[Federal Register Volume 59, Number 153 (Wednesday, August 10, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19433]


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[Federal Register: August 10, 1994]


_______________________________________________________________________

Part IV





Department of Education





_______________________________________________________________________



34 CFR Parts 200 and 201




Chapter 1 Program in Local Educational Agencies and Chapter 1--Migrant 
Education Program; Final Rule
DEPARTMENT OF EDUCATION

34 CFR Parts 200 and 201

RIN 1810-AA70

 
Chapter 1 Program in Local Educational Agencies and Chapter 1--
Migrant Education Program

AGENCY: Education.

ACTION: Final regulations.

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

SUMMARY: The Secretary amends the regulations governing Part A and Part 
D, Subpart 1 of Chapter 1 of Title I of the Elementary and Secondary 
Education Act of 1965. Part A of Chapter 1 provides financial 
assistance through State educational agencies (SEAs) to local 
educational agencies (LEAs) to meet the special educational needs of 
educationally deprived children in school attendance areas with high 
concentrations of children from low-income families and children in 
local institutions for neglected or delinquent children. Part D of 
Chapter 1 authorizes a Migrant Education Program (MEP) that provides 
financial assistance to SEAs to establish and improve programs to meet 
the special educational needs of migratory children of migratory 
agricultural workers or fishermen.
    These amendments afford flexibility to States that have developed 
assessment systems that support their systemic education reform efforts 
but that are inconsistent with the national evaluation standards in 
Subpart H of 34 CFR Part 200 and Subpart E of 34 CFR Part 201. These 
regulations contain less prescriptive national standards that enable 
States to request an exception to the generally applicable national 
evaluation standards in order to use their own assessment systems to 
evaluate the effectiveness of their Chapter 1 and MEP programs.

EFFECTIVE DATE: These regulations take effect either 45 days after 
publication in the Federal Register or later if the Congress takes 
certain adjournments, except that compliance is not required with the 
information collection requirements in Sec. 200.90 until the 
information collection requirements contained in that section have been 
submitted by the Department of Education and approved by the Office of 
Management and Budget under the Paperwork Reduction Act of 1980. If you 
want to know the effective date of these regulations, call or write the 
Department of Education contact person. A document announcing the 
effective date will be published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: For Part 200, Wendy Jo New, U.S. 
Department of Education, 400 Maryland Avenue S.W., Portals Building, 
Room 4400, Washington, D.C. 20202-6132. Telephone: (202) 260-0982. For 
Part 201, James English, U.S. Department of Education, 400 Maryland 
Avenue S.W., Portals Building, Room 4104, Washington, D.C. 20202-6135. 
Telephone: (202) 260-1394. Individuals who use a telecommunications 
device for the deaf (TDD) may call the Federal Information Relay 
Service (FIRS) at 1-800-877-8339 between 8 a.m. and 8 p.m., Eastern 
time, Monday through Friday.

SUPPLEMENTARY INFORMATION: On March 10, 1994, the Secretary published a 
notice of proposed rulemaking (NPRM) in the Federal Register (59 FR 
11444-46), that proposed conditions for granting exceptions to the 
national evaluation standards in Subpart H of Part 200 and in Subpart E 
of Part 201 to enable States that are implementing new assessment 
systems that support statewide education reform to use those 
assessments--under less prescriptive national standards--to measure the 
effectiveness of their Chapter 1 and MEP programs. Under the NPRM, the 
Secretary could have approved a State's request for an exception to the 
generally applicable Chapter 1 national evaluation standards if the 
State had an assessment system that had been developed to support the 
State's education reform efforts, the assessment system provided 
information about the yearly performance of each Chapter 1 school and 
could be aggregated for the LEA as a whole, and that information was 
from at least one grade level in each school, and measured student 
achievement in basic and more advanced skills and challenging subject 
matter. The same standards were proposed to apply to the MEP, except 
that the assessment system would have to provide a statewide estimate 
of the yearly performance of migratory children in the State, rather 
than information on individual schools. The NPRM also proposed to 
permit States to request exceptions for particular LEAs and operating 
agencies that, absent State systems, have local assessment systems in 
place that support their education reform efforts and meet these same 
standards.
    These final regulations make the following changes to the NPRM. 
Most significantly, Secs. 200.90(b) and 201.57(b) have been revised to 
require that, in addition to the conditions in the NPRM, a State 
assessment system for which an exception is being requested (1) must 
yield consistent results that accurately reflect what the assessment 
system was designed to measure; and (2) does not impair an SEA's or 
LEA's ability to account for results under Chapter 1 or the MEP. The 
Secretary has added these standards to ensure that State assessment 
systems being developed to support systemic education reform efforts 
are of high quality and that exceptions under these regulations would 
only be granted if evaluation results provide meaningful indicators 
about the effectiveness of Chapter 1 and MEP programs.
    In addition, Sec. 200.90(b) has been revised to make clear that a 
State assessment system must provide information from at least one 
grade level in each Chapter 1 school. Sections 200.90(c) and 201.57(c) 
have also been revised to clarify that an SEA may seek an exception for 
LEAs or operating agencies that have assessment systems linked to local 
reform efforts that meet the same standards that apply to State 
assessment systems. Finally, Sec. 200.80(a) has been revised to correct 
an erroneous cross-reference.
    These regulations support the efforts of those States that will be 
voluntarily implementing reform plans under the Goals 2000: Educate 
America Act (Goals 2000). Section 306(c) of Goals 2000 requires the 
reform plans to include a description of the process States will use to 
develop State assessments aligned with the State's content standards 
and that the assessments be for all students, including students with 
diverse learning needs. These regulations will allow States that have 
assessment systems tied to statewide education reform, developed under 
Goals 2000 or another reform effort, to avoid duplication by using 
their statewide assessments for Chapter 1 and MEP purposes if they meet 
less prescriptive national standards contained in these regulations.
    In granting an exception, the Secretary will not be waiving any 
statutory requirements. SEAs and LEAs will continue to evaluate the 
effectiveness of their Chapter 1 programs under section 1019, in 
accordance with less prescriptive standards contained in these 
regulations. SEAs and LEAs will also continue to perform the annual 
review required under section 1021(a), measure sustained program gains 
under sections 1019(a)(3) and 1021(a)(2), identify schools and students 
in need of program improvement under section 1021(b) and (f), and meet 
schoolwide project accountability requirements under section 1015(e), 
using the State assessment and any other sources of information deemed 
appropriate. Similarly, under the MEP, SEAs will still need to ensure 
that they and their operating agencies adhere to the requirements of 
sections 1012(b), 1019(b), and 1202(a)(6) to use desired outcomes for 
evaluating performance, to collect and report demographic and 
performance data, and to examine sustained gains for formerly migratory 
children.
    The Secretary wishes to emphasize that no State is required to make 
any changes in its Chapter 1 or MEP testing programs as a result of 
these regulations. Rather, the exceptions are intended to provide 
flexibility to enable States to use their own assessment systems for 
Chapter 1 and MEP purposes if they wish to do so.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, 17 parties 
submitted comments on the proposed regulations. An analysis of the 
comments is published as an appendix to this document.

Executive Order 12866

    These final regulations have been reviewed in accordance with 
Executive Order 12866. Under the terms of the order, the Secretary has 
assessed the potential costs and benefits of this regulatory action.
    The potential benefits associated with these regulations are clear. 
Rather than continuing to operate multiple assessment systems for 
Federal and State purposes, some States may use their State systems to 
evaluate their Chapter 1 and MEP programs. Moreover, the potential 
costs associated with these regulations are negligible. Because the 
regulations permit States to use their own assessment systems, States 
will incur few, if any, additional costs. To the contrary, these 
regulations will result in reduced costs for States that might 
otherwise have had to operate multiple assessment systems. The 
Secretary has also determined that this regulatory action does not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.

Paperwork Reduction Act of 1980

    Section 200.90 contains information collection requirements. As 
required by the Paperwork Reduction Act of 1980, the Department of 
Education will submit a copy of these sections to the Office of 
Management and Budget for its review. (44 U.S.C. 3504(h))
    These proposed regulations would affect SEAs and LEAs that have 
developed assessment systems that support their educational reform 
efforts but that are inconsistent with the national evaluation 
standards in Subpart H of Part 200 or Subpart E of Part 201. The 
Department needs the information to grant exceptions to the national 
evaluation standards.
    A one-time public reporting and recordkeeping burden for this 
collection of information is estimated to average two hours per 
response for a maximum of 52 respondents, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
    Organizations and individuals desiring to submit comments on the 
information collection requirements should direct them to the Office of 
Information and Regulatory Affairs, OMB, Room 10235, New Executive 
Office Building, Washington, D.C. 20503; Attention: Daniel J. Chenok.

List of Subjects

34 CFR Part 200

    Administrative practice and procedure, Education of disadvantaged, 
Elementary and secondary education, Grant programs--education, Juvenile 
delinquency, Neglected, Private schools, Reporting and recordkeeping 
requirements, State-administered programs.

34 CFR Part 201

    Children, Coordination, Education, Eligibility, Evaluation, Grant 
programs--education, Identification and recruitment, Local educational 
agencies, Migrant student record transfer system, Migratory children, 
Migratory workers, Needs assessment, Priorities, Reporting and 
recordkeeping requirements, Special educational needs, State 
educational agencies, Subgrants.

    Dated: August 3, 1994.
Richard W. Riley,
Secretary of Education.

(Catalog of Federal Domestic Assistance Numbers: 84.010, Chapter 1 
Program in Local Educational Agencies; 84.011, Migrant Education 
Basic State Formula Grant Program; 84.012, Chapter 1 Programs--State 
Administration)

    The Secretary amends Parts 200 and 201 of Title 34 of the Code of 
Federal Regulations as follows:

PART 200--CHAPTER 1 PROGRAM IN LOCAL EDUCATIONAL AGENCIES

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

    Authority: 20 U.S.C. 2701-2731, 2821-2838, 2851-2854, 2881-2901, 
unless otherwise noted.

    2. Section 200.80 is amended by revising paragraph (a) introductory 
text to read as follows:


Sec. 200.80   How does an LEA evaluate student achievement?

    (a) An LEA shall evaluate student achievement under 
Sec. 200.35(a)(1)(i)(B) as follows:
* * * * *
    3. An undesignated heading entitled ``Exception'' and a new 
Sec. 200.90 are added to Subpart H to read as follows:

Exception


Sec. 200.90   May an SEA request an exception to the requirements in 
this subpart?

    (a) An SEA may request, in writing, an exception to the 
requirements in other sections of this subpart if the SEA desires to 
use a State assessment system developed to support its education reform 
efforts for the purpose of evaluating the effectiveness of its Chapter 
1 programs.
    (b) The Secretary may grant an SEA's request if the State 
assessment system meets the following national standards:
    (1) The State system provides information that can be aggregated 
for each LEA as a whole about the yearly performance of each Chapter 1 
school. This information must be from at least one grade level in each 
Chapter 1 school and must be based on student achievement in basic and 
more advanced skills and challenging subject matter.
    (2) The State system yields consistent results that accurately 
reflect what the assessment system was designed to measure.
    (3) The State system does not impair an SEA's or LEA's ability to 
account for results under Chapter 1.
    (c) An SEA may request an exception for an LEA that has a local 
assessment system that meets the national standards in paragraphs (a) 
and (b) of this section.

(Authority: 20 U.S.C. 2729(a), 2835)

PART 201--CHAPTER 1--MIGRANT EDUCATION PROGRAM

    4. The authority citation for Part 201 continues to read as 
follows:

    Authority: 20 U.S.C. 2781-2782, unless otherwise noted.

    5. Section 201.57 is added to Subpart E to read as follows:


Sec. 201.57   Exception to evaluation requirements.

    (a) An SEA may request, in writing, an exception to the 
requirements in Secs. 201.51(a)(1)(ii), 201.52(b)(1), 201.53, and 
201.55 of this subpart if the SEA desires to use a State assessment 
system, developed to support its education reform efforts, for the 
purpose of evaluating the effectiveness of its Chapter 1 Migrant 
Education Program.
    (b) The Secretary may grant an SEA's request if the State 
assessment system meets the following national standards:
    (1) The State system provides a statewide estimate of the yearly 
performance of migratory children in the State. This information must 
be from at least one grade level and must be based on student 
achievement in basic and more advanced skills and challenging subject 
matter.
    (2) The State system yields consistent results that accurately 
reflect what the assessment system was designed to measure.
    (3) The State system does not impair an SEA's or operating agency's 
ability to account for results under the MEP.
    (c) An SEA may request an exception for an operating agency that 
has an assessment system that meets the national standards in 
paragraphs (a) and (b) of this section.

(Authority: 20 U.S.C. 2722, 2729, 2782, 2835)

Appendix to This Final Rule--Analysis of Comments and Changes

(Note: This appendix will not be codified in the Code of Federal 
Regulations)

    The Department received comments on these regulations from 17 
commenters, 13 of whom supported the regulations.
    Comment: One commenter suggested that the Department used the word 
``exception'' in the proposed regulations because the Department cannot 
grant waivers. The commenter argued that there is no meaningful 
distinction between ``exception'' and ``waiver'' and, therefore, the 
Secretary lacks the authority to grant ``exceptions'' to requirements 
that evaluations of Chapter 1 and MEP programs be based on the current 
national standards.
    Discussion: It is, of course, true that the Secretary cannot waive 
statutory or regulatory requirements absent specific authority. As a 
result, the Secretary is engaging in formal rulemaking to make 
exceptions to the generally applicable standards by adopting less 
prescriptive standards that would apply in the case of States that 
request authority to use testing tied to State systemic reform efforts 
in lieu of separate Chapter 1 evaluations. It is important to recognize 
that the Secretary would not be granting exceptions to any statutory 
requirements. Rather, he would be granting exceptions to particular 
regulatory provisions that were initially promulgated and have now been 
revisited through the appropriate rulemaking process. By authorizing 
the Secretary to grant ``exceptions,'' the regulations clarify that the 
generally applicable national evaluation standards are still the 
primary provisions governing Chapter 1 and MEP evaluations. The 
Secretary recognizes, however, that some States, as part of their 
systemic State education reform efforts, have developed new assessment 
systems that may be inconsistent with these standards because, for 
example, they are not based on national norms or do not test children 
in every grade. These regulations contain less prescriptive national 
standards that permit these States to use their own assessment systems 
to evaluate the effectiveness of their Chapter 1 and MEP programs, 
rather than requiring these States to administer separate tests purely 
for Chapter 1 and MEP purposes.
    Changes: None.
    Comment: One commenter asserted that the regulations do not comply 
with the Chapter 1 statute. According to the commenter, the Secretary 
is ``waiving all Chapter 1 testing requirements * * * without adopting 
any substitute that can equally ensure compliance with the statute.'' 
In particular, the commenter contended that the regulations would 
eliminate the requirement to use ``objective measurements'' of 
``individual student achievement,'' thereby shifting the focus away 
from individual students. The commenter also argued that the proposed 
regulations would undermine the statutory requirement that improved 
student performance be sustained for more than one year.
    Discussion: These regulations neither waive nor are inconsistent 
with any statutory requirements. For example, the basic evaluation 
requirement in section 1019(a) of Chapter 1 requires an LEA to evaluate 
the effectiveness of programs assisted under Chapter 1. The LEA must 
use ``objective measurement of individual student achievement in basic 
skills and more advanced skills, aggregated for the LEA as a whole'' as 
an indicator of the impact of the program. Under the type of State 
assessment system to which the exception would apply, all of these 
requirements would have to be met. The assessments would have to--use 
objective measures; measure basic and more advanced skills; assess the 
achievement of individual children; and be capable of being aggregated 
for each LEA as a whole. Nothing in section 1019(a), however, requires 
these assessment systems to assess each child served in Chapter 1 or to 
be based on national norms; rather, the Secretary imposed these 
requirements through the current national standards. Moreover, contrary 
to the commenter's interpretation, the requirement in section 
1019(a)(3) regarding ``sustained gains'' relates to improved 
performance of the program over a period of more than one year, not to 
individual student performance.
    As the preamble indicates, under these final regulations SEAs and 
LEAs must continue to meet all statutory assessment requirements. In 
particular, SEAs and LEAs must still evaluate the effectiveness of 
their Chapter 1 programs under section 1019, perform the annual review 
required under section 1021(a), measure sustained program gains under 
sections 1019(a)(3) and 1021(a)(2), identify schools and students in 
need of program improvement under section 1021 (b) and (f), and meet 
schoolwide project accountability requirements under section 1015(e). 
Similarly, under the MEP, SEAs must ensure that they and their 
operating agencies adhere to the requirements of sections 1012(b), 
1019(b), and 1202(a)(6) to use desired outcomes for evaluating 
performance, to collect and report demographic and performance data, 
and to examine sustained gains for formerly migratory children. If the 
Secretary grants an exception under these final regulations, these 
requirements may be met using the State assessment and any other 
sources of information deemed appropriate. Thus, if a State assessment 
system does not provide sufficient information to meet one or more of 
these requirements, the SEA, LEA, or operating agency would have to 
supplement that system with other appropriate information.
    Changes: None.
    Comment: One commenter asserted that the proposed regulations did 
not satisfy the Administrative Procedure Act. The commenter 
specifically argued that the proposed regulations should contain the 
criteria on which exceptions would be based so that commenters could 
adequately respond.
    Discussion: In accordance with the Administrative Procedure Act, 
the proposed regulations contained adequate notice of the standards 
that States would have to meet to be excepted from the generally 
applicable national evaluation standards. Those standards were--the 
assessment system has been developed to support a State's education 
reform efforts; the system provides information about the yearly 
performance of each Chapter 1 school; and the information provided is 
from at least one grade level, measures student achievement in basic 
and more advanced skills and challenging subject matter, and can be 
aggregated for the LEA as a whole.
    However, in response to several comments, the Secretary has added 
two additional standards and one clarification. The assessment system 
must yield consistent results that accurately reflect what the 
assessment system was designed to measure. The use of the assessment 
system may not impair an SEA's or LEA's ability to account for results 
under Chapter 1. The information from the assessment system must be 
from at least one grade level in each Chapter 1 school. Similar 
standards apply to the MEP, except that the system must provide a 
statewide estimate of the yearly performance of migratory children in 
the State, rather than information on individual schools.
    Changes: Two additional standards have been added to 
Secs. 200.90(b) and 201.57(b). The State assessment system must yield 
consistent results that accurately reflect what the assessment system 
was designed to measure, and use of the system may not impair an SEA's 
or LEA's ability to account for results under Chapter 1 or the MEP. In 
addition, Sec. 200.90(b)(1) has been revised to make clear that the 
assessment system must provide information from at least one grade 
level in each Chapter 1 school.
    Comment: One commenter contended that the Secretary's explanation 
for why these regulations are needed was inadequate. In the commenter's 
view, the Secretary offered only ``an assortment of unsubstantiated 
policy-oriented statements in lieu of hard, objective facts.'' The 
commenter concluded that the Secretary is trying to change the national 
evaluation standards by ``administrative fiat,'' without any 
explanation of the reasons and supporting evidence for the changes.
    Discussion: The Secretary has articulated quite clearly in the 
preamble to both the proposed and final regulations why he is taking 
this action. The national evaluation standards were adopted in 1989 and 
represented the best thinking at that time about how to implement the 
statutory evaluation requirements. They were predicated largely on the 
perceived need to use a measure that would provide data that could be 
aggregated for the Nation--i.e., nationally normed tests or tests 
equated with national norms--even though the statute itself does not 
require aggregation to either the State or national level.
    Since then, two developments of national significance have required 
a change in those national standards. First, a number of States have 
developed new assessment systems, linked to their statewide education 
reform efforts, to improve the quality of education in their States. 
These assessment systems are tied to high State standards for what 
children should know and be able to do, but in some instances are 
inconsistent with the national evaluation standards because they do not 
routinely rely on nationally normed tests and typically only assess 
children in certain grades. As a result, these States must operate 
separate assessment systems: ones that they use to make informed 
decisions about the effectiveness of education programs in their State; 
and ones that they use only for Chapter 1 or MEP purposes.
    As a related matter, major educational reform legislation, the 
Goals 2000: Educate America Act (Pub. L. 103-227), became law on March 
31, 1994. Section 306(c) of Goals 2000 requires reform plans developed 
under the statute to include a description of the process a State will 
use to develop State assessments aligned with the State's content 
standards and that the assessments be for all students, including 
students with diverse learning needs. These regulations will allow 
States that have assessment systems tied to statewide education reform, 
developed under Goals 2000 or another effort, to obtain exceptions from 
existing Chapter 1 and MEP evaluation requirements and, subject to less 
prescriptive standards in these regulations, use their statewide 
assessments for Chapter 1 and MEP purposes. By allowing those States 
that already have developed assessment systems tied to statewide 
education reform efforts to obtain exceptions from existing Chapter 1 
and MEP evaluation requirements, these regulations permit those States 
to focus their energies on the new assessments without having to 
implement a separate assessment system for Chapter 1 and MEP that may 
not support reform efforts. The Secretary believes that requiring these 
States to operate separate assessment systems for Chapter 1 and MEP 
purposes serves neither the interests of participating children nor the 
Federal programs involved.
    Changes: None.
    Comment: One commenter contended that these regulations are 
fundamentally flawed because the ``need'' for the exception is wholly 
without merit. Defending nationally normed tests, the commenter 
disputed that new State assessment systems would provide more 
meaningful data and asserted that new and traditional assessment 
systems are not mutually exclusive.
    Discussion: The commenter may have missed the point of these 
regulations. The regulations do not require any State to make changes 
in its Chapter 1 or MEP testing programs. Even a State that has 
developed an assessment system to support its education reform efforts 
will not be required to use that system to evaluate its Chapter 1 or 
MEP programs. At the same time, however, the Secretary does not want 
the current national evaluation standards to stand in the way of a 
State's efforts, in reforming its educational system, to define what 
all students should be expected to know, train instructional staff to 
teach those subjects, and assess whether students, in fact, have 
learned what they should know. In particular, the Secretary believes 
that States that are pursuing this kind of reform, and that have 
already developed their own measures for assessing what all children 
should know, should be free to use those assessments to evaluate their 
States' Chapter 1 and MEP programs if they are satisfied that these 
measures provide more meaningful information on the progress of 
participating children than does use of the current national standards. 
The current national evaluation standards preclude a State from making 
this choice. To the extent that a State's assessment system does not 
rely on a nationally normed test or fails to assess every participating 
child in grades 2 through 12, it is inconsistent with, and therefore 
cannot be used to satisfy, the current national evaluation standards.
    Changes: None.
    Comment: One commenter interpreted the Secretary's desire to 
eliminate dual testing as a determination that multiple measures are 
inconsistent with the current Chapter 1 evaluation requirements. The 
commenter asserted that a rationale for the proposed exception premised 
on a single assessment theory is inconsistent with current law.
    Discussion: The commenter may have misinterpreted the Secretary's 
rationale for proposing an exception to the national evaluation 
standards. The Secretary is not requiring use of a sole assessment 
criterion. Rather, like the commenter, the Secretary encourages 
multiple assessment measures and anticipates that most, if not all, 
State assessment systems qualifying for an exception would consist of 
multiple measures. On the other hand, the Secretary is trying to 
eliminate the need for a State to administer dual tests, i.e., 
administering a particular type of test merely to satisfy the Chapter 1 
national evaluation standards while administering an acceptable 
alternative assessment system for the State's own purposes.
    Changes: None.
    Comment: One commenter suggested that, instead of granting 
exceptions, the Secretary revise the regulations to require the use of 
multiple measures, including norm-referenced tests. According to the 
commenter, although it is appropriate to use additional assessments 
that could provide critical evidence of whether children are performing 
at an appropriate level, norm-referenced tests should also be used 
because they meet the technical standards of reliability and validity.
    Discussion: As noted above, the Secretary encourages the use of 
multiple assessment measures. The Secretary does not agree that norm-
referenced tests should be required as one measure.
    Changes: None.
    Comment: One commenter asked whether it would be possible for an 
SEA or LEA to have a mixed system--for example, norm-referenced tests 
to measure sustained effects; alternative measures for assessing math 
and reading.
    Discussion: The regulations permit States to use any assessment 
measures or combination of measures that are appropriate and that meet 
new, less prescriptive national standards.
    Changes: None.
    Comment: One commenter suggested that, if an exception is granted, 
the eligibility standards for entry into Chapter 1 programs would be 
relaxed to the point that subjective teacher recommendations would 
determine participation.
    Discussion: These regulations do not alter the criteria for 
identifying and selecting children for participation in Chapter 1 or 
MEP programs. Under Chapter 1, for example, children must still be 
identified as educationally deprived ``on the basis of educationally 
related objective criteria established by the [LEA] which include 
written or oral testing instruments.'' This requirement, however, does 
not mandate a specific type of assessment, particularly one that uses a 
nationally normed test. An LEA may use whatever educationally related 
objective criteria it deems appropriate. Thus, to the extent the State 
assessment system meets the LEA's needs, it may also serve to identify 
and select children for participation in Chapter 1. On the other hand, 
to the extent the State assessment system does not provide sufficient 
information on specific children, the LEA would need to use additional 
measures to select children for participation in Chapter 1 programs.
    Changes: None.
    Comment: One commenter felt that accountability could be skewed if 
test results are obtained only from a single grade level. Another 
commenter feared that information from only one grade level would not 
provide adequate evidence of school effectiveness.
    Discussion: There is no statutory or regulatory requirement that a 
State limit its assessment of its Chapter 1 or MEP programs to a single 
grade level per school. Indeed, if a State believes that one grade does 
not adequately represent the progress of children in Chapter 1 or MEP 
or the effectiveness of a school, it should assess children in other 
grades to achieve an adequate picture of their progress.
    Changes: None.
    Comment: Two commenters suggested that, if an exception is granted, 
there would be no comparative data on student achievement as there now 
are with pre- and post-norm-referenced test scores.
    Discussion: It is true that comparative data on individual children 
would not be required under an exception just as it is not required 
under the statute. However, regardless of whether a State assessment 
system includes comparative data, nothing would prevent an LEA from 
augmenting the State assessment system to obtain comparative data if 
the LEA believes the data would be useful.
    Changes: None.
    Comment: Several commenters suggested that the basic technical 
standards contained in Sec. 200.81 of the Chapter 1 regulations be 
maintained.
    Discussion: The Chapter 1 statute does not mandate that specific 
technical standards be prescribed. Moreover, exceptions granted under 
these regulations would govern a limited period from the present until 
the reauthorization of Chapter 1 takes effect. The Secretary does not 
want to prescribe technical standards for this limited period that may 
run counter to standards that may be required under reauthorization. In 
addition, these regulations come at a time when the testing community, 
in general, is grappling with new forms of assessments that better 
measure what children should know and be able to do and redefining what 
technical standards best meet the needs of those assessments. The 
technical standards in Sec. 200.81 of the current regulations are often 
construed as prohibiting assessments other than those that are 
nationally normed or those that are modeled after these tests.
    The Secretary is very concerned, however, that State assessment 
systems being developed to support systemic education reform efforts 
are of high quality and useful and that exceptions under these 
regulations only would be granted where evaluation results under 
Chapter 1 and the MEP provide meaningful indicators about the progress 
under Chapter 1 and MEP. The Secretary, therefore, is requiring under 
these regulations the following basic technical standards for the 
assessment system: (1) that the system yields consistent results and 
(2) that those results accurately reflect what the assessment system 
was designed to measure. The Secretary has determined that to impose 
any additional technical standards on new assessment measures for the 
Chapter 1 and MEP programs is not necessary to ensure that the results 
of evaluations of these programs are sufficiently meaningful and 
useful. The Secretary is confident that the other requirements of these 
regulations ensure that a State would not implement a new assessment 
system and make educational judgments based on results from that system 
until the State has determined that the assessment accurately measures 
what children are expected to know and be able to do.
    Changes: As noted above, Secs. 200.90(b) and 201.57(b) have been 
revised to require that an assessment system for which an exception has 
been requested must yield consistent results that accurately reflect 
what the assessment system was designed to measure and may not impair 
the SEA's or LEA's ability to account for results under Chapter 1 or 
the MEP.
    Comment: One commenter asked whether the feeder pattern concept 
would be acceptable in LEAs with schools that do not contain a grade in 
which the State administers an assessment. For example, if a State 
assessment consists of a test in third grade, the commenter asked 
whether it would be permissible for schools with only grades K-2 to be 
considered part of a K-6 grade span. Another commenter suggested adding 
clarifying language that information be available from at least one 
grade ``in each Chapter 1 school.''
    Discussion: The proposed regulations stated that a State assessment 
system must provide information about the yearly performance of each 
Chapter 1 school and that this information must be from at least one 
grade level. It was the Secretary's assumption that, to meet this 
requirement, a State's assessment system would have to provide 
information from at least one grade level in each Chapter 1 school. To 
clarify this assumption, however, the regulations have been revised 
accordingly.
    Changes: Section 200.90(b) has been revised to clarify that 
assessment information must be collected from at least one grade level 
in each Chapter 1 school.
    Comment: One commenter asserted that ``achievement of basic and 
more advanced skills all children are expected to master'' is clearer 
than ``and challenging subject matter'' and suggested that the 
regulations be revised to state that the assessment must provide an 
assessment of the degree to which Chapter 1 students have mastered the 
basic and more advanced skills all children are expected to master.
    Discussion: The Secretary believes that in the context of these 
regulatory amendments ``basic and more advanced skills all children are 
expected to master'' implies that, for Chapter 1 purposes, lower 
standards may be established for all children. The Secretary believes 
it is essential that Chapter 1 participants as well as other children 
be taught challenging subject matter and assessed to determine whether 
that subject matter has been learned.
    Changes: None.
    Comment: One commenter asked whether an LEA could be granted an 
exception to use a local assessment system or whether an exception 
could only apply to a State assessment system. The commenter believed 
the regulations to be unclear in this area.
    Discussion: The Secretary intends that an SEA may request an 
exception either for a State assessment system that supports statewide 
systemic education reform efforts or for an individual LEA that has a 
local assessment system that supports its local reform efforts.
    Changes: Sections 200.90(c) and 201.57(c) have been revised to 
clarify that an SEA may request an exception for an LEA that has an 
assessment system that supports its local systemic education reform 
efforts and meets the other standards in the regulations.
    Comment: One commenter asked whether, if an exception is granted, 
the alternative assessment measures may be used for determining 
aggregate performance under the local annual review for program 
improvement as well as for local evaluation.
    Discussion: If an exception is granted, the alternative assessment 
measures may be used for any purposes for which they are appropriate.
    Changes: None.
    Comment: One commenter suggested that the definition of desired 
outcomes in Sec. 200.6 be changed or deleted, consistent with the 
intent of the NPRM. The commenter objected to that portion of the 
definition linking desired outcomes to aggregate performance and, thus, 
to scores on norm-referenced tests. The commenter also contended that 
this definition will frustrate the intent of these final regulations 
because LEAs would still be required to set their desired outcomes in 
terms of scores on norm-referenced tests.
    Discussion: Changing the definition of ``desired outcomes'' in 
Sec. 200.6 is outside the scope of this rulemaking. To make the changes 
the commenter has suggested would require the Secretary to first 
publish an additional NPRM. The Secretary does not believe, however, 
that this definition will frustrate the intent of these final 
regulations. If a State or LEA is granted an exception to the current 
national evaluation standards, the alternative assessment may be used 
for any appropriate purposes, including determining aggregate 
performance. Thus, if nationally normed tests are not part of the 
alternative assessment, scores on those tests would not be used to 
determine aggregate performance or to define desired outcomes.
    Changes: None.
    Comment: One commenter recommended that the cross-reference 
contained in Sec. 200.80(a) to Sec. 200.35(a)(1)(ii), which relates to 
assessment of students' progress in the regular program, be corrected 
to refer to Sec. 200.35(a)(1)(i)(B), which relates to assessment of 
student achievement, aggregated for the LEA as a whole, in accordance 
with the national standards in Subpart H.
    Discussion: The Secretary agrees with the commenter.
    Changes: Section 200.80(a) has been revised to correctly reference 
Sec. 200.35(a)(1)(i)(B).

[FR Doc. 94-19433 Filed 8-9-94; 8:45 am]
BILLING CODE 4000-01-P