[Federal Register Volume 67, Number 129 (Friday, July 5, 2002)]
[Rules and Regulations]
[Pages 45038-45047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-16913]



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Part VI





Department of Education





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34 CFR Part 200



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

  Federal Register / Vol. 67, No. 129 / Friday, July 5, 2002 / Rules 
and Regulations  

[[Page 45038]]


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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: Final regulations.

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SUMMARY: The Secretary amends the regulations governing programs 
administered under Title I, part A, of the Elementary and Secondary 
Education Act of 1965, as amended (ESEA). These regulations 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: These regulations are effective August 5, 2002.

FOR FURTHER INFORMATION CONTACT: Susan Wilhelm, Student Achievement and 
School Accountability Programs, Office of Elementary and Secondary 
Education, U.S. Department of Education, 400 Maryland Avenue, SW., room 
3W202, FB-6, Washington, DC 20202-6132. Telephone: (202) 260-0826.
    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: These regulations implement changes to Title 
I, part A, of the Elementary and Secondary Education Act, as amended by 
the NCLB Act (Public Law 107-110), enacted January 8, 2002.
    On May 6, 2002, the Secretary published a notice of proposed 
rulemaking (NPRM) in the Federal Register (67 FR 30452). The proposed 
regulations were developed through a negotiated rulemaking process on 
the issues of standards and assessments in accordance with section 
1901(b)(3) of Title I.
    In the preamble to the NPRM, the Secretary discussed on pages 30453 
through 30456 the major changes proposed in that document to implement 
changes in the standards and assessment provisions of Title I, part A, 
made by the NCLB Act. These included the following:
     Clarifying in Sec. 200.1(b)(2) that States have the 
flexibility to develop academic content standards in reading/language 
arts and mathematics that 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.
     Specifying in Sec. 200.1(c)(2) that, although academic 
content standards may cover more than one grade, States must have 
academic achievement standards for each grade and subject assessed.
     Clarifying in Sec. 200.1(c)(3) 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 2007-2008 school 
year.
     Incorporating in Sec. 200.2 the statutory requirements for 
a State to implement a system of high-quality, yearly student academic 
assessments.
     Requiring in Sec. 200.2(b)(2) 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.
     Clarifying in Sec. 200.3 that a State may use different 
types of assessments as long as those assessments (for each grade and 
subject) address the depth and breadth of the State's academic content 
standards; are valid, reliable, and of high technical quality; and 
express results in terms of the State's academic achievement standards.
     Clarifying in Sec. 200.4(a) that, if a State is prohibited 
by State law from establishing standards and assessments applicable to 
all public school students, the State may adopt standards and 
assessments applicable to students participating under subpart A of 
this part or permit each LEA to adopt its own standards and assessments 
subject to criteria developed by the State.
     Clarifying in Sec. 200.5(a) that, beginning no later than 
the 2005-2006 school year, States must administer yearly assessments in 
both reading/language arts and in mathematics in each of grades 3 
through 8 and at least once in grades 10 through 12.
     Including in Sec. 200.5(c) 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. This 
requirement starts with the 2002-2003 school year.
     Clarifying in Sec. 200.6 the requirement that State 
assessment systems include all students and provide appropriate 
accommodations for students with disabilities and students covered 
under Section 504 of the Rehabilitation Act of 1973.
     Requiring in Sec. 200.6(a)(2) 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.
     Requiring in Sec. 200.6(b)(2) that a State assess, in 
English, limited English proficient students' achievement in reading/
language arts if those students have been in schools in the United 
States (except Puerto Rico) for three or more consecutive years and 
clarifying that this requirement does not exempt a State from assessing 
LEP students for three years.
     Clarifying in Sec. 200.7(a)(2) 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.
     Clarifying in Sec. 200.7(b)(2) 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 would reveal personally identifiable information.
     Requiring in Sec. 200.8(a) that individual student reports 
must describe achievement measured against the State's academic 
achievement standards.
     Requiring in Sec. 200.9(b) that a State must continue to 
develop assessments if amounts appropriated at the Federal level for 
assessments are below a certain minimum.
     Clarifying in Sec. 200.10 that nothing in 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 students.

[[Page 45039]]

    The final regulations reflect these provisions, modified as noted 
in the analysis of comments and changes in the appendix.

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, 140 parties 
submitted comments. An analysis of the comments and of the changes in 
the regulations since publication of the NPRM is published as an 
appendix at the end of these final regulations.
    We discuss substantive issues under the sections of these 
regulations to which they pertain. Generally, we do not address 
technical and other minor changes, or suggested changes that the law 
does not authorize the Secretary to make. We also do not address 
suggested changes to other parts of Title I that are not covered in 
these regulations. Those comments will be considered as we develop 
future proposed regulations, as appropriate.

Executive Order 12866

    We have reviewed these final regulations in accordance with 
Executive Order 12866. Under the terms of this order, we have assessed 
the potential costs and benefits of this regulatory action.
    The potential costs associated with the final regulations are those 
resulting from statutory requirements and those we have determined to 
be necessary for administering this program effectively and 
efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these final regulations, we have determined that 
the benefits of the regulations justify the costs.
    We discussed the potential costs and benefits of these final 
regulations in the preamble to the NPRM under the following topic:

Executive Order 12866

Paperwork Reduction Act of 1995

    The Paperwork Reduction Act of 1995 does not require you to respond 
to a collection of information unless it displays a valid Office of 
Management and Budget (OMB) control number. We display the valid OMB 
control numbers assigned to the collections of information in these 
final regulations at the end of the affected sections of the 
regulations.

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.

    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 Number: 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: June 28, 2002.
Rod Paige,
Secretary of Education.

    The Secretary amends part 200 of title 34 of the Code of Federal 
Regulations as follows:

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

    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. The heading for part 200 is revised to read as set forth above.

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

Standards and Assessments

    4. 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 students in the State, including the 
public schools and public school students served under subpart A of 
this part;
    (2) Include the same knowledge, skills, and levels of achievement 
expected of all students; 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 students 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--
    (i) Be grade specific; or,
    (ii) Cover more than one grade if grade-level content expectations 
are provided for each of grades 3 through 8.
    (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 students are mastering the material in the State's 
academic content standards; and
    (2) A third level of achievement--basic--to provide complete 
information about the progress of lower-achieving students toward 
mastering the proficient and advanced levels of achievement.

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    (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.
    (e) Other subjects with standards. If a State has developed 
standards in other subjects for all students, the State must apply 
those standards to students participating under subpart A of this part.

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

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


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)(i) 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.
    (ii) If a State has developed assessments in other subjects for all 
students, the State must include students participating under subpart A 
of this part in those assessments.
    (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 valid and reliable for the purposes for which the 
assessment system is used; 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 questions; 
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 Elementary 
and Secondary Education Act (hereinafter ``the Act'');
    (v) Students with disabilities as defined under section 602(3) of 
the Individuals with Disabilities Education Act (IDEA) 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 assessment system may include academic assessments 
that do not meet the requirements in paragraph (b) of this section 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 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 academic 
assessment system 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 student 
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 in 
its State plan that the system has a rational and coherent design that-
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    (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) Provides 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 system described 
in Sec. 200.2(b) must--
    (1) Establish technical criteria to ensure that each local 
assessment meets the requirements of paragraphs (a)(1) and (c)(2) of 
this section;
    (2) Demonstrate in its State plan that all local assessments used 
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 State educational agency (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 the 2004-
2005 school year, a State must administer the assessments required 
under Sec. 200.2 at least once 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 
science assessments required under Sec. 200.2 must be administered at 
least once 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 IDEA, 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 (Section 504), 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 a student 
with disabilities as defined under section 602(3) of the IDEA 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.

[[Page 45042]]

    (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 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 in identifying 
linguistically accessible academic assessments that 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) Migratory and other mobile students. A State must include 
migratory students, as defined in Title I, part C, of the Act, and 
other mobile students 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) Students experiencing homelessness.
    (1) A State must include homeless students, 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 disaggregate, as a separate 
category under Sec. 200.2(b)(10), the assessment results of the 
students referred to in paragraph (d)(1) of this section.

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

(Authority: 20 U.S.C. 6311(b)(3))
    5. 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 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 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 subgroup under section 
1111(b)(2)(C)(v) 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 results under section 
1111(h) of the Act and in determining whether schools and LEAs are 
making adequate yearly progress on the basis of disaggregated 
subgroups.

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

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

    6. Transfer the undesignated center heading ``Schoolwide Programs'' 
from its location after Sec. 200.7 and place it after Sec. 200.17 in 
subpart A of part 200.
    7. Redesignate Sec. 200.8 as Sec. 200.18 and place it under the 
undesignated center heading ``Schoolwide Programs'' in subpart A of 
part 200.

    8. Add a new 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

[[Page 45043]]

    (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, including an 
alternative format (e.g., Braille or large print) upon request; 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)(1) of this section does not require the release of test items.

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

    9. 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 January 8, 2002 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))


Sec. 200.10  [Redesignated as Sec. 200.14]

    10. Redesignate Sec. 200.10 as Sec. 200.14.

    11. Add a new 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 
subpart A of 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 in 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. 6320, 7886(a))

Appendix--Analysis of Comments and Changes

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Section 200.1  State Responsibilities for Developing Challenging 
Academic Standards

    Comment: One commenter recommended amending the regulations to 
make clear that, if a State has adopted academic content standards 
in subjects other than reading/language arts, mathematics and 
science for all students, those standards must be the basis of 
instruction for Title I students in those other subjects.
    Discussion: The statute explicitly requires that a Title I 
student be taught the same knowledge and skills and be held to the 
same expectations as all students in subjects a student is taught, 
but for which a State is not required to develop academic standards. 
The Secretary agrees that a clarification is needed to ensure that 
Title I students are also held to the same expectations as all 
students when a State has academic content standards for all 
students in subjects other than reading/language arts, mathematics 
and science. However, ensuring that such standards apply to Title I 
students does not change the statutory requirements for calculating 
adequate yearly progress.
    Changes: Section 200.1(e) has been added to clarify that, if a 
State has developed standards in other subjects for all students, 
the State must apply those standards to students participating under 
subpart A of this part.
    Comment: One commenter recommended amending the regulations to 
require States to develop standards in computer science.
    Discussion: The NLCB Act identifies reading/language arts, 
mathematics, and science as the three subjects for which States must 
develop academic contents standards. States are free to develop 
standards in other subject areas and, in fact, many have done so.
    Changes: None.
    Comment: Several commenters raised issues related to student 
academic achievement standards. One commenter sought clarification 
as to whether States may have more than three levels of student 
achievement standards. Several other commenters indicated a need for 
States to have grade-specific examples of student work to help 
ensure that the public has a clear understanding of what the 
``proficient'' level of achievement entails.
    Discussion: States have the flexibility to develop more than 
three levels of student achievement standards. However, States 
choosing to do so must ensure that their student achievement 
standards include at least the three levels required by the statute. 
With regard to increasing public understanding of what constitutes 
the ``proficient'' level of achievement, the regulations already 
specify that student achievement standards must include descriptions 
of the competencies associated with each achievement level. As a 
result, States will need to have grade-specific information for each 
subject assessed.
    Changes: None.
    Comment: One commenter suggested that greater clarity was needed 
as to when ``assessment scores'' or ``cut scores'' defining the 
boundaries between achievement levels on science assessments must be 
provided.
    Discussion: The regulations state that ``assessment scores'' or 
``cut scores'' for achievement levels on science assessments do not 
have to be set until the assessment are due in 2007-2008. For tests 
administered in the 2007-2008 school year, completion of science 
assessment scores for each achievement level is expected by December 
2008.
    Changes: None.
    Comment: One commenter expressed concern that the regulations 
requiring that high school content standards define the knowledge 
and skills that all students are expected to know and be able to do 
will result in standards based on minimum competencies.
    Discussion: High school standards must reflect what a State 
expects all students to know by the time they graduate in the broad 
academic content areas of reading/language arts, mathematics and 
science, as opposed to the content covered in a specific course that 
not all students take. Academic content standards address both 
skills and subject content. While a student may be able to 
demonstrate process skills through different content, the intent of 
content standards is that there is a body of challenging knowledge 
in an academic content area that all students, not just those in a 
particular class, are expected to know. All students must have 
access to the same challenging content if no child is to be left 
behind.
    Changes: None.
    Comment: One commenter suggested that the Secretary provide a 
deadline for the development of grade-level content standards or 
expectations as well as the descriptions of competencies associated 
with each achievement level in mathematics and reading/language 
arts.
    Discussion: The 2002 Consolidated State Application requires 
that States provide a timeline of major milestones for either 
adopting challenging content standards in, or disseminating grade-
level expectations for, reading/language arts and mathematics at 
each grade level for grades 3 through 8. States must provide 
evidence of content standards or grade-level expectations in 
reading/language arts and mathematics for grades 3 through 8 by May 
2003.
    Changes: None.

Section 200.2  State Responsibilities for Assessment

    Comment: A number of commenters commented generally on the NCLB 
Act's assessment requirements. One commenter, for example, applauded 
the NCLB Act's

[[Page 45044]]

efforts to move districts to annual assessments in grades 3 through 
8. Another commenter supported a national test to obtain more 
standardization among States. Another commenter, however, expressed 
concern that the NCLB Act places a disproportionate emphasis on 
nationwide testing and insufficient emphasis on basic learning and 
curriculum deficits. The commenter noted that, without the necessary 
curriculum frameworks in place, students would not be able to 
successfully pass the required tests. Other commenters, particularly 
teachers, criticized reliance on one assessment to judge performance 
and emphasized the need for multiple assessments throughout the year 
to truly know that students are learning.
    Discussion: The assessment requirements are one cornerstone of 
the NCLB Act. They implement President George W. Bush's plan to 
assess students in grades 3 through 8 and at least once during high 
school to help teachers and parents know how their students are 
achieving. These assessments also are the primary vehicle for 
holding schools and school districts accountable for student 
achievement. The NCLB Act assessment requirements do not require, or 
even envision, a national test. Rather, they rely on each State to 
develop or adopt an assessment system that is aligned with the 
State's own academic content and achievement standards. Moreover, 
the NCLB Act assessment requirements do not purport to be the sole 
assessments that schools will use to measure the achievement of 
their students. Teachers regularly assess the progress of their 
students through formal and informal measures and modify their 
instruction accordingly.
    Changes: None.
    Comment: Several commenters questioned whether Sec. 200.2 
permits a State assessment system to include approaches such as 
matrix sampling or parallel forms that administer different 
questions to different students. The commenters expressed support 
for flexibility in this regard.
    Discussion: The statute does not preclude the use of parallel 
test forms or assessments that employ a matrix design as long as the 
assessments yield individual student results expressed in terms of 
the State academic content and achievement standards. The statute 
does require that all students be held to the same achievement 
standards. This means that assessments for a particular grade and 
subject must elicit comparable content knowledge and understanding, 
within the framework of the standards, for all students tested. If 
parallel forms or a matrix design are used, the State must provide 
evidence that all students are being held to the same academic 
achievement standards for the grade tested.
    Changes: None.
    Comment: One commenter recommended that a State's assessment 
system under Sec. 200.2 require ``individual level assessments.'' 
According to the commenter, those assessments are a valuable tool in 
learning and teaching because they assess where a child is and how 
much growth the child has made in a nine-month period.
    Discussion: The focus of the NCLB standards and assessment 
regulations is promoting achievement to high standards by schools 
and students using standards-based assessments aligned with a 
State's academic content and achievement standards. Individual level 
assessments (or levels assessments or adaptive assessments) would 
measure the performance of some students at a particular grade level 
against lower standards. This would result in some schools being 
held to lower standards than other schools in the same school 
district. Use of levels assessments would not allow all schools and 
students to be held to the same high standards required by the NCLB 
Act.
    Changes: None.
    Comment: One commenter suggested that the final regulations 
clarify that charter schools must comply with all the assessment and 
reporting requirements that apply to traditional public schools. The 
commenter also suggested that chartering agencies be required to 
submit all data to the SEA in order to provide parents and the 
public comprehensive and accurate information on all public schools 
in the State.
    Discussion: Under section 1111(b)(3)(A) of the Act, each State 
must implement a set of high-quality, yearly student assessments 
that will be used as the primary means of determining the yearly 
performance of the State and of each LEA and school in the State. 
Thus, the assessment requirements in Secs. 200.2 through 200.9 
apply, as appropriate, to all public elementary and secondary 
schools in a State. As such, they also apply to public charter 
schools.
    Changes: None.
    Comment: A number of commenters commented on the fact that the 
regulations require a State's assessment system to meet certain 
requirements. Two commenters supported the emphasis on an assessment 
system, noting that it recognizes a coherent program of standards 
and assessments that provides flexibility to States. Other 
commenters, however, disagreed and suggested changing the phrases 
``assessment system'' and ``system of assessments'' throughout the 
regulations to ``assessments'' to be consistent with the statute. 
The commenters expressed concern that, under an assessment system, a 
State could depart from using the same assessments for all students.
    Discussion: Section 1111(b)(3) of the Act requires a State to 
develop and implement a ``set of high-quality, yearly student 
academic assessments.'' The final regulations intentionally use the 
phrases ``assessment system'' and ``system of assessments'' to 
emphasize that this set of assessments must produce a coherent and 
rational system for measuring the depth and breadth of the State's 
content standards and for holding schools and LEAs accountable. It 
also permits flexibility in how that system is structured. Using the 
word ``system'' in no way negates the fact that the assessments 
required under Sec. 200.2 must be the same assessments used to 
measure the achievement of all students.
    Changes: None.
    Comment: One commenter noted regarding Sec. 200.2(a)(2) that, if 
a State develops assessments in subjects other than reading/language 
arts, mathematics, and science, the State must administer those 
assessments to Title I students.
    Discussion: Section 1111(b)(1) of the Act concerning academic 
standards makes clear that a State must have such standards for all 
public elementary and secondary school students, including students 
served under this part, in subjects determined by the State. Those 
subjects must include reading/language arts, mathematics, and 
science, but may certainly include other subjects as well. Section 
1111(b)(3) of the Act also requires a State to have assessments that 
are aligned with its academic standards, and those assessments must 
be the same academic assessments used to measure the achievement of 
all students. As a result, if a State adopts standards and aligned 
assessments in subjects not required under section 1111, the State 
must also use those standards and assessments to measure the 
achievement of students participating under subpart A of this part. 
However, assuring that such assessments apply to Title I schools 
does not change the statutory requirements for calculating adequate 
yearly progress.
    Changes: Section 200.2(a)(2)(ii) has been added to make clear 
that, if a State has developed assessments in other subjects for all 
students, the State must include students participating under 
subpart A of this part in those assessments.
    Comment: A number of commenters noted that the provision in 
Sec. 200.2(b)(1) requires the assessment system to measure the 
achievement of all students. The commenters expressed concern that, 
because students do not all achieve at the same level, the 
assessment system must be allowed to assess a student's actual level 
of achievement, not just the desired level of achievement. Teachers, 
in particular, emphasized that all students do not achieve at the 
same level and that tests, to be helpful for planning instruction, 
must focus on student performance, not a student's grade level. 
Other commenters specifically supported ``out-of-level'' tests for 
students who are studying at a lower academic level than their grade 
level, suggesting that grade-level assessments would not be valid 
because they would not focus on what a student was actually learning 
nor would they provide meaningful information to parents.
    Discussion: One of the bedrock principles of the NCLB Act is 
that all students can learn to high standards. As a result, section 
1111(b)(1) requires challenging academic content and student 
achievement standards that a State applies to all schools and 
students in the State. Similarly, section 1111(b)(3) requires a 
State to develop aligned assessments that the State uses to measure 
the achievement of all students. These requirements are accurately 
implemented in Secs. 200.2(b)(1) and 200.6(a) of the final 
regulations. Specifically, as Sec. 200.6(a)(1) indicates, a State's 
assessment system must provide accommodations so that a student with 
disabilities or a student covered under Section 504 of the 
Rehabilitation Act of 1973 can be held to the content and 
achievement standards for the grade in which the student is 
enrolled. Although ``out-of-level'' tests, for example, may provide 
instructional information about a student's progress, they

[[Page 45045]]

are not an acceptable means to meet the State's assessment 
requirements under Secs. 200.2 and 200.6 or the accountability 
requirements of the NCLB Act.
    Changes: None.
    Comment: Several commenters commented on Sec. 200.2(b)(5), which 
requires a State assessment system be supported by evidence from 
test publishers or other relevant sources that the system is of 
adequate technical quality for each purpose required under the Act. 
One commenter requested that this requirement be phased in to apply 
to new assessments entered into by States after the effective date 
of the final regulations. The commenter expressed concern that 
evidence of technical quality may not be covered under existing 
contracts. Other commenters suggested adding disclosure protections 
provided for under State law and contractual agreements.
    Discussion: Section 200.2(b)(5) implements a new requirement in 
section 1111(b)(3)(C)(iv) that a State must provide the Secretary 
evidence from the test publisher or other relevant sources that the 
State's assessments are of adequate technical quality. Although this 
is a new statutory requirement, the Secretary has requested evidence 
of technical quality in its review of State assessment systems under 
the Improving America's Schools Act, predecessor to the NCLB Act. As 
a result, the Secretary does not anticipate that this requirement 
will pose a problem for States. Moreover, this requirement applies 
to assessments developed to meet the new NCLB Act requirements and 
should thus afford States sufficient time to modify test contracts, 
if necessary. With respect to the comment to protect disclosure of 
information based on State law or contractual provisions, we would 
expect the State and its test publishers to work out any issues in a 
manner that permits submission of adequate evidence of technical 
quality. Once submitted to the Department, the technical information 
is a public record, subject only to Federal disclosure rules and 
protections.
    Changes: None.
    Comment: One commenter requested that the Secretary clarify the 
requirement in Sec. 200.2(b)(7) that a State's assessment system 
must include multiple up-to-date measures of student academic 
achievement, including measures that assess higher-order thinking 
skills and understanding of challenging content. According to the 
commenter, multiple measures means multiple ways of measuring the 
same proficiencies to increase the validity of determinations based 
on the assessment results.
    Discussion: The term ``multiple measures'' has several meanings. 
On occasion, it means assessments using different formats (selected 
response, constructed response, etc.). It also refers to assessments 
that measure objectives within a particular content domain and 
assessments with items that measure both higher-order thinking 
skills (reasoning, synthesis, analysis, etc.) as well as knowledge 
and recall items to assess the depth and breadth of mastery of the 
particular content domain. The final regulations, therefore, do not 
limit the meaning.
    Changes: None.

Section 200.3  Designing State Academic Assessment Systems

    Comment: A number of commenters generally supported the 
flexibility afforded in Sec. 200.3.
    Discussion: The Secretary appreciates the commenters' support. 
In developing this provision, the Secretary intends to afford 
significant flexibility to States, consistent with section 
1111(b)(3) of the Act, to enable States to design assessment systems 
that best meet their needs. At the same time, the Secretary has 
included safeguards to ensure that those systems adequately measure 
a State's standards, hold schools and students to high academic 
achievement standards, are valid, reliable, and of high technical 
quality, express student results in terms of the State's standards, 
and are designed to provide a coherent system across grades and 
subjects.
    Changes: None.
    Comment: Several commenters commented on Sec. 200.3(a)(1)(i), 
which requires a State's assessment system to address the depth and 
breadth of the State's academic content standards. Some commenters 
endorsed the regulatory language as written, noting that the system 
as a whole must address the depth and breadth of the State's 
standards but not necessarily each assessment component. One 
commenter, in particular, argued persuasively that it would be 
literally impossible, as well as unnecessary, for a State to measure 
students' attainment of every single content standard. This 
commenter suggested that States need to be able to identify their 
highest-priority content standards and then ensure that students' 
mastery of those standards is appropriately measured to inform 
instruction. Other commenters, however, strongly supported requiring 
an assessment system to address fully the depth and breadth of the 
State's standards. These commenters believed that, without the word 
``fully,'' any assessment system could meet the requirement that it 
address the depth and breadth of a State's content standards.
    Discussion: Section 1111(b)(3)(C)(ii) of the Act requires a 
State's assessment system to be aligned with its academic content 
and student achievement standards and provide coherent information 
about student attainment of those standards. The purpose of 
Sec. 200.3(a)(1)(i) is to ensure that a State's assessment system 
measures both the depth and breadth of the State's standards. As the 
comments suggest, the system as a whole must meet this requirement. 
The Secretary does not believe that adding the word ``fully' would 
significantly strengthen this requirement.
    Changes: None.
    Comment: One commenter questioned whether Sec. 200.3(a)(1)(i) in 
effect requires a graduation test. The commenter expressed concern 
that, read in conjunction with Sec. 200.1(b)(3), which requires 
high-school content standards ``irrespective of course titles or 
years completed,'' the requirement in Sec. 200.3(a)(1)(i) that high-
school assessments address the depth and breadth of the State's 
content standards would result in a de facto graduation test.
    Discussion: Section 200.1(b)(3) is intended to make clear that a 
State must define the academic content standards it expects high-
school students to know and be able to do. These standards may well 
include content that is covered in several courses. For example, a 
State's mathematics standards may include content in algebra, 
geometry, and probability. Under Sec. 200.3(a)(1)(i), a State's 
high-school assessments must address the depth and breadth of the 
State's content standards. As a result, an end-of-course Algebra I 
test may not measure the depth and breadth of this State's 
mathematics standards unless that test also measures geometry and 
probability. The provision in Sec. 200.3(a)(1)(i), however, is not 
intended to require a de facto graduation test.
    Changes: None.
    Comment: A number of commenters addressed Sec. 200.3(a)(2), 
which permits a State to include in its assessment system either or 
both criterion-referenced assessments or nationally normed 
assessments that are augmented with additional items. Some 
commenters supported this flexibility. One commenter supported the 
use of nationally normed assessments only if those assessments are 
augmented with additional items as necessary to measure a State's 
content standards. Other commenters, however, strongly criticized 
the use of nationally normed assessments at all, arguing they are 
contrary to the intent of the NCLB Act and would damage effective 
implementation. These commenters noted that norm-referenced 
assessments measure performance relative to other students rather 
than to standards and thus are antithetical to the notion that all 
students can learn at high levels. Another commenter noted that 
norm-referenced assessments are not aligned with State standards.
    Discussion: The Secretary has carefully considered these 
comments and believes the final regulations contain the proper 
amount of flexibility for States while requiring any State that uses 
only a nationally normed assessment at a particular grade to augment 
that assessment with additional items as necessary to measure the 
depth and breadth of the State's standards. Moreover, student 
results from an augmented nationally normed assessment must be 
expressed in terms of the State's achievement standards, not 
relative to other students in the nation. The Secretary believes 
these provisions address the commenters' concerns and will ensure 
that, before a State includes a nationally normed assessment in its 
assessment system, the State carefully examines the alignment of the 
assessment with the State's standards and the extent to which the 
State must add items to fully address its standards. Moreover, if a 
State combines criterion-referenced and nationally normed 
assessments, the State must demonstrate that its system has a 
rational and coherent design.
    Changes: None.
    Comment: A number of commenters commented on Sec. 200.3(b), 
which permits a State assessment system to include a combination of 
State and local assessments, provided the system has a rational and 
coherent design and meets a number of

[[Page 45046]]

rigorous requirements. Some commenters strongly supported the 
flexibility this provision affords States. Several commenters, 
however, criticized this provision. The commenters argued that this 
provision conflicts with section 1111(b)(3)(C) of the Act, which 
requires a State's assessments to ``be the same academic assessments 
used to measure the achievement of all children'' in the State. 
Moreover, the commenters believed that LEAs, which are subject under 
the NCLB Act to much stricter accountability requirements than under 
the prior law, would have an incentive to adopt easier local 
assessment measures in order to ensure that their students make 
adequate yearly progress. The commenters also questioned whether 
LEAs have sufficient resources and expertise needed to develop local 
assessments that truly meet the rigorous standards for alignment, 
multiple measures, and inclusion that the Act requires. In addition, 
the commenters noted that using local assessments would preclude 
like comparisons of all students.
    Discussion: The Secretary appreciates the commenters' concerns 
and believes that local assessments must be held to a high standard 
before they may be included in a State's assessment system. A State 
must demonstrate, for example, that its local assessments meet 
requirements such as validity, reliability, technical quality, 
alignment, and inclusion of all students. Furthermore, the State 
must demonstrate that the assessments are equivalent to one another 
in their content coverage, difficulty, and quality; have comparable 
validity and reliability; and provide unbiased, rational, and 
consistent determinations of the adequate yearly progress of schools 
and LEAs within the State. If local assessments can meet these 
requirements, the Secretary believes a State may include them in its 
State assessment system.
    Changes: None.
    Comment: One commenter questioned the reference in 
Sec. 200.3(c)(1), which deals with local assessments in a State's 
assessment system, to Sec. 200.3(a)(2), which permits either or both 
criterion-referenced or augmented nationally normed assessments. The 
commenter believed that the cross-reference assumed that any local 
assessment would be nationally normed.
    Discussion: The purpose of the requirements in Sec. 200.3(c)(1) 
is to ensure that a State whose assessment system includes local 
assessments establish technical criteria to ensure that each local 
assessment meets statutory requirements applicable to statewide 
assessments. Its purpose is not to require that local assessments be 
nationally normed assessments.
    Changes: The cross-reference in Sec. 200.3(c)(1) has been 
changed to refer to Sec. 200.3(a)(1) and (c)(2), which establish 
requirements for local assessments that comprise a State's system.

Section 200.4  State Law Exception

    Comment: One commenter objected to the regulation specifying 
that local assessments be equivalent to one another in content 
coverage, difficulty, and quality across a State. Instead, the 
commenter suggested that voluntary consortia of LEAs using common 
sets of standards, benchmarks, and assessments be permitted.
    Discussion: The NCLB Act requires a State to use its State 
assessment system to measure the adequate yearly progress (AYP) of 
each public school and LEA in the State and to hold schools and LEAs 
accountable for failing to make AYP. To ensure that LEAs are 
evaluated fairly and consistently across a State that is using only 
local assessments, it is thus critical that the State establish 
criteria to ensure equivalence in content coverage, difficulty, and 
quality of LEA's local assessments. In addition, the statute 
requires that AYP be calculated for a State based on the State's 
aligned assessment system. In a State relying solely on local 
assessments, the results of AYP calculations could not provide 
statistically valid and reliable results without equivalency among 
assessments.
    Changes: None.

Section 200.6  Inclusion of All Students

    Comment: One commenter indicated that clarification was needed 
regarding the inclusion of students with limited English proficiency 
(LEP) in State assessments. The commenter suggested that the 
Secretary require States to establish criteria and procedures for 
including LEP students in the mathematics and science tests prior to 
the three-year schooling requirement for including them in reading/
language arts assessments. This commenter felt that the inclusion of 
LEP students in the assessments from the beginning of the school 
year is neither practical nor conducive to the attainment of valid 
and reasonable assessment results.
    Discussion: The statute requires that LEP students be included 
in State assessment systems. For their first three years in U.S. 
schools, such students must be tested in reading/language arts and 
mathematics content (and science by 2007-2008) in a valid and 
reliable manner, including, to the extent practicable, native 
language assessments if a native language assessment would yield 
better information on what a student knows and can do. Students with 
limited-English proficiency who have been in U.S. schools (except 
Puerto Rico) for three or more years are to be tested in English on 
the reading/language arts assessment.
    Changes: None.
    Comment: One commenter recommended that SEAs and LEAs be 
required to report on the progress of students who are homeless and 
who attend school in more than one school district in a school year. 
That commenter also recommended amending the regulations to require 
that the performance of homeless children who attend more than one 
school in an LEA be used in determining the progress of the SEA in 
meeting adequate yearly progress.
    Discussion: The goal of the NCLB Act is to ensure that all 
students benefit from school reforms designed to increase 
achievement, including students who are experiencing homelessness. 
As additional guidance documents are developed, the Secretary will 
work to identify ways to assist States and LEAs accomplish this 
goal.
    On the issue of calculating AYP for States, the statute already 
requires that students who have attended several schools in an LEA 
for a full academic year but have not attended the same school for a 
full academic year must be included in assessments and their 
performance be used in determining whether LEAs make AYP. As a 
result, data for these students will influence whether SEAs make AYP 
also. Moreover, even if homeless children attend schools in several 
LEAs, they must be assessed and their performance would be included 
in determining State AYP.
    Changes: None.

Section 200.7  Disaggregation of Data

    Comment: A number of commenters expressed concern regarding the 
requirement that States set their own group sizes and minimum 
thresholds. One commenter suggested that the regulations specify 
what a reliable group size is. Many commenters recommended that the 
Secretary set a uniform minimum student threshold for reporting 
accountability to ensure statistical reliability and validity. On 
the other hand, one commenter supported the State's ability to set 
its own minimum thresholds. This commenter commended the 
Department's acknowledgement of the flexibility in the threshold 
necessary to accommodate the variability in circumstances.
    Discussion: The statute states that subgroup disaggregation is 
not required for accountability or reporting purposes if the number 
is too small to yield reliable information or if the results would 
reveal personally identifiable information. This issue was subject 
to a great deal of discussion during negotiated rulemaking. 
Ultimately, it was decided that each State is in the best position 
to make this determination due to the wide variety in school size 
across the nation, differences in test psychometric properties, and 
the fact that different numbers may be reliable for reporting than 
for accountability.
    Changes: None.

Section 200.8  Assessment Reports

    Comment: One commenter recommended amending the regulations to 
require that score analyses indicate the number of items and 
assessment instruments that support a determination that a student 
is less than proficient in meeting a particular State standard.
    Discussion: The regulations do not specify what a score analyses 
must include so that States may have maximum flexibility in 
tailoring their score analyses to the type of assessment system they 
have developed. The Secretary agrees that there may be circumstances 
where such information is helpful. A State may certainly include the 
commenter's suggested items in its score analyses.
    Change: None.

Section 200.9  Deferral of Assessments

    Comment: One commenter indicated that requiring continued work 
on assessment development when the appropriation falls below the 
trigger amount would be difficult if Federal funds are being used 
for assessment development.
    Discussion: The regulations restate the statutory requirements. 
The Secretary believes that Congress did not want

[[Page 45047]]

assessment development to cease once it begins, even if sufficient 
Federal funds are not available.
    Changes: None.

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

    Comment: Several commenters commented generally on the 
applicability of a State's academic assessments to private schools 
and private school students. Additionally, one commenter suggested 
that the regulation should be revised to make it clearer that the 
LEA has the sole authority for determining which assessment to use 
when assessing services to eligible students attending private 
schools.
    Discussion: These regulations do, in fact, indicate that the 
decision rests with the LEA. However, the LEA must consult with 
private school officials in making the determination.
    Changes: None.
[FR Doc. 02-16913 Filed 7-3-02; 8:45 am]
BILLING CODE 4000-01-P