[Federal Register Volume 68, Number 236 (Tuesday, December 9, 2003)]
[Rules and Regulations]
[Pages 68698-68708]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30092]



[[Page 68697]]

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

Part II





Department of Education





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



34 CFR Part 200



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

  Federal Register / Vol. 68, No. 236 / Tuesday, December 9, 2003 / 
Rules and Regulations  

[[Page 68698]]


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

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: Final regulations.

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

SUMMARY: The Secretary amends the regulations governing the programs 
administered under title I, part A, of the Elementary and Secondary 
Education Act of 1965 (ESEA). These regulations are needed to implement 
statutory provisions regarding State, local educational agency (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: These regulations are effective January 8, 2004.

FOR FURTHER INFORMATION CONTACT: 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 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 statutory 
provisions of title I of the ESEA, as amended by the NCLB Act (Pub. L. 
107-110), enacted January 8, 2002. On March 20, 2003, the Secretary 
published a notice of proposed rulemaking (NPRM) for title I programs 
in the Federal Register (68 FR 13796). The NPRM proposed allowing 
States to adopt alternate achievement standards for children with the 
most significant cognitive disabilities and include assessment scores 
based on those standards in title I adequate yearly progress (AYP) 
calculations.

Background

Including Children With Disabilities in State Assessment Programs

    The Individuals with Disabilities Education Act (IDEA), section 504 
of the Rehabilitation Act of 1973, and title I require inclusion of all 
students with disabilities in the State assessment system. Title I 
further requires that the assessment results for all students (and all 
students with disabilities, among other groups) who have been enrolled 
in a school for a full academic year be used in calculating AYP for the 
school, and that the assessment results of students who have been in a 
district for a full academic year be used in calculating AYP for the 
district and the State. System accountability should be just that--
accountability for everyone in the system. Students with disabilities 
are a part of the student body. Most of these students spend the 
majority of their time in general education classrooms, and receive 
instruction from regular classroom teachers. Regardless of where 
students receive instruction, all students with disabilities should 
have access to, participate in, and make progress in, the general 
curriculum. Thus, all students with disabilities must be included in 
the measurement of AYP toward meeting the State's standards.
    Several critical elements in title I as amended by the NCLB Act 
ensure that schools are held accountable for educational results, so 
that the best education possible is provided to each and every student. 
Three critical elements--academic content standards, academic 
achievement standards, and assessments aligned to those standards--
provide the foundation for an accountability system ensuring that 
students with disabilities reach high standards. State assessments are 
the mechanism for determining whether schools have been successful in 
teaching students the knowledge and skills defined by the content 
standards. States are required to hold all students to the same 
standards except that these regulations permit States to measure the 
achievement of students with the most significant cognitive 
disabilities based on alternate achievement standards.
    Only by including all students in accountability measures will 
certain unintended negative consequences be avoided. For example, we 
know from research that when students with disabilities are allowed to 
be excluded from school accountability measures, the rates of referral 
of students for special education increase dramatically. (See National 
Center for Educational Outcomes Synthesis 26: http://education.umn.edu/nceo/OnlinePubs/Synthesis26.html.) In addition, students with 
disabilities accrue positive benefits when they are included in school 
accountability systems. Educators realize that these students also 
count, just like all other students; they understand that they need to 
make sure that these students learn to high levels, just like other 
students. When students with disabilities are part of the 
accountability system, educators' expectations for these students are 
more likely to increase.
    One State explains the instructional benefits of including students 
with the most significant cognitive disabilities in its assessment: 
``Some students with disabilities have never been taught academic 
skills and concepts, for example, reading, mathematics, science, and 
social studies, even at very basic levels. Yet all students are capable 
of learning at a level that engages and challenges them. Teachers who 
have incorporated learning standards into their instruction cite 
unanticipated gains in students' performance and understanding. 
Furthermore, some individualized social, communication, motor, and 
self-help skills can be practiced during activities based on the 
learning standards.'' (Concerns and Questions about Alternate 
Assessment. http://www.doe.mass.edu/mcas/atl/QabdC.doc. September 22, 
2003).
    Too often in the past, students with disabilities were excluded 
from assessments and accountability systems, and the consequence was 
that they did not receive the academic attention they deserved. Access 
and exposure to the general curriculum for students with disabilities 
often did not occur, and there was no systemwide measure to indicate 
whether or what they were learning. These regulations are designed to 
ensure that schools are held accountable for the educational progress 
of students with the most significant cognitive disabilities, just as 
schools are held accountable for the educational results of all other 
students with disabilities and students without disabilities.

Regulatory Development

    In a notice of proposed rule making (NPRM) published in the Federal 
Register (67 FR 50986) on August 6, 2002, the Secretary proposed a 
regulation to allow States to develop and use 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 the number of proficient scores based on the alternate 
achievement standards included in AYP calculations, at the

[[Page 68699]]

State and LEA levels separately, did not exceed 0.5 percent of all 
students in the grades assessed. However, because the comments 
indicated significant misunderstanding of the proposed rule, Sec.  
200.13 of title 34 of the Code of Federal Regulations, 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.
    In an NPRM printed in the Federal Register on March 20, 2003, the 
Secretary again proposed to amend the title I regulations to allow 
States to develop and use alternate achievement standards for students 
with the most significant cognitive disabilities for the purpose of 
determining the AYP of States, LEAs, and schools. In the new NPRM, the 
Secretary proposed that the number of proficient and advanced scores 
based on alternate achievement standards included in AYP calculations 
at the State and LEA levels, separately, could not exceed 1.0 percent 
of all students in the grades assessed at the State and the LEA levels, 
respectively. One percent of all students is approximately 9.0 percent 
of students with disabilities.
    The March 20, 2003, NPRM included additional explanatory 
information on the purpose and intent of the proposed regulations. 
However, the comments on this NPRM, like those received on the August 
6, 2002, NPRM, indicated that there continued to be misunderstandings 
about alternate assessments, alternate achievement standards, and the 
intent and purpose of the proposed regulations. Many commenters 
continued to think that the number of students with disabilities who 
could take an alternate assessment was being limited. The NPRM did not 
propose limiting the number or percentage of students who take an 
alternate assessment; rather, it proposed to limit the number of 
proficient and advanced scores based on alternate achievement standards 
that may be counted in the calculation of AYP.
    Being mindful of timing issues related to these proposed 
regulations, the submission of State accountability plans, and State 
efforts to develop assessments that better measure the progress of 
students with disabilities toward meeting State standards, as well as 
the fact that some States already had administered out-of-level 
assessments (instructional level assessments) in the 2002-2003 school 
year, the Secretary used his transitional authority to afford States 
flexibility in making AYP determinations, based on data from 
assessments administered during the 2002-2003 school year. Under that 
transition policy, a State, in calculating AYP for schools and 
districts, could use alternate achievement standards for students with 
the most significant cognitive disabilities (subject to a 1.0 percent 
cap) and also could use results from out-of-level assessments 
(instructional level assessments). The Department communicated this 
transition policy to States through the State accountability system 
approval process as well as in a letter to each State. (See http://www.ed.gov/policy/speced/guid/secletter/030627.html.)

Key Concepts

    The following paragraphs clarify the Department's understanding of 
several critical issues related to these regulations. They are: (1) 
Alternate assessments: (2) out-of-level assessments; and (3) and the 
1.0 percent cap.

Alternate Assessments

    An alternate assessment is an assessment designed for the small 
number of students with disabilities who are unable to participate in 
the regular State assessment, even with appropriate accommodations. An 
alternate assessment may include materials collected under several 
circumstances, including (1) teacher observation of the student, (2) 
samples of student work produced during regular classroom instruction 
that demonstrate mastery of specific instructional strategies in place 
of performance on a computer-scored multiple-choice test covering the 
same content and skills, or (3) standardized performance tasks produced 
in an ``on-demand'' setting, such as completion of an assigned task on 
test day. To serve the purposes of assessment under title I, an 
alternate assessment must be aligned with the State's content 
standards, must yield results separately in both reading/language arts 
and mathematics, and must be designed and implemented in a manner that 
supports use of the results as an indicator of AYP.
    As part of the State assessment program, alternate assessments 
should have a clearly defined structure, guidelines for which students 
may participate, clearly defined scoring criteria and procedures, and a 
report format that clearly communicates student performance in terms of 
the academic achievement standards defined by the State. The 
requirements for high technical quality set forth in Sec. Sec.  
200.2(b) and 200.3(a)(1), including validity, reliability, 
accessibility, objectivity, and consistency with nationally recognized 
professional and technical standards, apply to alternate assessments as 
well as to regular State assessments.
    Alternate assessments may be needed for students who have a broad 
variety of disabling conditions; consequently, a State may employ more 
than one alternate assessment. An alternate assessment may be scored 
against grade-level standards, or, in the case of students with the 
most significant cognitive disabilities, against alternate achievement 
standards. Therefore, all students taking an alternate assessment are 
included in calculations of AYP as either proficient (and above) or 
non-proficient.
    An alternate achievement standard is an expectation of performance 
that differs in complexity from a grade-level achievement standard. 
These regulations clarify that a State is permitted to use alternate 
achievement standards to evaluate the performance of students with the 
most significant cognitive disabilities and to give equal weight to 
proficient and advanced performance based on the alternate standards in 
calculating school, district, and State AYP, provided that the number 
of proficient and advanced scores based on the alternate achievement 
standards does not exceed 1.0 percent of all students in the grades 
tested at the State or LEA level. The Secretary may approve an 
exception for a specified period of time for a State (or a State may 
approve a higher limit for an LEA.)
    If a State chooses to create alternate achievement standards, the 
State is not limited to setting a single alternate achievement 
standard. If, however, the State chooses to define multiple alternate 
achievement standards, it must employ commonly accepted professional 
practices to define the standards; it must document the relationship 
among the alternate achievement standards as part of its coherent 
assessment plan; and it must include in the 1.0 percent cap proficient 
scores resulting from all assessments based on alternate achievement 
standards.
    Although the 1.0 percent cap is applied to the number of proficient 
and advanced scores that may be included in AYP determinations, rather 
than the number of students taking an assessment against alternate 
achievement standards, this regulation clarifies the Department's 
position that alternate achievement standards are acceptable only for 
the small number of students with the most significant cognitive 
disabilities. In consideration of schools that, for example, are small

[[Page 68700]]

schools or provide special services to students with the most 
significant cognitive disabilities, the numerical cap of 1.0 percent 
does not apply at the school level. This does not mean, however, that 
the use of alternate assessments aligned with alternate standards is 
unlimited at the school level. For most schools, only a small portion 
of students with disabilities--those with the most significant 
cognitive disabilities--should appropriately participate in an 
assessment based on alternate achievement standards, and all other 
students with disabilities should be assessed against grade-level 
standards. In general, the Department expects that no more than 9.0 
percent of students with disabilities will participate in an assessment 
based on alternate achievement standards.
    The Department expects most students with disabilities to 
participate in the regular statewide assessment either without 
accommodations or with appropriate accommodations that are consistent 
with the accommodations provided during regular instruction. Current 
Sec.  200.6 requires that the IEP team determine the accommodations 
necessary to measure the academic achievement of students with 
disabilities relative to the State's academic content and achievement 
standards for the grade in which the student is enrolled. Through the 
IEP process, parents should be informed of the potential consequences, 
if any, for their child if he or she participates in a regular 
assessment with particular accommodations, an alternate assessment 
based on grade-level achievement standards, or an alternate assessment 
based on alternate achievement standards. (For example, a parent should 
be informed if a State will not allow a student to graduate with a 
regular diploma if he or she takes an alternate assessment based on 
alternate achievement standards.)

Out-of-Level Assessments

    In order to improve instruction and achievement for all students 
with disabilities, the Department expects States to assess as many 
students as possible with academic assessments aligned to regular 
achievement standards. To achieve that goal and reduce use of out-of-
level assessments, States should work to implement fully the IDEA 
Amendments of 1997, provide students access to the general curriculum, 
develop universally designed assessments that measure whether students 
with disabilities are meeting the State's challenging academic 
standards, and ensure that both special and regular education teachers 
set high expectations for students with disabilities and understand the 
State's academic content standards. The alternate achievement standards 
associated with an out-of-level assessment used for calculating AYP 
must meet the requirements of Sec.  200.1(d) and students taking such 
assessments must be included in AYP calculations. The achievement 
standards associated with out-of-level assessments may meet the 
alternate achievement standards under Sec.  200.1(d), only if they are 
aligned with the State's academic content standards, promote access to 
the general curriculum, and reflect professional judgment of the 
highest achievement standards possible. The results from those tests 
must be included within the 1.0 percent cap for the purposes of 
calculating AYP, because the achievement standards associated with the 
content and skills measured by out-of-level assessments are clearly 
different from the achievement standards in the target grade.
    Previous guidance from the Department's Office of Special Education 
Programs indicated that out-of-level assessments were not alternate 
assessments. This new guidance, however, recognizes that out-of-level 
assessments that are administered to students with the most significant 
cognitive disabilities and that meet the requirements of Sec.  200.1(d) 
may be considered to be alternate assessments aligned with alternate 
achievement standards for the purposes of calculating AYP.

1.0 Percent Cap

    Alternate achievement standards are appropriate only for students 
with the most significant cognitive disabilities. The intent of the 
March 20, 2003, NPRM was not to create a separate category of 
disability and these regulations do not do so; rather, the intent was 
to provide for a narrow population of children with disabilities whose 
proficient and advanced scores based on alternate achievement standards 
may be included in AYP calculations. Although some commenters argued 
that no limit should be imposed on the use of scores based on alternate 
achievement standards in calculating AYP, the Secretary has determined 
that a cap is warranted both to protect the interests of individual 
students (by providing an incentive for schools to provide maximum 
learning opportunities to each student) and to protect the meaningful 
interpretation and use of State assessment results for determining 
school, district, and State AYP. This will ensure that States, LEAs, 
and schools are held accountable for the academic progress of these 
students and that students with the most significant cognitive 
disabilities are assigned to a curriculum that is appropriately 
challenging.
    The Secretary welcomes comments and data from States and others 
about how the regulations are working over time and may consider 
revising them in the future should the comments indicate a need to do 
so. In addition, the Department intends to issue a report on the 
implementation of this regulation after two years of implementation. As 
data and research on assessing students with disabilities improve, the 
Department may decide to issue regulations or guidance on other related 
issues in the future.

Significant Changes From the March 20, 2003, NPRM

    Section 200.1 of NPRM proposed defining ``students with the most 
significant cognitive disabilities'' as students with disabilities 
under the IDEA whose intellectual functioning and adaptive behavior are 
three or more standard deviations below the mean. The regulations 
remove this definition, thereby giving States greater flexibility in 
applying the provisions for including a limited number of proficient 
and advanced scores based on alternate achievement standards in 
calculating AYP.
    At the same time, as described in the discussion of comments 
related to Sec.  200.6, the regulations require States to implement a 
number of important safeguards to ensure that this flexibility will be 
used in an appropriate manner.
    Section 200.6 of the NPRM proposed allowing States to measure the 
achievement of students with the most significant cognitive 
disabilities against alternate achievement standards. In doing so, it 
proposed requiring States to establish guidelines ensuring that only 
students with the most significant cognitive disabilities are tested 
against alternate standards including establishing clear policies for 
determining when alternate achievement standards may be used. The 
regulations retain these provisions while clarifying that a State is 
not required to use alternate achievement standards. If it does, the 
regulations establish these additional conditions associated with their 
use: The State must ensure that parents are informed their children 
will be assessed based on alternate achievement standards, and the 
State must report on the number and percentage of students with 
disabilities taking regular assessments (with or without 
accommodations), alternate assessments based on grade-level

[[Page 68701]]

achievement standards, and alternate assessments based on alternate 
achievement standards. These regulations also require the State to 
promote the use of appropriate accommodations, provide appropriate 
guidance to IEP teams, and provide training for teachers and other 
staff in the administration of assessments to children with the most 
significant cognitive disabilities. These requirements will encourage 
States to decrease or eliminate out-of-level testing and other changes 
in the test that invalidate test results.
    Whereas the NPRM proposed requiring reporting on the number and 
percentage of students with disabilities taking various types of 
assessments at the school and district levels, these regulations only 
require reports about the types of assessments used for students with 
disabilities at the State level. States also must document that 
students with the most significant cognitive disabilities are, to the 
extent possible, included in the general curriculum and participating 
in assessments aligned with content standards. The Department's Office 
of Special Education Programs, in its regular monitoring, may examine 
this documentation and the Office of Elementary and Secondary Education 
may review data during its peer review process for standards and 
assessments.
    In addition, States using alternate achievement standards must 
promote the use of appropriate accommodations in order to increase the 
numbers of students with disabilities who can be tested against grade-
level academic achievement standards. These regulations promote the use 
of appropriate testing practices through the dissemination of 
information about accommodations for regular assessments and ensure 
that relevant staff know how to administer assessments to students with 
disabilities.
    Section 200.13 of the NPRM proposed providing that the Secretary 
could permit a State--and a State could permit an LEA--to exceed the 
1.0 percent cap on the number of proficient and advanced scores based 
on alternative achievement standards that can be included in AYP 
calculations if the State or LEA, as applicable, establishes that the 
incidence of students with the most significant cognitive disabilities 
exceeds the limit and if the agency documents circumstances that 
explain the higher percentage. These regulations retain these 
provisions but add further requirements to ensure (1) that students who 
should be assessed against grade-level standards with appropriate 
accommodations are not being assessed against alternate achievement 
standards, and (2) that the alternate achievement standards embody 
challenging academic expectations appropriate for those students who 
are assessed against them.
    Section 200.13(c)(3) of the NPRM proposed requiring a State, in 
calculating AYP for the State and each LEA, to apply grade-level 
academic content and achievement standards to assessment results of any 
students taking alternate assessments that exceeded the percentage 
limitations. To make the intent of this provision clearer, we are 
revising Sec.  200.13(c)(4) of these regulations. First, Sec.  
200.13(c)(4)(i) clarifies that a State must include the scores of all 
students with the most significant cognitive disabilities who have been 
in the LEA or State for a full academic year in calculating AYP. It may 
not exclude the scores of students who exceed the percentage 
limitations in Sec.  200.13(c)(1) through (3). Second, Sec.  
200.13(c)(4)(ii) requires the State to count as non-proficient, the 
scores of any such students who exceed the percentage limitations in 
calculating AYP. In other words, the State must count the scores of 
these students as not proficient, even if some or all of the students 
achieved proficiency on the alternate achievement standards. Non-
proficient scores are any scores below proficient, as determined by the 
State accountability plan.
    Because the scores of all students must be included, if an LEA or 
State educational agency (SEA) exceeds their cap, Sec.  
200.13(c)(4)(iii) requires the State to determine which proficient 
scores are counted as non-proficient in the LEAs and schools 
responsible for students who took alternate assessments aligned to 
alternate achievement standards. The State has flexibility in 
determining how to do this.
    Section 200.13(c)(4)(iv) through (v) has been added. Section 
200.13(c)(4)(iv) clarifies that, in calculating AYP, a State must be 
consistent in its use of the scores of students with the most 
significant cognitive disabilities. For example, if there are such 
students in an LEA who score at the proficient level on the State's 
alternate assessment but who exceed the 1.0 percent cap, and the State 
has not granted the LEA an exception, the State may not count those 
students as proficient in determining AYP at the school, LEA, or State 
level. Moreover, the State must also count their scores as not 
proficient in the other subgroups to which they belong. Section 
200.13(c)(4)(v), however, emphasizes that the State must ensure that 
parents are informed of the actual achievement level that a student 
with the most significant cognitive disabilities attains, even if that 
student's score is determined to be in the group above the 1.0 percent 
cap and counted as non-proficient for purposes of calculating AYP.

Multiple Test Administration

    The March 20, 2003, NPRM also requested additional comments on 
Sec.  200.20(c)(3) of the title I regulations published in the Federal 
Register on December 2, 2002. Section 200.20(c)(3) 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 are not changing Sec.  
200.20(c)(3). Through the approval of State accountability systems this 
year, we have been able to work with States to clarify the intent of 
these regulations and to implement these requirements in a manner 
consistent with their test administration policies. We believe these 
regulations offer more flexibility than commenters understood at the 
time of the March 20, 2003, NPRM, and that it is not necessary to 
change Sec.  200.20(c)(3).

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, 
approximately 100 parties submitted comments on the proposed 
regulations. 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 regulations.

Executive Order 12866

    We have reviewed these final regulations in accordance with 
Executive Order 12866. Under the terms of the order, we have assessed 
the potential costs and benefits of this regulatory action.
    The potential costs associated with these regulations are those we 
have determined to be necessary for administering the requirements of 
the statute effectively and efficiently.
    In assessing the potential costs and benefits--both quantitative 
and qualitative--of these regulations, we have determined that the 
benefits of the regulations justify the costs.
    We have also determined that this regulatory action does not unduly 
interfere with State, local, and tribal governments in the exercise of 
their governmental functions.

Regulatory Flexibility Act

    The Secretary certifies that these regulations would not have a 
significant economic impact on a substantial number of small entities.

[[Page 68702]]

    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

    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.
    Section 200.6 of the proposed regulation contained an information 
collection requirement. Under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3507(d)), the Department of Education 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''.
    These regulations remove the requirement that LEAS and schools 
report data and replace them with a requirement that States report data 
as part of their report to the Secretary required under section 
1111(h)(4) of title I. The Department is currently working on a 
separate paperwork package (1820-0624), covering the 2002-2003 school 
year, which includes the requirement in these regulations that States 
report data on the number of students with disabilities taking regular 
and alternate assessments. This data collection will not require States 
to report data on the percentage of students with disabilities taking 
regular and alternate assessments for the 2002-2003 school year. 
However, the Department can calculate the percentages based on the data 
that is included in 1820-0624. States will report on the percent of 
students with disabilities taking regular and alternate assessments 
will take place for school year 2003-2004. It will be included as part 
of an existing paperwork package submitted at that time.

Executive Order 12372

    These regulations are not subject to the requirements of Executive 
Order 12372 and the regulations in 34 CFR part 79.

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/news/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.gpo.access.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, 
Education of children with disabilities, Education of disadvantaged 
children, Elementary and secondary education, Eligibility, Family-
centered education, Grant programs--education, Indian 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: November 26, 2003.
Rod Paige,
Secretary of Education.

0
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

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

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


0
2. In Sec.  200.1, revise paragraph (a)(1), redesignate paragraphs (d) 
and (e) as (e) and (f), and add new 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. For students under 
section 602(3) of the Individuals with Disabilities Education Act with 
the most significant cognitive disabilities who take an alternate 
assessment, a State may, through a documented and validated standards-
setting process, define alternate academic achievement standards, 
provided those standards--
    (1) Are aligned with the State's academic content standards;
    (2) Promote access to the general curriculum; and
    (3) Reflect professional judgment of the highest achievement 
standards possible.
* * * * *


0
3. In Sec.  200.6, revise paragraph (a)(2)(ii) and add new 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 the following paragraph.
    (B) For students with the most significant cognitive disabilities, 
alternate assessments may yield results that measure the achievement of 
those students relative to the alternate academic achievement standards 
the State has defined under Sec.  200.1(d).
    (iii) If a State permits the use of alternate assessments that 
yield results based on alternate academic achievement standards, the 
State must--
    (A)(1) Establish and ensure implementation of clear and appropriate 
guidelines for Individualized Educational Program (IEP) teams to apply 
in determining when a child's significant cognitive disability 
justifies assessment based on alternate academic achievement standards; 
and
    (2) Ensure that parents of those students are informed that their 
child's achievement will be based on alternate achievement standards; 
and
    (B) Report separately, under section 1111(h)(4) of the ESEA, the 
number and percentage of students with disabilities taking--
    (1) Alternate assessments based on the alternate academic 
achievement standards defined under Sec.  200.1(d);
    (2) Alternate assessments based on the academic achievement 
standards defined under Sec.  200.1(c); and

[[Page 68703]]

    (3) Regular assessments, including those administered with 
appropriate accommodations.
    (C) Document that students with the most significant cognitive 
disabilities are, to the extent possible, included in the general 
curriculum and in assessments aligned with that curriculum;
    (D) Develop, disseminate information on, and promote use of 
appropriate accommodations to increase the number of students with the 
most significant cognitive disabilities who are tested against grade-
level academic achievement standards; and
    (E) Ensure that regular and special education teachers and other 
appropriate staff know how to administer assessments, including making 
appropriate use of accommodations, for students with the most 
significant cognitive disabilities.
* * * * *

0
4. In Sec.  200.13, revise the introductory text of paragraph (b) and 
paragraph (b)(1), redesignate paragraph (c) as paragraph (d), and add 
new paragraph (c) to read as follows:


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) Applies the same high standards of academic achievement to all 
public school students in the State, except as provided in paragraph 
(c) of this section;
* * * * *
    (c)(1) In calculating adequate yearly progress for schools, LEAs, 
and the State, a State--
    (i) Must, consistent with Sec.  200.7(a), include the scores of all 
students with disabilities, even those with the most significant 
cognitive disabilities; but
    (ii) May include the proficient and advanced scores of students 
with the most significant cognitive disabilities based on the alternate 
academic achievement standards in Sec.  200.1(d), provided that the 
number of those students who score at the proficient or advanced level 
on those alternate achievement standards at the LEA and at the State 
levels, separately, does not exceed 1.0 percent of all students in the 
grades assessed in reading/language arts and in mathematics.
    (2) An SEA may request from the Secretary an exception permitting 
it to exceed the 1.0 percent cap. The Secretary will consider granting, 
for a specified period of time, an exception to a State if the 
following conditions are met:
    (i) The SEA documents that the incidence of students with the most 
significant cognitive disabilities exceeds 1.0 percent of all students 
in the grades assessed.
    (ii) The SEA explains why the incidence of such students exceeds 
1.0 percent of all students in the combined grades assessed, such as 
school, community, or health programs in the State that have drawn 
large numbers of families of students with the most significant 
cognitive disabilities, or such a small overall student population that 
it would take only a very few students with such disabilities to exceed 
the 1.0 percent cap.
    (iii) The SEA documents that it is fully and effectively addressing 
the requirements of Sec.  200.6(a)(2)(iii).
    (3)(i) A State may grant an exception to an LEA permitting it to 
exceed the 1.0 percent cap in paragraph (c)(1) of this section only if 
the State evaluates the LEA's request using conditions consistent with 
paragraph (c)(2) of this section.
    (ii) The State must review regularly whether an LEA's exception to 
the 1.0 percent cap is still warranted.
    (4) In calculating adequate yearly progress, if the percentage of 
proficient and advanced scores based on alternate academic achievement 
standards under Sec.  200.1(d) exceeds the caps in paragraph (c)(1) 
through (3) of this section at the State or LEA level, the State must 
do the following:
    (i) Consistent with Sec.  200.7(a), include all scores of students 
with the most significant cognitive disabilities.
    (ii) Count as non-proficient the proficient and advanced scores 
above the caps in paragraph (c)(1) through (3) of this section.
    (iii) Determine which proficient scores to count as non-proficient 
in schools and LEAs responsible for students who take an alternate 
assessment based on alternate achievement standards.
    (iv) Include those non-proficient scores in each applicable 
subgroup at the school, LEA and State level.
    (v) Ensure that parents are informed of the actual academic 
achievement levels of their students with the most significant 
cognitive disabilities.

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: Several commenters noted that proposed language 
requiring ``a documented and validated standards-setting process 
[to] define achievement standards that * * * reflect professional 
judgment of the highest learning standards possible for those 
students'' seems to be more rigorous than the process required for 
general assessments.
    Discussion: Title I, as amended by the NCLB Act, requires that, 
for the general assessment, States establish challenging academic 
content standards that contain rigorous content and encourage the 
teaching of advanced skills, and challenging student achievement 
standards that determine how well students are mastering this 
content. States must create the achievement standards with all 
students in mind, so that they are realistic for a wide variety of 
individuals. The standards should represent a consensus among 
experienced teachers, parents, and other appropriate individuals 
regarding the performance expected after appropriate student effort 
in a challenging instructional program. In addition, the law calls 
for all schools and districts to attain the long-range goal of all 
students becoming proficient by 2013-14, thereby eliminating 
existing achievement gaps. For a school, the challenge is to enable 
all students to meet this achievement standard.
    Students with the most significant cognitive disabilities who 
participate in an alternate assessment are entitled to the same 
deliberate approach to defining achievement standards that represent 
a rigorous but realistic challenge for this heterogeneous group of 
students and a challenging long-range goal for their school and 
district. The use of ``highest learning standards possible'' is 
intended to reflect that the alternate achievement standards should 
be no less challenging for students with the most significant 
cognitive disabilities than the standards set for all other 
students.
    Change: None, except that we have deleted the phrase, ``for 
those students,'' as it was redundant.
    Comment: Some commenters expressed confusion regarding the need 
for achievement standards that are aligned with the State's academic 
content standards. They questioned what it means for alternate 
achievement standards to be aligned with the content standards when 
children with the most significant cognitive disabilities are not 
working on the same content as their peers.
    Discussion: Alternate achievement standards must be aligned with 
the State's academic content standards, promote access to the 
general curriculum, and reflect professional judgment of the highest 
learning standards possible for the group of students with the most 
significant cognitive disabilities. In practice, alignment with the 
State's academic content standards means that the State has defined 
clearly the connection between the instructional content appropriate 
for non-disabled students and the related knowledge and skills that 
may serve as the basis for a definition of proficient achievement 
for students with the most significant cognitive disabilities. One 
State,

[[Page 68704]]

for example, has developed a curriculum framework for students with 
the most significant cognitive disabilities that moves from grade-
level expectations to progressively less complex versions of the 
standard. This continuum of ``entry points'' provides a range of 
options at which a student with disabilities can access the content 
at an appropriately challenging level. It lists, for example, the 
following skills for grade 3 through 4 content standards under 
Mathematics Operations: ``Select, use and explain various meanings 
and models of multiplication and the division of whole numbers. 
Understand and use the inverse relationship between the two 
operations.'' The State's standards document also identifies the 
essence of the standard in several brief statements, e.g., 
understand the meaning of multiplication and division; and represent 
multiplication and division problems concretely. The State then 
provides several illustrations of the knowledge and skills 
appropriate for use in the alternate assessment. These range from 
less complex, ``Illustrate the concept of multiplication using 
groups of objects,'' to more complex knowledge that approaches 
grade-level expectations such as ``Identify the commutative property 
of addition and multiplication using number sentences (3 x 5 = 5 x 
3).'' See http://www.doe.mass.edu/mcas/alt/rg/math.doc.
    The alternate achievement standards may include prerequisite or 
enabling skills that are part of a continuum of skills that 
culminate in grade-level proficiency. The use of alternate 
achievement standards, however, must not result in inappropriate 
placements or assignment of students to a curriculum that does not 
include academic content.
    Change: None.
    Comment: One commenter recommended that Sec.  200.1 be revised 
to require States to develop alternate achievement standards rather 
than making this authority permissive
    Discussion: Section 1111(b)(1) of title I requires a State to 
adopt challenging student achievement standards and to apply the 
same standards ``to all schools and children in the State.'' The 
Secretary acknowledges, however, that, while all children can learn 
challenging content, evaluating that learning through alternate 
achievement standards is appropriate for a small, limited percentage 
of students who are within one or more of the existing categories of 
disability, and whose cognitive impairments may prevent them from 
attaining grade-level achievement standards. Therefore, these 
regulations permit States to measure the achievement of a limited 
percentage of students--those with the most significant cognitive 
disabilities--against challenging but alternate achievement 
standards. Based on the statutory language, the Secretary does not 
have the authority to require a State to adopt alternate achievement 
standards. The Secretary's interest, however, is in ensuring that if 
a State adopts such standards, they are rigorous and used only for 
those students for whom they are appropriate.
    Change: None.
    Comment: Two commenters indicated a desire for flexibility that 
would permit individual students to show progress based on IEP goals 
rather than performance against an additional set of standards.
    Discussion: IEP goals address a broad range of individualized 
instructional needs as well as behavioral and developmental goals. 
Title I, as amended by the NCLB Act requires that schools be 
accountable for student achievement only in the content areas of 
reading/language arts and mathematics and requires assessment of all 
students in these essential skill areas. To the maximum extent 
possible, the IEP should provide for student access to, and 
participation and progress in, the general curriculum. Students with 
the most significant cognitive disabilities can address many of 
their IEP goals using materials and activities that are related to 
the State's reading/language arts and mathematics standards. To 
ensure that schools are accountable for this group of students, they 
must be included in the assessment and accountability systems. In 
order to make confident accountability determinations for schools 
based on student achievement, including the achievement of students 
with the most significant cognitive disabilities, alternate 
achievement standards must ensure consistency in the judgments made 
about the schools rather than relying on measures that do not permit 
consistent judgments using comparable measures of achievement across 
all students. In addition to reporting student successes relative to 
the achievement standard, well-designed assessments will also show 
student progress over time.
    Change: None.
    Comment: Many commenters objected to proposed Sec.  200.1(d)(2) 
that would define ``students with the most significant cognitive 
disabilities'' as those ``who have been identified as students with 
disabilities under IDEA and whose intellectual functioning and 
adaptive behavior are three or more standard deviations below the 
mean.'' Some commenters objected to the definition's implicit 
reliance on IQ test scores. Others expressed concern that the 
definition is inconsistent with the 1.0 percent cap.
    Discussion: The Secretary agrees with the commenters on both 
issues. He is concerned that the proposed definition would have 
placed unwarranted reliance on an IQ test to determine three 
standard deviations below the mean. Moreover, he acknowledges that 
it was inconsistent to set a 1.0 percent cap while defining students 
with the most significant cognitive disabilities as those three 
standards deviations below the mean. A student may be appropriately 
assessed on the basis of alternate achievement standards even if the 
child's intellectual functioning and adaptive behavior are fewer 
than three standard deviations from the mean. The definition in the 
NPRM thus restricted the use of alternate achievement standards to a 
more narrowly defined group of students than many educators feel 
appropriate based on their professional experience. As a result, the 
Secretary is removing the proposed definition. Removing the 
definition while maintaining the 1.0 percent cap gives States and 
LEAs more latitude in identifying the population that should 
appropriately be evaluated against alternate achievement standards, 
while ensuring that alternate achievement standards are not used as 
a loophole to evade accountability for unwarrantedly large numbers 
of students with disabilities. At the same time, the Secretary 
believes there are other safeguards that States adopting alternate 
achievement standards should establish to ensure that the 
flexibility to use alternate achievement standards for a small 
population of students with disabilities is exercised appropriately 
and is not abused.
    Change: The definition in proposed Sec.  200.1(d)(2) is removed 
from the final regulations. New provisions have been added in Sec.  
200.6(a)(2)(iii) (C), (D), and (E) requiring States that are using 
alternate achievement standards to: (1) Document that students with 
the most significant cognitive disabilities are included in the 
general curriculum to the extent possible and are participating in 
assessments aligned with that curriculum; (2) develop, disseminate 
information on, and promote the use of appropriate accommodations; 
(3) ensure that regular and special education teachers and other 
appropriate staff know how to administer assessments to students 
with the most significant cognitive disabilities; and (4) ensure 
that parents are informed that their child is going to be measured 
against alternate achievement standards.
    Comment: Several commenters indicated concern that, because the 
term ``students with the most significant cognitive disabilities'' 
introduces new terminology, it suggests a new category of 
disability.
    Discussion: The intent of the March 20, 2003, NPRM was not to 
create a new category of disability. Rather, the Secretary intended 
the term ``students with the most significant cognitive 
disabilities'' to include that small number of students, who are (1) 
within one or more of the 13 existing categories of disability (e.g. 
autism, multiple disabilities, traumatic brain injury, etc.), and 
(2) whose cognitive impairments may prevent them from attaining 
grade-level achievement standards, even with the very best 
instruction.
    Change: None.
    Comment: Several commenters expressed concern that the 1.0 
percent cap would unnecessarily limit access of some students with 
disabilities to alternate assessments.
    Discussion: The intent of the NPRM was not to restrict students 
with disabilities from taking alternate assessments when that is 
appropriate. The NPRM and this regulation only address the inclusion 
of scores for AYP calculations. The intent was to provide for a 
narrow population of children with disabilities whose achievement on 
alternate assessments is more appropriately measured by alternate 
achievement standards. The regulations permit the proficient and 
advanced scores of those students (limited to 1.0 percent of the 
total population of students in the grades assessed for States and 
LEAs) to be included in the calculation of AYP, even though their 
proficient and advanced scores are based on alternate standards. The 
Secretary developed this policy to ensure that States, LEAs, and 
schools are held accountable for the progress of all students and 
that students with disabilities--particularly students with the most

[[Page 68705]]

significant cognitive disabilities--are not inappropriately assigned 
to a curriculum that is not appropriately challenging in order to 
avoid accountability consequences.
    Change: None.
    Comment: Some commenters indicated that the proposed regulations 
would require new recordkeeping for students with the most 
significant cognitive disabilities.
    Discussion: By eliminating the proposed definition of students 
with the most significant cognitive disabilities, these regulations 
should alleviate the concerns of commenters who were worried about 
the need for additional documentation of individual students' 
disabling characteristics. The regulations, however, will require 
States to report separately on the number and percentage of students 
taking an alternate assessment based on either grade-level 
achievement standards, or on alternate achievement standards as well 
as taking regular assessments (including with accommodations). 
States are already collecting and reporting on the numbers of 
students with disabilities taking regular assessments and alternate 
assessments as a part of performance reporting under the IDEA as 
well as reporting the results under title I and IDEA. Requiring 
States to report separately on the number of students taking 
alternate assessments measured against alternate and regular 
achievement standards is necessary to ensure that alternate 
achievement standards are being used consistent with the limitation 
imposed by these regulations.
    Change: The regulations have been amended to require that States 
report on the number (in addition to percentage) of students with 
disabilities taking alternate assessments measured against regular 
and alternate achievement standards, and the number and percentage 
of students with disabilities taking regular assessments.
    Comment: One commenter suggested that some students should be 
assessed using an alternate assessment based on the same standards 
as all other students.
    Discussion: An important purpose for alternate assessments in 
State assessment systems is to increase the capacity of large-scale 
accountability systems to create information about how a school, 
district, or State is doing in terms of overall student performance. 
As States have gained experience in developing assessment strategies 
for students with disabilities, it has become apparent that there 
can be several kinds of alternate assessments. These may include 
different strategies for gathering information about what students 
know and can do; for example, (1) teacher observation of the 
student, (2) collecting and scoring samples of student work produced 
during regular classroom instruction that demonstrates mastery of 
specific instructional strategies, in place of performance on a 
computer scored multiple choice test covering the same content and 
skills, or (3) student work produced in an ``on-demand'' setting 
such as completion of an assigned task on test day. Such variations 
are permissible under title I as long as the State can to document 
that the results provide evidence of student knowledge and skills 
that is comparable to the evidence provided by results from the 
regular standards-based State assessment.
    For a very small group of students with the most significant 
cognitive disabilities, alternate achievement standards are 
appropriate. These alternate achievement standards must reflect a 
set of expectations for students with the most significant cognitive 
disabilities consistent with the State content standards in reading/
language arts and mathematics.
    Change: None.

Section 200.6 Inclusion of All Students

    Comment: Several commenters suggested that the proposed 
regulation conflicted with the role of the IEP team in determining 
how students with disabilities are assessed. Specifically, 
commenters indicated that it is the responsibility of the IEP team 
to decide which assessment students with disabilities take and 
whether students with disabilities take an assessment based on 
alternate achievement standards. Another commenter recommended that 
the IEP team develop the alternate assessments.
    Discussion: Under the IDEA, a student's IEP team is responsible 
for determining how that student participates in a State assessment 
of student achievement. The IEP team is charged with determining 
whether accommodations for the assessments required under title I 
are needed by each individual student to enable the student to 
participate in the assessment. If the IEP team determines that a 
student will not participate in the regular assessment (or part 
thereof), the team is required to identify why the assessment is not 
appropriate for the child and how the child will be assessed, such 
as through an alternate assessment. IEP teams, however, do not have 
complete discretion regarding the assessment of students with 
disabilities. The team decides how a student participates, not 
whether the student participates in the assessment at all.
    For State assessment programs under title I, the State is 
responsible for establishing the State academic content and 
achievement standards against which all children in the State will 
be assessed, including all students with disabilities. In addition, 
under title I the State is responsible for implementing a system of 
high-quality, yearly student academic assessments that are aligned 
with the State's academic content standards, are valid and reliable 
for the purposes for which they are used, and are consistent with 
relevant, nationally recognized professional and technical 
standards. Under the IDEA, the State also is responsible for 
developing guidelines for the participation of students with 
disabilities in alternate assessments for those students who cannot 
participate in the regular State assessments. Thus, for assessments 
under title I, the IEP team operates in an environment in which the 
academic content and achievement standards and assessments are set 
by the State, the technical qualities of the State assessments are 
well established, (including whether accommodations are valid and do 
not invalidate test results on all or part of the assessment), and 
the State has guidelines regarding eligibility for alternate 
assessments.
    Change: None.
    Comment: One commenter suggested that the alternate assessment 
requirement be delayed until 2007-08 to give States time to develop 
alternate assessments.
    Discussion: States have received ample notification of this 
requirement and should now have alternate assessments in place. 
Under IDEA, States were required to implement an alternate 
assessment as of July 1, 2000. The Office of Elementary and 
Secondary Education notified States in spring 2000 that title I 
requires that all students with disabilities be included in State 
assessments, either with accommodations or in an alternate 
assessment as determined by their IEP team. Further, whatever 
assessment approach is taken, the scores of students with 
disabilities must be included in the assessment system for purposes 
of public reporting and school and district accountability.
    Change: None.
    Comment: One commenter proposed that alternate assessments 
include functional life skills in addition to academic content.
    Discussion: The purpose of alternate assessments under title I 
is to measure the progress of schools in increasing the percentage 
of students who reach or exceed the proficient level on State 
academic performance standards. While States and LEAs have the 
authority to develop assessments that measure the acquisition of 
functional life skills, such assessments are not required by title I 
and are beyond the scope of these regulations.
    Change: None.
    Comment: Several commenters requested that the regulation permit 
the use of out-of-level assessments, although they disagreed about 
whether out-of-level assessments should be considered as an 
assessment based on alternate achievement standards or as another 
form of assessment for which additional flexibility should be 
permitted.
    Discussion: The NCLB Act is based on the premise that holding 
States, LEAs and schools to high expectations for the learning of 
all students can significantly improve the educational attainment of 
all students. Although these regulations recognize that there is a 
small population of students with disabilities who may not achieve 
grade-level proficiency, we expect, and State experience indicates, 
that other students with disabilities can achieve when they are held 
to high expectations, provided full access to the general 
curriculum, and taught by teachers highly qualified in the core 
academic subjects that they teach. Under these regulations, out-of-
level assessments are considered to be alternate assessments based 
on alternate achievement standards to which the cap in Sec.  
200.13(c) applies if they are based on alternate achievement 
standards that meet the requirements of Sec.  200.1(d). If the out-
of-level assessment does not meet those requirements, it is not an 
alternate assessment measuring alternate achievement standards.
    Change: None.

Section 200.13 Adequate Yearly Progress in General

    Comment: Numerous comments were received on the proposed cap on 
the

[[Page 68706]]

percentage of proficient assessment scores based on alternate 
achievement standards that may be included in the calculation of 
AYP. Some commenters said the cap was too high; others said the cap 
was too low; some said the 1.0 percent cap was appropriate; and 
still others said there should be no cap at all.
    Discussion: The 1.0 percent cap does not restrict the number of 
students who may participate in an alternate assessment. It does 
limit the number of proficient and advanced scores based on 
alternate achievement standards that may be used in the calculation 
of AYP. A limit is required in order to ensure a thoughtful 
application of alternate achievement standards and to protect IEP 
teams from pressure to assign low-performing students to assessments 
and curricula that are inappropriately restricted in scope, thus 
limiting educational opportunity for these students.
    These regulations maintain the 1.0 percent cap that was included 
in the proposed regulation. Specifically, Sec.  200.13(c)(1) permits 
States to use results from assessments aligned to alternate 
achievement standards for students with the most significant 
cognitive disabilities in calculating AYP. A State may include the 
proficient and advanced scores of students with the most significant 
cognitive disabilities based on the alternate academic achievement 
standards in Sec.  200.1(d), provided that the number of those 
students who score at the proficient or advanced level on those 
alternate achievement standards at the LEA and at the 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 represent approximately 9 percent of students with 
disabilities, but the actual percent varies across States. Section 
200.13(c)(2) permits States to request a slightly higher cap if the 
State is able to meet the criteria and documentation requirements 
set forth in this section.
    In the discussion of the March 20, 2003, proposed rule, we noted 
that the 1.0 percent cap was based on current prevalence rates of 
students with the most significant cognitive disabilities, allowing 
for reasonable local variation in prevalence. In addition, we cited 
converging scientific evidence from multiple sources that indicated 
that the prevalence rates of students with the most significant 
cognitive disabilities were somewhat less than 1.0 percent. We also 
noted that these numbers are generally seen as reflecting national 
rates, and, as a number of commenters on the August 6, 2002, NPRM 
pointed out, may not account for more localized differences, caused 
by a number of factors. 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 a 
national average percentage 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.
    State data reported to the Department under IDEA also support 
the 1.0 percent cap. Of the 38 States for which sufficient data are 
available, 21 States reported 5.0 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 5.0 and 10.0 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 8.0 to 12.0 percent of the 
total student population (IDEA Annual Report to Congress, 2001).
    The 1.0 percent cap is the limit on the number of proficient or 
advanced scores based on alternate achievement standards that may 
count as proficient or advanced for accountability purposes at the 
LEA and SEA levels. Consequently, in cases where the number of 
students taking an alternate assessment based on alternate 
achievement standards exceeds 1.0 percent, it may not be necessary 
to apply for a higher cap. For example, if 1.0 percent equals 200 
students and 400 students are assessed with an alternate assessment 
based on alternate achievement standards, but only half of the 
students assessed are ``proficient,'' the LEA would not exceed the 
cap.
    In summary, the Secretary believes that the 1.0 percent cap is 
consistent with disability incidence rates and the States' use of 
alternate assessments. It provides sufficient flexibility for States 
to measure the achievement of students with the most significant 
cognitive disabilities for accountability purposes, while meeting 
the spirit and intent of the law that all students be held to high 
standards.
    Change: None.
    Comment: None.
    Discussion: If a State chooses not to use alternate achievement 
standards, it must still incorporate the assessment scores of all 
students with disabilities in AYP determinations, including those 
with the most significant cognitive disabilities.
    Change: Section 200.13(c)(1)(i) has been added to clarify this 
requirement.
    Comment: A number of commenters raised questions about how the 
1.0 percent cap would work in practice and how it would be applied 
at the LEA and State levels. In particular, there were questions 
about what effect this limitation would have on schools and their 
AYP calculations.
    Discussion: The cap applies at the State and LEA levels, but not 
at individual schools, and is based on the number of students 
enrolled in the grade(s) tested. Some districts may deliver special 
services for students with the most significant cognitive 
disabilities in one or a few schools. Additionally, the enrollment 
patterns of students across districts may not result in an even 
distribution of students with the most significant cognitive 
disabilities among schools, even if there are not special centers 
for these students. In these cases, a limitation on the number of 
students who may score proficient on alternate assessments based on 
alternate achievement standards may prove unworkable at a school 
level and not be in the best interests of those students.
    The actual enrollment of students who are appropriately assessed 
with the alternate assessment based on alternate achievement 
standards may not be evenly distributed across a district. One 
school may have 2.0 percent of its students score proficient or 
better on an alternate assessment based on alternate achievement 
standards, while another school may not have even a single student 
assessed using alternate achievement standards. The flexibility 
offered by the Secretary in these regulations is meant to 
accommodate such distributions. Working through the IEP development 
process, the district should determine how best to ensure that 
students with the most significant cognitive disabilities 
participate in the general curriculum, are assessed appropriately, 
and, quite importantly, are provided with an education in the least 
restrictive environment.
    All scores based on alternate achievement standards must be 
included in school, LEA, and State AYP calculations. An individual 
student's results from such assessments are counted in all 
appropriate subgroups. Consequently, in those circumstances when a 
district has more than 1.0 percent of its students score proficient 
or advanced on an alternate assessment based on alternate 
achievement standards, the State must determine which proficient 
scores are counted as non-proficient at schools in the district 
responsible for students who took an alternate assessment based on 
alternate achievement standards. This ensures that schools do not 
have an incentive to inappropriately increase the number of students 
assessed with an assessment based on alternate achievement 
standards. To implement this process, each student's score used for 
calculating AYP must remain the same at each level of the 
educational system--school, district, and State, and for each group 
and subgroup of which the student is a member for which AYP is 
calculated. However, regardless of how an individual student's score 
is treated in AYP calculations, the parent must be informed of the 
actual academic achievement level earned by the student.
    The LEA is responsible for managing this process at the local 
level in three ways. First, the LEA must provide information to 
school personnel and IEP teams about the state assessment, the use 
of accommodations, and assessment against alternate achievement 
standards. State guidelines for use of alternate achievement 
standards should be communicated to local schools early in the 
school year to ensure consistency between instruction and assessment 
and to prevent confusion at the time of test administration. A 
reasonable expectation is that, in most cases, about 9 percent of 
the students receiving special education services would be tested 
against alternate achievement standards, unless a school provides 
special services to students with the most significant disabilities 
or is particularly small. An LEA may choose to provide individual 
schools with preliminary estimates of the number of

[[Page 68707]]

students to be tested against alternate achievement standards based 
on the characteristics of the school's student population and 
existing State guidelines for participation. Second, the LEA should 
ensure appropriate staff receive training to support sound IEP 
decisions about which students participate in an alternate 
assessment based on alternate achievement standards. These decisions 
should always be made on a case-by-case basis and should support 
access to the most challenging curriculum possible for the 
individual student. Finally, the LEA should monitor implementation 
of assessments based on alternate achievement standards in schools 
throughout the district to ensure that alternate achievement 
standards are being used in a manner consistent with the best 
instructional practices known for students with the most significant 
cognitive disabilities.
    These regulations provide new flexibility to LEAs and schools 
and will increase the number of schools and LEAs that can make AYP. 
If an LEA manages the process well, AYP determinations should 
withstand appeal under the State's accountability system. If an LEA 
does not manage the cap well, however, and permits schools to assess 
an inappropriately large number of students with an alternate 
assessment aligned to alternate achievement standards, the LEA may 
significantly exceed the cap and, thus, a large number of non-
proficient scores would have to be allocated among the schools that 
administered the alternate assessment aligned with alternate 
achievement standards. This would potentially create negative 
consequences for schools that administer the alternate assessment. 
States should ensure that these regulations are implemented 
appropriately throughout the State to ensure schools benefit from 
this new flexibility.
    The following example illustrates how the policy works in 
practice. As determined by its cap, a district may count for AYP 
purposes no more than 100 students scoring at proficient or advanced 
on an alternate assessment based on alternate achievement scores. If 
this district has 150 students scoring at proficient or advanced on 
an alternate assessment based on alternate achievement scores, and 
has not received an exception from the State to exceed the 1.0 
percent cap, it must (1) count the excess 50 scores as non-
proficient, and (2) determine which proficient and advanced scores 
will be considered not proficient because they exceed the district's 
1.0 percent cap when determining AYP for schools responsible for 
students who took the alternate assessment aligned with alternate 
achievement standards. To illustrate further, in this particular 
district there are four schools responsible for students who take 
alternate assessments aligned to alternate achievement standards.

[sbull] In school A, there are 50 proficient scores
[sbull] In school B, there are 50 proficient scores
[sbull] In school C, there are 25 proficient scores
[sbull] In school D, there are 25 proficient scores

    The LEA needs to determine which 50 of the 150 ``proficient'' 
scores will be counted as ``non-proficient'' at schools A, B, C and/
or D. This district would follow the State's procedures for 
allocating the scores among its schools. One State might identify a 
particular method that all districts would use. Another State might 
permit districts to select among several methods approved by the 
State.
    If a State requests an exception to the 1.0 percent cap, the 
Secretary believes that the State should be able to document that it 
is fully and effectively implementing the procedural safeguards set 
out in Sec.  200.6(a)(2)(iii), as a means of showing that it is 
appropriately including students with disabilities in its assessment 
system. Because of these safeguards, the Secretary expects that it 
will be necessary to grant exceptions only for small increments 
above the 1.0 percent cap.
    Change: Section 200.13(c)(2)(iii) has been added, requiring a 
State requesting an exception to the cap to document that it is 
fully and effectively addressing the procedural safeguards of Sec.  
200.6(a)(2)(iii). Section 200.13(c)(4)(iv) now includes a provision 
that requires States to apply the academic achievement level (e.g., 
advanced, proficient, basic) of students with the most significant 
cognitive disabilities consistently in calculating AYP for the 
State, LEA, and school. A new Sec.  200.13(c)(4)(i)-(iii) has been 
added to explain that States must determine which proficient scores 
that exceed the cap must count as non-proficient in calculating AYP 
in LEAs and schools responsible for students who take an alternate 
assessment based on alternate achievement standards.
    Comment: Several commenters expressed concern that a school with 
the capacity to provide effective services for students with the 
most significant cognitive disabilities may suffer negative 
consequences as a result of exceeding the 1.0 percent cap.
    Discussion: The 1.0 percent cap on proficient and advanced 
scores based on alternate achievement standards applies specifically 
at the State and district levels, although scores must be treated 
the same for AYP purposes at the State, district and school levels. 
An extraordinarily effective school that draws students from across 
the district, or from outside the district may exceed the limit so 
long as the total number of proficient and advanced scores based on 
alternate achievement standards does not exceed the 1.0 percent cap 
within the district. The LEA has considerable discretion to 
accommodate such schools in determining how to meet the 1.0 percent 
cap at the LEA level. The responsibility for establishing guidelines 
to inform local practice and for monitoring the use of alternate 
achievement standards for AYP rests with the State and LEA. This 
responsibility is consistent with the typical organization of 
special education programs at the State and district levels.
    Change: None.
    Comment: None.
    Discussion: The Secretary was concerned that these regulations 
may lead to confusion between the use of scores based on alternate 
achievement standards in AYP calculations, and reporting results to 
parents.
    Change: The regulation clarifies in Sec.  200.13(c)(4)(v) that 
regardless of how a score is used for AYP, the actual score of a 
child must be reported to parents.

General Comments

    Comment: One commenter said that the proposed rule should be 
subject to negotiated rulemaking.
    Discussion: The statutory requirements for negotiated rulemaking 
apply to regulations initially implementing the NCLB Act, not to 
subsequent regulatory amendments such as those contained in these 
regulations. The Secretary previously issued regulations for 
standards and assessments through a negotiated rulemaking process. 
(See 34 CFR part 200).
    Change: None.
    Comment: Several commenters recommended that the Department 
closely monitor the cap to ensure it is being used appropriately.
    Discussion: The Secretary agrees with the importance of 
monitoring State and LEA implementation of these requirements as 
they relate to students with disabilities. The Department's Office 
of Special Education Programs and the Student Achievement and School 
Accountability Programs office in the Office of Elementary and 
Secondary Education will coordinate their efforts in monitoring 
States for these requirements, and will establish internal 
mechanisms to share student achievement data and other pertinent 
information necessary to assess States' progress in this area. In 
addition, the Secretary believes that it is crucial that SEAs 
closely monitor how districts are using the 1.0 percent cap both 
generally and specifically in the case of an LEA that receives an 
exception to the 1.0 percent cap.
    Change: A new provision is added in Sec.  200.13(c)(3)(ii) that 
requires States to review annually whether an LEA's exception to the 
1.0 percent cap is still warranted.

Section 200.20(c)(3)

    Comment: Several commenters suggested that States be able to 
determine which administration of an assessment counts for AYP 
purposes, and in cases where a particular assessment is given more 
than once, the best result from students should be used for 
determining AYP.
    Discussion: States have the authority and responsibility to 
design assessments that measure what students should know and be 
able to do at a given point in their schooling. States have an 
expectation, as evident in the assessments, for when students should 
learn the content standards. Accordingly, for AYP purposes States 
must count the assessment results that reflect when they expect all 
students to have learned the content standards. In other words, the 
``first administration'' is the first time an assessment is 
officially administered to measure a student's achievement of the 
State's content standards in the grade or subject for which the 
State expects the student to have achieved proficiency of those 
standards. Scores from this first official administration must be 
used for calculating AYP. Students who have scored at proficient or 
higher on assessments taken earlier than the first official 
administration, however, may ``bank'' those scores, and would not 
have to retake the test at a later date. Consider the following 
example: A State administers a third-grade reading test in the

[[Page 68708]]

fall and spring, while expecting all students to have learned the 
material by the spring administration. In this case, the State may 
use the scores from students who were proficient on the fall 
administration for calculating AYP and these students would not be 
required to take the assessment a second time.
    Through the accountability review process, we were able to work 
with States and clarify the intent of the regulation. Consequently 
we do not believe a change to these regulations is necessary to 
address the concerns that were submitted earlier this year.
    Change: None.

[FR Doc. 03-30092 Filed 12-8-03; 8:45 am]
BILLING CODE 4000-01-M