[Federal Register Volume 68, Number 54 (Thursday, March 20, 2003)]
[Proposed Rules]
[Pages 13796-13801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6653]



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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 Rule

  Federal Register / Vol. 68, No. 54 / Thursday, March 20, 2003 / 
Proposed Rules  

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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810--AA95


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 
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 would 
clarify statutory provisions regarding State, LEA, and school 
accountability for the academic achievement of students with the most 
significant cognitive disabilities and are needed to implement changes 
to Title I of the ESEA made by the No Child Left Behind Act of 2001 
(NCLB Act).

DATES: We must receive your comments on or before May 19, 2003.

ADDRESSES: Address all comments about these proposed regulations to 
Jacquelyn C. Jackson, Ed.D., Acting Director, Student Achievement and 
School Accountability 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].
    You must include the term ``proposed rule'' in the subject line of 
your electronic message.
    If you want to comment on the information collection requirements, 
you must send your comments to the Office of Management and Budget at 
the address listed in the Paperwork Reduction Act section of this 
preamble. You may also send a copy of these comments to the Department 
representative named in this section.

FOR FURTHER INFORMATION CONTACT: Jacquelyn C. Jackson, Ed.D., Acting 
Director, Student Achievement and School Accountability Programs, 
Office of Elementary and Secondary Education, 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. We are specifically interested in your comments on the 
following:
    (1) Whether, in proposed Sec.  200.13(c)(1), existing scientific 
research, State/LEA or national data, and the current state of 
knowledge support setting the cap at 1.0 percent for students with the 
most significant cognitive disabilities whose achievement can be 
measured against alternate achievement standards for determining 
adequate yearly progress (AYP) at the LEA and State levels.
    (2) What, if any, significant implementation issues pertaining to 
the definition of ``students with the most significant cognitive 
disabilities'' in proposed Sec.  200.1(d)(2) would arise at the State, 
LEA, and school levels. Specifically, the Department requests comments 
on what current recordkeeping and reporting requirements would States 
and LEAs use to comply with this provision and whether additional 
information or data will be necessary for compliance.
    (3) Compliance with the specific requirements of Executive Order 
12866 and its overall requirement of reducing regulatory burden that 
might result from these proposed regulations. Please let us know of any 
further opportunities we should take to reduce potential costs or 
increase potential benefits while preserving the effective and 
efficient administration of the program.
    (4) How the Department should review these regulations once 
finalized to monitor regulatory compliance and invite more research and 
analysis to potentially fine-tune program implementation.
    In addition, we invite you to submit additional comments on Sec.  
200.20(c)(3) of the Title I regulations published on December 2, 2002 
(67 FR 71710, 71717). This regulation provides that, if a student takes 
a State assessment for a particular subject or grade level more than 
once, the State must use the student's results from the first 
administration to determine AYP. We included this provision in the 
regulations in response to comments requesting clarification on the 
proposed regulations. Although there may be very sound reasons for 
permitting a student to take high-stakes assessments multiple times, we 
believe that a student's performance on the first administration best 
reflects the performance of the school in preparing the student to take 
the assessment, and school accountability is the focus of Title I. 
Several States have suggested that their practice of administering 
multiple assessments in certain situations and counting the scores on 
these assessments for school accountability purposes better reflects 
both student and school performance than does Sec.  200.20(c)(3). We 
invite you to comment on whether Sec.  200.20(c)(3) should be amended 
and, if so, how.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations in room 3W242, 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

    These proposed regulations implement statutory provisions regarding 
State, LEA, and school accountability for the academic achievement of 
students with the most significant cognitive disabilities. They would 
amend final regulations published in the Federal Register (67 FR 45038) 
by the Secretary on July 5, 2002 for the standards and assessment 
provisions of Title I, part A of the ESEA and on December 2, 2002 (67 
FR 71710) for the remaining provisions of Title I, parts A and C. These 
regulations implement the ESEA as reauthorized under the NCLB Act (Pub. 
L. 107-110), enacted January 8, 2002, which incorporated major 
educational reforms proposed by President George W. Bush in his No 
Child Left Behind initiative and significant changes to Title I of the 
ESEA, which is designed to help disadvantaged children meet high 
academic standards.
    In the notice of proposed rulemaking (NPRM) published in the 
Federal Register (67 FR 50986) on August 6, 2002, the Secretary 
proposed in Sec.  200.13

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allowing the use of alternate achievement standards for students with 
the most significant cognitive disabilities for the purpose of 
determining the AYP of States, LEAs, and schools, provided that use at 
the State and LEA levels did not exceed 0.5 percent of all students. 
Numerous comments were received on this proposal. Many of them 
reflected a misunderstanding on the part of commenters who thought that 
the number of students with disabilities who could take an alternate 
assessment was being limited. Instead, the NPRM proposed to allow the 
use of alternate achievement standards to determine proficiency for a 
limited group of students with disabilities, and the use of those 
assessment results in the calculation of AYP. It did not propose 
limiting the number or percentage of students taking an alternate 
assessment but did propose limiting the percentage of students who take 
an alternate assessment that is evaluated against alternate achievement 
standards that may be included in the calculation of AYP.
    Section 200.13 as adopted in the final regulations published in the 
Federal Register (67 FR 71710) on December 2, 2002 did not allow any 
use of alternate achievement standards for students with the most 
significant cognitive disabilities for the purpose of determining the 
AYP of States and LEAs. Based on the comments in response to the 
earlier NPRM and departmental review, we are proposing to amend the 
final regulations to provide for this use of alternate achievement 
standards. We are seeking public comment in this NPRM regarding their 
appropriate use in determining AYP for students with the most 
significant cognitive disabilities.

Proposed Regulations

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''). Each 
State must have the same academic content standards for all schools and 
all children in the State in mathematics, reading/language arts, and, 
beginning in the 2005-2006 school year, science. In developing 
challenging student academic achievement standards, aligned with the 
State's content standards, States must describe at least three levels 
of achievement: advanced, proficient, and basic.
    Current Regulations: Section 200.1 describes the State's obligation 
to develop challenging academic content and student academic 
achievement standards in at least mathematics, reading/language arts, 
and, beginning in 2005-2006, science that apply to all public schools 
and public school students in the State. It requires that the State's 
academic achievement standards be aligned with the State's academic 
content standards and apply to every grade assessed.
    Proposed Regulations: The proposed regulations would allow States 
to use a documented and validated standards-setting process to define 
academic achievement standards for students with the most significant 
cognitive disabilities, as defined in proposed Sec.  200.1(d)(2), who 
take an alternate assessment. These standards must be aligned with the 
State's academic content standards and reflect professional judgment of 
the highest learning standards possible for those students.
    Reasons: In proposing these amendments to Sec.  200.1, we 
acknowledge that, while all children can learn challenging content 
standards, evaluating that learning by alternate achievement standards 
is appropriate for some small, limited percentage of students whose 
intellectual functioning and adaptive behavior are three or more 
standard deviations below the mean.

Section 200.6 Inclusion of All Students

    Statute: Section 1111(b)(1)(B) of the ESEA requires States to 
provide all public schools and all public school students in the State 
with the same challenging academic content standards and student 
academic achievement standards. Section 1111(b)(3)(C) further 
stipulates that a State's academic assessments must measure the 
achievement of all children; be aligned with the State's challenging 
academic content and academic achievement standards; and provide for 
reasonable adaptations and accommodations for students with 
disabilities, as defined under section 602(3) of the Individuals with 
Disabilities Education Act (IDEA).
    Current Regulations: Current Sec.  200.6 clarifies that the State's 
academic assessment system must include accommodations for students 
with disabilities as defined under section 602(3) of the IDEA and for 
students covered under section 504 of the Rehabilitation Act of 1973 
(Section 504) to allow the State to measure the academic achievement of 
these students relative to the State's academic content and achievement 
standards for the grades in which they are enrolled. In addition, the 
regulations require States to provide one or more alternate assessments 
for students with disabilities, as defined under section 602(3) of the 
IDEA, who cannot participate in all or part of the State assessment, 
even with appropriate accommodations. These alternate assessments must 
yield results for the grade in which the student is enrolled in at 
least reading/language arts, mathematics, and, beginning in the 2007-
2008 school year, science.
    Proposed Regulations: Section 200.6 would be amended to allow the 
alternate assessments of students with the most significant cognitive 
disabilities, as defined in proposed Sec.  200.1(d)(2), to measure the 
achievement of those students against alternate academic achievement 
standards defined by the State under Sec.  200.1(d)(1). Proposed Sec.  
200.6 would also require States to establish guidelines to ensure that 
alternate assessments measured against alternate achievement standards 
are used only for students with the most significant cognitive 
disabilities. States would also be required to report separately on the 
percentage of students with disabilities taking alternate assessments 
that are measured against alternate academic achievement standards and 
the percentage of students with disabilities taking alternate 
assessments that are measured against the regular achievement 
standards.
    Reasons: Proposed amendments to Sec.  200.6 acknowledge the 
appropriateness of allowing the alternate assessments of a small 
percentage of students--those with the most significant cognitive 
disabilities--to be measured against alternate achievement standards 
aligned with the State's academic content standards. (Alternate 
assessment of other students with disabilities must be measured against 
grade-level achievement standards.) Proper implementation of the 
requirements that States establish guidelines and report on the 
percentages of students with disabilities taking alternate assessments 
that are measured against alternate academic achievement standards will 
ensure that all students with disabilities are appropriately included 
in State assessment systems. The proposed amendment does not limit the 
number or percentage of students taking alternate assessments measured 
against achievement standards as defined in Sec.  200.1(c), as 
determined appropriate by their Individualized Education Program (IEP) 
teams, but does limit the percentage of

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those students with the most significant cognitive disabilities taking 
an alternate assessment measured against alternate achievement 
standards as defined in Sec.  200.1(d).

Section 200.13 Adequate Yearly Progress in General

    Statute: Under section 1111(b)(2)(B), each State must define what 
constitutes AYP of the State, and of all public elementary and 
secondary schools and LEAs in the State, toward enabling all students 
to meet the State's student academic achievement standards. This 
definition must apply the same high standards of academic achievement 
to all public elementary and secondary school students in the State, be 
statistically valid and reliable, and measure progress based primarily 
on the State's academic assessments.
    To make AYP, a school must: meet or exceed the State's annual 
measurable objectives with respect to all students and students in each 
subgroup; test at least 95 percent of all students and of the students 
in each subgroup enrolled in the school; and make progress on the other 
academic indicators determined by the State.
    Current Regulations: The current regulations governing AYP 
implement the statutory provisions in section 1111 of the ESEA. They 
require that each State demonstrate what constitutes AYP of the State 
and of all public schools and LEAs in the State, in a manner that 
applies the same high standards of achievement to all public school 
students; is statistically valid and reliable; results in continuous 
and substantial academic improvement for all students; measures the 
progress of all public schools, LEAs and the State based primarily on 
the State's academic assessment system; measures progress separately 
for reading/language arts and for mathematics; is the same for all 
public schools and LEAs in the State; and applies the same annual 
measurable objectives for all students and for all identified subgroups 
as defined in Sec.  200.13(b)(7)(ii).
    Proposed Regulations: The proposed regulations specify the 
acceptable use of alternate achievement standards identified in Sec.  
200.1(d) for students with the most significant cognitive disabilities. 
Specifically, proposed Sec.  200.13(c)(1) would permit States to use 
those standards for students with the most significant cognitive 
disabilities in calculating AYP for schools, provided that the 
percentage of students with the most significant cognitive disabilities 
at the LEA and State levels, separately, does not exceed 1.0 percent of 
all students in the grades assessed. Nationally, 1.0 percent of 
students in the grades assessed represents approximately nine percent 
of students with disabilities, but the actual percent varies across 
States. The 1.0 percent limitation applies only at the LEA and State 
levels. Proposed Sec.  200.13(c)(2) allows States to request from the 
Secretary--and LEAs to request from the State'an exception to the 1.0 
percent limitation. This request for an exception by the State or LEA 
must document that the incidence of students with the most significant 
cognitive disabilities in the State or LEA exceeds that limit and that 
circumstances exist that could explain the higher percentages such as a 
school, community or health program that has drawn families of students 
with the most significant cognitive disabilities into the area or a 
very small overall population in which case a very few students with 
the most significant cognitive disabilities could cause the State or 
LEA to exceed the 1.0 percent limitation.
    Students included under Sec.  200.13(c) who take an alternate 
assessment that measures alternate achievement standards would be 
counted as ``participating'' in the State's assessment system and thus 
would be included in determining whether 95 percent of students with 
disabilities enrolled in a school at the time of testing are, in fact, 
assessed.
    Reasons: Under the Title I accountability system, alternate 
assessments based on alternate achievement standards are an appropriate 
way to measure the progress of only that very limited portion of 
students with the most significant cognitive disabilities. Moreover, 
holding schools accountable for students with the most significant 
cognitive disabilities achieving grade-level academic achievement 
standards may subvert the intended benefits of NCLB for these students 
and have undesired effects on the services they are provided.
    Based on current prevalence rates of students with the most 
significant cognitive disabilities, and allowing for reasonable local 
variation in prevalence, proposed Sec.  200.13(c)(2) would set the 
number of students with disabilities who may be included in 
accountability measures using alternate achievement standards at not 
more than 1.0 percent of all students assessed in a State or LEA. For 
accountability purposes, the performance of all other students with 
disabilities (including any other students with disabilities who take 
an alternate assessment) must be assessed against the academic 
achievement standards established under Sec.  200.1(c). This is not a 
limit on the number or type of students with disabilities who can take 
an alternate assessment.
    Section 200.13 of the NPRM, published in the Federal Register (67 
FR 50986) on August 6, 2002, proposed allowing the use of alternate 
achievement standards for students with the most significant cognitive 
disabilities for determining AYP of States and LEAs, provided that use 
did not exceed 0.5 percent of all students. Many comments regarding 
this proposal misinterpreted it to mean that the number of students 
with disabilities who could take an alternate assessment was being 
limited; rather, it proposed the flexibility of allowing the use of 
alternate achievement standards to determine proficiency for 
calculating AYP for a limited group of students with disabilities. 
Numerous commenters expressed concern that the 0.5 percent limit on 
assessments using alternate standards in the calculation of AYP ignored 
the incidence rate of students with the most significant cognitive 
disabilities, which they estimated at 2 to 5 percent. Recommended 
alternatives included elimination of the limit, a phase-in of the 0.5 
percent limit, higher limits, permitting States to set their own 
limits, or using such limits for reporting purposes only and not in the 
calculation of AYP.
    Several commenters expressed the view that the 0.5 percent limit 
was ``especially unreasonable'' for small rural districts, where a very 
small number of students with the most significant cognitive 
disabilities might cause the LEA to exceed the limit. Others wrote that 
the provision would be unfair to districts with large populations of 
students with disabilities and to schools with programs specifically 
designed to serve students with disabilities. Many commenters perceived 
the proposed limit to be in conflict with the requirement of the IDEA 
that all students with disabilities must be offered an alternate 
assessment when the regular assessment does not adequately measure 
their achievement.
    Finally, two commenters expressed support for the 0.5 percent limit 
on assessments using alternate achievement standards in the calculation 
of AYP, while one supported the Secretary's effort to establish a 
realistic limit as an important step in preventing inappropriate use of 
alternate assessments to ``hide'' low-performing students in general.
    The 0.5 percent of total population figure was derived based on 
converging scientific evidence from multiple

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sources. The Metropolitan Atlanta Developmental Disabilities 
Surveillance Program (MADDSP) sponsored by the Centers for Disease 
Control (CDC) has assessed the prevalence of the moderate, severe and 
profound groups of mental retardation in that community at a prevalence 
rate of 2.9 per 1,000 for students 3 to 10 years of age, or about one-
third of those with mental retardation (Boyle C, Holmgreen N, Schednel 
D. Prevalence of Selected Developmental Disabilities in Children 3-10 
Years of Age: the Metropolitan Atlanta Developmental Disabilities 
Surveillance Program, 1991, MMWR Surveillance Summaries, 1996). Thus, 
the estimate of students is for those with an IQ of less than 50.
    A later study by Roeleveld and colleagues provided a similar rate 
of 3.8 per 1,000 (Roeleveld N, Zielhuis GA, Gabreels F. The prevalence 
of mental retardation: a critical review of recent literature. Dev Med 
Child Neurol. 1997;39:125-32.). Another study indicates that students 
with severe to profound mental retardation are estimated at somewhat 
less than 0.13 percent of the total population (Beirne-Smith M, Patton 
J, Ittenbach R, Mental Retardation (6th Ed.) Upper Saddle River: 
Prentice-Hall Career and Technology, 2001), while 0.22 percent of the 
population is considered to have multiple disabilities (IDEA Annual 
Report to Congress, 2001). The American Association on Mental 
Retardation (AAMR) defines mental retardation as a disability 
characterized by significant limitations both in intellectual 
functioning and in adaptive behavior as expressed in conceptual, 
social, and practical adaptive skills. (AAMR, Mental Retardation: 
Definition, Classification, and Systems of Supports, 10th Edition, 
2002).
    In general, mild mental retardation, which we are excluding from 
the definition of students with the most significant cognitive 
disabilities, is considered to be two or more standard deviations below 
the mean. Thus, for purposes of the Title I program, the term `students 
with the most significant cognitive disabilities' is defined as 
covering students with intellectual functioning and adaptive behavior 
three or more standard deviations below the mean.
    However, these numbers are generally seen as reflecting national 
rates, and, as a number of commenters on the earlier NPRM pointed out, 
may not account for more localized differences, caused by a number of 
factors, in the prevalence of students with the most significant 
cognitive disabilities. Several commenters indicated that in their 
experience the prevalence of students with the most significant 
cognitive disabilities exceeded the 0.5 percent proposal and suggested 
that a limit of 1.0 percent would be more appropriate.
    While not specifically comparable, because they include all 
students with disabilities who participate in State assessment programs 
through alternate assessments, and not just those students with the 
most significant cognitive disabilities, State data reported to the 
Department under the IDEA may be illustrative. Of the 38 States for 
which sufficient data were provided to calculate a participation rate, 
in 21 States 5 percent or less of students with disabilities who 
participated in the State assessment program took an alternate 
assessment. (Five percent of students with disabilities is roughly 
equivalent to 0.5 percent of all students.) In 14 other States, between 
5 and 10 percent of students with disabilities participated in State 
assessment programs through an alternate assessment. (Analysis of 2000-
2001-Biennial Performance Reports, National Center for Educational 
Outcomes) In these States, students with disabilities comprise 
approximately 8 to 12 percent of the total student population. (IDEA 
Annual Report to Congress, 2001).
    In addition, national prevalence rates provide an average, but the 
actual numbers in a jurisdiction may be higher or lower than that 
average. Factors beyond the control of a school, school district, or 
even a State may cause the number of students with the most significant 
cognitive disabilities to exceed 0.5 percent of the total student 
population at the grades assessed. For example, in small schools, a 
single student may be more than that limit would allow. Moreover, 
certain schools, districts, or States may have disproportionate numbers 
of students with the most significant cognitive disabilities because of 
proximity to special facilities or services.
    In addition, imposing a limit on the number and type of students 
with disabilities who can take an alternate assessment that is 
evaluated based on alternate academic achievement standards does not 
prohibit other students with disabilities from taking an alternate 
assessment or an assessment with appropriate accommodations when deemed 
necessary by the Individualized Education Program (IEP) team under the 
IDEA. Decisions about how an individual student participates in a State 
assessment remain the responsibility of the student's IEP team and must 
be made on an individualized basis for each student. However, only the 
alternate assessment of students with the most significant cognitive 
disabilities may be evaluated against alternate academic achievement 
standards.
    In sum, even though the 0.5 percent figure was based on the best 
available data, those data are limited. We are persuaded by the 
comments of a number of stakeholders who said that 0.5 percent did not 
reflect their experience; rather, a one percent limitation would allow 
for normal State and LEA variations in the occurrence of students with 
the most significant cognitive disabilities.

Executive Order 12866

1. Potential Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
    The potential costs associated with the proposed regulations are 
those resulting from statutory requirements and those we have 
determined to be necessary for administering this program effectively 
and efficiently. Elsewhere in this SUPPLEMENTARY INFORMATION section we 
identify and explain burdens specifically associated with information 
collection requirements. See the heading Paperwork Reduction Act of 
1995.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of this regulatory action, we have determined that the 
benefits would justify the costs.
    We have also determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of the governmental functions.
Summary of Potential Costs and Benefits
    These proposed regulations would not add significantly to the costs 
of implementing the Title I programs authorized by the ESEA or alter 
the benefits that the Secretary believes will be obtained through 
successful implementation.
    As noted elsewhere, the proposed regulations would clarify the 
statute and facilitate a better understanding of its accountability 
requirements regarding students with the most significant cognitive 
disabilities. Both the statute and existing regulations require States 
to develop assessment systems that include alternate assessments. These 
proposed regulations clarify how alternate assessment results based on 
alternate achievement standards for a small percentage of students are 
to be included in the calculation of AYP within the State 
accountability system.

[[Page 13800]]

States and LEAs will benefit by receiving more accurate achievement 
information regarding students with the most significant cognitive 
disabilities.
    Most implementation costs and benefits will stem from the 
underlying legislation. The Department believes that these activities 
will be financed through the appropriations for Title I and other 
Federal programs and that the responsibilities encompassed in the law 
and regulations will not impose a financial burden that States and LEAs 
will have to meet from non-Federal resources. For purposes of the 
Unfunded Mandates Reform Act of 1995, these regulations do not include 
a Federal mandate that might result in increased expenditures by State, 
local, and tribal governments, or increased expenditures by the private 
sector of more that $100 million in any one year.

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:
    [sbull] Are the requirements in the proposed regulations clearly 
stated?
    [sbull] Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
    [sbull] Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
    [sbull] 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.  200.13 Adequate yearly progress in general.)
    [sbull] Could the description of the proposed regulations in the 
``Supplementary Information'' section of this preamble be more helpful 
in making the proposed regulations easier to understand? If so, how?
    [sbull] 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.
    These provisions require States and LEAs to take certain actions to 
improve student academic achievement. The Department believes that 
these activities will be financed through the appropriations for Title 
I and other Federal programs and that the responsibilities encompassed 
in the law and regulations will not impose a financial burden that 
States and LEAs will have to meet from non-Federal resources.

Paperwork Reduction Act of 1995

    Section 200.6 contains an information collection requirement. Under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the Department 
of Education has submitted a copy of this section to the Office of 
Management and Budget (OMB) for its review as part of the paperwork 
collection titled ``State educational agency, local educational agency, 
and school data collection and reporting under ESEA, Title I, Part A''.
    This provision of the Title I, part A regulations requires States 
to establish guidelines to ensure that the alternate academic 
achievement standards defined under Sec.  200.1(d) are used only for 
students who have the most significant cognitive disabilities. In 
addition, it requires schools and LEAs to annually report, separately, 
the percentage of students with disabilities taking alternate 
assessments measured against alternate achievement standards defined in 
Sec.  200.1(d) and the percentage of students with disabilities taking 
alternate assessments measured against the academic achievement 
standards defined under Sec.  200.1(c).
    The total estimated reporting and record keeping burden hours for 
SEA activity covered by the paperwork requirement is 56,264 hours for 
52 SEAs. The total estimated reporting and record keeping burden hours 
for LEA activities covered by the paperwork requirement is 1,159,505 
hours for 13,335 LEAs. The total estimated reporting and record keeping 
burden hours for school-level activities is 1,506,222 hours.
    The Office of Management and Budget is currently reviewing the 
information collection pertaining to this regulation. We invite 
comments on the information collection in this proposed regulation by 
April 21, 2003. If you want to comment on the information collection 
requirements, please send your comments to the Office of Information 
and Regulatory Affairs, OMB, room 10235, New Executive Office Building, 
Washington, DC 20503; Attention: Desk Officer for U.S. Department of 
Education. You may also send a copy of these comments to the Department 
representative named in the ADDRESSES section of this preamble.
    We consider your comments on this proposed collection of 
information in--
    [sbull] Deciding whether the proposed collection is necessary for 
the proper performance of our functions, including whether the 
information will have practical use;
    [sbull] Evaluating the accuracy of our estimate of the burden of 
the proposed collection, including the validity of our methodology and 
assumptions;
    [sbull] Enhancing the quality, usefulness, and clarity of the 
information we collect; and
    [sbull] Minimizing the burden on those who must respond. This 
includes exploring the use of appropriate automated, electronic, 
mechanical, or other technological collection techniques or other forms 
of information technology; e.g., permitting electronic submission of 
responses.
    OMB is required to make a decision concerning the collection of 
information contained in these proposed regulations between 30 and 60 
days after publication of this document in the Federal Register. 
Therefore, to ensure that OMB gives your comments full consideration, 
it is important that OMB receives the comments within 30 days of 
publication. This does not affect the deadline for your comments to us 
on the proposed 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: 
http://www.ed.gov/legislation/FedRegister.
    To use PDF you must have Adobe Acrobat Reader, which is available 
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(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, 
Education of children with disabilities, Education of disadvantaged 
children, Elementary and secondary education,

[[Page 13801]]

Eligibility, Family-centered education, Grant programs--education, 
Indians education, Institutions of higher education, Local educational 
agencies, Nonprofit private agencies, Private schools, Public agencies, 
Reporting and recordkeeping requirements, State-administered programs, 
State educational agencies.

    Dated: March 14, 2003.
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 continues to read as 
follows:

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

    2. In Sec.  200.1, redesignate paragraphs (d) and (e) as (e) and 
(f), revise paragraph (a)(1), and add paragraph (d) to read as follows:


Sec.  200.1  State responsibilities for developing challenging academic 
standards.

    (a) * * *
    (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, except as provided in paragraph (d) of this section;
* * * * *
    (d) Alternate academic achievement standards. (1) For students with 
the most significant cognitive disabilities who take an alternate 
assessment, a State may, through a documented and validated standards-
setting process, define achievement standards that--
    (i) Are aligned with the State's academic content standards; and
    (ii) Reflect professional judgment of the highest learning 
standards possible for those students.
    (2) For purposes of subpart A of this part, the term ``students 
with the most significant cognitive disabilities'' means students who 
have been identified as students with disabilities under the 
Individuals with Disabilities Education Act and whose intellectual 
functioning and adaptive behavior are three or more standard deviations 
below the mean.
* * * * *
    3. In Sec.  200.6, revise paragraph (a)(2)(ii) and add paragraph 
(a)(2)(iii) to read as follows:


Sec.  200.6  Inclusion of all students.

* * * * *
    (a) * * *
    (2) * * *
    (ii)(A) Alternate assessments must yield results for the grade in 
which the student is enrolled in at least reading/language arts, 
mathematics, and, beginning in the 2007-2008 school year, science, 
except as provided in paragraph (a)(2)(ii)(B) of this section.
    (B) For students with the most significant cognitive disabilities, 
alternate assessments may yield results that measure the achievement of 
those students against the achievement standards the State has defined 
under Sec.  200.1(d).
    (iii) The State must--
    (A) Establish guidelines to ensure that the alternate academic 
achievement standards defined under Sec.  200.1(d) are used only for 
students who have the most significant cognitive disabilities; and
    (B) Require schools and LEAs to report separately the percentage of 
students with disabilities taking alternate assessments measured 
against--
    (1) The alternate academic achievement standards defined under 
Sec.  200.1(d); and
    (2) The academic achievement standards defined under Sec.  
200.1(c).
* * * * *
    4. In Sec.  200.13, redesignate paragraph (c) as paragraph (d), 
revise the introductory text of paragraph (b) and paragraph (b)(1), and 
add paragraph (c) to read as follows:


Sec.  200.13  Adequate yearly progress in general.

* * * * *
    (b) A State must define adequate yearly progress, in accordance 
with Sec. Sec.  200.14 through 200.20, in a manner that--
    (1) Except as provided in paragraph (c) of this paragraph, applies 
the same high standards of academic achievement to all public school 
students in the State;
* * * * *
    (c)(1) In calculating adequate yearly progress for schools, a State 
may use the alternate academic achievement standards in Sec.  200.1(d) 
for students with the most significant cognitive disabilities provided 
that the percentage of those students at the LEA and at the State 
levels, separately, does not exceed 1.0 percent of all students in the 
grades assessed.
    (2) If an LEA or State can document that the incidence of students 
with the most significant cognitive disabilities in the LEA or the 
State exceeds the limitation in paragraph (c)(1) of this section, and 
that circumstances exist that could explain the higher percentages such 
as a school, community, or health program in the area that has drawn 
families of students with the most significant cognitive disabilities, 
or such a small overall student population that only a very few 
students with the most significant cognitive disabilities exceed the 
1.0 percent limitation, the LEA may request from the State, or the 
State may request from the Secretary, respectively, an exception to 
exceed the 1.0 percent limitation.
    (3) In calculating adequate yearly progress for the State and each 
LEA, the State must apply grade-level academic content and achievement 
standards established under Sec.  200.1(b) and (c) to assessment 
results of any students taking alternate assessments that exceed the 
percentage limitations under paragraphs (c)(1) and (2) of this section.
* * * * *
[FR Doc. 03-6653 Filed 3-19-03; 8:45 am]
BILLING CODE 4000-01-P