[Federal Register Volume 67, Number 87 (Monday, May 6, 2002)]
[Proposed Rules]
[Pages 30452-30461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-11128]



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Part III





Department of Education





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34 CFR Part 200



Title I--Improving the Academic Achievement of the Disadvantaged; 
Proposed Rules

  Federal Register / Vol. 67, No. 87 / Monday, May 6, 2002 / Proposed 
Rules  

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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810-AA92


Title I--Improving the Academic Achievement of the Disadvantaged

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the regulations governing the 
programs administered under Title I of the Elementary and Secondary 
Education Act of 1965, as amended (ESEA)--referred to in these proposed 
regulations as the Title I programs. These proposed regulations are 
needed to implement recent changes to the standards and assessment 
requirements of Title I of the ESEA made by the No Child Left Behind 
Act of 2001 (NCLB Act) and were drafted subject to a negotiated 
rulemaking process.

DATES: We must receive your comments on or before June 5, 2002.

ADDRESSES: Address all comments about these proposed regulations to 
Joseph F. Johnson, Jr., Director, Compensatory Education Programs, 
Office of Elementary and Secondary Education, U.S. Department of 
Education, 400 Maryland Avenue, SW., room 3W230, FB-6, Washington, DC 
20202-6132. The Fax number for submitting comments is (202) 260-7764. 
If you prefer to send your comments through the Internet, use the 
following address: [email protected]
    If you want to comment on the information collection requirements, 
you must send your comments to Joseph F. Johnson, Jr. at the address 
above.

FOR FURTHER INFORMATION CONTACT: Susan Wilhelm, Compensatory Education 
Programs, Office of Elementary and Secondary Education, U.S. Department 
of Education, 400 Maryland Avenue, SW., room 3W202, FB-6, Washington, 
DC 20202-6132. Telephone: (202) 260-0826.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
    Individuals with disabilities may obtain this document in an 
alternative format (e.g., Braille, large print, audiotape, or computer 
diskette) on request to the contact person listed under FOR FURTHER 
INFORMATION CONTACT.

SUPPLEMENTARY INFORMATION:

Invitation to Comment

    We invite you to submit comments regarding these proposed 
regulations. To ensure that your comments have maximum effect in 
developing the final regulations, we urge you to identify clearly the 
specific section or sections of the proposed regulations that each 
comment addresses and to arrange your comments in the same order as the 
proposed regulations.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 3W204, FB-6, 400 
Maryland Avenue, SW., Washington, DC, between the hours of 8:30 a.m. 
and 4 p.m., Eastern time, Monday through Friday of each week except 
Federal holidays.

Assistance to Individuals With Disabilities in Reviewing the 
Rulemaking Record

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

Background

    The NCLB Act reauthorized the ESEA and incorporated the major 
educational reforms proposed by President George W. Bush in his No 
Child Left Behind initiative, particularly with regard to standards and 
assessment, accountability, and school improvement. These provisions 
are the centerpiece of Title I, Part A of the ESEA, as amended by the 
NCLB Act, which is designed to help disadvantaged children meet high 
academic standards.
    These proposed regulations would implement changes to the academic 
standards and assessment provisions of Title I, Part A of the ESEA in a 
manner that respects State and local control over education while 
ensuring strong accountability for results. The Secretary also is 
considering proposing regulations for other provisions in Title I, Part 
A of the ESEA. Any additional regulations will be part of a future 
Federal Register document. The Secretary intends to regulate only if 
absolutely necessary; for example, if the statute requires regulations 
or if regulations are necessary to provide flexibility or clarification 
for State and local educational agencies.
    Rather than regulating extensively, the Secretary intends to issue 
nonregulatory guidance addressing particular legal and policy issues 
under the Title I programs. This guidance will inform schools, parents, 
school districts, States, and other affected parties about the 
flexibility that exists under the statute, including different 
approaches they may take to carry out the statute's requirements.

Negotiated Rulemaking

    Section 1901(b) of Title I of the ESEA describes procedures that 
the Department must follow in developing and issuing regulations to 
implement the Title I programs. Section 1901(b)(1) requires the 
Secretary to obtain the advice and recommendations of representatives 
of Federal, State, and local administrators; parents; teachers; 
paraprofessionals; members of local boards of education; and other 
organizations involved with the implementation and operation of Title I 
programs. Accordingly, the Department published in the Federal Register 
on January 18, 2002 (67 FR 2770) a request for advice and 
recommendations on regulatory issues concerning Title I. We received 
178 responses. To obtain additional advice and recommendations, the 
Secretary invited a broad spectrum of individuals and organizations 
affected by the Title I programs to participate in focus group sessions 
in January and February in Tampa, Florida; New Orleans, Louisiana; 
Washington, DC; and Denver, Colorado.
    After obtaining this advice, the Secretary established a negotiated 
rulemaking process on the issues of academic standards and assessments 
in accordance with section 1901(b)(3) of Title I. The Secretary 
appointed members of a negotiated rulemaking committee (the Committee) 
to participate in this process. The Committee was made up of 2 
representatives of the U.S. Department of Education and 22 individuals 
from all geographic regions of the United States and was balanced 
between representatives of parents and students and representatives of 
educators and education officials. The sessions were held on March 11-
13 and 19-20, 2002, near Washington, DC.
    Under the Committee's protocols, ``consensus'' meant the lack of 
active objection by any Committee member on all issues within a 
regulatory section. The Committee reached consensus on every issue in 
the draft regulations that were the subject of its negotiations. The 
Secretary therefore proposes these negotiated regulations without 
change, other than those changes needed to

[[Page 30453]]

correct technical, punctuation, or grammatical errors.

Significant Proposed Regulations

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

Section 200.1  State Responsibilities for Developing Challenging 
Academic Standards

    Statute: Under section 1111(b)(1) of Title I, each State must adopt 
challenging academic content standards and student academic achievement 
standards (formerly called ``student performance standards''). These 
will be used by the State, its local educational agencies (LEAs), and 
its schools to carry out Part A (Improving Basic Programs Operated by 
Local Educational Agencies) of Title I. The State must apply these 
academic standards to all students and all schools in the State. States 
must have these standards in subjects determined by the State, but, at 
a minimum, in mathematics, reading/language arts, and, beginning in the 
2005-2006 school year, science. The State's content standards must 
specify what children are expected to know and be able to do in 
academic subjects. They must contain coherent and rigorous content and 
encourage the teaching of advanced skills.
    States also must have challenging student academic achievement 
standards that are aligned with the State's content standards and 
describe at least three levels of achievement: advanced, proficient, 
and basic. Advanced and proficient levels determine how well children 
are mastering the State's content standards. The basic level provides 
complete information about the progress of lower-performing children 
toward achieving the proficient and advanced levels.
    Current Regulations: The current regulations governing State 
responsibilities for developing academic standards (34 CFR 200.2) 
reflect provisions of section 1111 of the ESEA that were superseded by 
the NCLB Act.
    Proposed Regulations: Proposed Sec. 200.1 would repeat the 
statutory requirements for States to develop academic content and 
student academic achievement standards for all schools and all 
children. It also would clarify that States have the flexibility to 
develop academic content standards in reading/language arts and 
mathematics that may cover either each grade specifically or more than 
one grade. If a State develops academic content standards that cover 
more than one grade, the State must have content expectations that 
indicate to teachers and others the portion of the standards to be 
taught at each grade level.
    Proposed Sec. 200.1 would also clarify that high school standards 
must reflect what a State expects all high school students to know by 
the time they graduate, without regard to course titles or years 
completed. In other words, the focus of high school standards is at 
least on the broad academic content in mathematics, reading/language 
arts, and, beginning in 2005-2006 school year, science that a State 
expects high school students to know, rather than content linked to 
specific courses, such as Algebra I, or the specific year in which a 
high school assessment is taken. Proposed Sec. 200.1 also incorporates 
the Committee's recommendations to clarify that these standards are for 
all public schools and public school children.
    Proposed Sec. 200.1(c)(1)(ii) would specify (1) what academic 
achievement standards must include and (2) the information that is 
necessary to demonstrate fulfillment of the statutory requirement to 
set three levels of achievement based on State standards and 
assessments.
    Proposed Sec. 200.1(c)(2) would specify that, although academic 
content standards may cover more than one grade, States must have 
academic achievement standards for each grade and subject assessed. 
Proposed Sec. 200.1(c)(3) would clarify that, with regard to student 
achievement standards in science, States must have achievement levels 
and descriptions of those levels in place by the 2005-2006 school year. 
The actual assessment scores (called ``cut scores'' by the assessment 
community) for those achievement levels, however, would not have to be 
set until the assessments are due in the 2007-08 school year.
    Reasons: Proposed Sec. 200.1 reflects the Secretary's goals of 
providing flexibility while remaining true to statutory intent and 
providing clarity if the statute is ambiguous. Proposed 
Sec. 200.1(c)(1)(ii) is designed to address past confusion on the 
meaning and components of ``student academic achievement standards.'' 
Proposed Sec. 200.1(c)(3) would address the technical problem that it 
is not possible to set fully academic achievement standards before 
assessments are final.

Section 200.2  State Responsibilities for Assessment

    Statute: Under section 1111(b)(3) of Title I, each State must 
implement a set of high-quality, yearly student academic assessments 
in, at a minimum, mathematics, reading/language arts, and, by school 
year 2007-08, science. The State must use these assessments as the 
primary means of determining the yearly progress of the State, each 
LEA, and every public school toward enabling all children to meet the 
State's student academic achievement standards. The State must use the 
same assessments to measure the achievement of all children; align the 
assessments with the State's academic content and student achievement 
standards; and use the assessments for purposes for which they are 
valid and reliable.
    Assessments must involve multiple up-to-date measures of academic 
achievement, including measures that assess higher-order thinking 
skills and understanding.
    The State must disaggregate the results of assessments within each 
State, each LEA, and each school by gender, by each major racial and 
ethnic group, by English proficiency status, by migrant status, by 
students with disabilities compared to nondisabled students, and by 
economically disadvantaged students compared to students who are not 
economically disadvantaged.
    The State must produce interpretive, descriptive, and diagnostic 
reports for each student and itemized score analyses that allow 
parents, teachers, and principals to understand and address the 
specific academic needs of the student based on his or her achievement 
against State standards.
    Current Regulations: The current regulations governing State 
responsibilities for assessments (34 CFR 200.4) reflect provisions of 
section 1111 of the ESEA that were superseded by the NCLB Act.
    Proposed Regulations: Proposed Sec. 200.2 incorporates the 
statutory requirements for a State to implement a system of high-
quality, yearly student academic assessments. The Committee's 
discussions centered on three provisions, and the proposed regulations 
reflect the changes recommended by the negotiators:
    First, proposed Sec. 200.2(b)(2) would include a requirement that a 
State's assessment system be designed to be valid and accessible for 
use with the widest possible range of students, including students with 
disabilities and students with limited English proficiency.
    Second, the Committee incorporated in proposed Sec. 200.2(b)(5) 
statutory language requiring a State's assessment system to be 
supported by evidence provided by test publishers or other relevant 
sources. The additional

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provisions would specify that the Secretary would provide this evidence 
to the public on request, consistent with applicable Federal laws 
governing the disclosure of information.
    Third, proposed Sec. 200.2(b)(10)(v) incorporates the Committee's 
suggestion to clarify that, for purposes of disaggregating assessment 
data, students with disabilities are those defined under section 602(3) 
of the Individuals with Disabilities Education Act.
    Proposed Sec. 200.2(b)(8) reflects legislative history from the 
conference report accompanying the NCLB Act clarifying that the 
requirement to test only objective knowledge does not prohibit essay 
responses and opinion questions.
    Reasons: Proposed Sec. 200.2 reflects the Secretary's goals of 
providing flexibility while remaining true to statutory intent and 
providing clarity if the statute is ambiguous. The provision in 
proposed Sec. 200.2(b)(2) addresses the concern that, often, 
assessments are not designed to be used for the broadest possible range 
of students, including students with disabilities and students with 
limited English proficiency. For example, the design of assessments may 
not include validation studies with sufficient samples of students with 
limited English proficiency or students with disabilities, and, thus, 
may yield invalid results for those populations.
    The provisions in proposed Sec. 200.2(b)(5) governing the public 
availability of certain evidence that supports a State's assessment 
system represent the Committee's efforts to ensure that the proposed 
regulations are more clearly aligned with the statutory requirements. 
The clarification in proposed Sec. 200.2(b)(10)(v) is designed to 
clarify that under the statute, States, LEAs, and schools would be 
required to disaggregate results only for children with disabilities as 
defined under the Individuals with Disabilities Education Act.

Section 200.3  Designing State Academic Assessment Systems; and 
Sec. 200.4 State Law Exception

    Statute: As noted in the discussion under ``Section Sec. 200.2 
State responsibilities for assessment,'' section 1111(b)(3) of the ESEA 
requires each State to implement a set of high-quality, yearly student 
academic assessments that meet certain requirements.
    Proposed regulations: Proposed Secs. 200.3 and 200.4 would clarify 
that a State has flexibility in how it sets up its statewide assessment 
system, but also would establish qualitative criteria that the system 
must meet to fulfill statutory requirements and ensure that all 
students meet challenging State standards. Specifically, proposed 
Sec. 200.3 would clarify that a State may use different types of 
assessments as long as each test (for each grade and subject) fully 
addresses the depth and breadth of the State's academic content 
standards; is valid, reliable, and of high technical quality; and 
expresses results in terms of the State's academic achievement 
standards.
    If a State uses only assessments referenced against national norms 
at a particular grade, these assessments would have to be augmented 
with additional items as necessary to (1) measure accurately the depth 
and breadth of the State's academic content standards and (2) express 
results in terms of the State's academic achievement levels.
    If a State includes a combination of assessments (whether different 
State assessments or State and local assessments), the State must 
demonstrate (1) that the design is rational and coherent, (2) that the 
assessments work together to assess fully the State's academic content 
standards, and (3) that the assessments measure adequate yearly 
progress, as well as student progress towards meeting the State's 
standards.
    A State would be permitted to include locally designed assessments 
if the State assumed responsibility for: (1) Setting technical 
criteria; (2) ensuring that the assessments are equivalent to one 
another and to State assessments, if any, in content coverage, 
difficulty, and quality; (3) reviewing and approving each assessment; 
and (4) ensuring that data from all assessments can be aggregated to 
make a fair, rational, and equitable determination of adequate yearly 
progress for school districts and schools. When aggregating data from 
different assessments, a State must be able to demonstrate that results 
are sufficiently comparable to be aggregated. Such evidence might 
include data analysis and analyses by psychometricians with experience 
in large-scale assessments. The Committee spent a substantial amount of 
time on these provisions trying to make them as clear as possible.
    Proposed Sec. 200.4(a) clarifies that if a State is prohibited by 
State law from establishing a statewide assessment system, the State 
would be excepted from the requirement for a single statewide system. 
Instead, that State could establish a statewide system composed of only 
local standards and assessments. The State would have to meet the same 
qualitative criteria that other States must meet with regard to 
inclusion of local assessments in an overall State accountability 
framework.
    Reasons: Proposed Secs. 200.3 and 200.4 would permit States 
considerable flexibility in designing State academic assessment systems 
consistent with the statutory provisions.

Section 200.5  Timeline for Assessments

    Statute: Under section 1111(b)(3)(C) of the Act, a State must 
administer assessments consistent with a specified timeline. The 
statute establishes a three-stage timeline for developing and 
administering assessments:
     In stage one, through school year 2004-2005, the State 
must administer the yearly assessments in mathematics and reading/
language arts at least once during each of three grade groupings: (1) 
Grades 3 through 5, (2) grades 6 through 9, and (3) grades 10 through 
12.
     In stage two, beginning no later than school year 2005-
2006, annually, the State must administer the yearly assessments in 
mathematics and reading/language arts, at a minimum, in each of grades 
3 through 8 and once during grades 10 through 12.
     In stage three, beginning no later than school year 2007-
2008, in addition to the assessments required in stage two, the State 
must administer the yearly assessments that measure proficiency in 
science at least once during each of three grade groupings: (1) Grades 
3 through 5, (2) grades 6 through 9, and (3) grades 10 through 12.
    Proposed regulations: Proposed Sec. 200.5 describes the statutory 
timelines for administering assessments. In particular, it would 
clarify that, beginning no later than the 2005-06 school year, States 
must administer yearly assessments in both reading/language arts and in 
mathematics in each of the required grades 3 through 8 and at least 
once in grades 10 through 12. It would include the statutory 
requirement that a State provide assessment results to school 
districts, schools, and teachers no later than the beginning of the 
next school year. It would clarify that this requirement starts 
beginning with the 2002-2003 school year.
    Reasons: Proposed Sec. 200.5 is designed to clarify that the 
assessments in reading/language arts and mathematics are both to be 
administered each year as opposed to administering the reading/language 
arts assessment one year and the mathematics assessment in alternate 
years. It also clarifies the starting date for the requirement to 
provide assessment results no later than the beginning of the next 
school year.

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Section 200.6  Inclusion of All Students

    Statute: A State's assessment system must provide for the inclusion 
of all students and provide appropriate accommodations for students 
with disabilities, as defined under section 602(3) of the Individuals 
with Disabilities Education Act, and students with limited English 
proficiency.
    Moreover, to the extent practicable, a State must assess students 
with limited English proficiency in the language and form most likely 
to yield accurate data on what those students know and can do in 
academic content areas until they have achieved English proficiency. 
With respect to reading/language arts, a State must assess students 
with limited English proficiency who have attended schools in the 
United States (excluding Puerto Rico) for three or more consecutive 
school years in English. If an LEA determines, on a case-by-case basis, 
however, that academic assessments in another language would likely 
yield more accurate and reliable information, the LEA may use those 
assessments for up to an additional two years.
    Proposed Regulations: Proposed Sec. 200.6 incorporates and 
clarifies the requirement that State assessment systems include all 
students and provide appropriate accommodations for students with 
disabilities. Proposed Sec. 200.6(a) was the subject of substantial 
discussion by the Committee. At the Committee's suggestion, the 
proposed regulations would specify that the accommodations for students 
with disabilities be those that each student's IEP team determines are 
necessary to measure the student's academic achievement relative to the 
State's academic content and achievement standards for the grade in 
which the student is enrolled.
    The proposed regulations also would clarify that a State's 
assessment system is to provide appropriate accommodations for students 
covered under section 504 of the Rehabilitation Act of 1973. The 
proposed regulations would specify that each student's placement team 
determines which accommodations are necessary to measure the student's 
academic achievement relative to the State's academic content and 
achievement standards for the grade in which the student is enrolled.
    Proposed Sec. 200.6(a)(2) reflects the Committee's consensus that a 
State's academic assessment system must provide one or more alternate 
assessments for those students with disabilities (as defined under 
section 602(3) of the Individuals with Disabilities Education Act), 
who, in the determination of the student's IEP team, cannot participate 
in all or part of the State assessments, even with appropriate 
accommodations.
    This section would clarify that alternate assessments must yield 
results in at least reading/language arts, mathematics, and, beginning 
in the 2007-2008 school year, science. The Committee recommended that 
this provision be further clarified in future guidance to indicate that 
a State may use the same alternate assessment for reading and 
mathematics and, beginning in the 2007-2008 school year, science.
    Proposed Sec. 200.6(b) would also clarify the statutory provisions 
regarding the assessment of children with limited English proficiency. 
The proposed regulations would make clear that this requirement does 
not exempt a State from assessing limited English proficient students 
before those students are required to be assessed in English in 
reading/language arts. The proposed regulations would require a State 
to assess limited English proficient students in a valid and reliable 
manner that includes reasonable accommodations and, to the extent 
practicable, assessments in native language, if they would yield better 
information on what those students know. The proposed regulations would 
also require the State to assess limited English proficient students' 
achievement in English in reading/language arts if those students have 
been in schools in the United States (except Puerto Rico) for three or 
more consecutive years.
    Proposed Sec. 200.6(c) would clarify that migrant and other mobile 
students must be assessed even if they are not included for 
accountability purposes. The Committee agreed to expand this section to 
clarify that a State must include homeless children (as defined in 
section 725(2) of Title VII, Subtitle B of the McKinney-Vento Homeless 
Assistance Act) in its State assessment, reporting, and accountability 
systems, consistent with the requirements of the statute addressing 
mobile students. In other words, homeless students who are mobile must 
be tested, but their results do not need to be included in determining 
adequate yearly progress. Non-mobile homeless students must be tested 
and their results included in accountability.
    Reasons: The proposed clarifications in Sec. 200.6(a)(1) reflect 
the Committee's concern that students covered by section 504 of the 
Rehabilitation Act of 1973 are not necessarily students with 
disabilities under section 602(3) of the Individuals with Disabilities 
Education Act, yet they may need accommodations to ensure that they can 
participate in a State's assessment system. Proposed 
Sec. 200.6(a)(1)(i) and (a)(1)(ii) require that accommodations permit 
measurement of a student's academic achievement relative to grade-level 
academic content and achievement standards. These provisions reflect 
the Committee's concerns that the statute's requirements for rigorous 
accountability for all students not be diluted by permitting 
accommodations that would evaluate against lower standards students 
taking assessments with accommodations.
    The Committee's recommendation for future guidance to clarify that 
a State may use the same alternate assessment for reading/language arts 
and mathematics recognizes a practice already in place in some States. 
The clarification on including students with limited English 
proficiency in State assessment systems was designed to eliminate the 
potential misunderstanding that these students might be exempt from all 
assessments until they are required to be tested in English in reading/
language arts.

Section 200.7  Disaggregation of Data

    Statute: The statute requires, for purposes of determining adequate 
yearly progress, measurement of the achievement of all public 
elementary and secondary school students, economically disadvantaged 
students, students from major racial and ethnic groups, students with 
disabilities, and students with limited English proficiency. The 
statute also requires disaggregation and reporting of assessment 
results by gender, by each major racial and ethnic group, by English 
proficiency status, by migrant status, by students with disabilities as 
compared to nondisabled students, and by economically disadvantaged 
students as compared to students who are not economically 
disadvantaged. For all of these purposes, disaggregation by these 
groups would not be required if the numbers are too small to yield 
reliable information or if the results would reveal personally 
identifiable information about an individual student.
    Proposed Regulations: Proposed Sec. 200.7 would clarify that, in 
disaggregating data, a State is responsible for determining how many 
students constitute a sufficient number to make the results reliable 
for accountability and reporting purposes. It also would clarify that a 
State must apply section 444(b) of the General Education Provisions Act 
(the Family Educational Rights and Privacy Act) in determining whether 
disaggregated data

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would reveal personally identifiable information. The proposed 
regulations would require a State to make every effort to maximize 
disaggregation of data, while meeting the requirements for privacy and 
statistical reliability.
    Reasons: By allowing a State to establish the minimum numbers for 
determining reliable disaggregated data, the proposed provisions offer 
flexibility and acknowledge that these minimums may vary according to 
circumstance or location.

Section 200.8  Assessment Reports

    Statute: A State assessment system must be able to produce student 
reports and itemized score analyses.
    Proposed Regulations: Proposed Sec. 200.8 addresses the types of 
reports that a State's assessment system must produce. The proposed 
regulations would clarify that individual student reports must describe 
achievement measured against the State's academic achievement 
standards. The proposed regulations also would clarify that the 
requirement for producing and reporting analyses of student scores does 
not require the State to release individual test items.
    Reasons: Proposed Sec. 200.8 is intended to provide greater clarity 
regarding the statutory requirements pertaining to student reports and 
itemized score analyses.

Section 200.9  Deferral of Assessments

    Statute: Under section 1111(b)(3)(D) of the ESEA, a State may defer 
the commencement, or suspend the administration, of certain assessments 
for each year that the amount appropriated at the Federal level for 
assessment development falls below a specified minimum. The State may 
not, however, cease the development of its assessments even if 
sufficient funds are not appropriated.
    Proposed regulations: Proposed Sec. 200.9(b) would clarify that the 
statute requires a State to continue to develop assessments if amounts 
appropriated at the Federal level for assessments are below a certain 
minimum.
    Reasons: Proposed Sec. 200.9 is intended to make the intent of this 
provision more clear and avoid confusion.

Section 200.10  Applicability of a State's Academic Assessments to 
Private Schools and Private School Students

    Statute: Under section 9506 of the ESEA, a student who attends a 
private school that does not receive funds or services under the ESEA 
is not required to participate in any assessment referred to in the 
ESEA.
    Proposed Regulations: Proposed Sec. 200.10 is designed to clarify 
that nothing in proposed Sec. 200.2 would require a private school to 
participate in a State's assessment system. However, through timely 
consultation with private school officials, an LEA must determine how 
it will assess academic services to participating private school 
students and how it will use the assessment results to improve services 
to these children. The assessments used could be the State's academic 
assessments under proposed Sec. 200.2 or other appropriate academic 
assessments.
    Reasons: The proposed regulations would clarify the flexibility 
given to an LEA in determining how services to participating private 
school students will be assessed.

Executive Order 12866

1. Potential Costs and Benefits
    The proposed costs have been reviewed in accordance with Executive 
Order 12866. Under the terms of the Order, the Secretary has assessed 
the costs and benefits of this regulatory action.
    The standards and assessments requirements of the new legislation 
require States to develop additional standards in the area of science, 
and many States will also need to develop and implement new assessments 
in order to meet the statutory requirement that they put in place 
assessments, at least in reading/language and mathematics, in grades 3 
through 8. These new requirements will impose costs on States, with the 
precise amount of these costs dependent on State decisions about the 
types of assessments they will adopt, whether they will develop these 
assessments on their own or in partnership with other States, and other 
factors. The Federal Government is financing the development and 
implementation of the additional standards and assessments through 
appropriations for Elementary and Secondary Education programs. The 
Secretary believes that the costs not met through Federal funding are 
likely to be minimal, depending on the level of Federal funding 
Congress provides through appropriations.
    The new legislation, and the regulations, also convey major 
benefits on States. The Department is providing increased support for 
State and local efforts to raise educational achievement for all 
students. The standards and assessment requirements of Title I are also 
part of a package of reforms that includes major new provisions 
allowing increased State and local flexibility in the use of Federal 
education funds. These provisions will not only allow States and school 
districts to use Federal funds in a manner more consistent with their 
own reform strategies and priorities, they will save money normally 
spent in complying with multiple Federal requirements. While most of 
the benefits of the new law are conveyed by the statute, the 
regulations proposed through this notice would also result in cost 
savings, by allowing States considerable flexibility in adopting 
assessment systems composed entirely of State-developed and 
administered tests, or systems composed of both State and local tests, 
and by allowing a combination of criterion- and norm-referenced tests, 
so long as mixed systems meet certain basic requirements.
    For these reasons, the Secretary has concluded that these 
regulations are justified in terms of the costs and benefits.

Summary of Potential Costs and Benefits

    Because the Secretary has chosen to regulate on very few statutory 
provisions, States and LEAs have considerable flexibility in 
implementing the provisions of Title I to meet their particular needs 
and circumstances. Moreover, the potential costs associated with the 
proposed regulations are minimal.
2. Clarity of the Regulations
    Executive Order 12866 and the Presidential Memorandum on ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec. '' and a numbered heading; for example, 
Sec. 200.1  State responsibilities for developing challenging academic 
standards.)
     Could the description of the proposed regulations in the 
``Supplementary Information'' section of this preamble be more helpful 
in

[[Page 30457]]

making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    Send any comments that concern how the Department could make these 
proposed regulations easier to understand to the person listed in the 
ADDRESSES section of the preamble.

Regulatory Flexibility Act Certification

    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities. The small entities that would be affected by these proposed 
regulations are small LEAs receiving Federal funds under this program. 
However, the regulations would not have a significant economic impact 
on the small LEAs affected because the regulations would not impose 
excessive regulatory burdens or require unnecessary Federal 
supervision. The regulations would impose minimal requirements to 
ensure the proper expenditure of program funds.

Paperwork Reduction Act of 1995

    The proposed regulations contain two information collection 
requirements. Under proposed Secs. 200.6(b)(1)(ii) and 200.7(a)(2), a 
State must include several items in its Title I State plan. First, a 
State must identify languages other than English that are present in 
the student population served by the State educational agency and 
indicate the languages for which student academic assessments are not 
available and are needed. Second, a State must determine and justify in 
its State plan the minimum number of students sufficient to yield 
statistically reliable information for each purpose under the statute 
where disaggregated data are used.
    Title IX, Part C of the ESEA, as amended by the NCLB Act, 
authorizes the Secretary to provide States with the option of 
submitting a consolidated application to obtain certain ESEA funds, 
including Title I funds. The Department is in the process of obtaining 
Office of Management and Budget (OMB) approval for the clearance 
package addressing the paperwork requirements for a consolidated 
application on an emergency basis. That package incorporates the Title 
I State plan requirements proposed in this regulation. We invite 
comments on the paperwork requirements of this proposed regulation. 
These written comments should be addressed to Joseph F. Johnson, Jr. at 
the address listed under ADDRESSES.

Electronic Access to This Document

    You may view this document, as well as all other Department of 
Education documents published in the Federal Register, in text or Adobe 
Portable Document Format (PDF) on the Internet at the following site: 
www.ed.gov/legislation/FedRegister
    To use PDF you must have Adobe Acrobat Reader, which is available 
free at this site. If you have questions about using PDF, call the U.S. 
Government Printing Office (GPO), toll free, at 1-888-293-6498; or in 
the Washington, DC, area at (202) 512-1530.
    You may also view this document in text or PDF at the following 
site:www.ed.gov

    Note: 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 on GPO Access at: http://www.access.gpo.gov/nara/index.html

(Catalog of Federal Domestic Assistance Numbers: 84.010 Improving 
Programs Operated by Local Educational Agencies)

List of Subjects in 34 CFR Part 200

    Administrative practice and procedure, Adult education, Children, 
Coordination, Education, Education of disadvantaged children, Education 
of children with disabilities, Elementary and secondary education, 
Eligibility, Family, Family-centered education, Grant programs-
education, Indians-education, Institutions of higher education, 
Interstate coordination, Intrastate coordination, Juvenile delinquency, 
Local educational agencies, Migratory children, Migratory workers, 
Neglected, Nonprofit private agencies, Private schools, Public 
agencies, Reporting and recordkeeping requirements, State-administered 
programs, State educational agencies, Subgrants.

    Dated: May 1, 2002.
Rod Paige,
Secretary of Education.
    The Secretary proposes to amend part 200 of title 34 of the Code of 
Federal Regulations as follows:

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

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

    Authority: 20 U.S.C. 6301 through 6578, unless otherwise noted.

    2. Revise the first undesignated center heading in subpart A of 
this part to read as follows:

Standards and Assessments

    3. Revise Secs. 200.1 through 200.6, to read as follows:


Sec. 200.1  State responsibilities for developing challenging academic 
standards.

    (a) Academic standards in general. A State must develop challenging 
academic content and student academic achievement standards that will 
be used by the State, its local educational agencies (LEAs), and its 
schools to carry out subpart A of this part. These academic standards 
must--
    (1) Be the same academic standards that the State applies to all 
public schools and public school children in the State, including the 
public schools and public school children served under subpart A of 
this part;
    (2) Include the same knowledge, skills, and levels of achievement 
expected of all children; and
    (3) Include at least mathematics, reading/language arts, and, 
beginning in the 2005-2006 school year, science, and may include other 
subjects determined by the State.
    (b) Academic content standards. (1) The challenging academic 
content standards required under paragraph (a) of this section must--
    (i) Specify what all children are expected to know and be able to 
do;
    (ii) Contain coherent and rigorous content; and
    (iii) Encourage the teaching of advanced skills.
    (2) A State's academic content standards may be grade specific or, 
if grade-level content expectations are provided for each of grades 3 
through 8, may cover more than one grade.
    (3) At the high school level, the academic content standards must 
define the knowledge and skills that all high school students are 
expected to know and be able to do in at least reading/language arts, 
mathematics, and, beginning in the 2005-06 school year, science, 
irrespective of course titles or years completed.
    (c) Academic achievement standards. (1) The challenging student 
academic achievement standards required under paragraph (a) of this 
section must--
    (i) Be aligned with the State's academic content standards; and
    (ii) Include the following components for each content area:
    (A) Achievement levels that describe at least--
    (1) Two levels of high achievement--proficient and advanced--that 
determine how well children are mastering the material in the State's 
academic content standards; and
    (2) A third level of achievement--basic--to provide complete 
information

[[Page 30458]]

about the progress of lower-achieving children toward mastering the 
proficient and advanced levels of achievement.
    (B) Descriptions of the competencies associated with each 
achievement level.
    (C) Assessment scores (``cut scores'') that differentiate among the 
achievement levels as specified in paragraph (c)(1)(ii)(A) of this 
section, and a description of the rationale and procedures used to 
determine each achievement level.
    (2) A State must develop academic achievement standards for every 
grade and subject assessed, even if the State's academic content 
standards cover more than one grade.
    (3) With respect to academic achievement standards in science, a 
State must develop--
    (i) Achievement levels and descriptions no later than the 2005-06 
school year; and
    (ii) Assessment scores (``cut scores'') after the State has 
developed its science assessments but no later than the 2007-08 school 
year.
    (d) Subjects without standards. If an LEA serves students under 
subpart A of this part in subjects for which a State has not developed 
academic standards, the State must describe in its State plan a 
strategy for ensuring that those students are taught the same knowledge 
and skills and held to the same expectations in those subjects as are 
all other students.

(Authority: 20 U.S.C. 6311(b)(1))


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 
includes, at a minimum, academic assessments in mathematics, reading/
language arts and, beginning in the 2007-08 school year, science.
    (2) The State may also measure the achievement of students in other 
academic subjects in which the State has adopted challenging academic 
content and student academic achievement standards.
    (b) The assessment system required under this section must meet the 
following requirements:
    (1) Be the same assessment system used to measure the achievement 
of all students in accordance with Sec. 200.3 or Sec. 200.4.
    (2) Be designed to be valid and accessible for use by the widest 
possible range of students, including students with disabilities and 
students with limited English proficiency.
    (3)(i) Be aligned with the State's challenging academic content and 
student academic achievement standards; and
    (ii) Provide coherent information about student attainment of those 
standards.
    (4)(i) Be used for purposes for which the assessment system is 
valid and reliable; and
    (ii) Be consistent with relevant, nationally recognized 
professional and technical standards.
    (5) Be supported by evidence (which the Secretary will provide upon 
request, consistent with applicable federal laws governing the 
disclosure of information) from test publishers or other relevant 
sources that the assessment system is--
    (i) Of adequate technical quality for each purpose required under 
the Act; and
    (ii) Consistent with the requirements of this section.
    (6) Be administered in accordance with the timeline in Sec. 200.5.
    (7) Involve multiple up-to-date measures of student academic 
achievement, including measures that assess higher-order thinking 
skills and understanding of challenging content.
    (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 
items--
    (i) Such as constructed-response, short answer, or essay; or
    (ii) That require a student to analyze a passage of text or to 
express opinions.
    (9) Provide for participation in the assessment system of all 
students in the grades being assessed consistent with Sec. 200.6.
    (10) Except as provided in Sec. 200.7, enable results to be 
disaggregated within each State, LEA, and school by--
    (i) Gender;
    (ii) Each major racial and ethnic group;
    (iii) English proficiency status;
    (iv) Migrant status as defined in Title I, Part C of the Act;
    (v) Students with disabilities as defined under section 602(3) of 
the Individuals with Disabilities Education Act as compared to all 
other students; and
    (vi) Economically disadvantaged students as compared to students 
who are not economically disadvantaged.
    (11) Produce individual student reports consistent with 
Sec. 200.8(a).
    (12) Enable itemized score analyses to be produced and reported to 
LEAs and schools consistent with Sec. 200.8(b).
    (c) The State may include academic assessments that do not meet the 
requirements in paragraph (b) of this section in the assessment system 
as additional measures. Those additional assessments--
    (1) May not reduce the number, or change the identity, of schools 
that would otherwise be subject to school improvement, corrective 
action, or restructuring under section 1116 of Title I of the 
Elementary and Secondary Education Act, as amended by the NCLB Act 
(hereinafter ``the Act''), if those assessments were not used; but
    (2) May identify additional schools for school improvement, 
corrective action, or restructuring.

(Authority: 20 U.S.C. 6311(b)(3))


Sec. 200.3  Designing State Academic Assessment Systems.

    (a)(1) For each grade and subject assessed, a State's assessments 
must--
    (i) Address the depth and breadth of the State's academic content 
standards under Sec. 200.1(b);
    (ii) Be valid, reliable, and of high technical quality;
    (iii) Express student results in terms of the State's student 
academic achievement standards; and
    (iv) Be designed to provide a coherent system across grades and 
subjects.
    (2) A State may include in its academic assessment system under 
Sec. 200.2 either or both--
    (i) Criterion-referenced assessments; and
    (ii) Assessments that yield national norms, provided that, if the 
State uses only assessments referenced against national norms at a 
particular grade, those assessments--
    (A) Are augmented with additional items as necessary to measure 
accurately the depth and breadth of the State's academic content 
standards; and
    (B) Express student results in terms of the State's academic 
achievement standards.
    (b) A State that includes a combination of assessments, as 
described in paragraph (a)(2) of this section, or a combination of 
State and local assessments in its State assessment system must 
demonstrate that the system has a rational and coherent design that--
    (1) Identifies the assessments to be used;
    (2) Indicates the relative contribution of each assessment 
towards--
    (i) Ensuring alignment with the State's academic content standards; 
and
    (ii) Determining the adequate yearly progress of each school and 
LEA; and
    (3) Is able to provide information regarding the progress of 
students relative to the State's academic standards in order to inform 
instruction.
    (c) A State that includes local assessments in the assessment of 
its content standards must--

[[Page 30459]]

    (1) Establish technical criteria to ensure that each local 
assessment meets the requirements of paragraph (a)(2) of this section;
    (2) Demonstrate that all local assessments in use for this 
purpose--
    (i) Are equivalent to one another and to State assessments, where 
they exist, in their content coverage, difficulty, and quality;
    (ii) Have comparable validity and reliability with respect to 
groups of students described in section 1111(b)(2)(C)(v) of the Act; 
and
    (iii) Provide unbiased, rational, and consistent determinations of 
the annual progress of schools and LEAs within the State;
    (3) Review and approve each local assessment to ensure that it 
meets or exceeds the State's technical criteria in paragraph (c)(1) of 
this section and the requirements in paragraph (c)(2) of this section; 
and
    (4) Be able to aggregate, with confidence, data from local 
assessments to determine whether the State has made adequate yearly 
progress.
    (d) A State's academic assessment system may rely exclusively on 
local assessments only if it meets the requirements of Sec. 200.4.

(Authority: 20 U.S.C. 6311(b)(3))


Sec. 200.4  State law exception.

    (a) If a State provides satisfactory evidence to the Secretary that 
neither the SEA nor any other State government official, agency, or 
entity has sufficient authority under State law to adopt academic 
content standards, student academic achievement standards, and academic 
assessments applicable to all students enrolled in the State's public 
schools, the State may meet the requirements under Secs. 200.1 and 
200.2 by--
    (1) Adopting academic standards and academic assessments that meet 
the requirements of Secs. 200.1 and 200.2 on a Statewide basis and 
limiting their applicability to students served under subpart A of this 
part; or
    (2) Adopting and implementing policies that ensure that each LEA in 
the State that receives funds under subpart A of this part will adopt 
academic standards and academic assessments aligned with those 
standards that--
    (i) Meet the requirements in Secs. 200.1 and 200.2; and
    (ii) Are applicable to all students served by the LEA.
    (b) A State that qualifies under paragraph (a) of this section 
must--
    (1) Establish technical criteria for evaluating whether each 
LEA's--
    (i) Academic content and student academic achievement standards 
meet the requirements in Sec. 200.1; and
    (ii) Academic assessments meet the requirements in Sec. 200.2, 
particularly regarding validity and reliability, technical quality, 
alignment with the LEA's academic standards, and inclusion of all 
students in the grades assessed;
    (2) Review and approve each LEA's academic standards and academic 
assessments to ensure that they--
    (i) Meet or exceed the State's technical criteria; and
    (ii) For purposes of this section--
    (A) Are equivalent to one another in their content coverage, 
difficulty, and quality;
    (B) Have comparable validity and reliability with respect to groups 
of students described in section 1111(b)(2)(C)(v) of the Act; and
    (C) Provide unbiased, rational, and consistent determinations of 
the annual progress of LEAs and schools within the State; and
    (3) Be able to aggregate, with confidence, data from local 
assessments to determine whether the State has made adequate yearly 
progress.

(Authority: 20 U.S.C. 6311(b)(5))


Sec. 200.5  Timeline for assessments.

    (a) Reading/language arts and mathematics. (1) Through no later 
than the 2004-2005 school year, a State must administer the assessments 
required under Sec. 200.2 not less than one time during--
    (i) Grades 3 through 5;
    (ii) Grades 6 through 9; and
    (iii) Grades 10 through 12.
    (2) Except as provided in paragraph (a)(3) of this section, 
beginning no later than the 2005-2006 school year, a State must 
administer both the reading/language arts and mathematics assessments 
required under Sec. 200.2--
    (i) In each of grades 3 through 8; and
    (ii) At least once in grades 10 through 12.
    (3) The Secretary may extend, for one additional year, the timeline 
in paragraph (a)(2) of this section if a State demonstrates that--
    (i) Full implementation is not possible due to exceptional or 
uncontrollable circumstances such as--
    (A) A natural disaster; or
    (B) A precipitous and unforeseen decline in the financial resources 
of the State; and
    (ii) The State can complete implementation within the additional 
one-year period.
    (b) Science. Beginning no later than the 2007-2008 school year, the 
assessments required under Sec. 200.2 must be administered not less 
than one time during--
    (1) Grades 3 through 5;
    (2) Grades 6 through 9; and
    (3) Grades 10 through 12.
    (c) Timing of results. Beginning with the 2002-2003 school year, a 
State must promptly provide the results of its assessments no later 
than before the beginning of the next school year to LEAs, schools, and 
teachers in a manner that is clear and easy to understand.

(Authority: 20 U.S.C. 6311(b)(3))


Sec. 200.6  Inclusion of all students.

    A State's academic assessment system required under Sec. 200.2 must 
provide for the participation of all students in the grades assessed.
    (a) Students eligible under IDEA and Section 504. (1) Appropriate 
accommodations. A State's academic assessment system must provide--
    (i) For each student with disabilities, as defined under section 
602(3) of the Individuals with Disabilities Education Act, appropriate 
accommodations that each student's IEP team determines are necessary to 
measure the academic achievement of the student relative to the State's 
academic content and achievement standards for the grade in which the 
student is enrolled, consistent with Sec. 200.1(b)(2), (b)(3), and (c); 
and
    (ii) For each student covered under section 504 of the 
Rehabilitation Act of 1973, appropriate accommodations that each 
student's placement team determines are necessary to measure the 
academic achievement of the student relative to the State's academic 
content and achievement standards for the grades in which the student 
is enrolled, consistent with Sec. 200.1(b)(2), (b)(3), and (c).
    (2) Alternate assessment.
    (i) The State's academic assessment system must provide for one or 
more alternate assessments for each student with disabilities as 
defined under section 602(3) of the Individuals with Disabilities 
Education Act who the student's IEP team determines cannot participate 
in all or part of the State assessments under paragraph (a)(1) of this 
section, even with appropriate accommodations.
    (ii) Alternate assessments must yield results in at least reading/
language arts, mathematics, and, beginning in the 2007-2008 school 
year, science.
    (b) Limited English proficient students. A State must include 
limited English proficient students in its academic assessment system 
as follows:
    (1) In general. (i) Consistent with paragraph (b)(2) of this 
section, the State must assess limited English proficient

[[Page 30460]]

students in a valid and reliable manner that includes--
    (A) Reasonable accommodations; and
    (B) 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 subjects other than English until the students have achieved English 
language proficiency.
    (ii) In its State plan, the State must--
    (A) Identify the languages other than English that are present in 
the student population served by the SEA; and
    (B) Indicate the languages for which yearly student academic 
assessments are not available and are needed.
    (iii) The State--
    (A) Must make every effort to develop such assessments; and
    (B) May request assistance from the Secretary if linguistically 
accessible academic assessment measures are needed.
    (2) Assessing reading/language arts in English. (i) Unless an 
extension of time is warranted under paragraph (b)(2)(ii) of this 
section, a State must assess, using assessments written in English, the 
achievement of any limited English proficient student in meeting the 
State's reading/language arts academic standards if the student has 
attended schools in the United States, excluding Puerto Rico, for three 
or more consecutive years.
    (ii) An LEA may continue, for no more than two additional 
consecutive years, to assess a limited English proficient student under 
paragraph (b)(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.
    (iii) The requirements in paragraph (b)(2)(i) and (ii) of this 
section do not permit an exemption from participating in the State 
assessment system for limited English proficient students.
    (3) Assessing English proficiency. (i) Unless a State receives an 
extension under paragraph (b)(3)(ii) of this section the State must 
require each LEA, beginning no later than the 2002-2003 school year, to 
assess annually the English proficiency, including reading, writing, 
speaking, and listening skills, of all students with limited English 
proficiency in schools in the LEA.
    (ii) The Secretary may extend, for one additional year, the 
deadline in paragraph (b)(3)(i) of this section if the State 
demonstrates that--
    (A) Full implementation is not possible due to exceptional or 
uncontrollable circumstances such as--
    (1) A natural disaster; or
    (2) A precipitous and unforeseen decline in the financial resources 
of the State; and
    (B) The State can complete implementation within the additional 
one-year period.
    (c) Migrant and other mobile children. A State must include migrant 
children, as defined in Title I, Part C, of the Act, and other mobile 
children in its academic assessment system, even if those students are 
not included for accountability purposes under section 
1111(b)(3)(C)(xi) of the Act.
    (d) Children experiencing homelessness.
    (1) A State must include homeless children, as defined in section 
725(2) of Title VII, Subtitle B of the McKinney-Vento Act, in its 
academic assessment, reporting, and accountability systems, consistent 
with section 1111(b)(3)(C)(xi) of the Act.
    (2) The State is not required to report as a separate disaggregated 
category as defined in paragraph (b)(10) of this section the assessment 
results of the children referred to in paragraph (d)(1) of this 
section.

(Authority: 20 U.S.C. 6311(b)(3))

    4. Add Sec. 200.7 to read as follows:


Sec. 200.7  Disaggregation of data.

    (a) Statistically reliable information. (1) A State may not use 
disaggregated data for one or more subgroups under Sec. 200.2(b)(10) to 
report achievement results under section 1111(h) of the Act (report 
cards) or to identify schools in need of improvement, corrective 
action, or restructuring under section 1116 of the Act if the number of 
students in those subgroups is insufficient to yield statistically 
reliable information.
    (2) Based on sound statistical methodology, a State must determine 
and justify in its State plan the minimum number of students sufficient 
to yield statistically reliable information for each purpose for which 
disaggregated data are used.
    (b) Personally identifiable information. (1) A State may not use 
disaggregated data for one or more subgroups under Sec. 200.2(b)(10) to 
report achievement results under section 1111(h) of the Act (report 
cards) if the results would reveal personally identifiable information 
about an individual student.
    (2) To determine whether disaggregated results would reveal 
personally identifiable information about an individual student, a 
State must apply the requirements under section 444(b) of the General 
Education Provisions Act (the Family Educational Rights and Privacy Act 
of 1974).
    (3) Nothing in paragraph (b)(1) or (b)(2) of this section shall be 
construed to abrogate the responsibility of States to implement the 
requirements of section 1116(a) of the Act for determining whether 
States, LEAs, and schools are making adequate yearly progress on the 
basis of the performance of each group listed in section 
1111(b)(2)(C)(v)(II) of the Act.
    (4) Each State shall include in its State plan, and each State and 
LEA shall implement, appropriate strategies to protect the privacy of 
individual students in reporting achievement data under section 1111(h) 
of the Act and in determining whether schools and LEAs are making 
adequate yearly progress on the basis of disaggregated groups under 
section 1111(b)(2)(C)(v)(II) of the Act.

(Authority: 20 U.S.C. 6311(b)(3); 1232g)

    5. Revise Sec. 200.8 and place it under the undesignated center 
heading ``Standards and Assessments'' to read as follows:


Sec. 200.8  Assessment reports.

    (a) Student reports. A State's academic assessment system must 
produce individual student interpretive, descriptive, and diagnostic 
reports that--
    (1)(i) Include information regarding achievement on the academic 
assessments under Sec. 200.2 measured against the State's student 
academic achievement standards; and
    (ii) Help parents, teachers, and principals to understand and 
address the specific academic needs of students; and
    (2) Are provided to parents, teachers, and principals--
    (i) As soon as is practicable after the assessment is given;
    (ii) In an understandable and uniform format; and
    (iii) To the extent practicable, in a language that parents can 
understand.
    (b) Itemized score analyses for LEAs and schools. (1) A State's 
academic assessment system must produce and report to LEAs and schools 
itemized score analyses, consistent with Sec. 200.2(b)(4), so that 
parents, teachers, principals, and administrators can interpret and 
address the specific academic needs of students.
    (2) The requirement to report itemized score analyses in paragraph 
(b) of this section does not require the release of test items.

(Authority: 20 U.S.C. 6311(b)(3))


[[Page 30461]]


    6. Add Sec. 200.9 under the undesignated center heading ``Standards 
and Assessments'' 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 that were not required prior 
to the date of enactment of the Act for one year for each year for 
which the amount appropriated for State assessment grants under section 
6113(a)(2) of the Act is less than the trigger amount in section 
1111(b)(3)(D) of the Act.
    (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 6113(a)(2) of the Act.

(Authority: 20 U.S.C. 6311(b)(3); 7301b(a)(2))

    7. Revise Sec. 200.10 and place it under the undesignated center 
heading ``Standards and Assessments'' to read as follows:


Sec. 200.10  Applicability of a State's academic assessments to private 
schools and private school students.

    (a) Nothing in Sec. 200.1 or Sec. 200.2 requires a private school, 
including a private school whose students receive services under this 
part, to participate in a State's academic assessment system.
    (b)(1) If an LEA provides services to eligible private school 
students under subpart A of this part, the LEA must, through timely 
consultation with appropriate private school officials, determine how 
services to eligible private school students will be academically 
assessed and how the results of that assessment will be used to improve 
those services.
    (2) The assessments referred to paragraph (b)(1) of this section 
may be the State's academic assessments under Sec. 200.2 or other 
appropriate academic assessments.

(Authority: 20 U.S.C. 7886(a))

[FR Doc. 02-11128 Filed 5-1-02; 2:00 pm]
BILLING CODE 4000-01-U