Spooner, F., Browder, D., & Jimenez, B. (2012). 
Seven reasons to promote standards-based instruction for students 
with severe disabilities: A Reply to Ayres, Lowrey, Douglas, & 
Sievers (2011). Education and Training in Autism and Developmental 
Disabilities, 47(1), 3-13.
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    Changes: None.
    Comments: One commenter recommended that the final regulations 
include greater specificity regarding the comparability and quality of 
academic achievement standards across States, noting considerable 
differences between State determinations of student proficiency and 
proficiency as measured by the National Assessment of Educational 
Progress (NAEP) that indicate low and uneven expectations for students, 
particularly across State lines. Another commenter, however, 
recommended leaving all decisions regarding standards for student 
proficiency to the discretion of States.
    Discussion: The ESEA leaves discretion for setting academic 
achievement standards to the States, so long as they meet all 
applicable statutory and regulatory requirements under section 
1111(b)(1) of the ESEA. For this reason, we decline to make any further 
changes to the final regulations to provide greater specificity as to 
how a State must set its standards. Under section 1111(b)(1)(D), each 
State must demonstrate alignment between its challenging academic 
standards and its statewide assessments through assessment peer review 
under section 1111(a)(4). In this manner, a State will also demonstrate 
that the academic achievement standards it adopts reflect college- and 
career-ready expectations for all students.
    Changes: None.
    Comments: One commenter suggested that, in order to facilitate 
meaningful use of assessment results by local administrators and 
educators, the Department clarify in Sec.  200.2(b)(3)(i)(B) that 
providing timely information on student attainment of the State's 
challenging academic standards means that LEAs will receive results of 
State assessments at least 30 days prior to the beginning of each 
school year.
    Discussion: We agree with the commenter that timely access to 
information from student assessments is critical to ensure the results 
are meaningful and actionable for stakeholders, but believe such a 
requirement is best addressed in requirements for reporting results of 
assessments on State and LEA report cards under section 1111(h) of the 
ESEA.
    Changes: None.
Characteristics of High-Quality Assessments
    Comments: Several commenters supported the addition of fairness in 
Sec.  200.2(b)(4)(i), along with validity and reliability, as a 
criterion for State assessments required by the ESEA, particularly to 
ensure all students have equal access to rigorous instruction, 
curricula, and assessments.
    One commenter, however, recommended deleting Sec.  200.2(b)(4)(i), 
stating that separate requirements for validity, reliability, and 
fairness were unnecessary as Sec.  200.2(b)(4)(ii) (which requires 
State assessments to be consistent with relevant, nationally recognized 
professional and technical testing standards) adequately covers topics 
of validity, reliability, and fairness. Other commenters recommended 
deleting ``fair'' from Sec.  200.2(b)(4)(i), contending that it has no 
basis in the statute and adds confusion. One of these commenters also 
argued that the addition of ``fair'' was in conflict with the 
prohibition in section 1111(e)(2) of the ESEA, related to the

[[Page 88891]]

Secretary's authority to define terms that are inconsistent with or 
outside the scope of the law.
    Discussion: The Department agrees with the commenters who pointed 
out that relevant, nationally recognized professional and technical 
testing standards--such as the Standards for Educational and 
Psychological Testing developed jointly by the American Educational 
Research Association, the American Psychological Association, and the 
National Council on Measurement in Education--address the topics of 
validity, reliability, and fairness.\3\ The Department disagrees that 
it is unnecessary to include those factors explicitly in the 
regulations. Validity, reliability, and fairness are the cornerstones 
of effective and appropriate educational assessment, so we think it is 
worthwhile to specifically emphasize these attributes. As to the 
contention that adding ``fair'' is confusing, the Standards for 
Educational and Psychological Testing make clear that ``fairness'' has 
a technical definition--specifically that, ``the validity of test score 
interpretations for intended use(s) for individuals from all relevant 
subgroups. A test that is fair minimizes the construct-irrelevant 
variance associated with individual characteristics and testing 
contexts that otherwise would compromise the validity of scores for 
some individuals'' \4\--that is well accepted in the professional 
assessment community and does not create confusion. Moreover, because 
fairness is part of the Standards for Educational and Psychological 
Testing, it is within the scope of section 1111(b)(2)(B)(iii) of the 
ESEA, which requires consistency with relevant nationally recognized 
professional and technical testing standards.
---------------------------------------------------------------------------

    \3\ American Educational Research Association, American 
Psychological Association, National Council on Measurement in 
Education (2014). Standards for Educational and Psychological 
Testing.
    \4\ Ibid, p. 219.
---------------------------------------------------------------------------

    We also disagree with the contention that requiring that 
assessments be ``fair'' is in conflict with the prohibition in section 
1111(e)(2) of the ESEA on defining terms that are inconsistent with or 
outside the scope of the law. Rather, the law itself affirms the 
importance of fair assessment, for example, by requiring the use of 
principles of UDL (section 1111(b)(2)(B)(xiii) of the ESEA), 
prohibiting assessments that would evaluate personal or family beliefs 
(section 1111(b)(2)(B)(iii) of the ESEA), and requiring that the State 
provide for the participation of all students (section 
1111(b)(2)(B)(vii) of the ESEA). Moreover, the regulations do not, in 
fact, propose a definition of ``fair.'' For these reasons, we believe 
highlighting the importance that assessments be ``fair'' in addition to 
valid and reliable is consistent with the requirements in section 
1111(b)(2) of the ESEA and not outside the scope of title I, part A.
    Changes: None.
    Comments: A few commenters wrote in general support of Sec.  
200.2(b)(5)(i), which requires State assessment systems to be supported 
with evidence that the assessments are of adequate technical quality.
    Discussion: We appreciate the commenters' support for Sec.  
200.2(b)(5)(i) and agree that providing evidence of a State assessment 
system's technical quality is a critical requirement to maintain in the 
final regulations.
    Changes: None.
Public Posting of Technical Information
    Comments: A commenter requested that the Department require a 
State's technical review process regarding locally selected, nationally 
recognized high school academic assessments under Sec.  200.3 be made 
public on the State's Web site, including by requiring the State to 
post the technical criteria against which an LEA's requested assessment 
would be evaluated. The same commenter and another commenter requested 
that the results of any technical reviews a State completes be made 
publicly available.
    Discussion: We agree that it is important that a State post 
information about technical quality related to assessments under Sec.  
200.3. Transparency fosters collaboration and productive civic 
engagement. However, since Sec.  200.3(b)(1)(iv) specifies that all 
requirements of Sec.  200.2(b) (except for Sec.  200.2(b)(1)) apply to 
locally selected, nationally recognized high school academic 
assessments, if a State chooses to allow such assessments, the 
requirement under Sec.  200.2(b)(5)(ii) that technical information be 
posted on the State's Web site already applies. Therefore, a State will 
need to make at least as much information available regarding 
assessments under Sec.  200.3 as it would provide regarding other 
assessments the State uses to meet the requirements of this subpart.
    Changes: We have revised Sec.  200.2(b)(5)(ii) to make clear that 
the requirement to post technical information applies to each 
assessment administered under this subpart.
Multiple Measures of Student Achievement
    Comments: A few commenters recommended further specifying ``higher-
order thinking skills'' under Sec.  200.2(b)(7) by providing examples 
of these skills, such as critical thinking, complex problem-solving 
applied to authentic problems, communication, and academic mindsets. 
Commenters stated this would help support students' college and career 
readiness, as these skills are valuable for long-term success after 
high school.
    Discussion: We agree that providing examples of higher-order 
thinking skills will clarify the meaning of this phrase in the 
regulations and have added critical thinking, reasoning, analysis, 
complex problem solving, effective communication, and understanding of 
challenging content to Sec.  200.2(b)(7) to help illustrate what is 
meant by higher-order thinking skills.
    Changes: We have revised Sec.  200.2(b)(7) to include illustrative 
examples of higher-order thinking skills.
    Comments: A number of commenters supported provisions that offer 
flexibility to States to develop assessment systems that measure 
student growth, in addition to achievement, and encouraged the broad 
use of growth measures. Further, some of these commenters suggested 
modifying Sec.  200.2(b)(7)(i) and (b)(10)(ii) to require States' 
assessment systems to measure student growth. Commenters wrote that 
such a requirement would be consistent with statutory and proposed 
regulatory requirements for accountability systems under the ESEA, and 
would help ensure assessments provide results that can be used to 
inform instruction and meet the learning needs of all students. Another 
commenter suggested that if a State uses its assessment system to 
measure both student growth and achievement, the State should be 
required to report publicly both measures to give parents and the 
public a more comprehensive picture of students' learning.
    Discussion: We agree with commenters that measures of student 
growth can provide valuable insight into how well students are 
progressing against the State's challenging academic standards to 
inform instruction. However, section 1111(b)(2)(B)(vi) of the ESEA 
makes clear that measuring student academic growth is a State's 
decision. Moreover, contrary to the commenters' assertion, measures of 
student growth are not required to be used in the statewide 
accountability system under section 1111(c) of the ESEA; also, section 
1111(e)(1)(B)(iii)(III) prohibits the Secretary from requiring States 
to measure student growth for accountability purposes as a condition of 
approval of a State plan, or revisions or amendments to such plan, or

[[Page 88892]]

approval of a waiver request. Accordingly, we agree with commenters 
that a State's discretion to measure student growth based on its 
assessment systems is valuable, but decline to make any revisions to 
Sec.  200.2(b)(7)(i) or (b)(10)(ii). Further, any change in reporting 
requirements for States that elect to measure student academic growth 
is outside the scope of these regulations, as such requirements are 
specified in section 1111(h) of the ESEA, for which the Department has 
recently issued final regulations. We note that if a State were to 
elect to measure student academic growth as an accountability 
indicator, section 1111(h)(1)(C)(iii)(I) of the ESEA requires that 
performance on those indicators be included on State and LEA report 
cards.
    Changes: None.
    Comments: Several commenters wrote in support of assessment systems 
that include forms of assessments, such as portfolios and performance-
based tasks as described in Sec.  200.2(b)(7)(ii), as opposed to a 
single, summative, standardized assessment and encouraged the 
Department to find ways to incentivize and promote their widespread 
use. A few commenters noted that these forms of assessments are 
particularly helpful for assessing students with disabilities who may 
struggle to demonstrate what they know using traditional standardized 
tests.
    One commenter, however, urged caution about the use of portfolios, 
projects, or extended performance tasks in State assessment systems and 
recommended the Department revise Sec.  200.2(b)(7)(ii) to require 
States seeking to use these forms of assessment to develop and submit a 
plan to the Department for approval that would describe the efficacy, 
reliability, and comparability of these assessments and how the State 
will monitor their implementation.
    Discussion: Section 1111(b)(2)(B)(vi) of the ESEA, specifies that 
State assessments may be partially delivered in the form of projects, 
portfolios, or extended performance tasks, and we appreciate the 
commenters' support for reiterating this provision in the regulations. 
Because projects, portfolios, and extended performance tasks would be 
part of a State's assessment system, evidence about these items would 
need to be included in a State's submission for assessment peer review, 
as described in Sec.  200.2(d), to determine whether the assessment 
system as a whole meets all applicable regulatory requirements 
(including those related to validity, reliability, and technical 
quality). Therefore, we disagree with the commenter that additional 
language is needed in the final regulations to require each State that 
uses portfolios, projects, or extended performance tasks in its 
assessments to submit a separate plan describing their quality and use.
    Changes: None.
    Comments: One commenter suggested requiring that all State 
assessment systems include a performance-based component in mathematics 
in order to ensure all parts of mathematical knowledge, such as 
reasoning and procedural skills, are assessed. Another commenter 
suggested that State assessments be able to be fully delivered in the 
form of portfolios or projects, believing that this type of format may 
be most appropriate for certain students, such as those with very low 
levels of English proficiency. Other commenters suggested that further 
clarity would be helpful to ensure that assessments including 
portfolios, projects, or performance tasks could be used by States 
while still meeting the requirement in Sec.  200.2(b)(1)(i) to 
administer the same assessment to all students; one commenter 
recommended that so long as these assessments measure the same 
standards, the various items, prompts, or tasks, as well as scoring 
rubrics and training for evaluators, need not be the same.
    Discussion: Section 1111(b)(2)(B)(vi) of the ESEA, specifies that 
State assessments may be partially delivered in the form of projects, 
portfolios, or extended performance tasks. As the statute leaves the 
decision about whether to use any of these formats up to each State and 
qualifies their inclusion with ``partially,'' we decline to require a 
State to use them when developing its assessment system or to modify 
the regulations so that assessments may be fully delivered in these 
formats. Further, we are declining to make revisions to the final 
regulations to address the commenter's concern that Sec.  
200.2(b)(7)(ii) may be perceived as inconsistent with the statutory and 
regulatory requirements for the State to use the same assessment to 
measure the achievement of all public school students, as we believe 
such clarification is better suited for non-regulatory assessment peer 
review guidance. States may use assessments that include portfolios, 
projects, or performance tasks in a manner that is consistent with the 
statutory and regulatory requirements, examples of which we think would 
be best suited to such non-regulatory guidance.
    Changes: None.
    Comments: Two commenters recommended clarifying that State 
assessments partially delivered in the form of portfolios, projects, or 
extended performance tasks be excluded from any calculations of time 
students spend taking assessments, as required to be reported, when 
available, under the ``parents right-to-know'' provisions under section 
1112(e)(2)(B)(iv)(I) of the ESEA, and as part of any assessment audit 
under section 1202 of the ESEA--noting that these assessments are often 
administered over the course of a semester or year, and not in a 
single, discrete test-taking period.
    Discussion: Although we appreciate the commenters' suggestions 
regarding the use of portfolios, projects, and extended performance 
tasks, which are permitted in State assessments under these 
regulations, the regulations pertain to requirements for State 
assessment systems in general under section 1111(b)(2) of the ESEA. 
Thus, comments on how the Department should implement the ``parents 
right-to-know'' and assessment audit requirements in sections 
1112(e)(2) and 1202 of the ESEA, respectively, are outside the scope of 
these regulations.
    Changes: None.
State Flexibility for Assessment Format
    Comments: Multiple commenters supported the proposed regulations 
regarding State flexibility to administer a single summative assessment 
or multiple interim assessments throughout the year that result in a 
single summative score, noting that greater discretion in the time and 
format of assessments may help reduce the time students spend taking 
required assessments, could promote innovative assessment formats among 
States rather than traditional large-scale summative assessments taken 
at the end of the year, and may support particular student groups, like 
students with disabilities, who may be better able to demonstrate their 
knowledge when assessments occur throughout the year as students master 
academic material. One commenter supported this flexibility for States, 
but felt that a single summative score for each student was 
unnecessary. Another commenter expressed that it should not be 
necessary for all students to take the same test across schools in the 
State due to variations in instructional methods.
    Another commenter, however, urged caution about the use of 
multiple, interim assessments throughout the year that result in a 
summative score. This commenter suggested the Department revise Sec.  
200.2(b)(10) to require States seeking to use these forms of assessment 
to develop and submit a plan to the Department for approval that would 
describe the efficacy, reliability, and comparability of these 
assessments and

[[Page 88893]]

how the State will monitor their implementation.
    Discussion: Section 1111(b)(2)(B)(viii) of the ESEA, specifies that 
State assessments may be administered through a single summative 
assessment or multiple statewide interim assessments during the course 
of the year that result in a single summative score, and we appreciate 
the commenters' support of reiterating this provision in the proposed 
regulations. Given that the requirement for multiple interim 
assessments to produce a single summative score is statutory, we 
decline to strike this requirement in the final regulations. Moreover, 
because multiple statewide interim assessments administered throughout 
the school year would be part of a State's assessment system, they 
would be included in a State's submission for assessment peer review, 
as described in Sec.  200.2(d), to determine whether the assessments 
meet all applicable regulatory requirements (including those related to 
validity, reliability, and technical quality), we disagree with the 
commenter that additional language is needed in the final regulations 
to require each State that uses multiple interim statewide assessments 
to submit a separate plan describing their quality and use. Rather, 
validity, reliability, and technical quality will be considered as part 
of the assessment peer review process for each State, regardless of a 
particular State's test design.
    We reaffirm the statutory and regulatory requirements to assess all 
students in the State using the same assessments, except in specific 
circumstances outlined in Sec.  200.2(b)(1)(i). This is essential to 
promote ongoing transparency, meaningful and fair school 
accountability, and equity.
    Changes: None.
Disaggregated Data
    Comments: Several commenters recommended requiring more detailed 
disaggregated data for various subgroups of students specified under 
Sec.  200.2(b)(11). One commenter recommended requiring further 
disaggregation of assessment data by gender, to better identify and 
support students of different sexes or gender identities. Another 
commenter suggested that the children with disabilities subgroup be 
disaggregated by each category of disability specified under section 
602(3) of the Individuals with Disabilities Education Act (IDEA), given 
the broad range of cognitive and functional abilities among students in 
the subgroup. An additional commenter objected to the use of the term 
``subgroups'' with regard to students.
    Discussion: The statute uses the term ``subgroup'' to identify 
students based on certain characteristics. Accordingly, the regulations 
use the same language. The individual subgroups of students for which 
State assessments are required to be able to be disaggregated in the 
regulations are consistent with those required under section 
1111(b)(2)(B)(xi) and 1111(h)(1)(C)(ii) of the ESEA. While we 
understand that requiring further disaggregation of assessment data for 
additional subgroups of students may help focus needed attention on 
underserved students with unique academic and non-academic needs, we 
believe States should have discretion over the disaggregation of any 
additional subgroups.
    Changes: None.
    Comments: Two commenters recommended allowing States and districts 
flexibility regarding when assessment data must be available in a 
disaggregated fashion for certain new subgroups, such as students who 
are homeless, are in foster care, or have military-connected families 
in proposed Sec.  200.2(b)(11)(vii)-(ix).
    Discussion: Given that the requirement to report assessment results 
disaggregated for students who are homeless, are in foster care, or 
have military-connected families is found in section 1111(h)(1)(C)(ii) 
of the ESEA, which specifies requirements for State and LEA report 
cards, we are declining to make the suggested changes as the comments 
are outside the scope of the regulations on State assessments under 
title I, part A.
    Changes: None.
    Comments: None.
    Discussion: In reviewing the final regulations, the Department 
realized that Sec.  200.2(b)(11) did not include language from section 
1111(b)(2)(B)(xi) of the ESEA which states that disaggregation is not 
required if the number of students in a subgroup in a State, LEA, or 
school is insufficient to yield statistically reliable information or 
the results would reveal personally identifiable information about an 
individual student. The statute and, accordingly, the regulations 
stipulate disaggregation of student data by many student subgroups, 
including subgroups that cause students to be highly mobile. While 
transparent information about students in specific circumstances is 
important for promoting equity and access for all students, student 
data privacy is also critical. Incorporating this statutory language 
will help ensure that States and LEAs appropriately balance public 
reporting and privacy by not showing results for a particular subgroup 
if doing so would reveal personally identifiable student information.
    Changes: We have added Sec.  200.2(b)(11)(ii) to incorporate 
statutory language stating that disaggregation by subgroups is not 
required if the number of students in a subgroup in a State, LEA, or 
school is insufficient to yield statistically reliable information or 
the results would reveal personally identifiable information about an 
individual student.
Computer-Adaptive Assessments
    Comments: Multiple commenters strongly supported the proposed 
requirements for computer-adaptive assessments in Sec.  200.2(c), 
noting that these forms of assessments may help reduce the time 
students spend taking required assessments and support States in more 
accurately measuring student learning and growth over time, 
particularly for students with disabilities who may be behind grade 
level or gifted students who are well above the proficient level for 
their enrolled grade. Several of these commenters also supported the 
fact that the regulations require States, when using computer-adaptive 
assessments, to provide a determination of a student's achievement 
against the academic content standards for the grade in which the 
student is enrolled to ensure all students are held to high 
expectations for their learning. One of these commenters supported the 
flexibility for States to use computer-adaptive tests, but did not 
think that a single summative score from a computer-adaptive assessment 
for each student was necessary.
    However, a couple of commenters were concerned that the proposed 
requirements for computer-adaptive assessments to produce a grade-level 
determination would mean such assessments would not also produce a 
valid result for a student's performance above or below grade level and 
advocated for allowing computer-adaptive tests that primarily assess 
performance above or below grade level, potentially with reduced focus 
on grade level content.
    Discussion: We appreciate the commenters' support and agree that 
computer-adaptive assessments could promote positive change in the 
design and delivery of State assessment systems. Section 1111(b)(2)(J) 
of the ESEA gives each State the discretion to adopt a computer-
adaptive assessment so long as it measures, at a minimum, each 
student's academic proficiency based on challenging State academic

[[Page 88894]]

standards for the student's grade level and growth toward such 
standards; in addition, the adaptive assessment may measure a student's 
level of proficiency and growth using items above or below the 
student's grade level. As this statutory language, which emphasizes the 
importance of a determination of grade-level proficiency for each 
student against the State's challenging academic standards, is included 
nearly verbatim in the proposed regulations, we believe the commenters' 
suggested changes would be inconsistent with the statute.
    Changes: None.
    Comments: A commenter expressed concern that the requirements for 
computer-adaptive assessments in Sec.  200.2(c)(1) do not require such 
assessments to measure the depth and breadth of the State's academic 
content standards, contending this will undermine full alignment of the 
assessments with the State's grade-level expectations and their 
accuracy in measuring student performance against those expectations.
    Discussion: Section 1111(b)(2)(J) of the ESEA requires that, if a 
State chooses to use computer-adaptive assessments, those assessments 
meet all requirements of ``this paragraph''--i.e., section 1111(b)(2)--
which include requirements related to addressing the depth and breadth 
of State academic content standards. We have incorporated this 
expectation into Sec.  200.2(c)(1)(i). Therefore, we disagree that the 
regulations will undermine full alignment with grade-level expectations 
or accuracy, and believe that no change is warranted.
    Changes: None.
    Comments: One commenter recommended that the Department revise the 
regulations to make clear that a State may assess students against 
academic content standards above and below their enrolled grade level 
on all forms of assessments, not only if the State administers 
computer-adaptive tests. The commenter believed this flexibility is 
needed to promote competency-based approaches to education.
    Discussion: A State must, at a minimum, assess students in a valid 
and reliable manner against grade-level content standards consistent 
with the Federal assessment requirements under title I, part A. 
Generally, a State may also assess a student against academic content 
standards above and below the grade in which the student is enrolled 
provided the State meets all applicable requirements for assessment 
relative to the grade in which the student is enrolled, regardless of 
whether the assessment is computer-adaptive. The Federal assessment 
requirements under title I, part A include: Producing a summative score 
that measures a student's academic achievement against the State's 
academic achievement standards; reporting that score and the 
corresponding achievement level to parents and educators, in the 
aggregate and disaggregated by subgroups; reporting student academic 
achievement information based on the enrolled grade on State and local 
report cards; and using that score in the Academic Achievement 
indicator and long-term goals in the State's school accountability 
determinations. While we urge a State to use assessment time 
judiciously, in keeping with President Obama's Testing Action Plan (see 
footnote 1), a State does not need specific authority to offer a 
student assessment items in addition to those items that produce the 
student's annual summative score based on grade-level achievement 
standards. Since any assessment, including any computer-adaptive 
assessment, must provide a measure of student academic achievement 
against the challenging State academic standards for the grade in which 
a student is enrolled, items above or below a student's grade level 
would be administered in addition to items needed to meet the 
requirements of this subpart. While students with the most significant 
cognitive disabilities may be assessed with an AA-AAAS, if the State 
has adopted such standards, such an assessment must also be aligned 
with the challenging State academic content standards for the grade in 
which the student is enrolled. In any circumstance, a State must ensure 
that it demonstrates that all of its assessments meet all technical 
quality requirements regarding measurement of a student's grade-level 
academic achievement. We therefore decline to make any additional 
changes.
    Changes: None.
Assessment Peer Review
    Comments: One commenter supported Sec.  200.2(d) that requires each 
State to submit evidence for assessment peer review that its English 
language proficiency (ELP) assessment meets all applicable 
requirements, which will help ensure that these assessments (used for 
both school accountability and to help determine whether students are 
ready to exit English learner services) are of the highest technical 
quality.
    Discussion: We appreciate the commenter's support and agree that 
peer review of a State's ELP assessment will be critically important to 
ensuring that assessment is fair, valid, reliable, and high quality.
    Changes: None.
    Comments: One commenter recommended revising Sec.  200.2(d) so that 
the peer review of assessments would allow for States to use innovative 
assessments that depart from traditional forms of standardized testing, 
believing such assessments to be preferable to traditional large-scale 
assessment systems.
    Discussion: States have broad discretion to design and implement 
assessment systems that effectively measure student academic 
achievement related to a State's challenging academic content and 
academic achievement standards. Neither the statute nor the regulations 
apply any specific limits on test design; rather, the statute and 
regulations focus on the technical quality of assessments, including 
validity, reliability, and fairness for all students and high technical 
quality. In fact, section 1111(b)(2)(B)(vi) of the ESEA specifically 
directs States to ``involve multiple up-to-date measures of student 
academic achievement, including measures that address higher-order 
thinking skills and understanding, which may include measures of 
student academic growth and may be partially delivered in the form of 
portfolios, projects, or extended performance tasks,'' and the 
regulations incorporate this authority. A State may apply innovative 
principles to academic assessments without any additional specific 
authority.
    As previously discussed, annual assessments, as required by the 
ESEA, are tools for learning and promoting equity when they are done 
well and thoughtfully. When assessments are done poorly, in excess, or 
without a clear purpose, they take time away from teaching and 
learning. President Obama's Testing Action Plan (see footnote 1), 
released in October 2015, provides a set of principles and actions that 
the Department put forward to help protect the vital role that good 
assessment plays in guiding progress for students and evaluating 
schools, while providing help in reducing practices that have burdened 
classroom time or not served students or educators well.
    Further, section 1204 of the ESEA allows States granted Innovative 
Assessment Demonstration Authority to begin administering them in some 
schools or LEAs and then take such assessments to scale statewide over 
several years. The Department wishes to emphasize, however, that a 
State does not need to be granted such authority in order to innovate 
or improve its assessments, provided it annually assesses all students 
in each required grade level and subject area using the

[[Page 88895]]

same assessment, in keeping with all applicable statutes and 
regulations.
    Finally, the Department offers competitive grant funds to State 
applicants to support specific kinds of assessment development. Under 
the ESEA, as amended by the NCLB, these grants were called the Enhanced 
Assessment Grants; in the ESEA, as amended by the ESSA, similar 
authority exists in section 1203. The most recent competition included 
a competitive preference priority for applicants proposing projects 
that develop innovative assessment items, which a State would 
incorporate into its statewide assessment system (for more information, 
see www.ed.gov/programs/eag).
    Changes: None.
    Comments: One commenter suggested revising Sec.  200.2(d) to 
include requirements related to the background and expertise of 
individuals who serve as assessment peer reviewers to ensure that the 
reviewers are well positioned to determine whether a State has met all 
applicable requirements. Another commenter suggested, in particular, 
that stakeholders from diverse backgrounds be included in the 
assessment peer review process, to the extent practicable.
    Discussion: We recognize the commenters' intent to ensure that the 
individuals who serve as assessment peer reviewers of State assessments 
possess the necessary skills and background to make informed 
determinations, but we believe such specificity is unnecessary in the 
final regulations. The individuals best suited to evaluate State 
assessments may vary depending on the type of assessment under review 
(i.e., AA-AAAS versus ELP assessments), and further regulation in this 
area could unintentionally inhibit the Department from selecting the 
most knowledgeable and appropriate peer review teams based on the 
context of the State assessments under review.
    Changes: None.
    Comments: A few commenters contended that assessment peer review is 
too burdensome for States and advocated reducing or eliminating it.
    Discussion: Assessment peer review, as required under section 
1111(a)(4) of the ESEA, is the Department's primary mechanism for 
ensuring that States implement high-quality academic assessments that 
meet the requirements of the law. Since these assessments are a factor 
in school accountability systems and provide a critical window into 
student educational opportunity and progress in closing achievement 
gaps, a key purpose of title I of the ESEA, we think it is important to 
administer the process in a thorough manner. That said, as the 
Department considers future non-regulatory assessment peer review 
guidance aligned with the ESEA and these regulations, we welcome 
stakeholder input into how to support States in meeting all 
requirements under the law and in these regulations.
    Changes: None.
Information to Parents
    Comments: Multiple commenters wrote in support of Sec.  200.2(e), 
which requires information provided to parents to be (1) in an 
understandable and uniform format, (2) written, to the extent 
practicable, in a language and format that parents can understand or, 
if it is not practicable for a written translation, orally translated, 
and (3) available in alternate formats accessible to parents with 
disabilities upon request. These commenters cited the importance of 
ensuring parents receive information about assessments that is clear, 
transparent, and in formats and languages they can access and 
understand in order to facilitate meaningful parental engagement and 
involvement in their child's education and improve student outcomes. 
One commenter specifically recommended we revise the final regulations 
to require States to make available a written translation of notices to 
parents in at least the most populous language in the State. This 
commenter argued that such a requirement is consistent with provisions 
related to assessments in languages other than English under proposed 
Sec.  200.6(f) and would not be overly burdensome. Another commenter 
recommended that the Department develop guidance to offer additional 
clarity and best practices in this area, including examples of model 
notices, to help support States in making information to parents fully 
accessible. Some commenters also recommended requiring that all written 
notices include information on how a parent can request free language 
assistance from a school or district if a written translation is not 
available. Another commenter requested that the regulations explicitly 
note that the requirements apply to making information available in 
Native American languages.
    However, a few commenters argued the opposite--that compliance with 
Sec.  200.2(e) would be overly burdensome and costly for local 
districts, particularly those requirements related to providing 
information in a language that parents can understand. One commenter 
noted that these provisions could be particularly challenging to 
implement in States with Native American populations, and sought 
additional guidance from the Department on circumstances in which a 
language is more common at a local level, yet rare nationally, and 
where some languages are primarily oral and not written. In addition, 
another commenter recommended only including the statutory language, 
thereby removing requirements related to written and oral translations 
and alternate formats.
    Discussion: We appreciate the strong support of many commenters for 
Sec.  200.2(e) and the suggestions for future non-regulatory guidance 
on providing accessible information to parents. Section 
1111(b)(2)(B)(x) of the ESEA requires each State to produce individual 
student interpretive, descriptive, and diagnostic reports on 
achievement on assessments that allow parents, teachers, principals, 
and other school leaders to understand and address students' specific 
academic needs. In order to ensure that a parent receives needed 
information about a child's academic progress, section 1111(b)(2)(B)(x) 
further requires a State to provide this information in an 
understandable and uniform format, and to the extent practicable, in a 
language that parents can understand. We believe these requirements for 
meaningful access to assessment information--and the clarifications 
provided by Sec.  200.2(e)--are critical in order to help parents 
meaningfully engage in supporting their children's education and 
provide consistency between these regulations and applicable civil 
rights laws, as explained below.
    Given that such information is essential for meaningful parent 
engagement and involvement in decision-making related to their child's 
education, we disagree with the contention that compliance with Sec.  
200.2(e) would be overly burdensome and costly. Likewise, we note that 
if this information is provided through an LEA Web site, the 
information is required to be accessible for individuals with a 
disability not only by the ESEA, but also based on the Federal civil 
rights requirements of Section 504 of the Rehabilitation Act of 1973, 
29 U.S.C. 794 (section 504), title II of the Americans with 
Disabilities Act, 42 U.S.C. 12131 et seq. (title II of the ADA), as 
amended, and their implementing regulations, all of which are enforced 
by the Department's Office for Civil Rights.
    We disagree with commenters that we should require only written 
translations and not allow for oral translations, or require oral 
translations and alternate formats only to the extent practicable. 
Parents with disabilities or limited

[[Page 88896]]

English proficiency have the right to request information in accessible 
formats. Whenever practicable, written translations of printed 
information must be provided to parents with limited English 
proficiency in a language they understand, and the term ``language'' 
includes all languages, including Native American languages. However, 
if written translations are not practicable for a State to provide, it 
is permissible to provide information to limited English proficient 
parents orally in a language that they understand. This requirement is 
not only consistent with the Department's longstanding interpretation 
of the phrase ``to the extent practicable,'' it is also consistent with 
Title VI of the Civil Rights Act of 1964 (Title VI), as amended, and 
its implementing regulations. Under Title VI, recipients of Federal 
financial assistance have a responsibility to ensure meaningful access 
to their programs and activities by persons with limited English 
proficiency. It is also consistent with Department policy under Title 
VI and Executive Order 13166 (Improving Access to Services for Persons 
with Limited English Proficiency).
    We decline to further define the term ``to the extent practicable'' 
under these regulations, but remind States and LEAs of their Title VI 
obligation to take reasonable steps to communicate the information 
required by the ESEA, as amended by the ESSA, to parents with limited 
English proficiency in a meaningful way.\5\ We also remind States and 
LEAs of their concurrent obligations under Section 504 and title II of 
the ADA, which require covered entities to provide persons with 
disabilities with effective communication and reasonable accommodations 
necessary to avoid discrimination unless it would result in a 
fundamental alteration in the nature of a program or activity or in 
undue financial and administrative burdens. Nothing in ESSA or these 
regulations modifies those independent and separate obligations. 
Compliance with the ESEA, as amended by the ESSA, does not ensure 
compliance with Title VI, Section 504, or title II of the ADA.
---------------------------------------------------------------------------

    \5\ For more information on agencies' civil rights obligations 
to Limited English Proficient parents, see the Joint Dear Colleague 
Letter of Jan. 7, 2015, at Section J. (https://www2.ed.gov/about/offices/list/ocr/letters/colleague-el-201501.pdf).
---------------------------------------------------------------------------

    Changes: None.
Other Comments Related to State Responsibilities for Assessment
    Comments: One commenter wrote in general support of the requirement 
to assess all students under Sec.  200.2(b)(1), noting that this 
provision is particularly critical for historically underserved 
populations of students like children with disabilities.
    Discussion: We appreciate the commenter's support for the proposed 
regulations, which were intended to ensure equity and educational 
opportunities for all students, including children with disabilities.
    Changes: None.
    Comments: One commenter suggested the regulations replace the slash 
(/) in reading/language arts with ``or'' to make the language 
consistent with the statutory requirements to assess students in 
reading or language arts.
    Discussion: We recognize the commenter's point that the ESEA uses 
``reading or language arts'' to describe the academic content standards 
in these subjects, but note that the prior authorizations of the ESEA, 
the NCLB and the Improving America's Schools Act of 1994, also used the 
term ``reading or language arts'' to describe standards in these 
subjects, while the corresponding regulations used the term ``reading/
language arts.'' As this is consistent with policy and practice for 
over two decades and we are unaware of significant confusion in this 
area, we believe it is unnecessary to change ``reading/language arts'' 
in Sec.  200.2 and other sections of the final regulations.
    Changes: None.
    Comments: One commenter suggested adding a requirement to Sec.  
200.2 highlighting improved test security measures as a potential use 
of formula funds provided for State assessments under section 1201 of 
the ESEA, noting instances of testing irregularities that could be 
prevented with additional resources to support enhanced security 
measures.
    Discussion: In general, effective test security practices are 
needed in order for a State to demonstrate strong technical quality, 
validity, and reliability, which the statute and regulations already 
require. We believe that specific expectations related to test security 
are best reflected in non-regulatory guidance. Existing non-regulatory 
assessment peer review guidance (available at https://www2.ed.gov/admins/lead/account/peerreview/assesspeerrevst102615.doc) for State 
assessments details the types of evidence States might submit to 
demonstrate strong test security procedures and practices. We therefore 
believe additional emphasis on test security in Sec.  200.2 is 
unnecessary. Further, comments on funding for State assessment systems 
under section 1201 of the ESEA are outside the scope of these 
regulations. However, we note that using funds under 1201 to improve 
test security would be permissible.
    Changes: None.
    Comments: One commenter expressed concern about the risk of 
technical failure on a computer-based test and about the computing 
skills needed for a student to demonstrate knowledge and skills on such 
a test. Another commenter articulated similar concerns specifically 
with regard to English learners.
    Discussion: The Department shares the commenters' concern about the 
risk of technical failure and encourages States to prepare thoroughly 
for technology-based assessments, including through building in needed 
back-up systems to ensure continuity of operations. As students grow up 
in an increasingly technology-based world, many are digital natives. 
However, we agree with the commenters' concerns about opportunity to 
access technology, and continue to support schools and districts in 
creating innovative means of providing equitable access to technology 
for all students, including English learners. Nothing in these 
regulations either requires or restricts the use of technology-based 
assessments, provided such assessments are accessible to all students, 
including students with disabilities, and we believe these topics are 
better suited to non-regulatory guidance and should be subject to a 
State's discretion.
    Changes: None.
    Comments: Several commenters suggested adding requirements that 
States must engage educators in developing (1) guidance on creating a 
positive testing environment in schools leading toward data-driven 
decisions; (2) tools for using tests to measure student growth and 
progress over time; and (3) ongoing professional development for 
teachers in using assessment data.
    Discussion: While the Department appreciates the intent of these 
commenters to improve the assessment experience for educators, we 
decline to require these activities. We believe these efforts are most 
likely to be successful and meaningful if they are undertaken in 
response to community demand and buy-in from classroom teachers, school 
leaders, and local administrators--not in response to a Federal 
requirement. The Department anticipates updating non-regulatory 
guidance related to using Federal funds to support assessment literacy 
and implementing President Obama's Testing Action Plan.
    Changes: None.
    Comments: Multiple commenters recommended that the final 
regulations specifically allow States to adopt

[[Page 88897]]

innovative assessments statewide or in a subset of LEAs without seeking 
approval or any flexibility from the Department, so long as the State 
or LEA continues to administer its annual statewide assessments as 
described in Sec.  200.2 and related regulations.
    Discussion: We agree with the commenters that nothing in these 
regulations precludes an LEA or State from adopting and implementing 
innovative assessments in addition to the statewide assessments it uses 
to meet the requirements of section 1111(b)(2) of the ESEA. A State 
also does not need special flexibility if it uses an innovative 
approach statewide to meet the requirements of section 1111(b)(2) of 
the ESEA and these regulations. A State only requires special 
flexibility from the Department if it is seeking to use an innovative 
assessment in a subset of LEAs and permit these LEAs to forego 
administration of the statewide assessment while it scales the 
innovative assessments to operate statewide. In those cases, a State 
requires Innovative Assessment Demonstration Authority under section 
1204 of the ESEA. Because the Department intends to issue separate 
regulations on this new authority, we believe additional clarification 
in these final regulations on assessments under part A of title I is 
unnecessary.
    Changes: None.

Section 200.3 Locally Selected, Nationally Recognized High School 
Academic Assessments

Definition of ``Nationally Recognized High School Academic Assessment''
    Comments: Some commenters supported the proposed definition of a 
``nationally recognized high school academic assessment.'' Other 
commenters opposed it for various reasons, including the desire to 
include an individualized State higher education entrance or placement 
examination (i.e., one that may be in use in a given State's system of 
higher education, but not across multiple States), a request for a 
particular assessment to meet the definition, and a concern that the 
proposed definition would preclude assessments used by career and 
technical education programs.
    Discussion: The negotiated rulemaking committee discussed the 
definition of ``nationally recognized high school academic assessment'' 
at length and came to consensus on the proposed definition. 
Specifically, the committee agreed that, in order to be nationally 
recognized, an assessment must be in use in multiple States and 
recognized by institutions of higher education in those or other States 
for the purposes of entry or placement in those institutions. Since the 
statute specifically limits this exception to nationally recognized 
assessments, we do not think it is consistent with the statute to allow 
for assessments used only in a single State to meet the definition. The 
definition does not identify any specific academic assessment as 
allowable; neither does it preclude the use of any specific assessment 
that meets the definition. Any assessment given by a State or an LEA to 
meet the requirements of this subpart must be aligned with the 
challenging State academic standards, in keeping with Sec. Sec.  
200.2(b)(3) and 200.3(b)(1)(i)-(ii). Finally, since a State's high 
school assessment must assess the high school standards broadly, and 
since those standards are required by section 1111(b)(1)(D) to be 
aligned with entrance requirements for credit-bearing coursework in the 
system of public higher education in the State and relevant State 
career and technical education standards, we believe the definition is 
sufficiently broad to include assessments recognized by both 
postsecondary education and career training programs. We, therefore, 
disagree with commenters who worry that the use of this definition will 
adversely affect career and technical training programs. An LEA could 
request to use an assessment honored by career and technical training 
programs provided it fully meets the definition, including alignment 
with challenging State academic standards and use for entrance or 
placement in postsecondary education programs in multiple States.
    Changes: None.
State Authority Over Locally Selected, Nationally Recognized High 
School Academic Assessments
    Comments: Some commenters supported the clarification that a State 
has authority over whether to allow LEAs to request to use a locally 
selected, nationally recognized high school academic assessment. Others 
asked for more details regarding this authority, such as whether States 
would need to provide justification for choosing not to allow LEAs to 
request such an assessment and whether a State could, in subsequent 
years, revoke its approval of an individual LEA's use of a locally 
selected, nationally recognized high school academic assessment.
    Discussion: Section 1111(b)(2)(H) of the ESEA affirms a State's 
authority to decide whether to allow LEAs in the State to request to 
use a locally selected, nationally recognized high school academic 
assessment in place of the statewide test. If a State decides to 
implement this authority, it must establish technical criteria to 
determine whether an assessment an LEA proposes meets those criteria 
and warrants approval, or disapproval if it does not meet the criteria. 
Because a State may decide not to offer LEAs this flexibility 
initially, the State has inherent authority to revoke, for good cause, 
the authority after it has been granted. Good cause might include, for 
example, concern about an LEA's implementation, such as when a 
substantial portion of students are not assessed in the LEA or when 
students are not receiving appropriate accommodations. Additionally, a 
State might revoke approval in general as a result of changes in State 
statute, regulation, or policy. We encourage a State to establish the 
criteria for doing so to ensure transparency in the system for LEAs and 
other stakeholders and to ensure there is sufficient time and a process 
in place for any such LEAs to revert to administration of the statewide 
assessment in all high schools.
    Changes: We have revised Sec.  200.3(b)(3) to specify that a State 
may approve or disapprove a request from an LEA based on whether the 
request meets the requirements of this section. We have also added 
Sec.  200.3(b)(3)(iii) to specify that a State may, for good cause, 
revoke approval once granted.
Parental Consultation and Notification
    Comments: Some commenters supported the requirements for an LEA to 
notify parents and offer them an opportunity to provide meaningful 
input into the LEA's application to the SEA regarding the use of a 
locally selected, nationally recognized high school academic 
assessment. One commenter opposed this requirement and suggested that 
notification of, and consultation with, parents be permitted but not 
required. Another commenter requested that the Department further 
strengthen consultation requirements regarding locally selected, 
nationally recognized high school academic assessments.
    Discussion: We affirm the importance of parental notification and 
meaningful input from families regarding LEA use of a locally selected, 
nationally recognized high school academic assessment. The negotiated 
rulemaking committee strongly supported such parental engagement and 
notification. Since administration of a locally selected, nationally 
recognized high school academic assessment might impact the local 
instructional program,

[[Page 88898]]

parents and families should have the opportunity to engage in such a 
decision in order to ensure that it meets the needs of the whole 
district. Further, we are revising the final regulations to require 
that an LEA notify parents of how students, as appropriate, can be 
involved in providing input, recognizing that high school students are 
also significantly affected by the LEA's choice to use a locally 
selected, nationally recognized high school academic assessment, 
especially as these assessments may support their efforts to enroll in, 
or receive academic credit, in postsecondary institutions. At the same 
time, we believe that requiring notification and input prior to an LEA 
application to use such an assessment, along with notification upon 
approval of such application and in each subsequent year of use, is 
adequate to facilitate ongoing and meaningful parental involvement in 
decision making on this topic.
    Changes: We have revised Sec.  200.3(c)(1)(i)(B) to require an LEAs 
to afford students, as appropriate, an opportunity to provide 
meaningful input regarding the LEA's intent to use a locally selected, 
nationally recognized high school academic assessment.
Charter School Consultation
    Comments: Several commenters specifically supported Sec.  
200.3(c)(1)(ii) and (c)(2)(ii) concerning charter school and charter 
school authorizer consultation when LEAs, including charter school 
LEAs, plan to propose using a locally selected, nationally recognized 
high school academic assessment in place of the statewide test.
    Discussion: We agree with the commenters that the provisions 
requiring explicit consultation with charter schools and charter school 
authorizers are important and appreciate the commenters' support.
    Changes: None.
LEA-Wide Assessment
    Comments: A number of commenters supported the proposed regulations 
as written, including by affirming the importance of a single 
consistent assessment across a district. One commenter further 
requested that the Department require that any LEA in a State using a 
locally selected, nationally recognized high school academic assessment 
in place of the statewide test use the same such assessment as all 
other LEAs in that State not using the statewide high school test.
    Other commenters opposed the requirement that an LEA use the same 
locally selected, nationally recognized high school academic assessment 
for all high school students in the LEA and requested that the 
Department revise the language in Sec.  200.3(a)(2) to permit an LEA to 
administer multiple locally selected, nationally recognized high school 
assessments, arguing that decisions should be made at either the school 
or student level. Of these, certain commenters were particularly 
concerned that requiring a single assessment across an entire LEA makes 
it harder for larger LEAs to take advantage of this flexibility. Some 
commenters argued that the Department exceeded its authority, including 
one commenter who asserted that the Department violated prohibitions in 
section 1111(e) of the ESEA, in requiring a single locally selected, 
nationally recognized assessment in a district, and others expressed 
concern that requiring a single assessment would limit career and 
technical education pathways. Another commenter argued that the limit 
of one assessment per district should be unnecessary if any locally 
selected, nationally recognized high school academic assessment must be 
as rigorous as or more rigorous than the statewide test.
    Discussion: Requiring a single assessment across an entire LEA 
intentionally promotes fairness and access by continuing to require a 
consistent measure of student achievement for all students in a 
district, except for students with the most significant cognitive 
disabilities whose performance under this subpart may be assessed with 
an AA-AAAS. We acknowledge that the complexity involved in implementing 
any assessment is greater in a large school district than it is in a 
small school district. Broadly speaking, large and small school 
districts face different challenges and approach them with disparate 
resources. The alternative--allowing multiple high school academic 
assessments within the same district--opens the door to the problematic 
situation whereby expectations may decrease over time for some students 
if higher-achieving students consistently take a different test. In 
addition to being required by the ESEA, the same high expectations for 
all students are needed to ensure that all students have the 
opportunity to graduate college and career ready. It is for this reason 
more than any other that the Department affirms the importance of an 
LEA offering a single LEA-wide assessment. Particularly given that the 
statute allows for an assessment that is more rigorous than the 
statewide test, it is important to ensure that implementing this new 
flexibility in the law does not lead to ``tracking'' students at a 
young age, creating lower expectations for some students than the ones 
that exist for their peers.
    Given that locally selected, nationally recognized high school 
academic assessments would be used in the Academic Achievement 
indicator for purposes of the statewide accountability system under 
section 1111(c) of the ESEA, including the requirements that a State 
must meet regarding annual meaningful differentiation and 
identification of schools having the greatest success and those in need 
of additional support, meaningful school-to-school comparisons of 
student achievement are needed. During negotiated rulemaking, the 
negotiators reached consensus on the value of preserving within-
district direct comparability of results, particularly for reporting on 
LEA report cards, transparency, and school accountability 
determinations.
    Furthermore, the statutory language in this case is singular, 
articulating what a State does if it chooses to allow an LEA to request 
``a'' locally selected, nationally recognized assessment. For all of 
these reasons, we believe that the application of the single assessment 
per LEA is consistent with the statute. However, we believe section 
1111(b)(2)(H)(iii) of the ESEA is clear that LEAs could each select a 
distinct nationally recognized high school academic assessment so long 
as such assessment is supported with evidence that it meets the State's 
technical criteria and the Department's assessment peer review.
    In response to questions about the Department's authority, the 
regulations are well within the Department's rulemaking authority. As 
provided in section 1601(a) of the ESEA, the Secretary may ``issue, in 
accordance with subsections (b) through (d) and subject to section 
1111(e), such regulations as are necessary to reasonably ensure that 
there is compliance with this title.'' As discussed above, we believe 
requiring an LEA to administer the same nationally recognized high 
school academic assessment to all high school students in the LEA is 
necessary to ensure, as required by section 1111(b)(1) and (b)(2)(B)(i) 
of the ESEA, that an LEA applies the same high expectations to all 
students so that all students have the opportunity to graduate college 
and career ready. The alternative opens the door to an LEA's decreasing 
expectations over time for some students if higher-achieving students 
consistently take a different test. The

[[Page 88899]]

Department followed the requirements in section 1601(b) of the ESEA by 
subjecting the proposed regulations to negotiated rulemaking and the 
negotiating committee agreed with the proposed regulations by 
consensus. Moreover, the final regulations do not violate section 
1111(e) of the ESEA, which prohibits the Secretary from promulgating 
any regulations that are inconsistent with or outside the scope of 
title I, part A. Rather, these regulation are consistent and 
specifically intended to ensure compliance with section 1111(b)(1) and 
(b)(2)(B) of the ESEA. The Department also has rulemaking authority 
under section 410 of the General Education Provisions Act (GEPA), 20 
U.S.C. 1221e-3, and section 414 of the Department of Education 
Organization Act (DEOA), 20 U.S.C. 3474.
    Changes: None.
    Comments: Certain commenters proposed allowing LEAs to phase in a 
locally selected, nationally recognized high school academic assessment 
over a number of years, such as over the course of two years.
    Discussion: While an LEA may elect any number of transition 
strategies, it must annually assess all students in the district using 
the same assessment. Long-standing practice holds that entire States--
including both large and small districts within them--transition in a 
single year from one assessment to another. An LEA, whether large or 
small, could rely on lessons learned and strong practices from such 
prior transitions in making a change for all schools in the district. 
For example, an LEA could pilot a locally selected, nationally 
recognized assessment with a subset of students in one year, so long as 
those students also take the statewide assessment. In some cases, 
students might already be taking such assessments for other purposes, 
which would limit the burden of such a transition since it would allow 
an LEA to implement the assessment without requiring students to take 
additional tests beyond those the students already plan to take. While 
best practice would encourage substantial training and preparation in 
advance of the new assessment, the transition itself must occur in a 
single year.
    Changes: None.
Technical Requirements of a Locally Selected, Nationally Recognized 
High School Academic Assessment
    Comments: Some commenters expressed concern that some locally 
selected, nationally recognized high school academic assessments may 
not fairly evaluate the performance of all students or all subgroups of 
students, particularly low-performing students. Commenters included 
citations to recent research regarding specific assessments. These 
commenters proposed revising the regulations to provide that a State 
may only approve a locally selected, nationally recognized assessment 
that measures the full range of student academic performance against 
the challenging State academic standards. On the contrary, other 
commenters expressed concern that the regulations as proposed would 
preclude the use of one or more assessments they are particularly 
interested in using under this flexibility.
    Discussion: The Department agrees with the commenters' focus on the 
importance of an assessment providing meaningful information across the 
full performance spectrum. The Department believes that the technical 
requirements for assessment, articulated in Sec.  200.2 and applied to 
locally selected, nationally recognized high school academic 
assessments through the provision in Sec.  200.3(b)(1)(iv), are 
adequate to address this concern. In addition, if a State determines 
that an assessment an LEA requests to use meets the State's technical 
criteria, the State must also submit that assessment to the Department 
for assessment peer review. Issues of technical quality, such as this 
one, would be addressed through that peer review.
    Regarding commenters' concerns that the regulations would preclude 
use of a particular assessment, the regulations are intended to ensure 
that assessments approved by a State through this flexibility meet all 
requirements for statewide assessments in general. This flexibility is 
only appropriate in such cases. The regulations do not either preclude, 
or proactively include, any particular assessments. However, if an 
assessment does not meet all general assessment requirements and 
statutory and regulatory requirements specific to this flexibility, 
including the definition of a ``nationally recognized high school 
academic assessment,'' it would not be eligible for use under this 
flexibility.
    Changes: None.
Requests for Clarification Regarding Implementing a Locally Selected, 
Nationally Recognized High School Academic Assessment
    Comments: One commenter asked whether a State may approve a 
particular assessment for an LEA within the State but deny another 
LEA's request to use the same assessment. Another commenter asked for 
guidance for States on developing technical criteria to review 
assessment requests from LEAs.
    Discussion: Section 1111(b)(2)(H)(iii)(III) of the ESEA explains 
that, once a State approves a particular assessment within the State, 
other LEAs within the same State may use that assessment without again 
completing the full technical review process. However, a State would 
expect an LEA requesting to use a locally selected, nationally 
recognized high school academic assessment to complete an application 
for that authority, including required consultation and parent 
notification. A State would consider all available evidence relative to 
that application before granting flexibility under this section, and 
would have the authority to deny or request modification to an 
application if it felt that consultation and parental notification of 
an LEA had not been adequate.
    Regarding requests for specific guidance, we encourage States to 
work with support organizations, such as Regional Education 
Laboratories, Comprehensive Centers, and State program officers at the 
Department, to gain technical assistance for implementation, including 
on establishing technical criteria for reviewing locally selected, 
nationally recognized academic assessments.
    Changes: None.
Appropriate Accommodations for Students With Disabilities and English 
Learners on Locally Selected, Nationally Recognized High School 
Academic Assessments
    Comments: Numerous commenters wrote in support of Sec.  
200.3(b)(2)(i) that requires a State to ensure that accommodations 
under Sec.  200.6(b) and (f) used on a locally selected, nationally 
recognized high school assessment do not deny a student with a 
disability or an English learner either the opportunity to participate 
in the assessment or any of the benefits from participation in the 
assessment that are afforded to students without disabilities or who 
are not English learners. Other commenters requested clarification that 
accommodations need only be offered if they can be administered in a 
way that maintains the validity and reliability of the test items based 
on the specific construct the items are intended to measure. One 
commenter requested that the Department address specific assessment 
vendors, and not States, regarding this issue. Finally, a commenter 
asked for guidance regarding how States should address accommodations 
requests, particularly in the context of requests for

[[Page 88900]]

accommodations that would normally be allowed under State guidelines 
but that a particular assessment vendor for a locally selected, 
nationally recognized high school academic assessment does not permit.
    Discussion: As described in detail in Sec.  200.2(b)(4)(i) and 
section 1111(b)(2)(B)(iii) of the ESEA, State assessments must be valid 
and reliable for their intended purposes. Assessments must also provide 
for the participation of all students, as required in Sec.  
200.2(b)(2)(i) and section 1111(b)(2)(B)(vii) of the ESEA. At the same 
time, each State has discretion over which assessments it uses to meet 
these requirements, including any nationally recognized assessment the 
State approves an LEA to select and administer in high schools. In 
general, with respect to students with disabilities, if a State 
typically allows a particular accommodation on a State assessment in 
accordance with the State accommodations guidelines required under 
section 612(a)(16)(B) of the IDEA, which indicates that such an 
accommodation does not invalidate the assessment's results, it is the 
additional responsibility of the State to ensure that a student who 
requires and uses such an accommodation is not denied any benefit 
afforded to a student who does not need such an accommodation. 
Similarly, if an English learner needs appropriate accommodations to 
demonstrate what the student knows and can do in academic content 
areas, those accommodations must be available on a locally selected, 
nationally recognized academic assessment. A State is responsible under 
the ESEA and under the Federal civil rights laws (including Title VI, 
section 504, and title II of the ADA) for ensuring that the assessments 
it provides, or approves its LEAs to provide, are fully consistent with 
these requirements. If a given assessment would offer some students a 
benefit, such as a college-reportable score, that would not be 
available to another student taking the same assessment using an 
accommodation allowed on the State test, the State may not offer or 
approve such an assessment under the exception for locally selected, 
nationally recognized high school academic assessments. A State, rather 
than an assessment vendor, is the recipient of a title I, part A grant. 
As a result, the responsibility lies with the State to approve only a 
nationally recognized assessment that meets all applicable 
requirements, which may include working with affected vendors to ensure 
all appropriate accommodations are available.
    Changes: None.
Implications for Students Taking an AA-AAAS
    Comments: One commenter expressed concern that, if students in an 
LEA who take a general assessment shift to a locally selected, 
nationally recognized high school academic assessment for which there 
is no AA-AAAS, conclusions drawn across subgroups of students could be 
impacted, since students taking the AA-AAAS would be taking an 
alternate version of the statewide assessment, not the locally selected 
assessment.
    Discussion: The Department acknowledges this concern, and is 
committed to supporting States in ensuring the validity of 
interpretations across subgroups. Because a State must develop an AA-
AAAS against the same challenging State academic content standards that 
both the statewide general assessment and any locally selected, 
nationally recognized academic assessment also measure, conclusions 
drawn across the locally selected, nationally recognized assessment and 
an AA-AAAS should be valid if all tests are well designed and 
implemented. A State must demonstrate through assessment peer review 
that this is the case.
    Changes: None.
Comparability
    Comments: One commenter requested that the Department clarify that 
``comparability'' across two assessments does not necessarily mean that 
the specific raw scores on the two assessments have the same meaning. 
Another commenter asked that the Department emphasize the importance of 
any locally selected, nationally recognized assessment providing 
comparable data between and among student subgroups, schools, and 
districts, including for low-performing students. One commenter 
expressed support for the statutory language, also reflected in the 
proposed regulations, requiring that locally selected, nationally 
recognized high school academic assessments be equivalent to or more 
rigorous than statewide assessments.
    Discussion: The Department agrees that comparability does not imply 
that two assessments produce identical scale scores for students 
performing at the same level. Rather, comparability in this context 
means that students who perform similarly should be likely to meet the 
same academic achievement level on both assessments. Since the State 
will separately examine and confirm, through the approval process, that 
each locally selected, nationally recognized high school academic 
assessment measures the challenging State academic content standards, 
the State should have strong evidence that any approved assessment 
appropriately measures the challenging State academic standards in a 
manner comparable to the statewide assessment. Specifically, any 
assessment a State or LEA uses to meet the requirements of title I, 
part A must, among other requirements, cover the breadth and depth of 
the challenging State academic standards and be valid and reliable for 
all students, including high- and low-performing students. To be fully 
comparable at the level of student academic achievement determinations, 
the locally selected, nationally recognized high school academic 
assessment must provide results relative to each of the academic 
achievement levels in a similar manner to that provided by the 
statewide assessment. We believe these requirements are adequately 
enumerated in Sec.  200.2, and we note that Sec.  200.3(b)(1)(iv) 
requires locally selected, nationally recognized academic assessments 
to meet all requirements of Sec.  200.2 except the requirement in Sec.  
200.2(b)(1) that all students in the State take the same assessment.
    The Department agrees that additional specificity is needed in 
Sec.  200.3(b)(1)(v) to clarify that the comparability expected is at 
each level of the State's academic achievement standards, not scale 
scores. We also note that, in addition to producing comparable data as 
described in Sec.  200.3(b)(1)(v), section 1111(b)(2)(H)(v)(I) of the 
ESEA and Sec.  200.3(b)(1)(iii) require that a locally selected, 
nationally recognized high school academic assessment must be 
equivalent to or more rigorous than the statewide assessments regarding 
academic content coverage, difficulty, overall quality, and any other 
aspect of assessments that a State may choose to identify in its 
technical criteria.
    Changes: We have revised Sec.  200.3(b)(1)(v) to clarify that 
comparability between a locally selected, nationally recognized high 
school academic assessment and the statewide assessment is expected at 
each level of a State's challenging academic achievement standards.
Highly Mobile Students
    Comments: A commenter expressed concern for highly mobile students 
who could face increasingly disparate educational environments across 
districts within a State as a result of the

[[Page 88901]]

districts administering locally selected high school assessments.
    Discussion: We share the commenter's concern for supporting the 
unique needs of highly mobile students, including migratory students, 
students in foster care, homeless students, and military-connected 
youth. We have recently released non-regulatory guidance regarding ESSA 
provisions related to homeless students and youth (please see https://www2.ed.gov/policy/elsec/leg/essa/160240ehcyguidance072716.pdf) and 
students in foster care (please see https://www2.ed.gov/policy/elsec/leg/essa/edhhsfostercarenonregulatorguide.pdf).
    A locally selected, nationally recognized high school academic 
assessment approved by a State must measure the same challenging State 
academic standards and produce valid, reliable, and comparable results 
to the statewide high school assessment. These requirements should 
serve to ensure reasonable continuity across LEAs for mobile students.
    Changes: None.
Locally Selected Academic Assessments in Grades Other Than High School
    Comments: One commenter recommended that the Department change the 
regulations to allow for locally selected, nationally recognized 
academic assessments in grades three through eight, particularly since 
the commenter was from a State that passed a law allowing for such 
flexibility.
    Discussion: Section 1111(b)(2)(H) only authorizes locally selected 
high school academic assessments; it does not permit locally selected 
assessments in grades lower than high school. The regulations are 
consistent with the statute in limiting locally selected, nationally 
recognized academic assessments to high school.
    Changes: None.
Processes for Local Selection and State Technical Review
    Comments: One commenter requested details of the processes by which 
an LEA would select a nationally recognized high school academic 
assessment, including whether there would be an election to determine 
who can make such a decision and what the needed qualifications for 
such a person would be.
    Discussion: Section 1111(b)(2)(H)(iii)(I) of the ESEA, requires a 
State to create a review process and examine the technical quality of 
locally selected, nationally recognized high school academic 
assessments. However, neither the statute nor the regulations prescribe 
the specific process a State must undertake. Since a locally selected, 
nationally recognized high school academic assessment must meet all 
requirements of Sec.  200.2 (except the requirement that all students 
in the State take the same assessment), a State could reasonably use 
the technical expectations articulated in that section as a basis for 
its review. As described above, we encourage States to work with 
support organizations, such as Regional Education Laboratories, 
Comprehensive Centers, and State program officers at the Department, 
for technical assistance with implementation.
    Since a State will determine the specific process for review and 
approval, it will also have discretion over the individuals involved in 
such a decision, including whether any election would be held. We 
expect that State education officials, who may be elected, appointed, 
or otherwise selected, would lead the process; however, States have 
discretion in this area.
    Changes: None.
Departmental Assessment Peer Review
    Comments: One commenter objected to the requirement in Sec.  
200.3(b)(2)(ii) that a State submit locally selected, nationally 
recognized high school academic assessments to the Department for 
assessment peer review, including by contending that this requirement 
is contrary to the spirit of the ESSA. Another commenter requested that 
peer review not create preferential treatment for any particular 
assessments, especially assessments developed by consortia of States. 
An additional commenter asked that the Department expand the assessment 
peer review process in the context of a locally selected, nationally 
recognized high school academic assessment in order to require that a 
State submit a plan for how it will ensure that all assessments 
administered across the State are comparable and how they ensure 
stakeholders had the opportunity for meaningful consultation. Other 
commenters asked that the Department make public the results of ongoing 
assessment peer review as soon as possible, particularly in cases where 
a State has submitted a nationally recognized high school academic 
assessment as its statewide test.
    Discussion: Section 1111(b)(2)(H)(iii)(II) of the ESEA, requires 
each State to submit evidence to the Department for assessment peer 
review following the State's own technical review that a locally 
selected, nationally recognized high school academic assessment meets 
the requirements of Sec. Sec.  200.2 and 200.3. Generally, assessment 
peer review is intended to serve as an opportunity for technical 
experts to provide objective feedback regarding an assessment system 
and to ensure that any assessments administered meet the requirements 
of title I of the ESEA. The Department anticipates that it will be 
necessary to update the assessment peer review non-regulatory guidance 
to include consideration of locally selected, nationally recognized 
high school academic assessments, which would outline examples of 
relevant evidence. We think considerations related to such examples are 
best suited for such non-regulatory guidance. While members of an 
assessment consortium may be able to submit some evidence in common, 
the process is intended to provide balanced feedback regarding any 
assessment system to ensure that States and districts meet the 
requirements of the law and that there is no preferential treatment for 
particular assessments or consortia. The Department will release 
results of 2016 assessment peer review as soon as possible, and has 
provided general information regarding the process moving forward 
through a Dear Colleague Letter on October 6, 2016 (see https://www2.ed.gov/admins/lead/account/saa/dcletterassepeerreview1072016ltr.pdf).
    Regarding opportunities for consultation, Sec.  200.3(c)(1) 
requires an LEA to notify all parents of high school students it serves 
that the LEA intends to request to use a locally selected, nationally 
recognized high school academic assessment in place of the statewide 
academic assessment and inform parents of how they may provide 
meaningful input regarding the LEA's request as well as of any effect 
such request may have on the instructional program in the LEA. It also 
requires meaningful consultation with all public charter schools whose 
students would be included in such assessment. In addition, Sec.  
200.3(c)(2) requires an LEA to update its LEA plan under section 1112 
or section 8305 of the ESEA, including by describing how the request 
was developed consistent with all requirements for consultation under 
the respective sections of the ESEA. While the Department appreciates 
the commenter's suggestion that review of this requirement become a 
requirement of assessment peer review, the Department declines to 
specify the mechanism for monitoring this requirement at this time, but 
notes that monitoring of this and all other

[[Page 88902]]

provisions will be established as implementation moves forward.
    Changes: None.

Section 200.5 Assessment Administration

Grades and Subjects Assessed
    Comments: Some commenters appreciated the need for high-quality 
annual assessments that provide useful data for educators, parents, and 
the public. Others, however, suggested that annual reading/language 
arts and mathematics assessments in grades 3 through 8 should not be 
required in all grades, recommending less frequent assessment (e.g., 
only administer the assessments once in each of grades 3 through 5 and 
6 through 8; only administer assessments in particular grades, such as 
high school) or assessing only a sample of students annually.
    Discussion: Section 1111(b)(2)(B)(i) and (v)(I) of the ESEA 
requires that a State administer an assessment in reading/language arts 
and mathematics to all students annually in each of grades 3 through 8 
and at least once in grades 9 through 12. In addition to being required 
by the statute, annually assessing all students provides important 
information about the progress students are making toward achieving the 
State's challenging academic standards. It also provides valuable 
information to parents, families, stakeholders, and the public about 
the performance of schools and LEAs.
    Changes: None.
    Comments: Two commenters requested that the grades for which a 
State must administer an assessment in high school should be consistent 
between reading/language arts, mathematics, and science.
    Discussion: The proposed and final regulations in Sec.  200.5(a)(1) 
are consistent with the statute; section 1111(b)(2)(B)(v)(I)(bb) of the 
ESEA requires that each State administer a reading/language arts and 
mathematics assessment in high school at least once in grades 9 through 
12, and section 1111(b)(2)(B)(v)(II)(cc) requires the State to 
administer a science assessment in high school at least once in grades 
10 through 12.
    Changes: None.
    Comments: One commenter expressed concern about any reading/
language arts assessments that do not include writing, speaking, and 
listening. This commenter urged increased involvement of educators in 
assessment development.
    Discussion: The Department agrees with the commenter about the 
importance of educator involvement in assessment development. Regarding 
the specific components of a reading/language arts assessment, a State 
must adopt challenging State academic standards and develop assessments 
that are fully aligned with the domains represented in those standards. 
The Department does not prescribe content to be covered in a State's 
academic standards. If a State includes specific content in its 
standards, it will need to demonstrate through assessment peer review 
that the corresponding assessment is fully aligned to those challenging 
State academic standards, including their depth and breadth as 
described in Sec.  200.2(b)(3). Accordingly, we decline to make further 
changes to the regulations.
    Changes: None.
    Comments: One commenter requested that we clarify the grades in 
which the State must administer an ELP assessment, specifically whether 
the annual ELP assessment is required in preschool programs.
    Discussion: Section 1111(b)(2)(G) of the ESEA requires a State to 
annually administer its ELP test to all students who are identified as 
English learners in schools served by the State. We are clarifying this 
in the final regulations, as a State's ELP assessments are an important 
piece, alongside assessments of academic content in reading/language 
arts, mathematics, and science, in the statewide assessment system. 
Further, we are revising the final regulations to clarify that this 
requirement applies to all students in the State's public education 
system, kindergarten through grade 12, who are identified as English 
learners.
    Changes: We have revised Sec.  200.5(a)(2) to clarify that a State 
must administer its ELP assessment, described in Sec.  200.6(h) 
(proposed Sec.  200.6(f)(3)), annually to all English learners in 
schools served by the State, kindergarten through grade 12, and made 
conforming edits in Sec.  200.6(h)(1)(ii).
    Comments: One commenter requested that we require a State to 
administer an assessment in social studies.
    Discussion: The subjects in which a State must administer an 
assessment are specified in section 1111(b)(2)(B)(v)(I)-(II) of the 
ESEA, and do not include social studies. Since the statute does not 
require social studies assessments, we cannot require it in the 
regulations. However, a State, at its discretion, may always elect to 
assess students in additional grade levels or subject areas as 
authorized in section 1111(b)(2)(A) and (b)(2)(B)(v)(III) of the ESEA.
    Changes: None.
Middle School Mathematics Exception
    Comments: While some commenters appreciated the flexibility 
afforded States for students taking advanced mathematics in middle 
school, one commenter asked that the flexibility not be permitted as it 
leads to not all students being assessed against the same challenging 
academic standards and creates confusion as to the implications for the 
State's accountability system and transparent data reporting.
    Discussion: Section 1111(b)(2)(C) of the ESEA clearly permits a 
State flexibility to exempt eighth graders taking advanced courses and 
related end-of-course assessments in mathematics from the statewide 
eighth grade mathematics assessment and to use the results of those 
advanced mathematics assessments in the Academic Achievement indicator 
for purposes of the State's accountability system, provided the State 
meets certain statutory requirements. The regulations reinforce this 
flexibility.
    Changes: None.
    Comments: One commenter expressed concern about the requirements 
for the assessment a student would take in high school if that student 
took advantage of the flexibility under Sec.  200.5(b) in eighth grade. 
This commenter appeared to understand the regulatory language to mean 
that such subsequent assessment must be administered statewide to all 
students.
    Discussion: The requirement in Sec.  200.5(b)(3)(i) is that a 
subsequent assessment be State-administered, not that it be statewide. 
A more advanced high school assessment is, in fact, unlikely to be 
administered statewide to all students. However, as the results of such 
assessment will inform high school accountability determinations in the 
State and be part of the overall State assessment system, such 
assessment must be administered by the State, rather than developed 
locally.
    Changes: None.
    Comments: A few commenters objected to Sec.  200.5(b)(4), which 
requires an SEA taking advantage of the flexibility to describe, in the 
State plan, its strategies to provide all students in the State the 
opportunity to be prepared for and to take advanced mathematics 
coursework in middle school consistent with section 1111(b)(2)(C) of 
the ESEA. The commenters interpreted this portion of the regulations as 
requiring advanced mathematics for all students, and some commenters 
voiced concerns that pushing students into coursework for which they 
were unprepared could have negative consequences. One commenter felt 
this would create a

[[Page 88903]]

burden for LEAs that do not have sufficient resources.
    Discussion: Section 200.5(b)(4), based on the consensus language 
from negotiated rulemaking, only requires an SEA to describe its 
strategies to provide all students in the State the opportunity to be 
prepared for and to take advanced mathematics coursework in middle 
school if the State administers end-of-course mathematics assessments 
to high school students to meet the requirements under section 
1111(b)(2)(B)(v)(I)(bb) of the ESEA, and uses the exception for 
students in eighth grade to take such assessments under section 
1111(b)(2)(C) of the ESEA. An SEA wishing to take advantage of this new 
statutory flexibility must describe these strategies in its State 
plan--not every SEA must do so.
    Further, this requirement does not create the expectation that all 
students must take advanced mathematics coursework in middle school, 
even in the limited number of SEAs covered by this section. Rather, the 
SEA must provide the opportunity to all students to become prepared 
and, if prepared, to take such advanced courses in middle school in 
order to ensure that this flexibility benefits students across the 
State, not only those in certain communities or from certain 
backgrounds. This is consistent with the statutory purpose of title I 
to ``provide all children significant opportunity to receive a fair, 
equitable, and high-quality education.'' In seeking waivers under ESEA 
flexibility between 2012 and 2015, States demonstrated their efforts to 
make such opportunity widely available, including through support for 
distance and virtual learning, flexibility regarding course-taking 
across campuses, and other appropriate methods.
    Changes: None.
    Comments: Several commenters requested that the flexibility in 
Sec.  200.5(b) for middle school mathematics be expanded beyond eighth 
graders taking advanced mathematics courses. Some of these commenters 
wanted the flexibility to be expanded to other grades in mathematics; 
others wanted it expanded to assessments in reading/language arts or 
science. Other commenters expressed interest in this flexibility being 
expanded to States that do not administer an end-of-course mathematics 
assessment in high school to meet the requirements in Sec.  
200.5(a)(1)(i)(B) or by permitting the use of an end-of-course 
assessment that is not used statewide. One commenter requested that the 
regulations clarify that the Department can grant waivers in this area.
    Discussion: Section 1111(b)(2)(C) of the ESEA clearly limits to 
eighth-grade mathematics the exception for a student in middle school 
taking advanced coursework to be exempt from the State's grade-level 
test and instead take the State's high school end-of-course assessment 
used to meet the requirement in section 1111(b)(2)(B)(v)(I)(bb) of the 
ESEA. While we know that some students take advanced coursework in 
mathematics in earlier grades, and in subjects other than mathematics, 
the negotiating committee came to consensus that the regulations not 
expand the flexibility beyond what was expressly permitted in the 
statute.
    The ESEA limits the middle school advanced mathematics exception to 
States that administer a high school end-of-course assessment to meet 
the requirements of section 1111(b)(2)(B)(v)(I)(bb) of the ESEA. The 
statute indicates that only States using an end-of-course mathematics 
assessment as the State's high school assessment may take advantage of 
the middle school mathematics exception and only for students who are 
taking that end-of-course assessment in eighth grade (i.e., the State 
may not administer a different end-of-course assessment, other than the 
assessment used by the State to meet the requirements in section 
1111(b)(2)(B)(v)(I)(bb) of the ESEA, in place of the State's eighth 
grade assessment).
    A State may request a waiver to extend this flexibility to other 
grades or subjects if the State meets the requirements in section 8401 
of the ESEA. We do not believe it is necessary or appropriate, however, 
to highlight in the final regulations this one example of a provision 
subject to a waiver.
    Changes: None.
    Comments: Two commenters recommended that States taking advantage 
of this flexibility be permitted to meet the requirement to administer 
a more advanced assessment in high school by administering a test other 
than an end-of-course test in high school, such as the ACT, SAT, or a 
test that leads to college credit, such as an Advanced Placement test 
or an assessment other than a nationally recognized test.
    Discussion: For States taking advantage of this flexibility, we 
think it is important to have safeguards in the State's assessment 
system for the higher-level mathematics assessment that is administered 
to these students in high school once they have taken the State's high 
school mathematics assessment in eighth grade, particularly since the 
assessments will be used for accountability and reporting purposes 
under title I. In addition to a higher-level mathematics end-of-course 
assessment given by the State, the regulations would permit a State to 
administer a higher-level mathematics assessment to these students that 
meets the definition of a ``nationally recognized high school academic 
assessment,'' which may include the SAT or ACT, depending on whether it 
meets the requirements in Sec.  200.3. A test, such as an Advanced 
Placement test, that leads to college credit, would also meet the 
definition in Sec.  200.3(d), and the State could consider permitting 
LEAs to select that assessment and administer it in high school to 
students who have already taken the State's high school assessment in 
eighth grade, provided it meets the other requirements for nationally 
recognized high school academic assessments in Sec.  200.3.
    With respect to options other than an end-of-course test or a 
nationally recognized test, since a State taking advantage of this 
flexibility is using an end-of-course assessment as its high school 
assessment to meet the requirements in Sec.  200.5(a)(1)(i)(B), the 
State will likely not have a non-end-of-course, State-administered 
assessment in high school unless the State is taking advantage of the 
ability to permit LEAs to administer a nationally recognized assessment 
in place of the State test.
    Changes: None.
    Comments: One commenter requested that the regulations require a 
State to provide disaggregated performance data of eighth graders 
taking the advanced mathematics assessment separately from the other 
eighth graders taking the eighth grade assessment and separately from 
the high school students taking the high school assessment.
    Discussion: The statute does not require this level of 
disaggregation and therefore we decline to require it through the 
regulations. However, a State has flexibility to disaggregate the data 
if it believes such disaggregation would provide beneficial information 
to parents, educators, and the public.
    Changes: None.

Section 200.6 Inclusion of All Students

    Comments: Some commenters expressed general support for provisions 
in Sec.  200.6 related to assessment of students with disabilities, 
including students with the most significant cognitive disabilities who 
may participate in an assessment aligned with alternate academic 
achievement standards. They found the proposed regulations helpful to 
ensure that all

[[Page 88904]]

students receive the supports they need to fully participate in the 
public education system, including in general education settings with 
their peers.
    Discussion: We appreciate the commenters' support of the 
requirements related to assessment of students with disabilities, 
including students with the most significant cognitive disabilities 
whose performance may be assessed with an AA-AAAS if the State has 
adopted alternate academic achievement standards.
    Changes: None.
    Comments: A few commenters asserted that it was inappropriate to 
assess students with the most significant cognitive disabilities, even 
using an AA-AAAS and appropriate accommodations, believing these 
assessments are outside such students' range of ability. Other 
commenters advocated for allowing some students with disabilities to 
take modified assessments or to take assessments aligned with content 
standards other than those for the grade in which the student is 
enrolled.
    Discussion: We strongly disagree with the commenters' contention 
that it is always inappropriate to assess students with the most 
significant cognitive disabilities. Section 1111(b)(2) of the ESEA 
requires each State to annually administer a set of high-quality 
student academic assessments in, at a minimum, reading/language arts, 
mathematics, and science to all public elementary and secondary school 
students in the State, including students with disabilities. The 
requirement to include all public elementary and secondary school 
students is a requirement to include 100 percent of students in a State 
in either the general assessment or an AA-AAAS for students with the 
most significant cognitive disabilities. An AA-AAAS, however, must be 
reserved for no more than 1.0 percent of students who are assessed in a 
State in a subject area--i.e., those with the most significant 
cognitive disabilities, as defined by the State. Congress made clear in 
section 1111(b)(1)(E)(ii) of the ESSA that an AA-AAAS for students with 
the most significant cognitive disabilities aligned with a State's 
challenging academic content standards and alternate academic 
achievement standards is the only AA-AAAS permitted for such students; 
a State is prohibited from developing or implementing any other 
alternate academic achievement standards for students with disabilities 
and assessing performance under this subpart.
    We are heartened by progress in the field of assessments generally, 
and in the development of alternate assessments and accessibility 
features. These advances expand opportunities for all students to 
demonstrate their knowledge and skills, including students with 
disabilities. Further, research shows positive impacts of instructing 
and assessing students, including students with the most significant 
cognitive disabilities, to high academic standards.\6\ Involving such 
students in assessments of grade-level content using an AA-AAAS is one 
important way to ensure that such students receive a rigorous education 
like their peers.
---------------------------------------------------------------------------

    \6\ For a discussion of research regarding these benefits, see 
previously cited research noted in footnote 2, including in U.S. 
Department of Education (2015). Improving the Academic Achievement 
of the Disadvantaged; Assistance to States for the Education of 
Children with Disabilities. 80 FR 50774-50775 and 50777. Available 
at https://www.federalregister.gov/documents/2015/08/21/2015-20736/improving-the-academic-achievement-of-the-disadvantaged-assistance-to-states-for-the-education-of.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter expressed concern that the proposed 
regulations would replace or contradict 34 CFR 300.160 and suggested 
incorporating the text from that regulation into this rule.
    Discussion: These regulations address assessment requirements under 
title I, part A of the ESEA, while 34 CFR 300.160 implements the 
requirement in the IDEA regarding participation in assessments (see 20 
U.S.C. 1412(a)(16)). Consistent with this statutory provision, 34 CFR 
300.160 also requires the participation of children with disabilities 
in assessments described in section 1111 of the ESEA. Therefore, title 
I and IDEA assessment provisions for children with disabilities must be 
read and implemented together. While the regulations in this document 
cannot alter the IDEA regulations, we note that the ESEA also amended 
the IDEA's participation in assessment requirements, and the Department 
anticipates updating the IDEA regulations in 34 CFR 300.160 to reflect 
those amendments.
    Changes: None.
    Comments: One commenter suggested that private schools and private, 
non-approved, non-licensed, or other entities providing educational 
services as part of a child with a disability's individualized 
education program (IEP) should be subject to the proposed regulations, 
and that any IEP should include evidence-based goals.
    Discussion: Under section 612(a)(16) of the IDEA, States must 
ensure that all children with disabilities are included in all general 
State and districtwide assessment programs, including assessments 
required under this subpart, with appropriate accommodations and 
alternate assessments where necessary as indicated in their respective 
IEPs. While section 614(d)(1)(A)(i)(II) requires that annual IEP goals 
must be measurable, it does not specifically require that IEP goals be 
evidence-based. Therefore, no further clarification is necessary.
    The applicability of the requirements in this section to students 
with disabilities in private schools depends upon whether the student 
has been enrolled in the private school by the LEA in order to meet the 
student's special education and related services needs under the IDEA, 
as opposed to a student attending a private school at the discretion of 
the parents. For students with disabilities who have been placed in a 
private school by an LEA, the requirements in this subpart apply.
    Changes: None.
    Comments: Multiple commenters suggested that the Department issue 
non-regulatory guidance on assessments for students with disabilities, 
noting a particular need for further guidance on topics such as 
providing appropriate accommodations, related professional development, 
and processing requests for accommodations; flagging the scores of 
students taking assessments with accommodations for colleges; 
developing an AA-AAAS; providing accessible information to parents; 
measuring student growth for students with disabilities; ensuring the 
technical quality of assessments that are partially in the form of 
portfolios, projects, or extended performance tasks; and suggested 
examples and additional considerations for States as they define 
students with the most significant cognitive disabilities.
    Discussion: We appreciate the commenters' suggestions for areas 
where non-regulatory guidance related to assessment of students with 
disabilities is particularly needed, and we will take these suggestions 
into consideration as future non-regulatory guidance--including non-
regulatory assessment peer review guidance--is developed and updated.
    Changes: None.
Students With Disabilities in General
    Comments: A number of commenters wrote in support of the 
requirement in Sec.  200.6(a)(2)(i) requiring students with 
disabilities (except those with the most significant cognitive 
disabilities) to be assessed against the challenging State academic 
standards for the grade level in which the student is enrolled, noting 
that this provision is a critical safeguard against students with 
disabilities being

[[Page 88905]]

tested based on below-grade level content and would help support 
implementation of the Department's November 16, 2015, Dear Colleague 
Letter on Free and Appropriate Public Education (FAPE).\7\ Some of 
these commenters also supported Sec.  200.6(a)(2)(ii), noting that it 
provides needed clarity that students with the most significant 
cognitive disabilities must either be assessed using the general 
assessment for the grade-level in which the student is enrolled 
(aligned to the State's challenging academic standards), or using an 
AA-AAAS that is aligned with the State's academic content standards for 
the grade in which the student is enrolled. In particular, commenters 
appreciated the clear distinction made in the regulations between 
grade-level academic content standards that apply to all children with 
disabilities, and academic achievement standards.
---------------------------------------------------------------------------

    \7\ Available at: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/guidance-on-fape-11-17-2015.pdf.
---------------------------------------------------------------------------

    Discussion: We agree with commenters that these distinctions 
between content standards and achievement standards are essential to 
emphasize that each child with a disability, including students with 
the most significant cognitive disabilities, must be assessed with 
assessments aligned with the challenging State academic content 
standards for the grade in which the student is enrolled. Further, 
under section 1111(b)(1)(E)(i)(V) and Sec.  200.2(b)(3)(ii)(B)(2), 
alternate academic achievement standards must now be aligned to ensure 
that a student who meets those standards is on track to pursue 
postsecondary education or competitive integrated employment, 
consistent with the Rehabilitation Act of 1973, as amended by WIOA.
    Changes: None.
    Comments: One commenter argued that the provision requiring 
students with the most significant cognitive disabilities to be 
assessed either using the general assessment for the grade in which a 
student is enrolled (aligned to the State's challenging academic 
standards), or using an alternate assessment aligned with the State's 
academic content standards for the grade in which a student is enrolled 
and the State's alternate academic achievement standards, is beyond the 
scope of the ESEA, as the regulations further specify how these 
standards are aligned with the grade in which a student is enrolled. 
The commenter believed that sections 1111(b)(2)(B) and (D) of the ESEA 
provide a State significant discretion with regard to its challenging 
State academic standards, and that section 1111(b)(2)(J) allows a State 
using computer-adaptive assessments to be exempted from assessing 
students with the most significant cognitive disabilities based on 
grade-level standards. The commenter recommended modifying the proposed 
regulations to no longer require that an AA-AAAS be related to a 
specific grade level.
    Similarly, two commenters recommended greater flexibility, given 
the 1.0 percent cap statewide, on student participation in the AA-AAAS. 
These commenters suggested that States be permitted to administer an 
assessment that is not aligned to grade-level academic content 
standards to a subset of students with severe cognitive disabilities, 
which one of these commenters believed would be consistent with section 
1111(b)(2)(B)(vii)(II) of the ESEA.
    Discussion: We disagree that it is either inappropriate, or 
inconsistent with the statute, to expect students with the most 
significant cognitive disabilities to be assessed with an assessment 
aligned with the challenging State academic content standards for the 
grade in which they are enrolled. Under section 1111(b)(1)(E)(i)(I) of 
the ESEA, a State may adopt alternate academic achievement standards 
for assessing the performance under this part of students with the most 
significant cognitive disabilities provided those standards are aligned 
with the challenging State academic content standards that the State 
has adopted for all students for the grade in which they are enrolled. 
Further, section 1111(b)(2)(B)(ii) of the ESEA links alignment of 
assessments with the State's challenging academic standards to 
providing timely information about whether students are performing at 
their grade level. Therefore, the statute is clear in requiring that a 
State must, at a minimum, assess all students in a valid and reliable 
manner against grade-level academic content standards consistent with 
the Federal assessment requirements under title I, part A. Section 
1111(b)(1)(E)(ii) of the ESEA additionally prohibits a State from 
developing or implementing for any use under title I, part A, any other 
alternate academic achievement standards for children with disabilities 
that are not alternate academic achievement standards for students with 
the most significant cognitive disabilities that meet the statutory 
requirements.
    As previously discussed, a State has the right also to assess a 
student against academic content standards above and below the grade in 
which the student is enrolled, including by using a computer-adaptive 
assessment, provided the State meets all applicable requirements. Those 
requirements include: Producing a summative score that measures a 
student's academic achievement against the State's academic achievement 
standards; reporting that score and the corresponding achievement level 
to parents and educators and, in the aggregate and disaggregated by 
subgroups, reporting student academic achievement information on State 
and LEA report cards; and using that score in the Academic Achievement 
indicator and long-term goals in the State's accountability 
determinations. The State does not need specific authority to offer a 
student assessment items, in addition to items that produce the 
student's annual summative score measuring achievement of the 
challenging State academic content standards for the grade in which the 
student is enrolled, regardless of whether the student takes a general 
assessment or an AA-AAAS.
    Changes: None.
    Comments: One commenter indicated that the general assessment is 
most appropriate for students with minor cognitive disabilities rather 
than an AA-AAAS, and that, if a student cannot pass the end-of-year 
assessment, then the student should likely be retained until it is 
determined the student is ready to advance to the next grade.
    Discussion: The commenter is correct that, consistent with section 
1111(b)(2)(D) of the ESEA, an AA-AAAS is reserved for students with the 
most significant cognitive disabilities, subject to the limitation that 
in each subject assessed, the total number of students assessed with an 
AA-AAAS does not exceed 1.0 percent of the total number of students who 
are assessed in the State in that subject. An IEP team is responsible 
for determining which assessment a particular child with a disability 
takes, in keeping with the State guidelines under Sec.  200.6(d). While 
we appreciate the commenter's concern about students mastering the full 
scope of the State's academic content standards for their grade, the 
Department is prohibited by section 1111(l) of the ESEA from 
prescribing the use of the academic assessments required under the ESEA 
for student promotion or graduation purposes. This concern is more 
appropriately addressed at the State and local levels.
    Changes: None.
    Comments: Several commenters wrote regarding clarifications in 
proposed Sec.  200.6(a) that specify these regulations pertain to both 
children with disabilities

[[Page 88906]]

that receive services provided under the IDEA, as well as children that 
receive services under other acts including section 504 and title II of 
the ADA. Many of these commenters expressed support for the clarity in 
the regulations regarding students covered under laws besides the IDEA 
to ensure all students with disabilities receive the accommodations 
they need. However, one commenter recommended narrowing the inclusion 
of students who receive services under other laws besides the IDEA to 
requirements related to assessment accommodations only, believing the 
limitation would be more consistent with the statute.
    Discussion: Section 1111(b)(2)(B)(vii)(II) of the ESEA provides 
that appropriate accommodations for students with disabilities must 
extend to children with disabilities covered under the IDEA and 
students with a disability who are provided accommodations under laws 
besides the IDEA. The topic of accommodations was addressed in detail 
at negotiated rulemaking, where the negotiators reached consensus that 
it would be appropriate to include references to students who receive 
accommodations under section 504 and title II of the ADA in the 
proposed regulations. We agree with the consensus reached at negotiated 
rulemaking that it is important to recognize that there are students 
with disabilities who receive accommodations under laws other than the 
IDEA and to clarify that these laws include section 504 and title II of 
the ADA. Further, we disagree with the commenter that the regulations 
expand these requirements beyond assessment accommodations. As written, 
the provisions of the regulations that apply to students who receive 
accommodations under laws other than the IDEA relate to identifying 
students in need of assessment accommodations and do not address any 
other rights or responsibilities not derived from those laws. 
Therefore, we decline to make any changes to this section.
    Changes: None.
Appropriate Accommodations and Assistive Technology
    Comments: A number of commenters expressed concern that Sec.  
200.6(b)(1) suggested that States should, but did not require States 
to, implement assessments with accommodations that include 
interoperability with, and ability to use, assistive technology devices 
that meet nationally recognized accessibility standards, such as Web 
Content Accessibility Guidelines (WCAG) 2.0 and the National 
Instructional Materials Accessibility Standard (NIMAS). These 
commenters were concerned that, without changes, the regulations would 
not adequately support students with disabilities using assistive 
technology in accessing and benefitting from assessments under the 
ESEA. They further noted that the proposed regulations, as drafted, 
imply assistive technology devices would need to meet these nationally 
recognized accessibility standards when, they contend, it is the 
assessment that should meet the accessibility standards. Accordingly, 
such commenters suggested rewording the provision to require that State 
assessments be developed consistent with nationally recognized 
accessibility standards.
    Separately, one commenter interpreted Sec.  200.6(b)(1) in the 
opposite manner--that it required any accommodation selected by an IEP 
team to be subject to the accessibility standards--and opposed the 
purported requirement as unduly limiting IEP teams. Another commenter 
requested that the Department strike any reference to ``nationally 
recognized accessibility standards'' on the basis that the Department 
should not cede control of a regulatory provision to third parties. 
However, an additional commenter generally supported the provision as 
proposed, finding it sufficient to promote appropriate accommodations 
for all students with disabilities.
    Discussion: We appreciate the support of commenters for the 
proposed regulations to ensure State assessments are accessible to all 
students. Section 1111(b)(2)(B)(vii) of the ESEA and these final 
regulations clearly require that States provide for the participation 
of all students in required assessments and develop assessments that 
are accessible to all students and that provide appropriate 
accommodations for English learners and students with disabilities. 
Section 1111(b)(2)(B)(vii)(II) of the ESEA also provides an example of 
one aspect of making assessments accessible by referencing 
interoperability with, and ability to use, assistive technology. During 
negotiated rulemaking, a negotiator suggested the language proposed for 
the negotiations regarding nationally recognized accessibility 
standards, and the committee came to consensus on adding such language.
    Optimal use of nationally recognized accessibility standards 
applies equally to assessment development and to assistive technology 
devices. When a State identifies the technical and data standards with 
which its assessment system is compatible, this creates the conditions 
for successful, continuous integration with assistive technology 
devices if such devices are also consistent with the nationally 
recognized accessibility standards a State uses. Since both assessment 
development and assistive technology device development are continuous 
processes, clarity and common understanding are keys to integration. 
Data standards are a useful method of communication between States or 
assessment developers and assistive technology device-makers (and those 
who use such devices). The change most commenters requested would apply 
the expectation for interoperability in a manner distinct from the 
statute, where it is an example and not a requirement, and would place 
full responsibility for consistency with nationally recognized 
standards on States in developing the assessment system, without 
recognizing the importance of also expecting that assistive technology 
devices be compatible with common data standards. Accordingly, the 
Department disagrees with those commenters that such a change is needed 
or is appropriate.
    Regarding the concern that the provision as written would limit IEP 
teams, the Department disagrees with the commenter. Consistent with 
Sec.  200.6(b)(1)(i), IEP teams may identify needed accommodations for 
any child with a disability on an individualized, case-by-case basis, 
and must follow the State guidelines for appropriate accommodations 
when making such decisions. In accordance with section 612(a)(16)(B) of 
the IDEA and 34 CFR 300.160(b), a State's guidelines for IEP teams must 
identify for each assessment only those accommodations that do not 
invalidate the score, and instruct teams to select for each assessment 
only those accommodations that do not invalidate the test score. Both 
the ESSA and these regulations use ``interoperability with assistive 
technology devices'' as an example of appropriate accommodations, but 
do not necessarily require their use. However, if an IEP team 
determines that it is necessary for a student with a disability to use 
an assistive technology device in order to participate in an assessment 
under this part, the team would need to ensure that the device selected 
for the student will not invalidate the student's test score. States 
and school districts will need to communicate this information to IEP 
teams to ensure that they can make informed decisions in this regard. 
The same expectations apply to the State with respect to making 
information about assistive technology devices available to the teams 
and individuals described in Sec.  200.6(b)(1)(ii) and (iii).

[[Page 88907]]

    The Department disagrees with the commenter who requested removal 
of all references to nationally recognized accessibility standards. 
First, as previously stated, interoperability with assistive technology 
devices is included in the statute and these regulations as an example 
of how to provide appropriate accommodations and ensure assessments are 
accessible to all students. Further, we do not believe that the 
Department would be ceding control over regulatory implementation to a 
third party. Generally, we enforce regulatory assessment expectations 
through assessment peer review, which is a process that the Department, 
with input from external experts, administers. The Department does not 
propose specifying any particular nationally recognized accessibility 
standards that should be used; however, the Department has previously 
worked with States and the broader field to develop the Common 
Education Data Standards (CEDS), which could serve as one option. 
Further, in the experience of the Department's Office for Civil Rights, 
where an SEA provides or collects information through electronic and 
information technology, such as on Web sites, it is difficult to ensure 
compliance with Federal civil rights accessibility requirements without 
adherence to modern standards such as the WCAG 2.0 Level AA standard. 
More broadly, we rely on nationally recognized professional and 
technical testing standards regarding assessment technical quality, 
which substantially inform assessment peer review. In certain cases, 
such as this one, collaboration with professionals in the field is 
essential to successful regulatory implementation.
    Changes: None.
    Comments: One commenter pointed out that some students, though 
identified as having a disability, do not need an accommodation. This 
commenter was concerned that Sec.  200.6(b)(1) might inappropriately 
require every student identified as having a disability to receive an 
accommodation, even if such accommodation were not necessary.
    Discussion: The regulation refers repeatedly to the use of 
``appropriate'' accommodations. If no accommodations are needed or 
appropriate, a student would not be forced to receive an accommodation.
    Changes: None.
    Comments: One commenter recommended modifying Sec.  
200.6(b)(1)(iii) to specify that a team--not an individual--designated 
by an LEA must determine when accommodations are needed for a student 
with a disability that is covered under section 504 or title II of the 
ADA in order to support the inclusion of multiple professionals with 
the appropriate expertise, including specialized instructional support 
personnel, in making these decisions. Other commenters generally 
supported the provisions, as written, which they said clarified the 
role of the IEP or other placement team in determining the appropriate 
accommodations.
    Discussion: Section 200.6(b)(1)(ii) does in fact provide that a 
team of individuals (the student's placement team) make this 
determination when a student is provided accommodations under section 
504. However, when accommodations are provided under title II of the 
ADA, Sec.  200.6(b)(1)(iii) provides that the determination is made by 
``the individual or team designated by the LEA to make these 
decisions.'' As the title II regulations do not specify that such 
decisions must be made by a team, we decline to adopt the change 
proposed by this commenter. This interpretation is consistent with the 
Frequently Asked Questions on Effective Communication for Students with 
Hearing, Vision, or Speech Disabilities in Public Elementary and 
Secondary Schools, jointly issued by the Department and the Department 
of Justice in November 2014.\8\
---------------------------------------------------------------------------

    \8\ Available at: https://www2.ed.gov/about/offices/list/ocr/docs/dcl-faqs-effective-communication-201411.pdf.
---------------------------------------------------------------------------

    Changes: None.
    Comments: One commenter supported Sec.  200.6(b)(2)(i), noting that 
developing and disseminating information for parents and schools on the 
use of appropriate accommodations is critical for ensuring all students 
with disabilities can participate fully in the general curriculum and 
be held to high academic standards.
    Discussion: We agree with the commenter that transparent 
information is a linchpin of ensuring students with disabilities 
receive instruction based on grade-level academic content standards and 
have access to the general education curriculum for the grade in which 
the student is enrolled. This information can empower parents to 
advocate on behalf of their children and equip educators with knowledge 
they need to provide high-quality instruction to all students, 
including students with disabilities. We are revising Sec.  
200.6(b)(2)(i) to include dissemination of information to LEAs, as 
school districts are also a critical stakeholder in ensuring students 
with disabilities receive appropriate accommodations, are likely to be 
the entities that support States in disseminating this information 
directly to schools and parents, and are included in similar provisions 
added to new Sec.  200.7(a)(1)(i). We are also restructuring this 
provision to make clear that a State must (1) develop appropriate 
accommodations for students with disabilities; (2) disseminate 
information and resources on use of these accommodations to LEAs, 
schools, and parents; and (3) promote the use of those accommodations 
to ensure that all students with disabilities are able to participate 
in academic instruction and assessments.
    Changes: We have revised Sec.  200.6(b)(2)(i) to require States to 
disseminate information and resources on the use of appropriate 
accommodations to LEAs, in addition to schools and parents, and to 
clarify, separately, that States must also develop appropriate 
accommodations and promote their use.
    Comments: Numerous commenters voiced support for Sec.  
200.6(b)(2)(ii), which requires States to ensure that general and 
special education teachers, paraprofessionals, specialized 
instructional support personnel, and other appropriate staff receive 
training and know how to administer assessments, including, as 
necessary, alternate assessments, and know how to make use of 
appropriate accommodations during testing for all students with 
disabilities. The commenters indicated that the requirement would help 
ensure that staff members receive sufficient training related to 
administering assessments to students with disabilities. In particular, 
this training would help staff learn to administer portfolio-based 
assessments, provide assistive technology, collaborate in professional 
learning communities, and provide accommodations to support students.
    However, two commenters recommended not listing in the regulations 
the specific types of staff required to receive training (i.e., general 
and special education teachers, paraprofessionals, and specialized 
instructional support personnel), thereby providing LEAs greater 
discretion to determine which staff members need to participate in this 
professional development. An additional commenter recommended 
clarifying that a State could work with high-quality external partners 
or intermediaries in developing this training to bolster the limited 
capacity of some LEAs in this area.
    Discussion: We agree with the commenters who support maintaining 
the language in Sec.  200.6(b)(2)(ii). These

[[Page 88908]]

provisions emphasize the importance of training for school-based staff 
members who may administer assessments to ensure that such staff 
members know how to make use of appropriate accommodations during 
assessments for all students with disabilities, including students with 
the most significant cognitive disabilities who may take an AA-AAAS to 
assess their performance under this part, if the State has adopted such 
standards. We agree with the commenters that the determination as to 
which training is ``necessary'' is best made at the State, LEA, and 
school levels. In different places, distinct individuals require 
training to administer different types of assessments, and the level of 
training such individuals need in order to ensure appropriate use of 
accommodations may vary. We believe the language as drafted addresses 
the concerns of commenters by providing sufficient flexibility to 
tailor training to meet their needs, and therefore, decline to make any 
changes.
    Changes: None.
    Comments: A number of commenters wrote in support of Sec.  
200.6(b)(3), which requires a State to ensure that the use of 
appropriate accommodations on assessments does not deny a student with 
a disability the ability to participate in an assessment, or any 
benefit from participation in the assessment, that is afforded to 
students without disabilities. The commenters noted that this would 
help ensure that test accommodations do not prevent students with 
disabilities from receiving a college-reportable score on entrance 
examinations that a State administers to high school students as part 
of the State's assessment system. This commenter also indicated that it 
would help if accommodations on entrance examinations are available 
equitably to all students, citing: Overly burdensome requests for 
documentation of a disability that requires accommodations on the 
entrance examination; failure by test administrators to respond to 
requests promptly; and failure to provide needed accommodations for 
students with disabilities.
    Some commenters also suggested that the Department clarify Sec.  
200.6(b)(3)(ii), which requires a State to ensure that the use of 
appropriate accommodations on assessments does not deny a student with 
a disability any benefit from participation in the assessment that is 
afforded to students without disabilities by defining appropriate 
accommodations within the scope of accommodations that may be provided 
without jeopardizing test validity and reliability. To illustrate, one 
commenter cited examples where the use of an accommodation would 
invalidate test scores for a particular student (such as measuring an 
English learner's reading comprehension by administering a test with a 
third-party ``read-aloud'' accommodation)--which the commenter believed 
would help ensure that all scores could be college-reportable.
    Discussion: A State is responsible for ensuring that all students 
receive appropriate accommodations in keeping with the State's general 
responsibilities to provide assessments that are accessible to all 
students under section 1111(b)(2)(B)(vii) of the ESEA, and applicable 
requirements under the IDEA, as discussed above with regard to comments 
addressing Sec.  200.6(a). This responsibility applies regardless of 
whether the assessment is a statewide assessment or a locally selected, 
nationally recognized high school academic assessment under Sec.  
200.3, which is why relevant language appears in Sec. Sec.  200.2, 
200.3, and 200.6. States are responsible for determining which 
accommodations are appropriate and for administering assessments such 
that a student who needs and receives such an accommodation is not 
denied any benefit afforded to students who do not need the 
accommodation. While it is true that a State is also responsible for 
ensuring that it administers assessments in a valid and reliable 
manner, these provisions must work together. The requirement that a 
State administer a valid and reliable assessment does not relieve the 
State of any responsibility related to appropriate accommodations. 
Rather, the State must ensure that any assessment it administers to 
meet the requirements of title I, part A meets all requirements of this 
subpart.
    Changes: None.
    Comments: One commenter recommended requiring in the final 
regulations that all assessments, including any AA-AAAS, meet a number 
of criteria. In particular, they must: (1) Be standardized assessments 
that meet the Standards for Psychological and Educational Testing; (2) 
be high quality, fair, and reliable; and (3) produce valid results and 
interpretations. This commenter also suggested promoting the use of 
principles of UDL and other best practices. The commenter noted that 
AA-AAAS in the past have often been overly individualized in an attempt 
to better comply with IDEA requirements. The commenter further said 
that, absent these criteria, comparability between general assessments 
and AA-AAAS may be lost, noting that both are used for accountability 
purposes under the ESEA. Finally, the commenter suggested that the 
regulations should require States and test developers to create a list 
of accommodations that have been determined as suitable for student use 
without jeopardizing the validity and reliability of scores for 
students with disabilities, which States could then share with IEP and 
other placement teams.
    Discussion: The Department believes that the statute and 
regulations already require many of the actions the commenter requests. 
In particular, both section 1111(b)(2)(B)(iii) of the ESEA and Sec.  
200.2(b)(4)(ii) require consistency with relevant, nationally 
recognized professional and technical testing standards. The Standards 
for Psychological and Educational Testing are a strong example of such 
standards, and the Department's peer review of State assessment systems 
under title I, part A is based on these technical standards, which we 
believe helps mitigate one of the commenter's concerns. Section 
1111(b)(2)(B)(iii) and (iv) and Sec.  200.2(b)(4)(i) also address the 
importance of strong technical quality, including validity, 
reliability, and fairness. Finally, section 1111(b)(2)(B)(xiii) and 
1111(b)(2)(D)(i)(IV) of the ESEA require that a State apply the 
principles of UDL, to the extent practicable, to both the general 
statewide assessments and the AA-AAAS, requirements that are reiterated 
in Sec. Sec.  200.2(b)(2)(ii) and 200.6(d)(6).
    The Department expects that assessment peer review will provide an 
opportunity to promote and enforce the use of high-quality assessments, 
which includes the AA-AAAS. While an AA-AAAS must be aligned with the 
challenging State academic content standards, the Department notes 
that, by definition, such an assessment will not be comparable to the 
general statewide assessments, since students taking an AA-AAAS are 
measured against alternate academic achievement standards. Similarly, 
each State is already required by section 1111(b)(2)(B)(vii) of the 
ESEA and section 612(a)(16)(A) of the IDEA to ensure that children with 
disabilities served under the IDEA are provided appropriate 
accommodations on title I, part A assessments, where necessary, as 
determined on an individualized case-by-case basis by their IEP team. 
To ensure that this occurs, section 612(a)(16)(B) of the IDEA requires 
a State to develop guidelines for the provision of appropriate 
accommodations. Under 34 CFR 300.160(b), these State guidelines must 
identify only those accommodations for each assessment that do not 
invalidate

[[Page 88909]]

the score and instruct IEP teams to select for each assessment only 
those accommodations that do not invalidate the score. These State 
guidelines apply to the provision of appropriate accommodations under 
the IDEA on regular and alternate assessments. Therefore, the 
Department does not believe changes are needed in this regard.
    Changes: None.
AA-AAAS for Students With the Most Significant Cognitive Disabilities
    Comments: Many commenters wrote either in broad support of, or 
broad opposition to, the criteria outlined in Sec.  200.6(c)(4) that a 
State must follow in order to request from the Department a waiver of 
the requirement to assess no more than 1.0 percent of assessed students 
in each subject with an AA-AAAS. The commenters supporting the proposed 
regulations generally asserted that the elements included in the 
proposed regulation provide a comprehensive picture of the State's 
efforts to address and correct its assessment of more than 1.0 percent 
of assessed students on an AA-AAAS. The commenters opposing the 
proposed regulations generally favored additional local flexibility. 
Such commenters asserted that the waiver criteria as proposed are 
unduly burdensome and infringe on IEP team authority. A few commenters 
expressed concern that a burdensome process could discourage States 
from submitting a waiver.
    Discussion: We appreciate the broad support for the proposed 
regulations and suggestions for revisions suggested by the commenters. 
We agree that strong waiver criteria are necessary to ensure that a 
waiver is only granted when appropriately justified and when a State 
demonstrates necessary progress towards assessing no more than 1.0 
percent of assessed students in each subject with an AA-AAAS. 
Therefore, we generally maintain the criteria in the final regulations. 
However, we have considered the need for specific changes addressed by 
some commenters, particularly with regard to State and LEA burden, and 
discuss those in response to specific comments below.
    Changes: None with respect to the overall need for waiver criteria. 
Changes with respect to specific criteria are discussed in response to 
specific comments below.
    Comments: A few commenters contended that provisions in proposed 
Sec.  200.6 infringe on an IEP team's authority to make an individual 
determination about the most appropriate assessment for an individual 
student, one noting that the proposed regulations could be amended to 
direct IEP teams to follow State participation guidelines when making 
decisions about which assessment a student should take.
    Discussion: We agree with the commenters that, for a child with a 
disability who receives services under the IDEA, the decision about 
which type of assessment is most appropriate for the student rests with 
the IEP team. However, we do not think that any changes to the 
regulations are necessary to address this comment. With respect to the 
suggestion to amend the regulations to direct IEP teams to follow State 
participation guidelines, we emphasize that the State guidelines 
required under Sec.  200.6(d) are intended to serve that very purpose--
to provide clarity for IEP teams as to how to make appropriate 
assessment decisions. In particular, Sec.  200.6(d)(1) provides that 
IEP teams are to apply the State guidelines on a case-by-case basis to 
determine whether an individual child is a student with the most 
significant cognitive disabilities who should be assessed with an AA-
AAAS.
    Changes: None.
    Comments: One commenter contended that any waiver criteria are 
contrary to the intent of Congress, asserting that Congress intended 
that States should better support and more accurately assess students 
with the most significant cognitive disabilities rather than be 
required to conduct oversight in a way that may intrude on high-quality 
LEA programming. Another commenter broadly suggested that the waiver 
criteria are contrary to the Congressional intent in section 8401 of 
the ESEA, which the commenter asserts presumes the Department will 
grant waivers provided the request demonstrates the need for and 
assumed benefit of the waiver, without any additional requirements. 
Additionally, a commenter asserted that a number of the waiver 
requirements involve unrelated information requirements and external 
conditions, in direct violation of the respective prohibitions included 
in section 8401(b)(1)(E) and 8401(b)(4)(D) of the ESEA.
    Discussion: We disagree. In section 1111(b)(2)(D)(i)(I) of the 
ESEA, Congress explicitly prescribed a cap of 1.0 percent on the number 
of students who may be assessed with an AA-AAAS, which Congress 
specified is only for students with the most significant cognitive 
disabilities. Although the statute prohibits a State from imposing a 
cap on an LEA's use of an AA-AAAS, section 1111(b)(2)(D)(ii)(II) 
requires an LEA that exceeds the State cap to submit information to the 
SEA justifying the need to exceed the cap. Moreover, section 
1111(b)(2)(D)(ii)(III) requires a State to provide ``appropriate 
oversight, as determined by the State,'' of any such LEA.
    Because a State must ensure that the total number of students 
assessed using the AA-AAAS in each subject does not exceed 1.0 percent 
of assessed students in that subject in the State, but cannot impose 
any similar cap on its LEAs, Sec.  200.6(c)(3) helps ensure that States 
review and act upon information from LEAs, provide sufficient 
oversight, and take meaningful steps to ensure that, under State and 
LEA policies, only students with the most significant cognitive 
disabilities are assessed with an AA-AAAS, consistent with the 
statutory requirement limiting participation in the AA-AAAS. Section 
200.6(c)(3), therefore, is well within the Department's rulemaking 
authority under section 1601(a) of the ESEA, which authorizes the 
Secretary to ``issue, in accordance with subsections (b) through (d) 
and subject to section 1111(e), such regulations as are necessary to 
reasonably ensure that there is compliance with this title.'' As 
discussed above, the regulations are necessary to support a State in 
meeting its statutory obligations. Moreover, Sec.  200.6(c)(3) was 
submitted to negotiated rulemaking under section 1601(b) and the 
negotiating committee reached consensus on it. Finally, in light of the 
statutory requirements in section 1111(b)(2)(D)(i)(I) and 
(b)(2)(D)(ii)(I)-(III) of the ESEA, Sec.  200.6(c)(3) certainly is not 
inconsistent with or outside the scope of title I, part A, and 
therefore does not violate section 1111(e)(1)(B)(i) of the ESEA. The 
Department also has rulemaking authority under section 410 of GEPA, 20 
U.S.C. 1221e-3, and section 414 of the DEOA, 20 U.S.C. 3474.
    Similarly, the waiver criteria outlined in Sec.  200.6(c)(4) do not 
exceed the Department's authority. We are well aware that section 
1111(e)(1)(B) of the ESEA prohibits the Department from requiring, as a 
condition of approval of a waiver request under section 8401, 
requirements that are inconsistent with or outside the scope of part A 
of title I. Clearly, the waiver criteria in Sec.  200.6(c)(4) are not 
inconsistent with or outside the scope of section 1111(b)(2)(D) of the 
ESEA. Rather, they are consistent with ensuring that the statutory 
restriction on a State's use of an AA-AAAS is not vitiated through 
waivers. In order to evaluate whether a State has a legitimate 
justification for a waiver to assess more than 1.0 percent of assessed 
students in a given subject with an AA-AAAS, it is necessary for

[[Page 88910]]

the Department to evaluate certain data about which students are being 
assessed with an AA-AAAS and to receive assurances from a State that it 
is verifying certain information with any LEAs that the State 
anticipates will exceed the statewide 1.0 percent cap, including that 
such LEAs have followed the State guidelines for determining which 
students may be appropriately assessed with an AA-AAAS and addressing 
any disproportionality in the percentage of students in certain 
subgroups of students who are assessed with an AA-AAAS. Moreover, the 
requirements that a State must submit a plan and timeline to improve 
the implementation of its State guidelines, to support and provide 
oversight to LEAs, and to address any disproportionality in the 
percentage of students who take an AA-AAAS are all requirements 
directly related to evaluating whether the State, if it receives a 
waiver, has a sufficient plan for coming into compliance with the 
statutory 1.0 percent cap. The criteria to receive a waiver of the 1.0 
percent cap in Sec.  200.6(c)(4) also help to reinforce the other 
statutory requirements that a State seeking a waiver, in general, must 
meet (as described in section 8401(b)(1)(C), (D), and (F)), including 
that the waiving of the requested requirements will advance student 
academic achievement, that the SEA will monitor and regularly evaluate 
the effectiveness of its waiver plan, and in cases where a State is 
seeking to waive statutory requirements related to student assessment 
and data reporting under title I, part A, that the SEA and its LEAs 
will maintain or improve transparency in reporting to parents and the 
public on student achievement, including subgroups of students. For the 
same reasons Sec.  200.6(c)(4) does not violate section 1111(e) of the 
ESEA, the Department would not violate section 8401(b)(4)(D) if it were 
to disapprove a State's waiver request to exceed the 1.0 percent cap if 
the State cannot demonstrate that it has met the criteria in Sec.  
200.6(c)(4), because the criteria in Sec.  200.6(c)(4) do not impose 
conditions outside the scope of a waiver request. In sum, each of the 
elements described above is within the scope of a waiver request and 
title I, part A. Particular elements of the waiver criteria which 
commenters noted were outside the scope of a waiver request are 
discussed in greater detail below.
    Changes: None.
    Comments: One commenter contended that the waiver requirements 
present particular challenges for rural States and LEAs where the 
numbers of assessed students are so small that, even if one or two 
students are assessed with an AA-AAAS, the LEA would then exceed the 
statewide 1.0 percent cap. The commenter noted that increased 
monitoring of such LEAs would tax SEA resources and may inadvertently 
pressure rural LEAs to recommend general assessments for students who 
should more appropriately be taking an AA-AAAS. The commenter asserted 
that LEAs that partner to provide specialized programming for students 
with the most significant cognitive disabilities in rural States will 
necessarily assess more than 1.0 percent of assessed students, and that 
any heightened monitoring of such LEAs implies mistrust of the work in 
such schools and is counterproductive to the needs of the students in 
these schools.
    Discussion: We appreciate the comment specific to the needs of 
rural States and LEAs and have taken these suggestions into 
consideration with regard to specific changes discussed in response to 
other comments, particularly with regard to SEA oversight requirements 
as described in Sec.  200.6(c)(4). However, section 
1111(b)(2)(D)(ii)(III) of the ESEA provides that a State will exercise 
oversight of an LEA that exceeds the statewide 1.0 percent cap, 
regardless of the number of students enrolled in the LEA. We note that 
it is the State's responsibility to develop State guidelines under 
Sec.  200.6(d) that ensure that IEP teams within the State 
appropriately identify, on a case-by-case basis, only students with the 
most significant cognitive disabilities for an AA-AAAS. A rural State 
has discretion to develop its State guidelines in a way that best meets 
the State's unique needs, so long as the guidelines meet the 
requirements contained in the statute and regulations. Therefore, we 
decline to make any changes directly related to this comment but note 
that we are incorporating other changes to the waiver criteria that 
partially address rural concerns.
    Changes: None.
    Comments: One commenter contended that the regulations should take 
into account that some States have a low-incidence of children with 
disabilities, whereas others have a high-incidence, explaining that 
States with a high-incidence may assess the same number of students 
with the most significant cognitive disabilities with an AA-AAAS as a 
State with a low incidence, and only the State with the high-incidence 
of children with disabilities would exceed the 1.0 percent statewide 
cap.
    Discussion: We appreciate the commenter's concern about variations 
in the numbers of children with disabilities nationwide. Section 
1111(b)(1)(D)(i)(I) of the ESEA, however, establishes that all States 
must limit the number of students assessed in each subject with an AA-
AAAS to no more than 1.0 percent of assessed students, with the only 
exception being a State that applies for and receives a waiver to 
exceed this prohibition. Therefore, we decline to make this suggested 
change.
    Changes: None.
    Comments: A few commenters suggested that proposed Sec.  200.6 does 
not give States enough authority to act when an LEA has assessed more 
than 1.0 percent of assessed students in a given subject with an AA-
AAAS and does not explain how the Secretary will decide whether to 
grant a waiver. One such commenter articulated that, in accordance with 
the proposed regulation, any rationale provided by an LEA would be 
sufficient and that the Department would grant every State request for 
a waiver. The commenter further noted that the Department should revise 
the regulation so that it explains the steps that a State should take 
to comply absent an approved waiver. Another commenter questioned 
whether there is also a statewide cap on the number of scores from an 
AA-AAAS that can count as proficient in school accountability 
determinations (similar to the regulation applied under the ESEA, as 
amended by NCLB), and if so, whether there would be a separate waiver 
process to request such a waiver. The commenter asked for greater 
detail about potential consequences for a State that assesses more than 
1.0 percent of assessed students in a given subject with an AA-AAAS.
    Discussion: While we appreciate the commenter's request for 
additional specificity, we do not agree that additional clarity is 
needed in the regulation. The waiver criteria outlined in Sec.  
200.6(c)(4) specify the elements a State must address in a request for 
a waiver. Further, should a State request a waiver for an additional 
year, under Sec.  200.6(c)(4)(v) the Department expects to see 
substantial progress towards the State's plan and timeline for meeting 
the requirement to assess no more than 1.0 percent of students with an 
AA-AAAS. With regard to the request to address the steps a State should 
take absent an approved waiver, the Department notes that it maintains 
general enforcement authority, as it does with any ESEA violation.
    With regard to the application of a 1.0 percent cap on the number 
of proficient scores that may be counted in accountability 
determinations, we do not believe such a cap is appropriate. Rather 
than codifying the regulations

[[Page 88911]]

under the ESEA, as amended by NCLB, that imposed such a cap, Congress 
chose in section 1111(b)(2)(D)(i)(I) of the ESEA to apply a cap on the 
number of students who may be assessed with an AA-AAAS. Thus, the 
scores of all students who take an AA-AAAS, no matter how many are 
proficient, must be reported on State and LEA report cards and included 
in school accountability determinations under section 1111(c) of the 
ESEA, including performance against long-term goals and in the Academic 
Achievement indicator.
    Changes: None.
    Comments: A few commenters expressed concern that the existence of 
waivers, generally, will dilute the importance of the requirement to 
assess no more than 1.0 percent of assessed students with an AA-AAAS.
    Discussion: We agree with the commenters that the number of 
children with disabilities who take an AA-AAAS should be limited to no 
more than 1.0 percent of assessed students, as the vast majority of 
children with disabilities are most appropriately assessed with general 
assessments alongside their peers without disabilities. However, 
section 1111(b)(2)(D)(ii)(IV) of the ESEA specifies that the waiver 
authority under section 8401 of the ESEA allows a State to apply for a 
waiver of the 1.0 percent limitation. The negotiators thoroughly 
discussed the topic of waiver criteria during negotiated rulemaking, 
and we continue to agree that the majority of the criteria agreed to by 
the committee are appropriate. We believe those criteria will 
sufficiently protect the statutory limitation on the percentage of 
students with the most significant cognitive disabilities who may be 
assessed with an AA-AAAS. As these provisions are implemented, we will 
continue to evaluate the need for additional non-regulatory guidance.
    Changes: None.
    Comments: A number of commenters opposed the requirement in Sec.  
200.6(c)(4)(i) that a State's waiver request be submitted at least 90 
days prior to the start of the State's first testing window. One 
commenter suggested that the timeline be abbreviated to 30 days before 
the start of the testing window due to the differences in timing of 
testing windows nationwide, and noted that the submission should occur 
before the ``main'' testing window rather than the ``first'' testing 
window. A few commenters indicated it will be difficult to predict 90 
days in advance how many students will need to take an AA-AAAS, with 
some noting that this is a particular challenge for States with highly 
mobile populations, and in areas served by multiple LEAs, the Bureau of 
Indian Education (BIE), and tribal schools, or when parents decide that 
their children will not participate in assessments. The commenters 
requested that States be permitted to apply for waivers after the close 
of the State's testing windows. A few commenters indicated that when 
waiver requests are due before testing the State does not know the 
total number of students who will be assessed (the denominator for the 
participation rate calculation), so there is an increased 
administrative burden for some States who will request a waiver that 
they do not need, and other States that may need a waiver may not 
apply. A few commenters noted that since IEP teams meet year round, 
decisions about proper assessment placements may not have been made 
prior to the start of the first testing window, and suggested either 
that the submission timeline be after the assessment window or be 
removed altogether.
    Discussion: While we appreciate the suggestions for changes with 
regard to the requirement to submit a waiver request 90 days prior to 
the first testing window, we believe these concerns are outweighed by 
the benefits of maintaining the requirement. As a request for a waiver 
is a request for permission to avoid non-compliance with the law, such 
a waiver should be requested before a State is non-compliant, rather 
than retroactively when a State will have already been non-compliant 
for a period of time. While we understand the contention that a more 
abbreviated timeline, such as 30 days prior to the start of the testing 
window, would be appropriate, we decline to adopt such a change, as the 
Department would not have sufficient time to address such requests; 
section 8401(b)(4) of the ESEA specifies that the Department has 120 
days to respond to waiver requests, so the proposed 90-day period is 
already abbreviated from what is typically needed in order for the 
Department to approve waiver requests prior to a State becoming non-
compliant. We acknowledge that IEP teams meet throughout the school 
year, but believe there is value in reinforcing the general principle 
that decisions about the assessment a student will take should be made 
in the beginning of the school year. Such advance planning allows the 
student, parents, teachers, and other instructional staff to have clear 
expectations and sufficient time to prepare for the assessment, which 
may include identifying appropriate accommodations. Given that some 
forms of an AA-AAAS are administered throughout a school year, it is 
furthermore appropriate that such decisions are made early to ensure 
that a student's performance is fully measured. We are, however, 
revising Sec.  200.6(c)(4)(i) to clarify that a State's waiver must be 
submitted 90 days prior to the start of the testing window for the 
relevant subject, recognizing that a State may request a waiver for 
only one subject, and that the testing windows can, but need not 
necessarily, vary among assessments.
    Commenters supporting the waiver criteria as drafted acknowledge 
that the data that will be submitted along with such waiver requests 
are necessary so that States are transparent about how many students 
are assessed with an AA-AAAS, and we likewise value the transparency 
that will be provided by requiring this information prior to receipt of 
a waiver. Furthermore, a State should be able to determine whether 
there will be a need to request a waiver in a particular school year 
based on the prior year's data, and we note that the data a State 
submits along with a waiver request, consistent with Sec.  
200.6(c)(4)(ii) may be State-level data from either the current or 
previous school year. Therefore, we maintain that it is necessary to 
receive waiver requests in advance of the State's testing window and 
decline to make these requested changes.
    Changes: We have revised Sec.  200.6(c)(4)(i) to clarify that a 
waiver must be submitted 90 days prior to the start of the testing 
window for the relevant subject.
    Comments: Many commenters specifically opposed Sec.  
200.6(c)(4)(ii)(B) of the waiver criteria for a State that exceeds the 
1.0 percent cap, which requires the State to submit State-level data 
from the current or previous school year to show that the State has 
measured the achievement of at least 95 percent of all students and 95 
percent of students in the children with disabilities subgroup who are 
enrolled in assessed grades. A few commenters suggested that the 
Department has overstepped its authority by linking a requirement for 
95 percent test participation to receipt of a waiver of the 1.0 percent 
State cap on participation in the AA-AAAS, since the ESEA requires 95 
percent participation on assessments used for Federal accountability 
but allows each State to determine how low student participation will 
be factored in its accountability system. One commenter argued that 
this requirement exceeds the plain statutory language of the ESEA and 
is therefore outside the scope of the waiver requirements in section 
8401 of

[[Page 88912]]

the ESEA, which the commenter asserted requires only information 
directly related to the waiver request. Various commenters appeared to 
view the 95 percent test participation requirement as a punitive 
requirement for States with high numbers of parents choosing to opt 
their students out of statewide assessments, and contended it may 
result in competing parent advocacy groups working against each other. 
Another commenter suggested this requirement contradicts the increased 
flexibility in the measurement of student achievement that the 
commenter associated with the ESEA.
    Discussion: We disagree with the commenters who suggest that it is 
inappropriate to require that 95 percent of all students and 95 percent 
of students in the subgroup of children with disabilities be assessed 
in order to receive a waiver from the statutory prohibition on 
assessing more than 1.0 percent of assessed students with an AA-AAAS. 
Section 1111(b)(2)(B)(i)(II) of the ESEA requires a State to annually 
administer an assessment to all public school students in the State, 
not just 95 percent of them. Since the 1.0 percent statewide cap on 
participation in the AA-AAAS is a cap on the number of students 
assessed, a State's data on proper use of the AA-AAAS will only be 
transparent and accurate if it is based on the entire population of 
students that must be assessed in the State. We believe this must be 
achieved by requiring the State to provide State-level data to show 
that it is assessing at least 95 percent of all students and 95 percent 
of children with disabilities as part of its waiver request. This 
recognizes that a small number of students may not be able to 
participate in the assessments for various reasons, without losing an 
accurate and representative sample of the whole student population in 
determining whether a State requires a waiver. Further, without such a 
protection, there is no guarantee that an LEA will not encourage 
certain students to avoid testing all together, thereby keeping those 
students out of the denominator of students who count for purposes of 
calculating the 1.0 percent cap. We note that since a waiver request 
must be submitted to the Department 90 days prior to the State's first 
relevant testing window, a State will likely submit data from the 
previous school year to fulfill this requirement.
    With regard to the commenters who believe this requirement 
inappropriately ties an accountability requirement to a waiver request, 
we disagree. We acknowledge that, under section 1111(e)(1)(B)(i) of the 
ESEA, the Department is prohibited from requiring a State to add any 
requirements for receipt of a waiver that are inconsistent with or 
outside the scope of title I, part A. The requirement to ensure that at 
least 95 percent of all students and 95 percent of students in the 
subgroup of children with disabilities participate in State assessments 
is not in conflict with such a prohibition, given that section 
1111(b)(2)(B)(i)(II) of the ESEA requires all students to be 
administered an assessment, and that such an expectation is 
specifically needed in the context of granting a waiver of the 1.0 
percent statewide cap on participation in an AA-AAAS, as the cap is on 
the number of students assessed. The full inclusion of children with 
disabilities in academic assessments, either the general assessment or 
an AA-AAAS, is essential to ensure that they are held to the same high 
expectations as their peers, and the 1.0 percent cap on participation 
in an AA-AAAS is only effective as a guardrail when full participation 
in assessments is ensured. Further, the waiver criteria for a State 
related to the 1.0 percent cap on participation in the AA-AAAS is 
separate and distinct from--and has no effect on--how the State meets 
the statutory requirement to hold schools accountable for 95 percent 
participation in assessments, which will be determined by the State 
consistent with section 1111(c)(4)(E) of the ESEA.
    Finally, it is not necessary for the ESEA to specifically authorize 
the Secretary to include the 95 percent participation requirement as a 
waiver criterion in order for us to do so. Section 1601(a) of the ESEA 
allows the Secretary to ``issue, in accordance with subsections (b) 
through (d) and subject to section 1111(e), such regulations as are 
necessary to reasonably ensure that there is compliance'' with the 
statute. Section 200.6(c)(4)(ii)(B) is necessary to ensure that only 
those States that truly need to assess more than 1.0 percent of 
assessed students with an AA-AAAS are eligible for a waiver; otherwise, 
waivers would vitiate the statutory prohibition. Moreover, Sec.  
200.6(c)(4)(ii)(B) was submitted to negotiated rulemaking under section 
1601(b) and the negotiating committee reached consensus on it. Finally, 
as noted above, Sec.  200.6(c)(4)(ii)(B) is not inconsistent with or 
outside the scope of title I, part A, and therefore does not violate 
section 1111(e)(1)(B)(i) of the ESEA. The Department also has 
rulemaking authority under section 410 of GEPA, 20 U.S.C. 1221e-3, and 
section 414 of the DEOA, 20 U.S.C. 3474.
    We also disagree with the contention that the requirement to ensure 
95 percent test participation for all students and students in the 
subgroup of children with disabilities is in violation of section 
8401(b)(4)(D) of the ESEA. Such a requirement is not an external 
condition outside the scope of a waiver request but, rather, is 
consistent with requirements for the administration of assessments to 
all students in section 1111(b)(2)(B)(i)(II) of the ESEA and necessary 
to ensure that the 1.0 percent cap on the number of assessed students 
who may participate in an AA-AAAS is applied in such a way that 
continues to expect full test participation for all students and all 
children with disabilities.
    Changes: None.
    Comments: While many commenters supported the waiver criteria as 
drafted, one commenter noted that instances of disproportionate 
identification for an AA-AAAS should be examined and addressed, but 
generally opposed the proposed waiver criterion. Another commenter 
asserted that requirements to address disproportionality in the number 
and percentage of students assessed with an AA-AAAS when a State 
applies for a waiver of the statewide 1.0 percent cap are outside the 
scope of the waiver requirements in section 8401 of the ESEA, since 
such waivers must include only information directly related to the 
request.
    Discussion: We disagree with the assertion that the requirement in 
Sec.  200.6(c)(4)(ii)(A) that a State provide data on the number and 
percentage of students in the subgroups of economically disadvantaged 
students, major racial and ethnic groups, and English learners who are 
assessed with an AA-AAAS, and the requirement in Sec.  
200.6(c)(4)(iii)(B) that a State must assure any LEA that the State 
anticipates will assess more than 1.0 percent of students using an AA-
AAAS will address any disproportionality in the percentage of students 
from such subgroups who take an AA-AAAS, are outside the scope of the 
requirements for a waiver under section 8401 of the ESEA. The 1.0 
percent limitation on the number of students in a State who may be 
assessed with an AA-AAAS is a critical protection to ensure that the 
vast majority of children with disabilities are included in the general 
assessment alongside their peers and that only the small number of 
students with the most significant cognitive disabilities are assessed 
with an AA-AAAS. However, such a protection is minimized if a 
disproportionate percentage of students from any one subgroup is 
assessed with an AA-AAAS, and such disproportionate identification 
indicates that the State should revisit its

[[Page 88913]]

guidelines for how IEP teams within the State identify which students 
are those with the most significant cognitive disabilities who may be 
assessed with an AA-AAAS. Thus, we believe that maintaining a focus on 
disproportionate use of the AA-AAAS is necessary within the criteria 
for a waiver of the 1.0 percent statewide cap on the number of students 
who may be assessed with an AA-AAAS. Further, it is not necessary for 
the ESEA to specifically authorize the Secretary to address 
disproportionality through waiver criteria. As noted in the discussion 
of the prior comment, section 1601(a) of the ESEA authorizes the 
Secretary to issue regulations as are necessary to reasonably ensure 
that there is compliance with title I, part A. For the reasons we 
express above, we believe a waiver of the 1.0 percent cap is only 
warranted if a State is not disproportionately including in the AA-AAAS 
students who are poor, English learners, or students from a major 
racial or ethnic group, thereby raising concerns that the State's 
guidelines for identifying students with the most significant cognitive 
disabilities are not being carried out responsibly. Like the other 
assessment-related regulations submitted to negotiated rulemaking, the 
committee reached consensus on Sec.  200.6(c)(4)(ii)(A), (iii)(B), and 
(iv)(C), consistent with 1601(b) of the ESEA. In addition, the 
Department has rulemaking authority under section 410 of GEPA, 20 
U.S.C. 1221e-3, and the DEOA, 20 U.S.C. 3474.
    That said, we are revising Sec.  200.6(c)(4)(iii)(B) and (iv)(C) to 
clarify that the assurances a State must provide and its plan and 
timeline related to disproportionality in the AA-AAAS must be focused 
on the ``percentage'' of students in each subgroup that are assessed 
using an AA-AAAS in a particular subject, and not the raw ``number'' of 
students in each subgroup. Using the ``number'' of students assessed 
using an AA-AAAS would be insufficient to identify disproportionalities 
given that raw numbers also reflect the size of the student population 
in the State. However, the data that must be included as part of the 
waiver request described in Sec.  200.6(c)(4)(ii)(A) must still include 
the number and percentage of students in each subgroup assessed using 
an AA-AAAS in the relevant subject.
    Changes: We have revised Sec.  200.6(c)(4)(iii)(B) and (iv)(C) so 
that only the percentage of students in each subgroup assessed using an 
AA-AAAS is considered related to disproportionality in the assurances 
and plan included in a State's waiver request to exceed the 1.0 percent 
cap.
    Comments: A few commenters contended that LEAs should not be 
required to assess less than 1.0 percent of assessed students with an 
AA-AAAS because some LEAs have legitimate reasons to assess more than 
1.0 percent of students with an AA-AAAS based on student needs and city 
demographics (e.g., medical facilities located within the city or other 
specialized programming located in certain LEAs). One such commenter 
acknowledged that LEAs need to submit justification to the State to 
assess more than 1.0 percent of assessed students with an AA-AAAS, but 
asserted that such justification should not be a complex annual 
process.
    A few commenters more broadly objected to the requirement that SEAs 
verify information with LEAs through the assurances required under 
Sec.  200.6(c)(4)(iii), with one commenter noting that in a State with 
a large number of LEAs this is a significant burden on SEA resources. A 
few other commenters opposed the same assurances, specifically 
objecting to the proposed language that allows a State discretion to 
verify certain information with LEAs that ``contribute to the State's 
exceeding'' the 1.0 percent cap. A few commenters contended that the 
proposed regulations would result in a de facto, or back-door, LEA-
level cap on participation in the AA-AAAS in LEAs that have no record 
of assessing more than 1.0 percent of students with such an assessment. 
One commenter asserted that the proposed regulations regarding LEAs 
that ``contribute to the State's exceeding'' the 1.0 percent cap exceed 
the scope of the law since the ESEA provides that LEAs that assess more 
than 1.0 percent of students with an AA-AAAS shall submit information 
to the SEA justifying the need to exceed such cap, and permits the SEA 
to provide oversight of such LEAs, but it does not extend such 
oversight to LEAs that do not exceed the cap. Thus, the commenter 
argued that the ESEA prohibits these proposed regulations.
    One commenter argued that the assurance in proposed Sec.  
200.6(c)(4)(iii)(B) is unattainable because an LEA will not be able to 
predict the extent to which it will assess less than 1.0 percent of 
students with an AA-AAAS since a decision as to which assessment a 
student will take is an individualized decision based on whether the 
student is a student with the most significant cognitive disabilities 
and eligible for the assessment.
    Discussion: While we generally agree with the commenters who 
supported the waiver criteria, and place great value on the consensus 
reached during negotiated rulemaking, we have determined that there is 
reason to address a few of the specific concerns with regard to the 
criteria for assurances from the State included in Sec.  
200.6(c)(4)(iii).
    With regard to the comment that Sec.  200.6(c)(4)(iii) should be 
revised so that it extends only to LEAs that the State anticipates will 
assess more than 1.0 percent of the number of students assessed with an 
AA-AAAS and not to other LEAs that the State determines will 
significantly contribute to the State's exceeding the cap, we agree. 
Both LEAs that the State anticipates will assess more than 1.0 percent 
of students in the LEA with an AA-AAAS and LEAs that do not assess more 
than 1.0 percent of students with an AA-AAAS but that significantly 
contribute to a State's exceeding the 1.0 percent State cap were 
incorporated into the waiver criteria during negotiated rulemaking. 
Including both categories of LEAs was intended to provide a State with 
discretion to focus attention on those LEAs that assess less than 1.0 
percent of students with an AA-AAAS but significantly contribute to the 
State exceeding its 1.0 percent cap, as well as those LEAs already 
assessing more than 1.0 percent. However, we acknowledge that this may, 
in some States, unfairly call attention to LEAs that will not assess 
more than 1.0 percent of assessed students with an AA-AAAS. While we 
strongly encourage States to look not only to LEAs that are assessing 
more than 1.0 percent of students with an AA-AAAS but also those 
significantly contributing to the State exceeding the cap of 1.0 
percent, we are removing the language in Sec.  200.6(c)(4)(iii) that 
extends the assurances that a State submits with a waiver to LEAs that 
``significantly contribute'' to the State exceeding the 1.0 percent 
State cap.
    With regard to the commenters asking for changes in proposed Sec.  
200.6(c)(4)(iii) to the specific assurances that a State has verified 
certain information with respect to LEAs that the State anticipates 
will assess more than 1.0 percent of their assessed students with an 
AA-AAAS, we maintain that the requirements in Sec.  
200.6(c)(4)(iii)(A), to follow each of the State's guidelines, and 
Sec.  200.6(c)(4)(iii)(C), to address any disproportionality in the 
percentage of students in any subgroup assessed with an AA-AAAS, are 
critical to ensure that IEP teams within a State comply with the 
State's guidelines to determine that only students with the most 
significant

[[Page 88914]]

cognitive disabilities are most appropriately assessed with an AA-AAAS. 
We are, however, revising Sec.  200.6(c)(4)(iii)(A) to remove 
duplicative language and improve clarity; specifically, the assurance 
States provide in their waiver requests must indicate that LEAs follow 
each of the State's guidelines under Sec.  200.6(d), except Sec.  
200.6(d)(6), which only applies at a State level. All of the guidelines 
under Sec.  200.6(d) are critically important for LEAs to follow, and 
we believe it is confusing and unnecessary to emphasize those in Sec.  
200.6(d)(1) over other pieces of the guidelines in this assurance.
    In response to the specific commenter who suggested that proposed 
Sec.  200.6(c)(4)(iii)(B) be removed, we agree. While LEAs should not 
significantly increase, from the prior year, the extent to which they 
assess more than 1.0 percent of all students assessed using an AA-AAAS 
without a demonstration of a higher prevalence rate of students with 
the most significant cognitive disabilities, we have determined that 
the practices this assurance are intended to address will also be 
addressed through the plan and timeline requirements in Sec.  
200.6(c)(4)(iv) and that some burden on the State and LEAs can be 
reduced by eliminating this assurance.
    Given the changes that we are making to the waiver requirements 
contained in Sec.  200.6(c)(4)(iii) to remove language referring to 
LEAs that significantly contributed to a State's exceeding the 1.0 
percent cap, which commenters alleged was outside the Department's 
regulatory authority, the remaining assurances that are required in 
this section clearly do not exceed that authority. Based on the 
authority discussed above in response to comments regarding SEA 
oversight and disproportionality, the assurances a State is required to 
make related to an LEA that the State anticipates will exceed the 
State's 1.0 percent cap are necessary to evaluate whether a State is 
only assessing students with the most significant cognitive 
disabilities with an AA-AAAS and therefore warrants a waiver to exceed 
the 1.0 percent cap. Section 200.6(c)(4)(iii), as revised, is therefore 
well within the Department's regulatory authority under section 1601(a) 
of the ESEA as well as under section 410 of GEPA, 20 U.S.C. 1221e-3, 
and section 414 of the DEOA, 20 U.S.C. 3474.
    Changes: We have revised Sec.  200.6(c)(4)(iii) by removing the 
reference to LEAs that assess fewer than 1.0 percent of students using 
an AA-AAAS that the State determines will significantly contribute to 
the State's exceeding the cap. We have also removed Sec.  
200.6(c)(4)(iii)(B) and renumbered former Sec.  200.6(c)(4)(iii)(C) as 
Sec.  200.6(c)(4)(iii)(B). Finally, we have revised Sec.  
200.6(c)(4)(iii)(A) by removing ``including criteria in paragraph 
(d)(1)(i) through (iii)'' because it is included in the reference to 
guidelines under paragraph (d).
    Comments: One commenter broadly objected to Sec.  200.6(c)(4)(iv), 
which requires a State to submit a plan and timeline with its waiver 
request. A few commenters also objected more particularly to Sec.  
200.6(c)(4)(iv)(B), which requires a State to explain in the plan and 
timeline how it will support and provide appropriate oversight to an 
LEA that the State anticipates will assess more than 1.0 percent of its 
assessed students in a school year with an AA-AAAS, and any other LEA 
that the State determines will significantly contribute to the State's 
exceeding the cap. The commenters asserted that this creates intrusive 
State oversight of LEAs that are not exceeding the State cap by 
assessing less than 1.0 percent of their students with an AA-AAAS. One 
commenter contended that this interferes with IEP team authority and 
asserted that, since the IDEA provides a mechanism for monitoring 
compliance with IDEA requirements, this provision should be struck from 
the proposed regulations.
    Discussion: We agree with the comment that Sec.  200.6(c)(4)(iv) 
should be revised so that it applies only to LEAs that a State 
anticipates will assess more than 1.0 percent of the students assessed 
with an AA-AAAS and not to other LEAs that the State determines will 
significantly contribute to the State's exceeding the cap. The 
rationale for this change was discussed in the prior discussion. 
However, we also note that an effective plan and timeline, as required 
under Sec.  200.6(c)(4)(iv), will likely need to consider both LEAs 
that have assessed more than 1.0 percent of their students with an AA-
AAAS as well as LEAs that may approach but not exceed 1.0 percent. 
Nonetheless, we believe that a State will exercise proper discretion as 
to which LEAs must receive oversight from the State so that the State 
is able to meet the requirement to assess no more than 1.0 percent of 
assessed students with an AA-AAAS in future years. Given that a State 
must demonstrate substantial progress towards meeting each component of 
the State's plan and timeline to extend a waiver for additional years, 
we believe that a State will place great weight on how it exercises 
this discretion.
    Changes: We have revised Sec.  200.6(c)(4)(iv)(B) by removing the 
phrase referencing LEAs that the State determines will significantly 
contribute to the State's exceeding the cap, but do not themselves 
assess more than 1.0 percent of assessed students with an AA-AAAS.
    Comments: One commenter asked the Department to allow States to 
monitor appropriate use of the AA-AAAS as a component of its existing 
accountability plan rather than as a new, separate process.
    Discussion: We agree that there is benefit to streamlining 
processes at the State level and encourage States to consider how 
various aspects of their monitoring systems may be streamlined. These 
regulations merely articulate areas for technical assistance and 
oversight, as required under section 1111(b)(2)(D)(ii)(III) of the 
ESEA, rather than prescribe to States how to conduct such oversight. 
Therefore, we decline to make any changes.
    Changes: None.
    Comments: A few commenters opposed Sec.  200.6(c)(4) that limits a 
State's waiver request to exceed the 1.0 percent cap to one year at a 
time. One commenter suggested that a State should be allowed to apply 
for a waiver for up to three years, but noted that a State could still 
be required to report annually against progress on meeting the 
requirement to assess no more than 1.0 percent of assessed students in 
each subject with an AA-AAAS.
    Discussion: We do not anticipate a need to grant a State a multi-
year waiver. The ESEA requires a State to assess no more than 1.0 
percent of assessed students in a subject with an AA-AAAS each year, 
and it would be inconsistent with this requirement to provide a waiver 
to a State multiple years in advance, rather than expecting the State 
to take action to comply with the requirements of the law and only 
assess 1.0 percent of students in a subject using an AA-AAAS. On an 
annual basis, should a State apply for a waiver from the 1.0 percent 
cap, the State is expected to include a plan and timeline to improve 
implementation of its State guidelines, which guide IEP team decision 
making, so that the State is able to assess less than 1.0 percent of 
students in the State with an AA-AAAS in future years. While this may 
be a difficult transition for some States and may result in a State 
requesting a waiver from the requirement, we agree with the consensus 
reached during negotiated rulemaking that such waivers be limited to 
one year. We believe that an annual waiver submission will allow the 
Department to evaluate whether the

[[Page 88915]]

State is making necessary progress towards complying with the law. 
However, we do not intend to prohibit a State from applying for a 
waiver in subsequent years should the State determine there is a 
continued need for such a request, particularly if the State is making 
progress against its plan and timeline toward meeting the statutory 
requirement.
    Therefore, we decline to make the suggested change.
    Changes: None.
    Comments: A few commenters opposed Sec.  200.6(c)(4)(v) that any 
subsequent waiver request to the initial request must demonstrate 
``substantial progress'' toward achieving each component of the plan 
and timeline that the State submitted with the waiver in the prior 
year. One such commenter asserted that this requires additional, 
burdensome evidence of intervention in LEAs that assess more than 1.0 
percent of assessed students with an AA-AAAS. Another such commenter 
noted that ``substantial progress'' is an undefined term and open to 
subjective interpretation and would prefer that any measurable amount 
of progress towards achieving the plan and timeline be considered 
sufficient to receive a waiver in a future year. Another commenter 
noted there should be recognition that the numbers of students eligible 
for an AA-AAAS are based on factors that may be outside the State's or 
LEA's control, such as students entering and leaving a district and 
students who may choose not to participate in assessments.
    Discussion: We disagree with the commenters and believe there is 
great value in ensuring that a State demonstrate substantial progress 
towards achieving the objectives outlined in the State's plan and 
timeline for assessing no more than 1.0 percent of assessed students 
with an AA-AAAS--because limiting the use of the AA-AAAS to 1.0 percent 
of the total number of students assessed in each subject is a statutory 
requirement. While there is a waiver authority, the expectation for 
States should be to meet that requirement, or work toward meeting it 
over time, rather than to perpetually receive a waiver of the 
requirement. While we agree with the commenter that the term 
``substantial progress'' is undefined, the use of the word 
``substantial'' is intentional and represents more than simply any 
measurable amount of progress towards achieving the plan and timeline. 
Nonetheless, we also acknowledge that a State is best positioned to 
describe in a subsequent waiver request how it has made substantial 
progress based on the State's context and unique needs, and note that, 
by maintaining the current language, a State is encouraged to make such 
a demonstration. Therefore, we decline to make the suggested change.
    Changes: None.
Computer-Adaptive AA-AAAS
    Comments: A few commenters strongly supported the provision in 
Sec.  200.6(c)(7) that a computer-adaptive AA-AAAS must measure student 
performance against the academic content standards for the grade-level 
in which the student is enrolled, feeling it provides an important 
safeguard to ensure students with the most significant cognitive 
disabilities are held to high expectations and receive grade-level 
content even when taking adaptive assessments.
    Discussion: We agree that it is essential for all children with 
disabilities to be held to the same high expectations as their peers 
without disabilities, including students with the most significant 
cognitive disabilities taking a computer-adaptive alternate assessment 
aligned with alternate academic achievement standards. Like a general 
computer-adaptive assessment, a computer-adaptive alternate assessment 
must be aligned with the challenging State academic content standards 
for the grade in which the student is enrolled, as required under 
section 1111(b)(2)(D)(i) of the ESEA.
    Changes: None.
State Guidelines With Respect to Students With the Most Significant 
Cognitive Disabilities
    Comments: Numerous commenters noted support for Sec.  200.6(d)(1), 
which specifies that a State's guidelines for IEP teams must include a 
State definition of students with the most significant cognitive 
disabilities. Many commenters, in particular, believed these provisions 
were essential to protect the validity of assessments for children with 
disabilities, to prevent misidentification of students for an AA-AAAS, 
and to emphasize that students with the most significant cognitive 
disabilities are to be assessed against grade-level content standards, 
while recognizing that both cognitive functioning and adaptive behavior 
should be considered in determining student supports.
    In addition, one commenter suggested adding specific examples to 
the regulations to provide States greater understanding of what might 
qualify as a ``significant cognitive disability,'' and provided several 
suggested examples such as students who require dependence on others 
for daily living activities. Two commenters supported adding that a 
student's intelligence quotient (IQ) score may not be a factor in 
determining whether a student should take an AA-AAAS. Finally, a 
commenter recommended modifying one of the parameters for States' 
definitions to emphasize the role of IEP teams and not equivocally 
state these students require extensive, direct individualized 
instruction and substantial supports to achieve measurable gains on the 
challenging State academic content standards for the grade in which the 
student is enrolled. Instead, the commenter proposed that IEP teams 
consider the provision of such instruction and supports.
    Discussion: We appreciate the suggestions that the commenters 
provided and acknowledge that the negotiators engaged in robust 
discussion on the topic of how to define ``students with the most 
significant cognitive disabilities'' during negotiated rulemaking. We 
believe that the regulations reflect the consensus of the negotiators 
and appropriately balance the need for regulatory parameters to ensure 
that State guidelines incorporate key protections for students with the 
most significant cognitive disabilities while balancing the ability for 
States to construct such guidelines in consultation with local 
stakeholders to devise a State definition of ``students with the most 
significant cognitive disabilities'' that will ensure students within a 
given State are appropriately identified and assessed. We note that, 
should a State apply for a waiver to exceed the 1.0 percent cap on the 
number of students with the most significant cognitive disabilities who 
may be assessed with an AA-AAAS, under Sec.  200.6(c)(4)(iv)(A) the 
State must include a plan and timeline in its waiver request to improve 
the implementation of those State guidelines, which may include 
revising its definition of ``students with the most significant 
cognitive disabilities'' if necessary so that the State can ensure it 
will assess no more than 1.0 percent of students with such an AA-AAAS. 
These revisions could include considering additional factors, such as 
those indicated by the commenters. However, in reviewing the proposed 
regulations, the Department believes it is necessary to update Sec.  
200.6(d) for consistency with regulations under the IDEA (34 CFR 
300.306(b)(1)(iii)) and to clarify that status as an English learner 
may not be considered in determining whether a student is a student 
with the most significant cognitive disabilities, even in part. The 
only relevance of English learner status to that

[[Page 88916]]

determination is ensuring that the evaluation of the student's 
disability is conducted in an appropriate language.
    With regard to the comments about IEP team discretion, we refer to 
the discussion above in which we note that, under both the ESEA and the 
IDEA, decisions of IEP teams must be informed by State guidelines. We 
agree with the consensus reached by the negotiated rulemaking committee 
that students with the most significant cognitive disabilities require 
extensive, direct individualized instruction and substantial supports 
to achieve measurable gain on the challenging State academic content 
standards for the grade in which the student is enrolled. However, we 
believe this is only one factor for a State to consider in the 
development of its State guidelines and strongly encourage States to 
work with local stakeholders to develop State definitions that best 
reflect local needs.
    Changes: We have revised Sec.  200.6(d)(1)(i) to clarify that a 
student's status as an English learner, similar to the identification 
of a student as having a particular disability under the IDEA, does not 
determine whether a student is a student with the most significant 
cognitive disabilities.
    Comments: One commenter expressed general concern with requirements 
related to State guidelines for IEP teams under Sec.  200.6(d), 
believing that the proposed regulations unduly limit the discretion of 
a student's IEP team with regard to determinations of which assessment 
is appropriate for a student, especially given that the State may only 
assess 1.0 percent of students assessed in a given subject with an AA-
AAAS. Similarly, another commenter argued that Sec.  200.6(d) violated 
section 1111(b)(2)(D)(ii)(I)-(II) of the ESEA because the requirements 
for State guidelines usurped the authority of the IEP team to determine 
which students with the most significant cognitive disabilities may 
take an AA-AAAS.
    Discussion: We appreciate the commenters' concern and agree that 
under sections 1111(b)(1)(E) and 1111(b)(2)(D)(ii) of the ESEA IEP 
teams are responsible for determining whether a student has a 
significant cognitive disability and is most appropriately assessed 
against alternate academic achievement standards. However, IEP teams do 
not have unlimited discretion in this regard. Rather, under section 
1111(b)(2)(D)(ii) of the ESEA and section 614(d)(1)(A)(i)(VI)(bb) of 
the IDEA, IEP teams must decide which children with the most 
significant cognitive disabilities will participate in an AA-AAAS, 
consistent with State guidelines under section 612(a)(16)(C) of the 
IDEA, as amended by the ESSA, governing the participation of children 
with disabilities in the AA-AAAS. Those State guidelines inform 
decisions of IEP teams as to which children with disabilities are those 
with the most significant cognitive disabilities who should participate 
in an AA-AAAS. As agreed in negotiated rulemaking, we continue to 
believe that it is appropriate, consistent with section 
1111(b)(2)(D)(i)(II) and (D)(ii)(I) of the ESEA and section 
612(a)(16)(C) of the IDEA, to establish the parameters included in 
Sec.  200.6(d) and therefore decline to make any changes.
    Changes: None.
    Comments: One commenter argued that Sec.  200.6(d)(1) violated 
section 1111(e)(2) of the ESEA by imposing on States a definition of 
``students with the most significant cognitive disabilities'' in 
conflict with a prohibition on the Secretary's authority for defining 
terms that are inconsistent with or outside the scope of the law.
    Discussion: We appreciate the commenter's concern, but note that we 
are not defining the term ``students with the most significant 
cognitive disabilities;'' rather, the regulations require States to 
define this term and establish criteria for States to adhere to in 
establishing their own definition. Further, given that an AA-AAAS, as 
described in section 1111(b)(2)(D) of the ESEA, is only for students 
with the most significant cognitive disabilities, and that States must 
now ensure that no more than 1.0 percent of assessed students in the 
State take such assessments, we believe requiring a State to define 
``students with the most significant cognitive disabilities'' in 
accordance with factors related to cognitive functioning and adaptive 
behavior is both consistent with and within the scope of the ESEA. 
Therefore, we decline to adopt any changes in response to this comment.
    Changes: None.
    Comments: A few commenters supported Sec.  200.6(d)(2), which 
requires the State guidelines to help explain differences between 
assessments based on grade-level academic achievement standards and 
alternate academic achievement standards to IEP teams, including any 
effects of State or local policies on students as a result of taking an 
AA-AAAS (e.g., how participation in such assessments may delay or 
otherwise affect the student's ability to complete requirements for a 
regular high school diploma). They noted that this provision will help 
provide IEP teams with needed information as such teams make 
potentially high-stakes decisions regarding whether a student will take 
an AA-AAAS.
    Additionally, a commenter wrote in support of Sec.  200.6(d)(3), 
which requires a State to notify parents of students participating in 
an AA-AAAS that their child's achievement will be measured based on 
alternate academic achievement standards and provide information on how 
participation in such assessment may delay or affect their child's 
completion of the requirements for a regular high school diploma, 
noting that these provisions empower parents to effectively advocate 
for their child's inclusion in the general assessment and the course of 
study that will help them prepare for the general assessment.
    Discussion: We appreciate the commenters' support and agree that 
these provisions will help ensure IEP teams, including parents, are 
equipped with the information they need to make decisions that are in 
the best interests of the students they serve. We further agree that 
Sec.  200.6(d)(3) will help ensure parents have the necessary 
information to advocate on behalf of their children in order to support 
their educational needs.
    Changes: None.
    Comments: A few commenters wrote in support of Sec.  200.6(d)(4)-
(5), which clarifies that States may not prevent students taking an AA-
AAAS from pursuing a regular high school diploma and must promote 
(consistent with the IDEA) students with the most significant cognitive 
disabilities' access to the general education curriculum.
    Discussion: We strongly agree with the commenters that it is 
critical for students with the most significant cognitive disabilities 
taking an AA-AAAS to not be precluded from attempting to complete the 
requirements for a regular high school diploma and to ensure that the 
instruction they receive promotes their involvement and progress in the 
general education curriculum for the grade in which the student is 
enrolled. Section 200.6(d)(4)-(5) incorporates requirements in sections 
1111(b)(2)(D)(i)(III) and 1111(b)(2)(D)(i)(VII) of the ESEA.
    Changes: None.
    Comments: Multiple commenters wrote in support of the emphasis on 
maintaining high expectations for all students, including students with 
the most significant cognitive disabilities. These commenters expressed 
support for assessing students with the most significant cognitive 
disabilities with an AA-AAAS, which is aligned with the State's 
academic content standards for the grade in which the student is 
enrolled.

[[Page 88917]]

    Discussion: We strongly agree with the commenters on the importance 
of ensuring that all students, including those with the most 
significant cognitive disabilities are provided access to the State's 
academic content standards for the grade in which the student is 
enrolled. As Sec.  200.6(a)(2)(ii)(B) provides that students with the 
most significant cognitive disabilities may take an AA-AAAS aligned 
with the challenging State academic content standards for the grade in 
which the student is enrolled, we believe it is likewise important to 
emphasize the importance of providing students with the most 
significant cognitive disabilities with access to grade-level content 
standards throughout the school year.
    Changes: We have revised Sec.  200.6(d)(5) to clarify that the 
reference to promoting the involvement and progress of students with 
the most significant cognitive disabilities in the ``general education 
curriculum'' refers to curriculum that is based on the State's academic 
content standards for the grade in which the student is enrolled.
    Comments: Several commenters wrote in support of the emphasis on 
developing any AA-AAAS consistent with the principles of UDL, 
expressing that UDL will make an AA-AAAS more accessible to students 
with the most significant cognitive disabilities.
    Discussion: We agree with commenters on the importance of 
incorporating UDL principles into developing an AA-AAAS, as required 
under section 1111(b)(1)(D)(i)(IV) of the ESEA. We believe the best way 
to incorporate this requirement is to make it an affirmative 
requirement, to the extent feasible, in Sec.  200.6(d)(6) and add using 
UDL with respect to an AA-AAAS along with general assessments that the 
State administers consistent with Sec.  200.2(b)(2)(ii). These changes 
will help support States' efforts to more thoughtfully and efficiently 
develop assessment systems that are fully accessible to all students.
    Changes: We have revised Sec.  200.6(d)(6) to remove a reference to 
the State plan and add a reference to the requirements related to UDL 
in Sec.  200.2(b)(2)(ii).
    Comments: One commenter suggested requiring that State guidelines 
for IEP teams be developed based on input from stakeholders, including 
local special education directors, citing a need for greater 
understanding of accommodation policies for assessing students with 
disabilities.
    Discussion: While we appreciate the importance that this commenter 
is placing on the need for stakeholder engagement, we do not believe 
this suggested change is necessary. The State guidelines to be 
established in accordance with Sec.  200.6(d) must be established 
consistent with section 612(a)(16)(C) of the IDEA. While States are in 
the best position to determine how to develop such guidelines, we 
encourage States to meaningfully consult with and incorporate feedback 
from relevant stakeholders, including teachers, parents of children 
with disabilities, children with disabilities, paraprofessionals, 
specialized instructional support personnel, school administrators, 
local special education directors, and the State advisory panel 
required under section 612(a)(21) of the IDEA.
    Changes: None.
English Learners in General
    Comments: None.
    Discussion: In developing the final regulations, the Department 
determined that it would be helpful to devote separate paragraphs in 
Sec.  200.6 to describe each of the requirements regarding the 
inclusion of English learners in State assessments required under title 
I, part A of the ESEA. To distinguish better among these provisions, we 
are revising Sec.  200.6 to include paragraphs (f) on inclusion of 
English learners in general; (g) on assessing reading/language arts in 
English for English learners; (h) on assessing English language 
proficiency of English learners; and (i) on recently arrived English 
learners--rather than include all of these provisions in a single 
paragraph, as proposed. As a result, requirements pertaining to the 
inclusion of students enrolled in Native American language schools or 
programs have been moved to new Sec.  200.6(j), and we have added a 
single paragraph that includes all related definitions in new Sec.  
200.6(k). By restructuring these requirements that were included in 
proposed Sec.  200.6(f)-(h), we believe they are more clearly stated 
and emphasized in the final regulations. In addition, we are moving 
proposed Sec.  200.6(i) on highly mobile student populations to Sec.  
200.2(b)(1)(ii)(A)-(D) in the final regulations, which we feel is a 
more logical location for these provisions, as it is in the same 
section as related requirements for administering assessments to all 
students in Sec.  200.2(b)(1)(ii) and for disaggregating assessment 
data for these particular student groups in Sec.  200.2(b)(11).
    Changes: We have renumbered and reorganized proposed Sec.  200.6(f) 
regarding inclusion of English learners so that these requirements 
appear in separate paragraphs in new Sec.  200.6(f)-(i). In addition, 
we have moved proposed Sec.  200.6(g) regarding students in Native 
American language schools or programs to new Sec.  200.6(j) and 
proposed Sec.  200.6(i) regarding highly mobile student populations to 
new Sec.  200.2(b)(1)(ii)(A)-(D). We have also made conforming edits to 
cross-references throughout the final regulations.
English Learners With Disabilities
    Comments: Some commenters expressed general support for proposed 
Sec.  200.6(f)(1)(i)(A), which clarified that English learners who are 
also identified as students with disabilities under Sec.  200.6(a) must 
be provided accommodations as necessary based on both their status as 
English learners and their status as students with disabilities. Some 
commenters recommended adding language to proposed Sec.  200.6(f)(1)(i) 
to clarify that staff responsible for identifying the appropriate 
accommodations for English learners with disabilities receive necessary 
training to select and administer assessments, and the accommodations 
appropriate for each individual child, in order to yield accurate and 
reliable information. One commenter specifically recommended training 
that addresses cultural sensitivities.
    Discussion: We appreciate the commenters' support of the 
requirements related to assessment of English learners and agree that 
appropriate accommodations on assessments are important to ensure that 
English learners are assessed in a valid and reliable manner so they 
can demonstrate what they know and can do, as described in section 
1111(b)(2)(B)(vii)(III) of the ESEA. In addition to providing 
assessments to an English learner with disabilities in the student's 
native language, consistent with section 1111(b)(2)(B)(vii)(III) of the 
ESEA, providing appropriate accommodations may also include providing 
the accommodations for the student's disabilities in the student's 
native language. We agree that appropriate staff should receive 
necessary training to administer assessments in order for school staff 
to know how to make use of appropriate accommodations during assessment 
for all English learners with disabilities. While Sec.  
200.6(b)(2)(ii), as proposed, includes staff that work with all 
students with disabilities, including those who are English learners, 
we are revising the regulations to more clearly indicate that teachers 
of English learners must also receive any necessary training regarding 
administration of assessments,

[[Page 88918]]

including alternate assessments, and the use of assessment 
accommodations.
    Changes: We have revised Sec.  200.6(b)(2)(ii) to indicate that 
States must ensure that teachers of English learners receive necessary 
training to administer assessments, that they know how to administer 
assessments, including, as necessary, alternate assessments under Sec.  
200.6(c) and (h)(5), and that they know how to make use of appropriate 
accommodations during assessments for all students with disabilities, 
including English learners with disabilities.
    Comments: One commenter requested flexibility from the regulatory 
requirements for ELP assessments in the event that an English learner 
has a disability that prevents the student from accessing a particular 
domain of the ELP test, even with accommodations.
    Discussion: We appreciate the commenter's suggestion and agree that 
greater clarity is needed to ensure that States fulfill their 
responsibility to assess all English learners annually on the State's 
ELP assessment, consistent with section 1111(b)(2)(G)(i) of the ESEA. 
We acknowledge that there are English learners with a disability 
covered under the IDEA, section 504, or title II of the ADA who may 
have a disability that precludes assessment of the student in one or 
more domains of the State's ELP assessment such that there are no 
appropriate accommodations for the affected domain(s) (e.g., a non-
verbal English learner who because of that identified disability cannot 
take the speaking portion of the assessment, even with accommodations). 
We are revising the regulations accordingly to specify that, in these 
very rare circumstances, such an English learner must be assessed on 
all of the remaining domains of the State's ELP assessment. The 
exclusion of these students from the ELP assessment entirely would be 
not only contrary to the law, but could also lead to a lack of proper 
attention and services for such students.
    Changes: We have added Sec.  200.6(h)(4)(ii) to clarify that, for 
English learners who have a disability that precludes assessment of the 
student in one or more domains of the State's ELP assessment such that 
there are no appropriate accommodations for the affected domain(s), as 
determined on an individualized basis by the student's IEP team, 504 
team, or individual or team designated by the LEA to make these 
decisions under title II of the ADA, as set forth in Sec.  200.6(b)(1), 
a State must assess the student in the remaining domains on the ELP 
assessment.
    Comments: One commenter asked that the Department provide clarity 
as to how the 1.0 percent cap on the number of students who may take an 
AA-AAAS is applicable to recently arrived students with the most 
significant cognitive disabilities who are exempted from one 
administration of the reading/language arts assessment.
    Discussion: We appreciate this request for clarification. 
Consistent with applicable regulations, a recently arrived English 
learner may be counted as a participant in the State's reading/language 
arts assessment if the student takes either the State's ELP assessment 
or reading/language arts assessment regardless if the student takes the 
AA-AAAS or the alternate ELP assessment. Accordingly, when calculating 
the denominator to determine if the State will exceed the 1.0 percent 
cap on student participation in an AA-AAAS for reading/language arts 
(i.e., the number of students who were assessed in reading/language 
arts), the denominator would include any such recently arrived English 
learner who participated in either the ELP or reading/language arts 
assessment. The numerator would only include those students who take 
the AA-AAAS. For calculating the 1.0 percent cap for student 
participation in a mathematics or science alternate assessment, all ELs 
are included in both the numerator and the denominator because there is 
no similar exemption for recently-arrived ELs from the mathematics 
assessment.
    Changes: None.
    Comments: The same commenter asked that the Department clarify if 
the 1.0 percent cap applies to the number of English learners who are 
students with the most significant cognitive disabilities taking an 
alternate assessment to the ELP assessment.
    Discussion: The 1.0 percent statewide cap on the number of assessed 
students in a particular subject who may take an AA-AAAS is limited to 
the assessments that measure the achievement of students with the most 
significant cognitive disabilities against alternate academic 
achievement standards permitted under section 1111(b)(1)(E) of the 
ESEA, and applies only to assessments in mathematics, reading/language 
arts, and science. Thus, the 1.0 percent statewide cap on the number of 
students assessed in a particular subject who may take an AA-AAAS, 
required in section 1111(b)(2)(D) of the ESEA, does not apply to the 
number of English learners who are students with the most significant 
cognitive disabilities taking an alternate assessment to the ELP 
assessment. Section 200.6(h)(5) (proposed Sec.  200.6(f)(3)(v)) 
requires that a State provide an alternate ELP assessment for each 
English learner covered under Sec.  200.6(a)(1)(ii)--that is, those 
with the most significant cognitive disabilities--who cannot 
participate in the general ELP assessment even with appropriate 
accommodations. Although the ELP assessment is not subject to the 1.0 
percent cap in section 1111(b)(2)(D) of the ESEA, we nevertheless 
expect that the vast majority of English learners with disabilities 
will be able to take the general ELP assessment with or without 
appropriate accommodations. The alternate ELP assessment is for only 
the very small fraction of English learners with the most significant 
cognitive disabilities, for whom the student's IEP team determines it 
to be necessary.
    Changes: None.
Inclusion of English Learners in Academic Assessments
    Comments: Some commenters expressed general support for provisions 
in proposed Sec.  200.6(f) related to the appropriate inclusion of 
English learners in academic assessments required under Sec.  200.2. 
Commenters found the proposed regulations helpful to ensure that all 
students receive the supports they need to fully participate in the 
public education system, including receiving appropriate accommodations 
with respect to a student's status as an English learner. Some 
commenters also expressed support for provisions in proposed Sec.  
200.6(f)(1)(ii)(A) that required States to ensure that the use of 
appropriate accommodations on assessments does not deny an English 
learner the ability to participate in an assessment, or any benefit 
from participation in the assessment, that is afforded to students who 
are not English learners.
    Discussion: We appreciate the commenters' support of the 
requirements related to assessment of English learners and agree that 
appropriate accommodations on State assessments are important to ensure 
that English learners are fairly and accurately assessed so they can 
demonstrate what they know and can do. These requirements will also 
help ensure that receipt of assessment accommodations does not prevent 
English learners from receiving the same benefits from assessments that 
are afforded to non-English learners, such as college-reportable scores 
on entrance examinations that a State administers to all high school 
students in the State as part of the State's academic assessment 
system. We are maintaining these provisions in the regulations, but 
revising Sec.  200.6(f)(2)(i) and (ii) (proposed Sec.  200.6(f)(1)(ii)) 
for clarity.

[[Page 88919]]

Specifically, the information in Sec.  200.6(f)(2)(ii) must be 
described in each State's plan, while the requirement in Sec.  
200.6(f)(2)(i)--for each State to ensure that the use of appropriate 
accommodations on assessments does not deny an English learner the 
ability to participate in an assessment, or any benefit from 
participation in the assessment, that is afforded to students who are 
not English learners--is a requirement without a related description in 
the State plan, consistent with similar provisions in Sec. Sec.  200.3 
and 200.6(b)(3) of these regulations.
    Changes: We have moved the requirements from proposed Sec.  
200.6(f)(1)(ii)(A) to Sec.  200.6(f)(2)(i) and have removed the 
requirement that State plans include a description related to this 
requirement. We have moved the requirements from proposed Sec.  
200.6(f)(1)(ii)(B)-(E) to Sec.  200.6(f)(2)(ii).
    Comments: One commenter stated that English learners should be 
excluded from all administrations of the reading/language arts and 
mathematics assessments until they demonstrate a sufficient level of 
English proficiency to produce valid results on these assessments.
    Discussion: We disagree with the commenter that the regulations 
should exempt English learners from all administrations of the reading/
language arts and mathematics assessments until they attain English 
proficiency. Section 1111(b)(2)(B)(vii)(III) of the ESEA requires 
States to provide for the inclusion of all English learners in all 
required content assessments, including by providing assessments in the 
language and form most likely to yield accurate data on what English 
learners know and can do in the content areas until such students 
attain English language proficiency. Additionally, Sec.  200.6(f)(1)(i) 
and (2)(ii) (proposed Sec.  200.6(f)(1)) require that each State take 
further steps to demonstrate that it is meeting its responsibility to 
provide assessments for English learners in the language that is most 
likely to assess an English learner's knowledge and skills accurately 
and fairly (i.e., through providing assessments in the native language 
of English learner students). Given this responsibility, we strongly 
encourage States to provide native language assessments for English 
learners and firmly believe that utilizing this option will ensure that 
English learners are meaningfully included in a State's assessment and 
accountability system, rather than excluding such students altogether 
as the commenter suggested. In addition, we believe this will help 
ensure that schools, teachers, and parents can take advantage of the 
valuable information provided by student assessments to inform and 
improve instruction for English learners.
    Changes: None.
    Comments: One commenter recommended allowing States to use their 
aligned ELP assessments as a measure of students' proficiency in 
reading/language arts.
    Discussion: It would be both inconsistent with the statute and 
inappropriate to permit a State to use an ELP assessment as a measure 
of students' proficiency in reading/language arts. A State's annual ELP 
assessment is designed specifically to measure an English learner's 
proficiency in the English language. Under section 1111(b)(1)(F) and 
1111(b)(2)(G) of the ESEA, ELP assessments must be aligned to the ELP 
standards and measure English learners' proficiency levels annually in 
the four recognized domains of language: speaking, listening, reading, 
and writing. The State's required reading/language arts assessments, on 
the other hand, measure what students know and are able to do in the 
specific academic content area of reading/language arts, based on the 
challenging State academic standards in section 1111(b)(1) of the ESEA. 
States are required to provide for the participation of all English 
learners, as described in section 1111(b)(2)(B)(vii)(III) of the ESEA, 
in the annual reading/language arts assessments in the grades specified 
in section 1111(b)(2)(B)(v)(I) of the ESEA. We do note, however, that 
States may administer reading/language arts assessments in a student's 
native language for students who have been enrolled in schools in the 
United States for less than three consecutive years (or five 
consecutive years, in certain unique circumstances) for an English 
learner for whom such assessment would yield more accurate information 
on what the student knows and can do in the content area, as described 
in section 1111(b)(2)(B)(ix) of the ESEA. Further, section 
1111(b)(3)(A)(i)(I) of the ESEA provides a limited exception for 
recently arrived English learners from one administration of the 
State's reading/language arts assessment only; otherwise, all English 
learners must take both the State's ELP assessment annually and the 
reading/language arts assessment in each of grades 3-8 and once in high 
school.
    Changes: None.
    Comments: A few commenters suggested the Department clarify that 
accommodations for English learners must result in valid, reliable, and 
predictable test scores.
    Discussion: We agree that it is important to ensure that 
assessments are fair, valid, reliable, and high quality, resulting in 
meaningful scores. However, we believe no further clarification is 
needed as Sec.  200.6(f)(1) (proposed Sec.  200.6(f)(1)(i)) requires 
that States assess English learners in a valid and reliable manner that 
includes appropriate accommodations with respect to a student's status 
as an English learner. The regulations further require consistency with 
Sec.  200.2, including Sec.  200.2(b)(2) regarding accommodations for 
all students, including English learners, and Sec.  200.2(b)(4) 
requiring assessments to be valid, reliable, and fair for the purposes 
for which they are used and consistent with relevant, nationally 
recognized professional and technical testing standards. Finally, we 
believe that the inclusion of a State's ELP assessments, in addition to 
its academic content assessments, in the assessment peer review process 
under Sec.  200.2(d) will be critically important to ensure all 
assessments administered to English learners are fair, valid, reliable, 
and high-quality.
    Changes: None.
    Comments: A few commenters suggested the regulations require that 
each LEA offer accommodations to English learners needing linguistic 
support to access the State's content assessments and asserted that 
reporting the availability of accommodations alone is insufficient.
    Discussion: Section 1111(b)(2)(B)(vii)(III) of the ESEA, and Sec.  
200.6(f)(1)(i) (require States to provide for the participation of all 
English learners, including needed accommodations. While this is a 
State responsibility under the statute, we agree with the commenters 
that States should proactively provide LEAs and schools with the 
necessary information and tools to ensure that English learners receive 
needed accommodations on required State assessments. Thus, we are 
revising the final regulations to require that States (1) develop 
appropriate accommodations; (2) disseminate information and resources 
to, at a minimum, LEAs, schools, and parents about these 
accommodations; and (3) promote the use of appropriate accommodations 
to ensure that all English learners are able to participate in academic 
instruction and assessments. This language is similar to that in 
section 1111(b)(2)(D)(i)(VI) of the ESEA regarding accommodations for 
students with the most significant cognitive disabilities and Sec.  
200.6(b)(2) with respect to other students with disabilities. We 
believe States should ensure information about available accommodations 
is transparent and

[[Page 88920]]

clear to LEAs and schools, as information on accommodations is critical 
for ensuring that all English learners are able to participate in 
academic instruction and assessments.
    Changes: We have revised Sec.  200.6(f)(1)(i) to require that a 
State (1) develop appropriate accommodations for English learners; (2) 
disseminate information and resources about such accommodations to, at 
a minimum, LEAs, schools, and parents; and (3) promote the use of those 
accommodations to ensure that all English learners are able to 
participate in academic instruction and assessments.
Assessing Reading/Language Arts in English
    Comments: Several commenters asked for additional flexibility in 
proposed Sec.  200.6(f)(2). Specifically, the commenters recommended 
extending the period that English learners can be assessed for reading/
language arts in their native language beyond three years.
    Discussion: We disagree with the commenters and believe additional 
flexibility is both inconsistent with the statute and unnecessary. 
Section 1111(b)(2)(B)(ix) of the ESEA and Sec.  200.6(g)(1)-(2) 
(proposed Sec.  200.6(f)(2)(i)-(ii)) permit a State to assess English 
learners' achievement in reading/language arts in the student's native 
language if they have been enrolled in schools in the United States for 
less than three consecutive years, with provisions permitting 
assessment in the native language for an additional two consecutive 
years if the LEA determines, on a case-by-case basis, that the student 
has not reached a sufficient level of English language proficiency to 
yield valid and reliable information on reading/language arts 
assessments written in English. Because the statute and final 
regulations already allow for LEAs to determine, on an individualized 
basis, whether it is necessary to assess an English learner in reading/
language arts in his or her native language for an additional two 
years, we believe the flexibility these commenters seek is sufficiently 
addressed. We also note that, because the statute requires students to 
be assessed in reading/language arts in English if they have been 
enrolled in U.S. schools for three or more consecutive years, a highly 
mobile student who attends school in the United States for two years, 
exits the country, and then returns to a school in the United States in 
later years would still be able to be assessed in reading/language arts 
in his or her native language upon return to U.S. schools.
    Changes: None.
Assessing English Language Proficiency
    Comments: One commenter asked that we clarify the frequency or 
grade level in which an ELP test must be administered for 
accountability purposes.
    Discussion: We appreciate the suggestion that we clarify the grade 
levels in which an annual statewide ELP assessment must be administered 
for accountability purposes, but note that requirements for school 
accountability are outside the scope of these regulations. Section 
1111(c)(4)(B)(iii) of the ESEA describes the years in which an ELP 
assessment must be used for school accountability determinations. We 
note that Sec.  200.5(a)(2) of these regulations specifies the 
requirement to administer an ELP assessment annually in any grade in 
which there are English learners, kindergarten through twelfth grade. 
The requirement for assessment administration, however, is distinct 
from the requirement for use of assessment results in accountability 
determinations, which, as explained above, is outside the scope of 
these regulations.
    Changes: We have updated Sec. Sec.  200.5(a)(2) and 200.6(h)(1)(ii) 
to clarify that the requirement is to administer the ELP assessment 
annually in any grade in which there are English learners, kindergarten 
through twelfth grade.
    Comments: None.
    Discussion: In preparing the final regulations, the Department 
believes it is helpful to clarify that the requirement for a State's 
ELP assessment to be aligned with its ELP standards, as described in 
section 1111(b)(1)(F) of the ESEA, is distinct from the requirement for 
a State to provide coherent and timely information to parents of 
English learners about their child's attainment of the State's ELP 
standards, and we are revising Sec.  200.6(h)(2)(i) and (iii) (proposed 
Sec.  200.6(f)(3)(ii)(A)) to list these requirements separately. In 
addition, we are revising Sec.  200.6(h)(2)(iii) (proposed Sec.  
200.6(f)(3)(ii)(A)) to clarify that information given to parents must 
be consistent with the requirements of both Sec.  200.2(e) and section 
1112(e)(3) of the ESEA, which specifies that information related to 
language instruction (including student performance on the State's ELP 
assessment) that is provided to parents under the parents right-to-know 
requirements must be in a uniform and understandable format and, to the 
extent practicable, in a language parents can understand.
    Changes: We have moved proposed Sec.  200.6(f)(3)(ii) to Sec.  
200.6(h)(2) and have (1) listed separately the requirements for a 
State's ELP assessment to be aligned with its ELP standards (in Sec.  
200.6(h)(2)(i)) and for a State to provide coherent and timely 
information to parents of English learners about their child's 
attainment of the State's ELP standards (in Sec.  200.6(h)(2)(iii)); 
and (2) clarified that information to parents must be consistent with 
both Sec.  200.2(e) and section 1112(e)(3) of the ESEA (in Sec.  
200.6(h)(2)(iii)).
Recently Arrived English Learners
    Comments: A few commenters expressed general support for the 
provisions in proposed Sec.  200.6(f)(4), which clarified the statutory 
provision allowing States to exempt a recently arrived English learner 
from one administration of the State's reading/language arts assessment 
as described in section 1111(b)(3)(A)(i)(I) of the ESEA. Some 
commenters suggested the Department modify the regulations to allow 
States to also exempt a recently arrived English learner from one 
administration of the State's mathematics and science assessments. 
Particularly, one commenter expressed concern that many newly arrived 
students have not had enough language exposure to take these 
assessments.
    Discussion: We appreciate the support for this provision and 
disagree with the commenters who argued that we should modify the 
regulations to exempt recently arrived English learners from required 
State assessments in mathematics and science, as this change would be 
inconsistent with the statute. Section 1111(b)(2)(B)(i) and (vii) of 
the ESEA requires a State's assessment system to be administered to all 
students and to provide for the participation of all students, 
including English learners. If a State chooses to use this flexibility, 
the one-year exemption for administering content assessments to 
recently arrived English learners in section 1111(b)(3)(A)(i)(I) of the 
ESEA applies only to the reading/language arts assessment, and not to 
mathematics or science. Annual assessments, as required by the ESEA, 
are valuable tools for schools, teachers, and parents to inform and 
improve student instruction; in order to reliably assess what English 
learners know and can do in the content area, we strongly encourage 
States to develop and use assessments in the native language of English 
learners, where needed.
    Changes: None.

[[Page 88921]]

    Comments: One commenter suggested the Department modify proposed 
Sec.  200.6(f)(4) to allow States to exempt a recently arrived English 
learner for up to three years from the administration of the State's 
reading/language arts assessment. The commenter specifically voiced 
concern with any requirement that would not allow English learners who 
have been in the country for three years or less to be exempted from 
the administration of the State's reading/language arts assessment.
    Discussion: We appreciate the commenter's concerns, but note that, 
while the ESEA provides additional flexibility for how recently arrived 
English learners may be included in school accountability 
determinations, as described in section 1111(b)(3)(A)(ii) of the ESEA), 
it does not change the requirements pertaining to the inclusion of 
recently arrived English learners in a State's academic content 
assessments. Section 1111(b)(3)(A)(i)(I) of the ESEA permits a State, 
at its discretion, to exempt recently arrived English learners from 
one, and only one, administration of the State's reading/language arts 
assessment during a student's first 12 months enrolled in schools in 
the United States (which may, consistent with past practice, be non-
consecutive months). Section 200.6(i) (proposed Sec.  200.6(f)(4)) is 
consistent with the statutory requirements.
    Changes: None.
Assessments in Languages Other Than English
    Comments: Some commenters expressed general support for the 
provisions in proposed Sec.  200.6(f)(1)(ii) and (iv) that require a 
State to make every effort to develop, for English learners, annual 
academic assessments in languages other than English that are present 
to a significant extent in the participating student population, 
including a description in its State plan of how it will make every 
effort to develop assessments where such assessments are not available 
and are needed, and an explanation, if applicable, of why the State is 
unable to complete the development of those assessments despite making 
every effort. One commenter requested that the regulations clarify that 
results from assessments in native languages must be included in the 
accountability system, and that the regulations provide a timeline for 
such inclusion.
    A few commenters, however, voiced concern with requiring States to 
develop native language assessments, citing concerns with: the number 
of assessments that must be peer reviewed; assessments that would 
measure different constructs, thus yielding data that are not 
comparable; and encouraging student assessment in languages in which 
they are not necessarily receiving academic instruction.
    Discussion: We appreciate the commenters' support for the 
requirements related to assessments in languages other than English. 
While we recognize the concerns of some commenters, we note that 
section 1111(b)(2)(F) of the ESEA requires States to make every effort 
to develop assessments in languages other than English that are needed 
and, as part of that effort, States must identify languages present to 
a significant extent in the State's student population, and languages 
for which academic assessments are needed. The regulations do not 
require that States develop a specific number of assessments in 
languages other than English; they do require, in the process of 
identifying the languages present to a significant extent, that States 
identify at least the language other than English that is most commonly 
spoken in the State. The regulations also provide that, if a State has 
been unable to develop assessments in languages other than English that 
are present to a significant extent despite making every effort, it 
include a description in its State plan articulating its reasons.
    We agree that results from State assessments in languages other 
than English that meet the requirements of these final regulations 
should be included in the State's accountability system; however, 
provisions related to school accountability are outside the scope of 
these regulations.
    With regard to a timeline, Sec.  200.6(f)(2)(ii)(D)(1) (proposed 
Sec.  200.6(f)(1)(ii)(E)(1)) requires States to submit in their State 
plan a specific plan and timeline for developing assessments in 
languages other than English, and upon successfully implementing such 
assessments, States will include the results in their accountability 
system. In large part because these assessments will be used for 
accountability and reporting purposes under title I, part A, we believe 
it is critical that States submit evidence regarding how the 
assessments meet statutory requirements for assessment peer review 
under Sec.  200.2(d)--as they do with all other assessments that are 
used for these purposes.
    We further agree that it is important that any content assessments 
that States develop in languages other than English measure the same 
construct as the assessments administered in English, including 
alignment to the same challenging State academic standards, as required 
in section 1111(b)(2)(B)(ii) of the ESEA, but believe that the 
regulations, as proposed, help mitigate the concern that the 
assessments will be non-comparable to those in English. The 
Department's peer review of these assessments will help ensure that all 
content assessments in languages other than English are valid, 
reliable, fair, of high technical quality, and aligned to the 
challenging State academic content and achievement standards. Finally, 
with regard to the concerns that these provisions encourage students to 
be assessed in languages for which they are not receiving academic 
instruction, we note that an English learner is not required to be 
assessed using a reading/language arts or mathematics assessment in 
their native language, if a State develops one (i.e., the student may 
always be assessed in English if that is the language most likely to 
yield accurate and reliable information on what such student knows and 
can do). We are also revising Sec.  200.6(f)(2)(ii)(D)(2) to require 
States to gather meaningful input from students, as appropriate, on the 
need for assessments in languages other than English and include this 
in the State's description in its State plan of how it is making every 
effort to development assessments in languages other than English that 
are present to a significant extent in the State.
    Changes: We have revised Sec.  200.6(f)(2)(ii)(D)(2) so that States 
will describe their process to consult with students, as appropriate, 
as well as educators, parents and families of English learners, and 
other stakeholders on the need for assessments in languages other 
English.
    Comments: One commenter suggested requiring States to develop 
assessments in languages other than English that may not be ``present 
to a significant extent,'' and specifically mentioned the Hawaiian 
language and the needs of tribal communities.
    Discussion: While the Department appreciates the intent of this 
comment, we decline to make further changes to require States to 
develop assessments in languages other than English that may not be 
``present to a significant extent.'' Section 1111(b)(2)(F) of the ESEA 
requires States to make every effort to develop assessments in 
languages other than English that are needed and, as part of that 
effort, States must identify languages ``present to a significant 
extent'' in the State's student population. A State may always develop 
and administer assessments in any languages needed regardless of their 
prevalence in the State, including

[[Page 88922]]

Native American languages, and tribal communities could certainly work 
together with States to create such assessments. We encourage States to 
engage stakeholders, including tribal communities when relevant, in the 
process. However, we believe efforts to support assessment in less 
prevalent languages are most likely to be successful and meaningful if 
they are undertaken in response to community demand and buy-in from 
classroom teachers, school leaders, and local administrators--not in 
response to a Federal requirement.
    Changes: None.
    Comments: Several commenters wrote in support of proposed Sec.  
200.6(f)(1)(iv), which requires a State, in defining ``languages other 
than English that are present to a significant extent in the 
participating student population,'' to ensure that its definition 
includes at least the most populous language other than English spoken 
by the participating student population, and to consider languages 
spoken by distinct populations and spoken in various LEAs, as well as 
across grade levels. A few commenters also suggested that States make 
the criteria they use to establish the definition of languages present 
to a significant extent publicly available (e.g., on the State's Web 
site). In addition, one commenter recommended that States with a 
significant number of English learners or growing populations of 
English learners due to immigration or migration patterns identify, at 
minimum, five languages using the criteria noted in the proposed 
regulations. Finally, one commenter asked for clarity in situations in 
which a language is significant in one LEA but not statewide.
    Other commenters, however, opposed the specific factors a State 
must consider regarding establishing a definition of languages present 
to a significant extent, particularly the requirement to identify the 
most populous language, arguing that the requirements are outside the 
scope of the law.
    Discussion: We appreciate the commenters' support of proposed Sec.  
200.6(f)(1)(iv) and recommendations for ways to improve these 
provisions in the final regulations. We disagree with other commenters 
that these provisions are unnecessary. By statute, a State must create 
a definition of ``languages other than English that are present to a 
significant extent in the participating student population'' and the 
most commonly spoken language as required in Sec.  200.6(f)(4)(i) 
(proposed Sec.  200.6(f)(1)(iv)(A)) is logically appropriate to include 
in such a definition. We note that Sec.  200.6(f)(4)(ii)-(iii) 
(proposed Sec.  200.6(f)(1)(iv)(B)-(C)) provides guidance for States to 
consider in making every effort to develop native language assessments 
in required subjects for languages present to a significant extent in 
the State, rather than requirements, and that parameters regarding 
``languages present to a significant extent'' were addressed in detail 
at negotiated rulemaking, where the negotiators reached consensus that 
it would be appropriate to include these considerations in the proposed 
regulations. ``Languages present to a significant extent'' is an 
ambiguous term, and we agree with the negotiating committee that the 
provisions in Sec.  200.6(f)(4) (proposed Sec.  200.6(f)(1)(iv)) are 
reasonably necessary to clarify for States how they may consider 
defining this term as they ``make every effort'' to develop native 
language assessments. Accordingly, Sec.  200.6(f)(4) is fully 
consistent with the Secretary's authority under section 1601(a) of the 
ESEA to issue regulations that are necessary to reasonably ensure that 
there is compliance with title I, part A as well as his authority under 
section 410 of GEPA, 20 U.S.C. 1221e-3, and section 414 of the DEOA, 20 
U.S.C. 3474. As required by section 1601(a), we submitted proposed 
Sec.  200.6(f)(1)(iv)(B)-(C) to negotiated rulemaking and received 
consensus on the language from the negotiators. Further, as noted 
above, Sec.  200.6(f)(4)(ii)-(iii) (proposed 200.6(f)(1)(iv)(B)-(C)) 
are considerations, not requirements, to help support a State in 
meeting the statutory requirement to identify the languages other than 
English that are present to a significant extent in the participating 
student population of the State and indicate the languages for which 
annual student academic assessments are not available and are needed. 
Clearly, then, the regulations are within the Secretary's authority 
under section 1601(a) and not inconsistent with or outside the scope of 
title I, part A under section 1111(e)(1)(B)(i). In sum, these 
provisions provide significant flexibility for States in identifying 
languages other than English that are present to a significant extent 
in the participating student population without being overly burdensome 
or prescriptive, and are therefore maintained in the final regulations.
    In response to commenters requesting additional parameters for 
States to consider, we note that Sec.  200.6(f)(2)(ii)(D) (proposed 
Sec.  200.6(f)(1)(ii)(E)) requires a State to describe the process it 
used to gather meaningful input on the need for assessments in 
languages other than English; collect and respond to public comment; 
and consult with educators, parents and families of English learners, 
and other stakeholders. In order to meet these requirements, we believe 
a State will need to make the criteria used to establish its definition 
of ``languages present to a significant extent'' publicly available. 
Therefore, we believe no further clarification is needed. Additionally, 
as States have different populations, with different backgrounds and 
needs, we do not believe that it is appropriate to further specify the 
number of languages States must identify as present to a significant 
extent. With regard to a State in which one LEA has a particular 
language spoken to a significant extent, we leave to the State's 
discretion how to define ``languages present to a significant extent,'' 
and we believe such a situation is already sufficiently addressed in 
Sec.  200.6(f)(4)(iii) (proposed Sec.  200.6(f)(1)(iv)(C)).
    Changes: None.
Students in Native American Language Schools or Programs
    Comments: A small number of commenters wrote in support of the 
language in proposed Sec.  200.6(g) which would allow a State to 
administer a reading/language arts assessment in the language of 
instruction to students who are enrolled in a school or program that 
provides instruction primarily in a Native American language, as long 
as certain guidelines are followed; and for the corresponding provision 
in proposed Sec.  200.6(f)(2)(i). One commenter requested that we add 
language to proposed Sec.  200.6(f)(2)(i) to include the expectation 
that students in these schools or programs will be provided instruction 
in English as well as in the Native American language (i.e., that such 
schools or programs offer dual language instruction).
    On the other hand, a number of commenters urged the Department to 
remove all restrictions pertaining to the use of assessments in Native 
American languages for a school or program that provides instruction 
primarily in a Native American language in the final regulations. These 
commenters indicated that various Federal statutes, including the 
Native American Languages Act (NALA) and portions of the ESEA 
(specifically sections 3124 and 3127 of title III), protect the right 
of Tribes to use Native American languages in education without 
restriction and that the limitations on their assessments in Native 
American languages in the proposed regulations

[[Page 88923]]

are inconsistent with these laws. Several of the commenters also 
reiterated the importance of the use of Native American languages and 
the positive impacts of education in these languages in terms of 
student learning and social, emotional, and cultural benefits.
    Some of these commenters suggested changes to the proposed 
regulations that would make the use of this flexibility (i.e., to use 
assessments in Native American language) an option that tribal 
communities could utilize directly, rather than requiring that the use 
of Native American language assessments be determined by the State. A 
number of commenters requested that we remove the requirement that such 
assessments be submitted for assessment peer review; one argued that 
the Department does not have the capacity or expertise to review 
assessments in these languages. Additionally, a number of commenters 
encouraged the Department to extend the flexibility to assess students 
in their Native American language of instruction to all content areas 
for which the ESEA requires statewide assessments. Commenters also 
proposed that, instead of maintaining the requirement that all English 
learners in Native American schools or programs take the annual ELP 
assessment, the Department require an annual language proficiency 
assessment in the particular Native American language of instruction 
for all students who have not yet attained proficiency in that 
language. These commenters cited Puerto Rico, which uses Spanish 
language proficiency assessments, as an example and requested the same 
treatment. Using the same reasoning, they also requested that we remove 
the requirement that students in Native American language schools or 
programs take reading/language arts assessments written in English by 
the end of eighth grade, arguing that no grade-level restriction should 
be placed on the option to use Native American language assessments. 
Some commenters claimed that the proposed regulations are 
discriminatory towards students enrolled in schools that use a Native 
American language, or violate the civil rights of such students. 
Finally, a portion of these commenters also encouraged the Department 
to allow Native American language assessments in the content areas to 
be aligned with a different set of standards than a State's challenging 
academic content standards with which all other State content 
assessments must be aligned.
    Discussion: The Department agrees with commenters that the teaching 
and learning of Native American languages can have significant positive 
benefits for students, families, and communities as a whole, and that 
assessments in Native American languages are important to achieving 
that goal. We decline, however, to add a requirement to Sec.  
200.6(g)(1) (proposed Sec.  200.6(f)(2)) regarding instruction in both 
English and the Native American language. While dual language 
instruction can provide valuable benefits to students, school districts 
are free to implement programs of their choosing, subject to State and 
local law; the Department cannot regulate the type of program or 
curriculum offered. We believe it is appropriate for the regulations in 
Sec.  200.6(g)(1) and (j) (proposed Sec.  200.6(f)(2) and (g)) to focus 
on requirements for assessments that are part of a State's assessment 
system under title I, part A.
    We also agree that States should have more flexibility to 
administer Native American language assessments to students in Native 
American language schools or programs. Therefore, we have made changes 
to Sec.  200.6(j) (proposed Sec.  200.6(g)) to make it clear that a 
State may administer mathematics and science assessments in Native 
American languages to students enrolled in Native American language 
schools and programs, in addition to reading/language arts assessments.
    We agree that the Department should extend the flexibility for 
students in Native American language schools or programs to take 
reading/language arts assessments written in English past eighth grade. 
However, we disagree with removing the requirement entirely. We believe 
requiring the use of a reading/language arts assessment in English is 
essential to support all students in meeting the State's challenging 
academic content standards under section 1111(b)(1) of the ESEA, which, 
consistent with section 1111(b)(1)(D) and Sec.  200.2(b)(3), must be 
aligned with entrance requirements for credit-bearing coursework in the 
system of public higher education in the State and relevant State 
career and technical education standards. Therefore, we have revised 
Sec.  200.6(j)(2) (proposed Sec.  200.6(g)(2)) to require States to 
assess students in reading/language arts least once during grades 9 
through 12 using an assessment written in English. This change is 
consistent with the statutory requirement in 1111(b)(2)(B)(v)(I) for 
reading/language arts to be assessed once during grades 9 through 12. 
Furthermore, assessing the achievement of students enrolled in a Native 
American language school or program in reading/language arts in 
English, during high school, at a minimum, is necessary to ensure that 
educators and schools provide supports to these students prior to their 
graduation. Regardless of whether students take reading/language arts 
assessments in elementary and middle school in a Native American 
language or in English, participating students should have the 
opportunity to become college and career ready in English.
    In addition, the Department declines to make changes to shift the 
authority to utilize this flexibility from States to Tribes. We note 
that these regulations only apply to State-funded public schools and 
not to schools funded only by the BIE or by Tribes. For State-funded 
public schools, each State is responsible for the development and 
administration of the statewide assessment system, and the use of 
assessments in languages other than English is a core part of this 
responsibility. Nevertheless, collaboration with tribal communities 
will be essential in developing high-quality Native American language 
assessments. While we decline to make the requested change, we strongly 
encourage States to engage and to work closely with Tribes in 
developing and administering these assessments.
    The Department also declines to remove the requirement that a State 
must ensure that it administers the annual English language proficiency 
assessments to all English learners enrolled in Native American schools 
or programs, and to add a required assessment of Native American 
language proficiency instead. First, we note that a State is free to 
develop and administer an assessment of Native American language 
proficiency, in addition to the assessments required under the ESEA; if 
it chooses so to do, we encourage the State to work collaboratively 
with Tribal communities to create such an assessment. However, there is 
no statutory authority for exempting English learners from the annual 
ELP assessment requirement. Puerto Rico provides a unique situation 
because all public school instruction is in Spanish in all schools and 
Spanish is the language of instruction at the public institutions of 
higher education; therefore, English language acquisition is not 
required to ensure college and career readiness. Puerto Rico provides 
services to limited Spanish proficient students in order for those 
students to access the general curriculum, and provides an assessment 
of limited Spanish proficiency to such students. We also note that the 
ESEA provisions cited by commenters (sections 3124 and 3127) are 
provisions of title III that apply only to the use of title III funds.

[[Page 88924]]

    We disagree that Sec.  200.6(j) (proposed Sec.  200.6(g)) results 
in either discrimination or a civil rights violation for students in 
schools that use a Native American language. The section expressly 
permits students in such schools to be assessed in a Native American 
language, and it applies only to State-funded public schools, which are 
subject to State and local law. This Federal provision only provides 
flexibility to States with regard to assessments in such schools, 
rather than continuing to treat such schools the same as all schools as 
under prior regulations; it does not impose any new restrictions.
    We also decline to remove the requirement that evidence regarding 
Native American language assessments be submitted for assessment peer 
review, as this is a critical means of ensuring that a State's 
assessments meet the statutory requirements. We note that the language 
of the proposed regulations led some commenters to believe that the 
assessments themselves would be submitted to the Department; we are 
clarifying in the final regulations that, consistent with Sec.  
200.2(d), States need submit for assessment peer review only evidence 
relating to compliance with applicable requirements, rather than the 
actual assessments, so that the Department can determine that the 
assessment meets all of the statutory and regulatory requirements. We 
are also clarifying that, in addition to submitting evidence for 
assessment peer review, the State must receive approval through the 
assessment peer review in order to use this flexibility.
    Finally, the Department declines to change the regulations to allow 
Native American language assessments to be aligned with different 
standards than are used for a State's other assessments. There is no 
statutory authority for allowing separate academic content and 
achievement standards for students in Native American language schools 
or programs (see sections 1111(b)(1) and (b)(2)(B) of the ESEA).
    Changes: We have revised Sec.  200.6(j) (proposed Sec.  200.6(g)) 
to specify that a State may administer Native American language 
assessments in any content area, including mathematics, science, and 
reading/language arts. We have also changed the requirement for 
assessing students in English in reading/language arts from requiring 
such assessment beginning in at least eighth grade to requiring such 
assessment only once in high school. Additionally, we have clarified 
that the State submits evidence for peer review regarding the 
assessments, rather than the assessments themselves, consistent with 
Sec.  200.2(d), and must receive approval that the assessment meets all 
applicable requirements.

Executive Orders 12866 and 13563

Regulatory Impact Analysis

    Under Executive Order 12866, OMB must determine whether this 
regulatory action is significant and, therefore, subject to the 
requirements of the Executive order and to review by the OMB. Section 
3(f) of Executive Order 12866 defines ``significant regulatory action'' 
as an action likely to result in a rule that may--
    (1) Have an annual effect on the economy of $100 million or more, 
or adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule);
    (2) Create serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impacts of entitlement grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles stated in the 
Executive order.
    This final regulatory action is significant and is subject to 
review by OMB under section 3(f) of Executive Order 12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only upon a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account, among other things and to the extent practicable, the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives such as user fees or 
marketable permits, to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these final regulations only on a reasoned 
determination that their benefits justify their costs. In choosing 
among alternative regulatory approaches, we selected those approaches 
that maximize net benefits. Based on the analysis that follows, the 
Department believes that these final regulations are consistent with 
the principles in Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those resulting from statutory 
requirements and those we have determined as necessary for 
administering the Department's programs and activities. Elsewhere in 
this section under Paperwork Reduction Act of 1995, we identify and 
explain burdens specifically associated with information collection 
requirements.
Discussion of Costs and Benefits
    The Department believes that this regulatory action will generally 
not impose significant new costs on States or their LEAs. This action 
implements and clarifies the changes to the assessment provisions in 
part A of title I of the ESEA made by the ESSA, which as discussed 
elsewhere in this document are limited in scope. The costs to States 
and LEAs for complying with these changes will similarly be limited, 
and can be financed with Federal education funds, including funds 
available under Grants for State Assessments and Related Activities.

[[Page 88925]]

    Moreover, the regulations implement statutory provisions that can 
ease assessment burden on States and LEAs. For example, Sec.  200.5(b) 
implements the provision in section 1111(b)(2)(C) of the ESEA under 
which a State that administers an end-of-course mathematics assessment 
to meet the high school assessment requirement may exempt an eighth-
grade student who takes the end-of-course assessment from also taking 
the mathematics assessment the State typically administers in eighth 
grade (provided that the student takes a more advanced mathematics 
assessment in high school), thus avoiding the double-testing of eighth-
grade students who take advanced mathematics coursework.
    In general, the Department believes that the costs associated with 
the regulations (which are discussed in more detail below for cost-
bearing requirements not related to information collection 
requirements) are outweighed by their benefits, which include the 
administration of assessments that produce valid and reliable 
information on the achievement of all students, including students with 
disabilities and English learners, that can be used by States to 
effectively measure school performance and identify underperforming 
schools, by LEAs and schools to inform and improve classroom 
instruction and student supports, and by parents and other stakeholders 
to hold schools accountable for progress, ultimately leading to 
improved academic outcomes and the closing of achievement gaps, 
consistent with the purpose of title I of the ESEA.
Locally Selected, Nationally Recognized High School Academic 
Assessments
    Section 200.3(b) implements the new provision in section 
1111(b)(2)(H) of the ESEA under which a State may permit an LEA to 
administer a State-approved nationally recognized high school academic 
assessment in reading/language arts, mathematics, or science in lieu of 
the high school assessment the State typically administers in that 
subject. If a State seeks to approve a nationally recognized high 
school academic assessment for use by one or more of its LEAs, Sec.  
200.3(b)(1) requires, consistent with the statute, that the State 
establish technical criteria to determine whether the assessment meets 
specific requirements for technical quality and comparability. In 
establishing these criteria, we expect States to rely in large part on 
existing Department non-regulatory assessment peer review guidance and 
other assessment technical quality resources. Accordingly, we believe 
that the costs of complying with Sec.  200.3(b)(1) will be minimal for 
the 20 States that we estimate will seek to approve a nationally 
recognized high school academic assessment for LEA use. Further, we 
believe the costs of this regulation are outweighed by its benefit to 
LEAs in those States, namely, the flexibility to administer for 
accountability purposes the assessments they believe most effectively 
measure the academic achievement of their high school students and can 
be used to identify and address their academic needs.
Native Language Assessments
    Section 200.6(f) implements the new provision in section 
1111(b)(2)(F) of the ESEA requiring a State to make every effort to 
develop, for English learners, annual academic assessments in languages 
other than English that are present to a significant extent in the 
participating student population. In doing so, Sec.  200.6(f) requires 
a State, in its title I State plan, to define ``languages other than 
English that are present to a significant extent in the participating 
student population,'' ensure that its definition includes at least the 
most populous language other than English spoken by the participating 
student population, describe how it will make every effort to develop 
assessments consistent with its definition where such assessments are 
not available and are needed, and explain, if applicable, why it is 
unable to complete the development of those assessments despite making 
every effort. Although a State may incur costs in complying with the 
requirement to make every effort to develop these assessments 
consistent with its definition, we believe these costs are outweighed 
by the potential benefits to States and their LEAs, which include 
fairer and more accurate assessments of the achievement of English 
learners. In addition, and in response to several commenters expressing 
concern about the potential costliness of developing assessments in 
multiple languages other than English, we note that Sec.  200.6(f) does 
not require a State to complete development of an assessment in a 
language other than English if it is unable to do so, including for 
reasons related to cost.
Regulatory Flexibility Act Certification
    The Secretary certifies that these final requirements will not have 
a significant economic impact on a substantial number of small 
entities. Under the U.S. Small Business Administration's Size 
Standards, small entities include small governmental jurisdictions such 
as cities, towns, or school districts (LEAs) with a population of less 
than 50,000. Although the majority of LEAs that receive ESEA funds 
qualify as small entities under this definition, these regulations will 
not have a significant economic impact on these small LEAs because the 
costs of implementing these requirements will be borne largely by 
States and will be covered by funding received by States under Federal 
education programs including Grants for State Assessments and Related 
Activities. The Department believes the benefits provided under this 
final regulatory action outweigh any associated costs for these small 
LEAs. In particular, the final regulations will help ensure that 
assessments administered in these LEAs produce valid and reliable 
information on the achievement of all students, including students with 
disabilities and English learners, that can be used to inform and 
improve classroom instruction and student supports, ultimately leading 
to improved student academic outcomes.
Paperwork Reduction Act of 1995
    The Paperwork Reduction Act of 1995 does not require you to respond 
to a collection of information unless it displays a valid OMB control 
number. We display the valid OMB control numbers assigned to the 
collections of information in these final regulations at the end of the 
affected sections of the regulations.
Paperwork Reduction Act of 1995
    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department provides the general public and Federal agencies 
with an opportunity to comment on proposed and continuing collections 
of information in accordance with the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public 
understands the Department's collection instructions, respondents can 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are 
clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents.
    Sections 200.2, 200.3, 200.5, 200.6, and 200.8 contain information 
collection requirements. Under the PRA, the Department has submitted a 
copy of these sections to OMB for its review.
    A Federal agency may not conduct or sponsor a collection of 
information unless OMB approves the collection under the PRA and the 
corresponding information collection instrument displays a currently 
valid OMB control

[[Page 88926]]

number. Notwithstanding any other provision of law, no person is 
required to comply with, or is subject to penalty for failure to comply 
with, a collection of information if the collection instrument does not 
display a currently valid OMB control number.
    The regulations affect currently approved information collections, 
1810-0576 and 1810-0581. Under 1810-0576, the Department is approved to 
collect information from States, including assessment information. 
Under 1810-0581, the Department is approved to require States and LEAs 
to prepare and disseminate State and LEA report cards. On November 29, 
2016, the Department published in the Federal Register a notice of 
final rulemaking titled Elementary and Secondary Education Act of 1965, 
As Amended By the Every Student Succeeds Act--Accountability and State 
Plans 81 FR 86076, which identified changes to information collections 
1810-0576 and 1810-0581. These regulations result in additional changes 
to the existing information collection; these changes were described in 
the NPRM and subject to comments at that time.
    One commenter stated that the reporting requirements were both 
understated and represented a significant burden on all SEAs. The 
commenter did not provide specific feedback explaining the commenter's 
estimation of the burden hours. In the absence of specific feedback or 
explanation, we continue to believe our estimates to be accurate, and 
make no changes.
    To demonstrate the significant of the burden, the commenter noted 
that the expected burden for Sec. Sec.  200.2(b), 200.2(d), and 
200.3(b) totals an estimated 4,133 hours, and that this would result in 
a workload of approximately 15 hours per day. The calculation resulted 
from a lack of clarity in the description; we anticipate that 
collectively, all States will devote 4,133 hours to this work on an 
annual basis, rather than that each State will devote 4,133 hours to 
this work on an annual basis. We expect that each State will devote 80 
hours to this task annually.
    Section 200.2(d) requires States to submit evidence regarding their 
general assessments, AA-AAASs, and English language proficiency 
assessments for the Department's assessment peer review process, and 
Sec.  200.2(b)(5)(ii) requires that States make evidence of technical 
quality publicly available. Section 200.3(b)(2)(ii) requires a State 
that allows an LEA to administer a locally selected, nationally 
recognized high school academic assessment in place of the State 
assessment to submit the selected assessment for the Department's 
assessment peer review process. We anticipate that 52 States will spend 
200 hours preparing and submitting evidence regarding their general 
academic content assessments, AA-AAASs, and English language 
proficiency assessments for peer review, and that 20 States will spend 
an additional 100 hours preparing and submitting evidence relating to 
locally selected, nationally recognized high school academic 
assessments. Accordingly, we anticipate the total burden over the 
three-year information collection period, to be 12,400 hours for all 
respondents, resulting in an annual burden of 4,133 hours under 1810-
0576.
    Section 200.5(b)(4) requires a State that uses the middle school 
mathematics exception to describe in its title I State plan its 
strategies to provide all students in the State the opportunity to be 
prepared for and take advanced mathematics coursework in middle school. 
We anticipate that this will not increase burden, as information 
collection 1810-0576 already accounts for the burden associated with 
preparing the title I State plan.
    Section 200.6(b)(2)(i) requires all States to develop appropriate 
accommodations for students with disabilities, disseminate information 
to LEAs, schools, and parents regarding such accommodations, and 
promote the use of such accommodations to ensure that all students with 
disabilities are able to participate in academic instruction and 
assessments. In response to comments, Sec.  200.6(f)(1)(i) now requires 
States to develop appropriate accommodations for English learners, 
disseminate information and resources to LEAs, schools, and parents 
regarding such accommodations, and promote the use of such 
accommodations for English learners to ensure that all English learners 
are able to participate in academic instruction and assessments. 
Because of these additional dissemination requirements, we now 
anticipate that 52 States will spend 80 hours developing and 
disseminating this information annually, resulting in an annual burden 
increase of 4,160 hours under 1810-0576.
    Section 200.6(c)(3)(iv) requires all States to make publicly 
available information submitted by an LEA justifying the need of the 
LEA to assess more than 1.0 percent of assessed students with an AA-
AAAS for students with the most significant cognitive disabilities. We 
anticipate that 52 States will spend 20 hours annually making this 
information available, resulting in an annual burden increase of 1,040 
hours under 1810-0576.
    Section 200.6(c)(4) allows a State that anticipates that it will 
exceed the 1.0 percent cap for assessing students with the most 
significant cognitive disabilities with an AA-AAAS to request a waiver 
for the relevant subject for one year. We anticipate that 15 States 
will spend 40 hours annually preparing a waiver request, resulting in 
an annual burden increase of 600 hours under 1810-0576.
    Section 200.6(c)(5) requires each State to report annually to the 
Secretary data relating to the assessment of children with 
disabilities. We anticipate that 52 States will spend 40 hours annually 
preparing a waiver request, resulting in an annual burden increase of 
2,080 hours under 1810-0576.
    Section 200.6(d)(3) establishes requirements for each State that 
adopts alternate academic achievement standards for students with the 
most significant cognitive disabilities. Such a State will be required 
to ensure that parents of students with the most significant cognitive 
disabilities assessed using an AA-AAAS are informed that their child's 
achievement will be measured based on alternate academic achievement 
standards, and informed how participation in such assessment may delay 
or otherwise affect the student from completing the requirements for a 
regular high school diploma. We anticipate that 52 States will spend 
100 hours annually ensuring that relevant parents receive this 
information, resulting in an annual burden of 5,200 hours under 1810-
0576.
    Section 200.8(a)(2) requires a State to provide to parents, 
teachers, and principals individual student interpretive, descriptive, 
and diagnostic reports, including information regarding academic 
achievement on academic assessments. Section 200.8(b)(1) requires a 
State to produce and report to LEAs and schools itemized score 
analyses. Section 200.6(c)(2) specifies that if a State chooses to 
administer computer-adaptive assessments, such assessments must be 
included in the reports under section 200.8. We anticipate that 52 
States will spend 1,500 hours annually providing this information, 
resulting in a total burden increase of 78,000 hours under 1810-0576.

[[Page 88927]]

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[[Page 88928]]


[GRAPHIC] [TIFF OMITTED] TR08DE16.004


[[Page 88929]]


[GRAPHIC] [TIFF OMITTED] TR08DE16.005


[[Page 88930]]


[GRAPHIC] [TIFF OMITTED] TR08DE16.006

    Section 200.3(c)(1)(i) requires an LEA that intends to request 
approval from a State to use a locally selected, nationally recognized 
high school academic assessment in place of the statewide academic 
assessment to notify parents. Section 200.3(c)(3) requires any LEA that 
receives such approval to notify all parents of high school students it 
serves that the LEA received approval and will use these assessments. 
Finally, Sec.  200.3(c)(4) requires the LEA to notify both parents and 
the State in any subsequent years in which the LEA elects to administer 
a locally selected, nationally recognized high school academic 
assessment. We anticipate that 850 LEAs will spend 30 hours preparing 
each notification and that, over the three-year information collection 
period, an LEA will be required to conduct these notifications four 
times.
    Accordingly, we anticipate the total burden over the three-year 
information collection period to be 102,000 hours, resulting in an 
annual burden of 34,000 hours under 1810-0576.

       Collection of Information From LEAs--Parental Notification
------------------------------------------------------------------------
                                   Information       OMB Control No. and
     Regulatory section            collection         estimated burden
------------------------------------------------------------------------
Sec.   200.3(c)(1)(i), Sec.   Certain LEAs will be  OMB 1810-0576. The
  200.3(c)(3), Sec.            required to notify    annual burden is
 200.3(c)(4).                  parents of high       34,000 hours.
                               school students
                               about selected
                               assessments.
------------------------------------------------------------------------

Finally, Sec.  200.6(i)(1)(iii) establishes that a State and its LEAs 
must report on State and local report cards the number of recently 
arrived English learners who are not assessed on the State's reading/
language arts assessment. Under 1810-0581, the Department is currently 
approved to require States to prepare and disseminate report cards. 
Although Sec.  200.6(i)(1)(iii) requires the inclusion of this specific 
element, there is no change to the approved burden, as the current 
collection estimates the burden of preparing the report card, in full.

       Collection of Information From SEAs and LEAs--Report Cards
------------------------------------------------------------------------
                                   Information       OMB Control No. and
     Regulatory section            collection         estimated burden
------------------------------------------------------------------------
Sec.   200.6(i)(1)(iii).....  States and LEAs must  OMB 1810-0581. No
                               report on State and   additional burden,
                               local report cards    as this burden is
                               the number of         already considered
                               recently arrived      in the burden of
                               English learners      preparing report
                               who are not           cards.
                               assessed on the
                               State's reading/
                               language arts
                               assessment.
------------------------------------------------------------------------


[[Page 88931]]

Intergovernmental Review
    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.
Federalism
    Executive Order 13132 requires us to ensure meaningful and timely 
input by State and local elected officials in the development of 
regulatory policies that have federalism implications. ``Federalism 
implications'' means substantial direct effects on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.
    In the NPRM, while we did not believe that the proposed regulations 
had any federalism implications, we encouraged State and local elected 
officials to review and comment on the proposed regulations. In the 
Public Comment section of this preamble, we discuss any comments we 
received on this subject.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., Braille, large print, or 
electronic format) on request to the person listed under FOR FURTHER 
INFORMATION CONTACT.
    Electronic Access to This Document: The official version of this 
document is the document published in the Federal Register. Free 
Internet access to the official edition of the Federal Register and the 
Code of Federal Regulations is available via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.
    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department. (Catalog of Federal Domestic Assistance Number does 
not apply.)

List of Subjects in 34 CFR Part 200

    Elementary and secondary education, Grant programs--education, 
Indians--education, Infants and children, Juvenile delinquency, Migrant 
labor, Private schools, Reporting and recordkeeping requirements.

    Dated: November 30, 2016.
John B. King, Jr.,
Secretary of Education.
    For the reasons discussed in the preamble, the Department of 
Education amends part 200 of title 34 of the Code of Federal 
Regulations as follows:

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

0
1. The authority citation for part 200 is revised to read as follows:

    Authority:  20 U.S.C 6301-6576, unless otherwise noted.

0
2. Section 200.2 is revised to read as follows:


Sec.  200.2   State responsibilities for assessment.

    (a)(1) Each State, in consultation with its LEAs, must implement a 
system of high-quality, yearly student academic assessments that 
include, at a minimum, academic assessments in mathematics, reading/
language arts, and science.
    (2)(i) The State may also measure the achievement of students in 
other academic subjects in which the State has adopted challenging 
State academic standards.
    (ii) If a State has developed assessments in other subjects for all 
students, the State must include students participating under this 
subpart in those assessments.
    (b) The assessments required under this section must:
    (1)(i) Except as provided in Sec. Sec.  200.3, 200.5(b), and 
200.6(c) and section 1204 of the Elementary and Secondary Education 
Act, as amended by the Every Student Succeeds Act (hereinafter ``the 
Act''), be the same assessments used to measure the achievement of all 
students; and
    (ii) Be administered to all students consistent with Sec.  
200.5(a), including the following highly-mobile student populations as 
defined in paragraph (b)(11) of this section:
    (A) Students with status as a migratory child.
    (B) Students with status as a homeless child or youth.
    (C) Students with status as a child in foster care.
    (D) Students with status as a student with a parent who is a member 
of the armed forces on active duty or serves on full-time National 
Guard duty;
    (2)(i) Be designed to be valid and accessible for use by all 
students, including students with disabilities and English learners; 
and
    (ii) Be developed, to the extent practicable, using the principles 
of universal design for learning. For the purposes of this section, 
``universal design for learning'' means a scientifically valid 
framework for guiding educational practice that--
    (A) Provides flexibility in the ways information is presented, in 
the ways students respond or demonstrate knowledge and skills, and in 
the ways students are engaged; and
    (B) Reduces barriers in instruction, provides appropriate 
accommodations, supports, and challenges, and maintains high 
achievement expectations for all students, including students with 
disabilities and English learners;
    (3)(i)(A) Be aligned with challenging academic content standards 
and aligned academic achievement standards (hereinafter ``challenging 
State academic standards'') as defined in section 1111(b)(1)(A) of the 
Act; and
    (B) Provide coherent and timely information about student 
attainment of those standards and whether a student is performing at 
the grade in which the student is enrolled; and
    (ii)(A)(1) Be aligned with the challenging State academic content 
standards; and
    (2) Address the depth and breadth of those standards; and
    (B)(1) Measure student performance based on challenging State 
academic achievement standards that are aligned with entrance 
requirements for credit-bearing coursework in the system of public 
higher education in the State and relevant State career and technical 
education standards consistent with section 1111(b)(1)(D) of the Act; 
or
    (2) With respect to alternate assessments for students with the 
most significant cognitive disabilities, measure student performance 
based on alternate academic achievement standards defined by the State 
consistent with section 1111(b)(1)(E) of the Act that reflect 
professional judgment as to the highest possible standards achievable 
by such students to ensure that a student who meets the alternate 
academic achievement standards is on track to pursue postsecondary 
education or competitive integrated employment, consistent with the 
purposes of the Rehabilitation Act of 1973, as amended by the Workforce 
Innovation and Opportunity Act, as in effect on July 22, 2014;
    (4)(i) Be valid, reliable, and fair for the purposes for which the 
assessments are used; and
    (ii) Be consistent with relevant, nationally recognized 
professional and technical testing standards;
    (5) Be supported by evidence that--
    (i) The assessments are of adequate technical quality--

[[Page 88932]]

    (A) For each purpose required under the Act; and
    (B) Consistent with the requirements of this section; and
    (ii) For each assessment administered to meet the requirements of 
this subpart, is made available to the public, including on the State's 
Web site;
    (6) Be administered in accordance with the frequency described in 
Sec.  200.5(a);
    (7) Involve multiple up-to-date measures of student academic 
achievement, including measures that assess higher-order thinking 
skills--such as critical thinking, reasoning, analysis, complex problem 
solving, effective communication, and understanding of challenging 
content--as defined by the State. These measures may--
    (i) Include valid and reliable measures of student academic growth 
at all achievement levels to help ensure that the assessment results 
could be used to improve student instruction; and
    (ii) Be partially delivered in the form of portfolios, projects, or 
extended performance tasks;
    (8) Objectively measure academic achievement, knowledge, and skills 
without evaluating or assessing personal or family beliefs and 
attitudes, except that this provision does not preclude the use of--
    (i) Constructed-response, short answer, or essay questions; or
    (ii) Items that require a student to analyze a passage of text or 
to express opinions;
    (9) Provide for participation in the assessments of all students in 
the grades assessed consistent with Sec. Sec.  200.5(a) and 200.6;
    (10) At the State's discretion, be administered through--
    (i) A single summative assessment; or
    (ii) Multiple statewide interim assessments during the course of 
the academic year that result in a single summative score that provides 
valid, reliable, and transparent information on student achievement 
and, at the State's discretion, student growth, consistent with 
paragraph (b)(4) of this section;
    (11)(i) Consistent with sections 1111(b)(2)(B)(xi) and 
1111(h)(1)(C)(ii) of the Act, enable results to be disaggregated within 
each State, LEA, and school by--
    (A) Gender;
    (B) Each major racial and ethnic group;
    (C) Status as an English learner as defined in section 8101(20) of 
the Act;
    (D) Status as a migratory child as defined in section 1309(3) of 
the Act;
    (E) Children with disabilities as defined in section 602(3) of the 
Individuals with Disabilities Education Act (IDEA) as compared to all 
other students;
    (F) Economically disadvantaged students as compared to students who 
are not economically disadvantaged;
    (G) Status as a homeless child or youth as defined in section 
725(2) of title VII, subtitle B of the McKinney-Vento Homeless 
Assistance Act, as amended;
    (H) Status as a child in foster care. ``Foster care'' means 24-hour 
substitute care for children placed away from their parents and for 
whom the agency under title IV-E of the Social Security Act has 
placement and care responsibility. This includes, but is not limited 
to, placements in foster family homes, foster homes of relatives, group 
homes, emergency shelters, residential facilities, child care 
institutions, and preadoptive homes. A child is in foster care in 
accordance with this definition regardless of whether the foster care 
facility is licensed and payments are made by the State, tribal, or 
local agency for the care of the child, whether adoption subsidy 
payments are being made prior to the finalization of an adoption, or 
whether there is Federal matching of any payments that are made; and
    (I) Status as a student with a parent who is a member of the armed 
forces on active duty or serves on full-time National Guard duty, where 
``armed forces,'' ``active duty,'' and ``full-time National Guard 
duty'' have the same meanings given them in 10 U.S.C. 101(a)(4), 
101(d)(1), and 101(d)(5).
    (ii) Disaggregation is not required in the case of a State, LEA, or 
school in which the number of students in a subgroup is insufficient to 
yield statistically reliable information or the results would reveal 
personally identifiable information about an individual student.
    (12) Produce individual student reports consistent with Sec.  
200.8(a); and
    (13) Enable itemized score analyses to be produced and reported to 
LEAs and schools consistent with Sec.  200.8(b).
    (c)(1) At its discretion, a State may administer the assessments 
required under this section in the form of computer-adaptive 
assessments if such assessments meet the requirements of section 
1111(b)(2)(J) of the Act and this section. A computer-adaptive 
assessment--
    (i) Must, except as provided in Sec.  200.6(c)(7)(iii), measure a 
student's academic proficiency based on the challenging State academic 
standards for the grade in which the student is enrolled and growth 
toward those standards; and
    (ii) May measure a student's academic proficiency and growth using 
items above or below the student's grade level.
    (2) If a State administers a computer-adaptive assessment, the 
determination under paragraph (b)(3)(i)(B) of this section of a 
student's academic proficiency for the grade in which the student is 
enrolled must be reported on all reports required by Sec.  200.8 and 
section 1111(h) of the Act.
    (d) A State must submit evidence for peer review under section 
1111(a)(4) of the Act that its assessments under this section and 
Sec. Sec.  200.3, 200.4, 200.5(b), 200.6(c), 200.6(f), 200.6(h), and 
200.6(j) meet all applicable requirements.
    (e) Information provided to parents under section 1111(b)(2) of the 
Act must--
    (1) Be in an understandable and uniform format;
    (2) Be, to the extent practicable, written in a language that 
parents can understand or, if it is not practicable to provide written 
translations to a parent with limited English proficiency, be orally 
translated for such parent; and
    (3) Be, upon request by a parent who is an individual with a 
disability as defined by the Americans with Disabilities Act (ADA), as 
amended, provided in an alternative format accessible to that parent.

(Approved by the Office of Management and Budget under control 
number 1810-0576)

(Authority: 10 U.S.C. 101(a)(4), (d)(1), and (d)(5); 20 U.S.C. 
1003(24), 1221e-3, 1401(3), 3474, 6311(a)(4), 6311(b)(1)-(2), 
6311(h), 6399(3), 6571, and 7801(20); 29 U.S.C. 701 et seq.; 29 
U.S.C. 794; 42 U.S.C. 2000d-1, 11434a(2), 12102(1), and 12131 et 
seq.; and 45 CFR 1355.20(a))



0
3. Section 200.3 is revised to read as follows:


Sec.  200.3   Locally selected, nationally recognized high school 
academic assessments.

    (a) In general. (1) A State, at the State's discretion, may permit 
an LEA to administer a nationally recognized high school academic 
assessment in each of reading/language arts, mathematics, or science, 
approved in accordance with paragraph (b) of this section, in lieu of 
the respective statewide assessment under Sec.  200.5(a)(1)(i)(B) and 
(a)(1)(ii)(C) if such assessment meets all requirements of this 
section.
    (2) An LEA must administer the same locally selected, nationally 
recognized academic assessment to all high school students in the LEA 
consistent with the requirements in Sec.  200.5(a)(1)(i)(B) and 
(a)(1)(ii)(C), except for students with the most significant cognitive 
disabilities who are assessed on an alternate assessment aligned with 
alternate

[[Page 88933]]

academic achievement standards, consistent with Sec.  200.6(c).
    (b) State approval. If a State chooses to allow an LEA to 
administer a nationally recognized high school academic assessment 
under paragraph (a) of this section, the State must:
    (1) Establish and use technical criteria to determine if the 
assessment--
    (i) Is aligned with the challenging State academic standards;
    (ii) Addresses the depth and breadth of those standards;
    (iii) Is equivalent to or more rigorous than the statewide 
assessments under Sec.  200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as 
applicable, with respect to--
    (A) The coverage of academic content;
    (B) The difficulty of the assessment;
    (C) The overall quality of the assessment; and
    (D) Any other aspects of the assessment that the State may 
establish in its technical criteria;
    (iv) Meets all requirements under Sec.  200.2(b), except for Sec.  
200.2(b)(1), and ensures that all high school students in the LEA are 
assessed consistent with Sec. Sec.  200.5(a) and 200.6; and
    (v) Produces valid and reliable data on student academic 
achievement with respect to all high school students and each subgroup 
of high school students in the LEA that--
    (A) Are comparable to student academic achievement data for all 
high school students and each subgroup of high school students produced 
by the statewide assessment at each academic achievement level;
    (B) Are expressed in terms consistent with the State's academic 
achievement standards under section 1111(b)(1)(A) of the Act; and
    (C) Provide unbiased, rational, and consistent differentiation 
among schools within the State for the purpose of the State-determined 
accountability system under section 1111(c) of the Act, including 
calculating the Academic Achievement indicator under section 
1111(c)(4)(B)(i) of the Act and annually meaningfully differentiating 
between schools under section 1111(c)(4)(C) of the Act;
    (2) Before approving any nationally recognized high school academic 
assessment for use by an LEA in the State--
    (i) Ensure that the use of appropriate accommodations under Sec.  
200.6(b) and (f) does not deny a student with a disability or an 
English learner--
    (A) The opportunity to participate in the assessment; and
    (B) Any of the benefits from participation in the assessment that 
are afforded to students without disabilities or students who are not 
English learners; and
    (ii) Submit evidence to the Secretary in accordance with the 
requirements for peer review under section 1111(a)(4) of the Act 
demonstrating that any such assessment meets the requirements of this 
section; and
    (3)(i) Approve an LEA's request to use a locally selected, 
nationally recognized high school academic assessment that meets the 
requirements of this section;
    (ii) Disapprove an LEA's request if it does not meet the 
requirements of this section; or
    (iii) Revoke approval for good cause.
    (c) LEA applications. (1) Before an LEA requests approval from the 
State to use a locally selected, nationally recognized high school 
academic assessment, the LEA must--
    (i) Notify all parents of high school students it serves--
    (A) That the LEA intends to request approval from the State to use 
a locally selected, nationally recognized high school academic 
assessment in place of the statewide academic assessment under Sec.  
200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as applicable;
    (B) Of how parents and, as appropriate, students, may provide 
meaningful input regarding the LEA's request; and
    (C) Of any effect of such request on the instructional program in 
the LEA; and
    (ii) Provide an opportunity for meaningful consultation to all 
public charter schools whose students would be included in such 
assessments.
    (2) As part of requesting approval to use a locally selected, 
nationally recognized high school academic assessment, an LEA must--
    (i) Update its LEA plan under section 1112 or section 8305 of the 
Act, including to describe how the request was developed consistent 
with all requirements for consultation under sections 1112 and 8538 of 
the Act; and
    (ii) If the LEA is a charter school under State law, provide an 
assurance that the use of the assessment is consistent with State 
charter school law and it has consulted with the authorized public 
chartering agency.
    (3) Upon approval, the LEA must notify all parents of high school 
students it serves that the LEA received approval and will use such 
locally selected, nationally recognized high school academic assessment 
instead of the statewide academic assessment under Sec.  
200.5(a)(1)(i)(B) and (a)(1)(ii)(C), as applicable.
    (4) In each subsequent year following approval in which the LEA 
elects to administer a locally selected, nationally recognized high 
school academic assessment, the LEA must notify--
    (i) The State of its intention to continue administering such 
assessment; and
    (ii) Parents of which assessment the LEA will administer to 
students to meet the requirements of Sec.  200.5(a)(1)(i)(B) and 
(a)(1)(ii)(C), as applicable, at the beginning of the school year.
    (5) The notices to parents under this paragraph (c) of this section 
must be consistent with Sec.  200.2(e).
    (d) Definition. ``Nationally recognized high school academic 
assessment'' means an assessment of high school students' knowledge and 
skills that is administered in multiple States and is recognized by 
institutions of higher education in those or other States for the 
purposes of entrance or placement into courses in postsecondary 
education or training programs.

(Approved by the Office of Management and Budget under control 
number 1810-0576)

(Authority: 20 U.S.C. 1221e-3, 3474, 6311(b)(2)(H), 6312(a), 6571, 
7845, and 7918; 29 U.S.C. 794; 42 U.S.C. 2000d-1)



0
4. Section 200.4 is amended:
0
a. In paragraph (b)(2)(ii)(B), by removing the term ``section 
1111(b)(2)(C)(v)'' and adding in its place the term ``section 
1111(c)(2)''.
0
b. In paragraph (b)(2)(ii)(C), by removing the words ``LEAs and''.
0
c. In paragraph (b)(3), by removing the words ``determine whether the 
State has made adequate yearly progress'' and adding in their place the 
words ``make accountability determinations under section 1111(c) of the 
Act''.
0
d. By revising the authority citation at the end of the section.
    The revision reads as follows:


Sec.  200.4   State law exception.

* * * * *

(Authority: 20 U.S.C. 1221e-3, 3474, 6311(b)(2)(E), and 6571)



0
5. Section 200.5 is revised to read as follows:


Sec.  200.5   Assessment administration.

    (a) Frequency. (1) A State must administer the assessments required 
under Sec.  200.2 annually as follows:
    (i) With respect to both the reading/language arts and mathematics 
assessments--
    (A) In each of grades 3 through 8; and
    (B) At least once in grades 9 through 12.
    (ii) With respect to science assessments, not less than one time 
during each of--
    (A) Grades 3 through 5;
    (B) Grades 6 through 9; and
    (C) Grades 10 through 12.
    (2) A State must administer the English language proficiency 
assessment

[[Page 88934]]

required under Sec.  200.6(h) annually to all English learners in 
schools served by the State in all grades in which there are English 
learners, kindergarten through grade 12.
    (3) With respect to any other subject chosen by a State, the State 
may administer the assessments at its discretion.
    (b) Middle school mathematics exception. A State that administers 
an end-of-course mathematics assessment to meet the requirements under 
paragraph (a)(1)(i)(B) of this section may exempt an eighth-grade 
student from the mathematics assessment typically administered in 
eighth grade under paragraph (a)(1)(i)(A) of this section if--
    (1) The student instead takes the end-of-course mathematics 
assessment the State administers to high school students under 
paragraph (a)(1)(i)(B) of this section;
    (2) The student's performance on the high school assessment is used 
in the year in which the student takes the assessment for purposes of 
measuring academic achievement under section 1111(c)(4)(B)(i) of the 
Act and participation in assessments under section 1111(c)(4)(E) of the 
Act;
    (3) In high school--
    (i) The student takes a State-administered end-of-course assessment 
or nationally recognized high school academic assessment as defined in 
Sec.  200.3(d) in mathematics that--
    (A) Is more advanced than the assessment the State administers 
under paragraph (a)(1)(i)(B) of this section; and
    (B) Provides for appropriate accommodations consistent with Sec.  
200.6(b) and (f); and
    (ii) The student's performance on the more advanced mathematics 
assessment is used for purposes of measuring academic achievement under 
section 1111(c)(4)(B)(i) of the Act and participation in assessments 
under section 1111(c)(4)(E) of the Act; and
    (4) The State describes in its State plan, with regard to this 
exception, its strategies to provide all students in the State the 
opportunity to be prepared for and to take advanced mathematics 
coursework in middle school.

(Approved by the Office of Management and Budget under control 
number 1810-0576)

(Authority: 20 U.S.C. 1221e-3, 3474, 6311(b)(2)(B)(v), (b)(2)(C), 
and (b)(2)(G), and 6571)


0
6. Section 200.6 is revised to read as follows:


Sec.  200.6   Inclusion of all students.

    (a) Students with disabilities in general. (1) A State must include 
students with disabilities in all assessments under section 1111(b)(2) 
of the Act, with appropriate accommodations consistent with paragraphs 
(b), (f)(1), and (h)(4) of this section. For purposes of this section, 
students with disabilities, collectively, are--
    (i) All children with disabilities as defined under section 602(3) 
of the IDEA;
    (ii) Students with the most significant cognitive disabilities who 
are identified from among the students in paragraph (a)(1)(i) of this 
section; and
    (iii) Students with disabilities covered under other acts, 
including--
    (A) Section 504 of the Rehabilitation Act of 1973, as amended; and
    (B) Title II of the ADA, as amended.
    (2)(i) Except as provided in paragraph (a)(2)(ii)(B) of this 
section, a student with a disability under paragraph (a)(1) of this 
section must be assessed with an assessment aligned with the 
challenging State academic standards for the grade in which the student 
is enrolled.
    (ii) A student with the most significant cognitive disabilities 
under paragraph (a)(1)(ii) of this section may be assessed with--
    (A) The general assessment under paragraph (a)(2)(i) of this 
section; or
    (B) If a State has adopted alternate academic achievement standards 
permitted under section 1111(b)(1)(E) of the Act for students with the 
most significant cognitive disabilities, an alternate assessment under 
paragraph (c) of this section aligned with the challenging State 
academic content standards for the grade in which the student is 
enrolled and the State's alternate academic achievement standards.
    (b) Appropriate accommodations for students with disabilities. (1) 
A State's academic assessment system must provide, for each student 
with a disability under paragraph (a) of this section, the appropriate 
accommodations, such as interoperability with, and ability to use, 
assistive technology devices consistent with nationally recognized 
accessibility standards, that are necessary to measure the academic 
achievement of the student consistent with paragraph (a)(2) of this 
section, as determined by--
    (i) For each student under paragraph (a)(1)(i) and (ii) of this 
section, the student's IEP team;
    (ii) For each student under paragraph (a)(1)(iii)(A) of this 
section, the student's placement team; or
    (iii) For each student under paragraph (a)(1)(iii)(B) of this 
section, the individual or team designated by the LEA to make these 
decisions.
    (2) A State must--
    (i)(A) Develop appropriate accommodations for students with 
disabilities;
    (B) Disseminate information and resources to, at a minimum, LEAs, 
schools, and parents; and
    (C) Promote the use of such accommodations to ensure that all 
students with disabilities are able to participate in academic 
instruction and assessments consistent with paragraph (a)(2) of this 
section and with Sec.  200.2(e); and
    (ii) Ensure that general and special education teachers, 
paraprofessionals, teachers of English learners, specialized 
instructional support personnel, and other appropriate staff receive 
necessary training to administer assessments and know how to administer 
assessments, including, as necessary, alternate assessments under 
paragraphs (c) and (h)(5) of this section, and know how to make use of 
appropriate accommodations during assessment for all students with 
disabilities, consistent with section 1111(b)(2)(B)(vii)(III) of the 
Act.
    (3) A State must ensure that the use of appropriate accommodations 
under this paragraph (b) of this section does not deny a student with a 
disability--
    (i) The opportunity to participate in the assessment; and
    (ii) Any of the benefits from participation in the assessment that 
are afforded to students without disabilities.
    (c) Alternate assessments aligned with alternate academic 
achievement standards for students with the most significant cognitive 
disabilities. (1) If a State has adopted alternate academic achievement 
standards permitted under section 1111(b)(1)(E) of the Act for students 
with the most significant cognitive disabilities, the State must 
measure the achievement of those students with an alternate assessment 
that--
    (i) Is aligned with the challenging State academic content 
standards under section 1111(b)(1) of the Act for the grade in which 
the student is enrolled;
    (ii) Yields results relative to the alternate academic achievement 
standards; and
    (iii) At the State's discretion, provides valid and reliable 
measures of student growth at all alternate academic achievement levels 
to help ensure that the assessment results can be used to improve 
student instruction.
    (2) For each subject for which assessments are administered under 
Sec.  200.2(a)(1), the total number of students assessed in that 
subject using an alternate assessment aligned with alternate academic 
achievement standards under paragraph (c)(1) of this

[[Page 88935]]

section may not exceed 1.0 percent of the total number of students in 
the State who are assessed in that subject.
    (3) A State must--
    (i) Not prohibit an LEA from assessing more than 1.0 percent of its 
assessed students in any subject for which assessments are administered 
under Sec.  200.2(a)(1) with an alternate assessment aligned with 
alternate academic achievement standards;
    (ii) Require that an LEA submit information justifying the need of 
the LEA to assess more than 1.0 percent of its assessed students in any 
such subject with such an alternate assessment;
    (iii) Provide appropriate oversight, as determined by the State, of 
an LEA that is required to submit information to the State; and
    (iv) Make the information submitted by an LEA under paragraph 
(c)(3)(ii) of this section publicly available, provided that such 
information does not reveal personally identifiable information about 
an individual student.
    (4) If a State anticipates that it will exceed the cap under 
paragraph (c)(2) of this section with respect to any subject for which 
assessments are administered under Sec.  200.2(a)(1) in any school 
year, the State may request that the Secretary waive the cap for the 
relevant subject, pursuant to section 8401 of the Act, for one year. 
Such request must--
    (i) Be submitted at least 90 days prior to the start of the State's 
testing window for the relevant subject;
    (ii) Provide State-level data, from the current or previous school 
year, to show--
    (A) The number and percentage of students in each subgroup of 
students defined in section 1111(c)(2)(A), (B), and (D) of the Act who 
took the alternate assessment aligned with alternate academic 
achievement standards; and
    (B) The State has measured the achievement of at least 95 percent 
of all students and 95 percent of students in the children with 
disabilities subgroup under section 1111(c)(2)(C) of the Act who are 
enrolled in grades for which the assessment is required under Sec.  
200.5(a);
    (iii) Include assurances from the State that it has verified that 
each LEA that the State anticipates will assess more than 1.0 percent 
of its assessed students in any subject for which assessments are 
administered under Sec.  200.2(a)(1) in that school year using an 
alternate assessment aligned with alternate academic achievement 
standards--
    (A) Followed each of the State's guidelines under paragraph (d) of 
this section, except paragraph (d)(6); and
    (B) Will address any disproportionality in the percentage of 
students in any subgroup under section 1111(c)(2)(A), (B), or (D) of 
the Act taking an alternate assessment aligned with alternate academic 
achievement standards;
    (iv) Include a plan and timeline by which--
    (A) The State will improve the implementation of its guidelines 
under paragraph (d) of this section, including by reviewing and, if 
necessary, revising its definition under paragraph (d)(1), so that the 
State meets the cap in paragraph (c)(2) of this section in each subject 
for which assessments are administered under Sec.  200.2(a)(1) in 
future school years;
    (B) The State will take additional steps to support and provide 
appropriate oversight to each LEA that the State anticipates will 
assess more than 1.0 percent of its assessed students in a given 
subject in a school year using an alternate assessment aligned with 
alternate academic achievement standards to ensure that only students 
with the most significant cognitive disabilities take an alternate 
assessment aligned with alternate academic achievement standards. The 
State must describe how it will monitor and regularly evaluate each 
such LEA to ensure that the LEA provides sufficient training such that 
school staff who participate as members of an IEP team or other 
placement team understand and implement the guidelines established by 
the State under paragraph (d) of this section so that all students are 
appropriately assessed; and
    (C) The State will address any disproportionality in the percentage 
of students taking an alternate assessment aligned with alternate 
academic achievement standards as identified through the data provided 
in accordance with paragraph (c)(4)(ii)(A) of this section; and
    (v) If the State is requesting to extend a waiver for an additional 
year, meet the requirements in paragraph (c)(4)(i) through (iv) of this 
section and demonstrate substantial progress towards achieving each 
component of the prior year's plan and timeline required under 
paragraph (c)(4)(iv) of this section.
    (5) A State must report separately to the Secretary, under section 
1111(h)(5) of the Act, the number and percentage of children with 
disabilities under paragraph (a)(1)(i) and (ii) of this section 
taking--
    (i) General assessments described in Sec.  200.2;
    (ii) General assessments with accommodations; and
    (iii) Alternate assessments aligned with alternate academic 
achievement standards under paragraph (c) of this section.
    (6) A State may not develop, or implement for use under this part, 
any alternate or modified academic achievement standards that are not 
alternate academic achievement standards for students with the most 
significant cognitive disabilities that meet the requirements of 
section 1111(b)(1)(E) of the Act.
    (7) For students with the most significant cognitive disabilities, 
a computer-adaptive alternate assessment aligned with alternate 
academic achievement standards must--
    (i) Assess a student's academic achievement based on the 
challenging State academic content standards for the grade in which the 
student is enrolled;
    (ii) Meet the requirements for alternate assessments aligned with 
alternate academic achievement standards under paragraph (c) of this 
section; and
    (iii) Meet the requirements in Sec.  200.2, except that the 
alternate assessment need not measure a student's academic proficiency 
based on the challenging State academic achievement standards for the 
grade in which the student is enrolled and growth toward those 
standards.
    (d) State guidelines for students with the most significant 
cognitive disabilities. If a State adopts alternate academic 
achievement standards for students with the most significant cognitive 
disabilities and administers an alternate assessment aligned with those 
standards, the State must--
    (1) Establish, consistent with section 612(a)(16)(C) of the IDEA, 
and monitor implementation of clear and appropriate guidelines for IEP 
teams to apply in determining, on a case-by-case basis, which students 
with the most significant cognitive disabilities will be assessed based 
on alternate academic achievement standards. Such guidelines must 
include a State definition of ``students with the most significant 
cognitive disabilities'' that addresses factors related to cognitive 
functioning and adaptive behavior, such that--
    (i) The identification of a student as having a particular 
disability as defined in the IDEA or as an English learner does not 
determine whether a student is a student with the most significant 
cognitive disabilities;
    (ii) A student with the most significant cognitive disabilities is 
not identified solely on the basis of the student's previous low 
academic achievement, or the student's previous need for accommodations 
to participate in general State or districtwide assessments; and

[[Page 88936]]

    (iii) A student is identified as having the most significant 
cognitive disabilities because the student requires extensive, direct 
individualized instruction and substantial supports to achieve 
measurable gains on the challenging State academic content standards 
for the grade in which the student is enrolled;
    (2) 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 a student's education 
resulting from taking an alternate assessment aligned with alternate 
academic achievement standards, such as how participation in such 
assessments may delay or otherwise affect the student from completing 
the requirements for a regular high school diploma;
    (3) Ensure that parents of students selected to be assessed using 
an alternate assessment aligned with alternate academic achievement 
standards under the State's guidelines in paragraph (d) of this section 
are informed, consistent with Sec.  200.2(e), that their child's 
achievement will be measured based on alternate academic achievement 
standards, and how participation in such assessments may delay or 
otherwise affect the student from completing the requirements for a 
regular high school diploma;
    (4) Not preclude a student with the most significant cognitive 
disabilities who takes an alternate assessment aligned with alternate 
academic achievement standards from attempting to complete the 
requirements for a regular high school diploma;
    (5) Promote, consistent with requirements under the IDEA, the 
involvement and progress of students with the most significant 
cognitive disabilities in the general education curriculum that is 
based on the State's academic content standards for the grade in which 
the student is enrolled;
    (6) Incorporate the principles of universal design for learning, to 
the extent feasible, in any alternate assessments aligned with 
alternate academic achievement standards that the State administers 
consistent with Sec.  200.2(b)(2)(ii); and
    (7) Develop, disseminate information on, and promote the use of 
appropriate accommodations consistent with paragraph (b) of this 
section to ensure that a student with significant cognitive 
disabilities who does not meet the criteria in paragraph (a)(1)(ii) of 
this section--
    (i) Participates in academic instruction and assessments for the 
grade in which the student is enrolled; and
    (ii) Is assessed based on challenging State academic standards for 
the grade in which the student is enrolled.
    (e) Definitions with respect to students with disabilities. 
Consistent with 34 CFR 300.5, ``assistive technology device'' means any 
item, piece of equipment, or product system, whether acquired 
commercially off the shelf, modified, or customized, that is used to 
increase, maintain, or improve the functional capabilities of a child 
with a disability. The term does not include a medical device that is 
surgically implanted, or the replacement of such device.
    (f) English learners in general. (1) Consistent with Sec.  200.2 
and paragraphs (g) and (i) of this section, a State must assess English 
learners in its academic assessments required under Sec.  200.2 in a 
valid and reliable manner that includes--
    (i) Appropriate accommodations with respect to a student's status 
as an English learner and, if applicable, the student's status under 
paragraph (a) of this section. A State must--
    (A) Develop appropriate accommodations for English learners;
    (B) Disseminate information and resources to, at a minimum, LEAs, 
schools, and parents; and
    (C) Promote the use of such accommodations to ensure that all 
English learners are able to participate in academic instruction and 
assessments; and
    (ii) To the extent practicable, assessments in the language and 
form most likely to yield accurate and reliable information on what 
those students know and can do to determine the students' mastery of 
skills in academic content areas until the students have achieved 
English language proficiency consistent with the standardized, 
statewide exit procedures in section 3113(b)(2) of the Act.
    (2) To meet the requirements under paragraph (f)(1) of this 
section, the State must--
    (i) Ensure that the use of appropriate accommodations under 
paragraph (f)(1)(i) of this section and, if applicable, under paragraph 
(b) of this section does not deny an English learner--
    (A) The opportunity to participate in the assessment; and
    (B) Any of the benefits from participation in the assessment that 
are afforded to students who are not English learners; and
    (ii) In its State plan, consistent with section 1111(a) of the 
Act--
    (A) Provide its definition for ``languages other than English that 
are present to a significant extent in the participating student 
population,'' consistent with paragraph (f)(4) of this section, and 
identify the specific languages that meet that definition;
    (B) Identify any existing assessments in languages other than 
English, and specify for which grades and content areas those 
assessments are available;
    (C) Indicate the languages identified under paragraph (f)(2)(ii)(A) 
of this section for which yearly student academic assessments are not 
available and are needed; and
    (D) Describe how it will make every effort to develop assessments, 
at a minimum, in languages other than English that are present to a 
significant extent in the participating student population including by 
providing--
    (1) The State's plan and timeline for developing such assessments, 
including a description of how it met the requirements of paragraph 
(f)(4) of this section;
    (2) A description of the process the State used to gather 
meaningful input on the need for assessments in languages other than 
English, collect and respond to public comment, and consult with 
educators; parents and families of English learners; students, as 
appropriate; and other stakeholders; and
    (3) As applicable, an explanation of the reasons the State has not 
been able to complete the development of such assessments despite 
making every effort.
    (3) A State may request assistance from the Secretary in 
identifying linguistically accessible academic assessments that are 
needed.
    (4) In determining which languages other than English are present 
to a significant extent in a State's participating student population, 
a State must, at a minimum--
    (i) Ensure that its definition of ``languages other than English 
that are present to a significant extent in the participating student 
population'' encompasses at least the most populous language other than 
English spoken by the State's participating student population;
    (ii) Consider languages other than English that are spoken by 
distinct populations of English learners, including English learners 
who are migratory, English learners who were not born in the United 
States, and English learners who are Native Americans; and
    (iii) Consider languages other than English that are spoken by a 
significant portion of the participating student population in one or 
more of a State's LEAs as well as languages spoken by a

[[Page 88937]]

significant portion of the participating student population across 
grade levels.
    (g) Assessing reading/language arts in English for English 
learners. (1) A State must assess, using assessments written in 
English, the achievement of an English learner in meeting the State's 
reading/language arts academic standards if the student has attended 
schools in the United States, excluding Puerto Rico and, if applicable, 
students in Native American language schools or programs consistent 
with paragraph (j) of this section, for three or more consecutive 
years.
    (2) An LEA may continue, for no more than two additional 
consecutive years, to assess an English learner under paragraph (g)(1) 
of this section if the LEA determines, on a case-by-case individual 
basis, that the student has not reached a level of English language 
proficiency sufficient to yield valid and reliable information on what 
the student knows and can do on reading/language arts assessments 
written in English.
    (3) The requirements in paragraph (g)(1)-(2) of this section do not 
permit a State or LEA to exempt English learners from participating in 
the State assessment system.
    (h) Assessing English language proficiency of English learners. (1) 
Each State must--
    (i) Develop a uniform, valid, and reliable statewide assessment of 
English language proficiency, including reading, writing, speaking, and 
listening skills; and
    (ii) Require each LEA to use such assessment to assess annually the 
English language proficiency, including reading, writing, speaking, and 
listening skills, of all English learners in kindergarten through grade 
12 in schools served by the LEA.
    (2) The assessment under paragraph (h)(1) of this section must--
    (i) Be aligned with the State's English language proficiency 
standards under section 1111(b)(1)(F) of the Act;
    (ii) Be developed and used consistent with the requirements of 
Sec.  200.2(b)(2), (4), and (5); and
    (iii) Provide coherent and timely information about each student's 
attainment of the State's English language proficiency standards to 
parents consistent with Sec.  200.2(e) and section 1112(e)(3) of the 
Act.
    (3) If a State develops a computer-adaptive assessment to measure 
English language proficiency, the State must ensure that the computer-
adaptive assessment--
    (i) Assesses a student's language proficiency, which may include 
growth toward proficiency, in order to measure the student's 
acquisition of English; and
    (ii) Meets the requirements for English language proficiency 
assessments in paragraph (h) of this section.
    (4)(i) A State must provide appropriate accommodations that are 
necessary to measure a student's English language proficiency relative 
to the State's English language proficiency standards under section 
1111(b)(1)(F) of the Act for each English learner covered under 
paragraph (a)(1)(i) or (iii) of this section.
    (ii) If an English learner has a disability that precludes 
assessment of the student in one or more domains of the English 
language proficiency assessment required under section 1111(b)(2)(G) of 
the Act such that there are no appropriate accommodations for the 
affected domain(s) (e.g., a non-verbal English learner who because of 
an identified disability cannot take the speaking portion of the 
assessment), as determined, on an individualized basis, by the 
student's IEP team, 504 team, or by the individual or team designated 
by the LEA to make these decisions under title II of the ADA, as 
specified in paragraph (b)(1) of this section, a State must assess the 
student's English language proficiency based on the remaining domains 
in which it is possible to assess the student.
    (5) A State must provide for an alternate English language 
proficiency assessment for each English learner covered under paragraph 
(a)(1)(ii) of this section who cannot participate in the assessment 
under paragraph (h)(1) of this section even with appropriate 
accommodations.
    (i) Recently arrived English learners. (1)(i) A State may exempt a 
recently arrived English learner, as defined in paragraph (k)(2) of 
this section, from one administration of the State's reading/language 
arts assessment under Sec.  200.2 consistent with section 
1111(b)(3)(A)(i)(I) of the Act.
    (ii) If a State does not assess a recently arrived English learner 
on the State's reading/language arts assessment consistent with section 
1111(b)(3)(A)(i)(I) of the Act, the State must count the year in which 
the assessment would have been administered as the first of the three 
years in which the student may take the State's reading/language arts 
assessment in a native language consistent with paragraph (g)(1) of 
this section.
    (iii) A State and its LEAs must report on State and local report 
cards required under section 1111(h) of the Act the number of recently 
arrived English learners who are not assessed on the State's reading/
language arts assessment.
    (iv) Nothing in this section relieves an LEA from its 
responsibility under applicable law to provide recently arrived English 
learners with appropriate instruction to enable them to attain English 
language proficiency as well as grade-level content knowledge in 
reading/language arts, mathematics, and science.
    (2) A State must assess the English language proficiency of a 
recently arrived English learner pursuant to paragraph (h) of this 
section.
    (3) A State must assess the mathematics and science achievement of 
a recently arrived English learner pursuant to Sec.  200.2 with the 
frequency described in Sec.  200.5(a).
    (j) Students in Native American language schools or programs. (1) 
Except as provided in paragraph (j)(2) of this section, a State is not 
required to assess, using an assessment written in English, student 
achievement in meeting the challenging State academic standards in 
reading/language arts, mathematics, or science for a student who is 
enrolled in a school or program that provides instruction primarily in 
a Native American language if--
    (i) The State provides such an assessment in the Native American 
language to all students in the school or program, consistent with the 
requirements of Sec.  200.2;
    (ii) The State submits evidence regarding any such assessment in 
the Native American language for peer review as part of its State 
assessment system, consistent with Sec.  200.2(d), and receives 
approval that the assessment meets all applicable requirements; and
    (iii) For an English learner, as defined in section 8101(20)(C)(ii) 
of the Act, the State continues to assess the English language 
proficiency of such English learner, using the annual English language 
proficiency assessment required under paragraph (h) of this section, 
and provides appropriate services to enable him or her to attain 
proficiency in English.
    (2) Notwithstanding paragraph (g) of this section, the State must 
assess under Sec.  [thinsp]200.5(a)(1)(i)(B), using assessments written 
in English, the achievement of each student enrolled in such a school 
or program in meeting the challenging State academic standards in 
reading/language arts, at a minimum, at least once in grades 9 through 
12.
    (k) Definitions with respect to English learners and students in 
Native American language schools or programs. For the purpose of this 
section--
    (1) ``Native American'' means ``Indian'' as defined in section 6151 
of the Act, which includes Alaska Native

[[Page 88938]]

and members of Federally recognized or State-recognized tribes; Native 
Hawaiian; and Native American Pacific Islander.
    (2) A ``recently arrived English learner'' is an English learner 
who has been enrolled in schools in the United States for less than 
twelve months.
    (3) The phrase ``schools in the United States'' includes only 
schools in the 50 States and the District of Columbia.

(Approved by the Office of Management and Budget under control 
number 1810-0576 and 1810-0581)

(Authority: 20 U.S.C. 1221e-3, 1400 et seq., 3474, 6311(b)(2), 6571, 
7491(3), and 7801(20) and (34); 25 U.S.C. 2902; 29 U.S.C. 794; 42 
U.S.C. 2000d-1), 12102(1), and 12131; 34 CFR 300.5)



0
7. Section 200.8 is amended:
0
a. In paragraph (a)(2)(i), by adding the word ``and'' following the 
semicolon.
0
b. In paragraph (a)(2)(ii), by removing the words ``including an 
alternative format (e.g., Braille or large print) upon request; and'' 
and adding in their place the words ``consistent with Sec.  200.2(e).''
0
c. By removing paragraph (a)(2)(iii).
0
d. In paragraph (b)(1), by removing the term ``Sec.  200.2(b)(4)'' and 
adding in its place the term ``Sec.  200.2(b)(13)''.
0
e. By adding an OMB information collection approval parenthetical.
0
f. By revising the authority citation at the end of the section.
    The addition and revision read as follows:


Sec.  200.8   Assessment reports.

* * * * *

(Approved by the Office of Management and Budget under control 
number 1810-0576)

(Authority: 20 U.S.C. 1221e-3, 3474, 6311(b)(2)(B)(x) and (xii), and 
6571)


0
8. Section 200.9 is revised to read as follows:


Sec.  200.9   Deferral of assessments.

    (a) A State may defer the start or suspend the administration of 
the assessments required under Sec.  200.2 for one year for each year 
for which the amount appropriated for State assessment grants under 
section 1002(b) of the Act is less than $369,100,000.
    (b) A State may not cease the development of the assessments 
referred to in paragraph (a) of this section even if sufficient funds 
are not appropriated under section 1002(b) of the Act.

(Authority: 20 U.S.C. 1221e-3, 3474, 6302(b), 6311(b)(2)(I), 
6363(a), and 6571)


[FR Doc. 2016-29128 Filed 12-7-16; 8:45 am]
 BILLING CODE 4000-01-P