[Federal Register Volume 72, Number 67 (Monday, April 9, 2007)]
[Rules and Regulations]
[Pages 17748-17781]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1700]



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Part IV





Department of Education





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34 CFR Parts 200 and 300



Title I--Improving the Academic Achievement of the Disadvantaged; 
Individuals With Disabilities Education Act (IDEA); Final Rule

  Federal Register / Vol. 72, No. 67 / Monday, April 9, 2007 / Rules 
and Regulations  

[[Page 17748]]


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DEPARTMENT OF EDUCATION

34 CFR Parts 200 and 300

RIN 1810-AA98


Title I--Improving the Academic Achievement of the Disadvantaged; 
Individuals With Disabilities Education Act (IDEA)--Assistance to 
States for the Education of Children With Disabilities

AGENCY: Office of Elementary and Secondary Education; Office of Special 
Education and Rehabilitative Services, U.S. Department of Education.

ACTION: Final regulations.

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SUMMARY: The Secretary amends the regulations governing programs 
administered under Title I of the Elementary and Secondary Education 
Act of 1965 (ESEA), as amended by the No Child Left Behind Act of 2001 
(NCLB) (referred to in these regulations as the Title I program) and 
the regulations governing programs under Part B of the Individuals with 
Disabilities Education Act (IDEA) (referred to in these regulations as 
the IDEA program). These regulations provide States with additional 
flexibility regarding State, local educational agency (LEA), and school 
accountability for the achievement of a small group of students with 
disabilities whose progress is such that, even after receiving 
appropriate instruction, including special education and related 
services designed to address the students' individual needs, the 
students' individualized education program (IEP) teams (IEP Teams) are 
reasonably certain that the students will not achieve grade-level 
proficiency within the year covered by the students' IEPs.

DATES: These regulations are effective May 9, 2007.

FOR FURTHER INFORMATION CONTACT: Regarding Part 200, Jacquelyn C. 
Jackson, Ed.D., 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. Regarding Part 300, Alexa 
Posny, Ph.D., Director, Office of Special Education Programs, Office of 
Special Education and Rehabilitative Services, U.S. Department of 
Education, Potomac Center Plaza, 550 12th Street, SW., Washington, DC 
20202-2641. Telephone: (202) 245-7459, Ext. 3.
    If you use a telecommunications device for the deaf (TDD), you may 
call the Federal Relay Service (FRS) 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 one of the contact persons listed in the 
preceding paragraph.

SUPPLEMENTARY INFORMATION: These regulations amend regulations in 34 
CFR part 200, implementing certain provisions of Title I, Part A of the 
ESEA, as amended by NCLB, which are designed to help disadvantaged 
children meet high academic standards. They also amend regulations in 
34 CFR part 300, implementing programs for students with disabilities 
under Part B of the IDEA. On December 15, 2005, the Secretary published 
a notice of proposed rulemaking (NPRM) for these programs in the 
Federal Register (70 FR 74624).
    These regulations build upon flexibility that currently is 
available under the Title I regulations in 34 CFR part 200 for 
measuring the achievement of students with the most significant 
cognitive disabilities. Those Title I regulations permit a State to 
develop alternate academic achievement standards for students with the 
most significant cognitive disabilities and to include those students' 
proficient and advanced scores on alternate assessments based on 
alternate academic achievement standards in measuring adequate yearly 
progress (AYP), subject to a cap of 1.0 percent of all students 
assessed at the State and district levels. Since those regulations were 
published, the experiences of many States, as well as recent research, 
indicate that in addition to students with the most significant 
cognitive disabilities, there is a small group of students whose 
disability has precluded them from achieving grade-level proficiency 
and whose progress is such that they will not reach grade-level 
achievement standards in the same time frame as other students. 
Currently, these students must take either a grade-level assessment or 
an alternate assessment based on alternate academic achievement 
standards. Neither of these options provides an accurate assessment of 
what these students know and can do. A grade-level assessment is too 
difficult and, therefore, does not provide data about a student's 
abilities or information that would be helpful to guide instruction. An 
alternate assessment based on alternate academic achievement standards 
is too easy and is not intended to assess a student's achievement 
across the full range of grade-level content. Such an assessment, 
therefore, would not provide teachers and parents with information to 
help these students progress toward grade-level achievement.
    These regulations permit States to develop an assessment that is 
appropriately challenging for this group of students as part of their 
State accountability and assessment systems under Title I of the ESEA, 
as amended by NCLB. This assessment is based on modified academic 
achievement standards that cover grade-level content. The requirement 
that modified academic achievement standards be aligned with grade-
level content standards is important--in order for these students to 
have an opportunity to achieve at grade level, they must have access 
to, and instruction in, grade-level content. The regulations include a 
number of safeguards to ensure that students assessed based on modified 
academic achievement standards have access to grade-level content so 
that they can work toward grade-level achievement, such as the 
requirement that their IEPs include goals that are based on grade-level 
content standards and provide for monitoring of the students' progress 
in achieving those goals. In addition to ensuring that students with 
disabilities are appropriately assessed, these regulations also will 
give teachers and schools credit for the work that they do with these 
students to help them progress toward grade-level achievement.

Major Concepts Regarding Modified Academic Achievement Standards in 
These Regulations

    What are modified academic achievement standards? The NPRM 
described modified academic achievement standards as academic 
achievement standards aligned with grade-level content standards, but 
modified in such a manner that they reflect reduced breadth or depth of 
grade-level content. Based on the comments we received, it was clear 
that this language was confusing and did not sufficiently convey our 
intent that only the academic achievement standards for students are to 
be modified, not the content standards on which those modified academic 
achievement standards are based. The final regulations make clear that 
modified academic achievement standards are challenging for eligible 
students, but are a less rigorous expectation of mastery of grade-level 
academic content standards. Notably, modified academic achievement 
standards must be based on a State's grade-level academic content 
standards for the grade in which an eligible student with disabilities 
is

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enrolled. In other words, a State's academic content standards are not 
what are modified. The expectations for whether a student has mastered 
those standards, however, may be less difficult than grade-level 
academic achievement standards.
    The characteristics of modified academic achievement standards are 
the same as those described in Sec.  200.1(c) of the Title I 
regulations for grade-level academic achievement standards. That is, 
they must be aligned with a State's academic content standards, 
describe at least three levels of achievement, include descriptions of 
the competencies associated with each achievement level, and include 
assessment scores (cut scores) that differentiate among the achievement 
levels. A State must provide a description of the rationale and 
procedures used to determine each achievement level as part of the 
Department's peer review of Statewide assessment systems under Title I 
of the ESEA.
    Which students with disabilities are eligible to be assessed based 
on modified academic achievement standards? The final regulations 
reflect our intent that students assessed based on modified academic 
achievement standards are not limited to students with disabilities 
achieving close to grade level, may be in any of the disability 
categories listed in the IDEA, and may represent a wide spectrum of 
abilities. The comments we received indicated that the proposed 
requirement that a student receive direct instruction in grade-level 
content in order to be eligible for an alternate assessment based on 
modified academic achievement standards was mistakenly understood to 
mean that only students achieving close to grade level could be 
assessed based on modified academic achievement standards. That was not 
our intent. We included this requirement because we believe that all 
students with disabilities, including students assessed based on 
modified academic achievement standards, should have access to grade-
level content. This is consistent with the provisions in the IDEA that 
focus on ensuring that all students with disabilities have access to 
the general curriculum (See, e.g., section 614(d)(1)(A)(i)(II)(aa) and 
(IV)(bb)).
    However, in order to clarify the policy and limit further 
misunderstanding, we have removed the requirement that a student 
receive direct instruction in grade-level content in order to be 
eligible for an alternate assessment based on modified academic 
achievement standards from the final regulations and replaced it with a 
requirement that if the IEPs of these students include goals for a 
subject assessed under Sec.  200.2, those goals must be based on grade-
level content standards. We believe this will help ensure that students 
have access to grade-level content before they are assessed based on 
modified academic achievement standards and that they receive 
instruction in grade-level content after they are assessed based on 
modified academic achievement standards. Such an approach focuses the 
IEP Team and the student on grade-level content standards and on the 
student's current achievement relative to those standards. We believe 
that instruction in grade-level content is critical to ensure that 
students who participate in alternate assessments based on modified 
academic achievement standards are prepared to demonstrate their 
mastery of grade-level content and can move closer to grade-level 
achievement. The final regulations intentionally do not prescribe which 
students with disabilities are eligible to be assessed based on 
modified academic achievement standards; that is the determination of a 
student's IEP Team, which includes the student's parents, based on 
criteria developed by the State as part of the State's guidelines for 
IEP Teams. Those criteria must include, but are not limited to, the 
following:
    (1) There must be objective evidence demonstrating that the 
student's disability has precluded the student from achieving grade-
level proficiency in the content area assessed. Such evidence may 
include the student's performance on State assessments or other 
assessments that can validly document academic achievement;
    (2) The student's progress to date in response to appropriate 
instruction, including special education and related services designed 
to address the student's individual needs, is such that, even if 
significant growth occurs, the IEP Team is reasonably certain that the 
student will not achieve grade-level proficiency within the year 
covered by the student's IEP. The IEP Team must use multiple valid 
measures of the student's progress over time in making this 
determination; and
    (3) If the student's IEP includes goals for a subject assessed 
under Sec.  200.2, those goals must be based on the academic content 
standards for the grade in which the student is enrolled.
    In addition to requiring that the IEP of a student assessed based 
on modified academic achievement standards include goals that are based 
on academic content standards, the final regulations include safeguards 
to ensure that a student assessed based on modified academic 
achievement standards has the opportunity to learn grade-level content. 
Specifically, the final regulations in Sec.  200.1(f)(2) require a 
State to (a) establish and monitor implementation of clear and 
appropriate guidelines for an IEP Team to apply in developing and 
implementing the IEP of a student assessed based on modified academic 
achievement standards; (b) ensure that a student who takes an alternate 
assessment based on modified academic achievement standards has access 
to the curriculum, including instruction, for the grade in which the 
student is enrolled; and (c) ensure that a student who takes an 
alternate assessment based on modified academic achievement standards 
is not precluded from attempting to complete the requirements, as 
defined by the State, for a regular high school diploma.
    To help IEP Teams make appropriate decisions and ensure that 
students are not inappropriately assessed based on modified academic 
achievement standards, Sec.  200.1(f)(1)(iii) requires a State to 
provide IEP Teams with a clear explanation of the differences between 
assessments based on grade-level academic achievement standards and 
those based on modified or alternate academic achievement standards 
(including any effects of State and local policies on the student's 
education resulting from taking an alternate assessment based on 
alternate or modified academic achievement standards). Under Sec.  
200.1(f)(1)(iv), a State also must ensure that the parents of a student 
selected to be assessed based on alternate or modified academic 
achievement standards are informed that their child's achievement will 
be measured based on alternate or modified academic achievement 
standards.
    The assumption underlying these regulations is that many students 
eligible to be assessed based on modified academic achievement 
standards are in regular classrooms with children of the same 
chronological age and are receiving instruction in grade-level 
curriculum; however, because of these students' disabilities, their IEP 
Teams are reasonably certain they will not achieve grade-level 
proficiency within the year covered by their IEPs. In most schools, 
students assessed based on modified academic achievement standards will 
represent a small portion of students with disabilities. The final 
regulations in Sec.  200.13(c)(2)(ii) provide that up to 2.0 percent 
(approximately 20 percent of students with disabilities) of the 
proficient and advanced scores from alternate assessments based on 
modified

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academic achievement standards may be included in calculating AYP.
    What assessments measure performance based on modified academic 
achievement standards? Because a student eligible to be assessed based 
on modified academic achievement standards must have access to a 
curriculum based on the State's academic content standards for the 
grade in which the student is enrolled, that student must be assessed 
with a measure that is also based on those same grade-level academic 
content standards, although the assessment may be less difficult than 
the State's regular assessment. An out-of-level assessment cannot be 
used as an alternate assessment based on modified academic achievement 
standards because, by definition, an out-of-level assessment does not 
cover the same content as an assessment based on grade-level academic 
content standards.
    The final regulations in Sec.  200.6(a)(3) make clear that a State 
may develop a new alternate assessment based on modified academic 
achievement standards or adapt its general assessment. Consistent with 
Sec.  200.6(a)(3)(ii), an alternate assessment based on modified 
academic achievement standards must cover the same grade-level content 
as the regular assessment. Beyond this essential requirement, a State 
may employ a variety of strategies to design an alternate assessment 
based on modified academic achievement standards. For example, it might 
replace the most difficult items on a State's general assessment with 
simpler items while retaining coverage of the State's academic content 
standards or modify the same items that appear on the grade-level 
assessment by eliminating one of the incorrect answers in a multiple 
choice test. Alternatively, a State might choose to develop a unique 
assessment based on grade-level academic content standards that 
provides flexibility in the presentation of test items, for example, by 
using technology to allow students to access items via print, spoken, 
and pictorial form. Or States may permit students to respond to test 
items by dictating responses or using mathematics manipulatives to 
illustrate conceptual or procedural knowledge. Regardless of whether a 
State chooses to construct a unique assessment or to adapt its general 
assessment, any alternate assessment based on modified academic 
achievement standards must meet 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) and be 
based on modified academic achievement standards that have been 
developed through a documented and validated standards-setting process 
that includes broad stakeholder input, consistent with new Sec.  
200.1(e)(1)(iv).

Other Provisions Addressed in These Regulations

    These regulations also finalize several other provisions under 
Title I and the IDEA that were proposed in the NPRM, including the 
following:
    Minimum group size. The final Title I regulations in Sec.  
200.7(a)(2)(ii) prohibit a State, beginning in the 2007-08 school year, 
from establishing a different minimum number (group size or ``n size'') 
of students across the required AYP subgroups for purposes of 
calculating AYP. This requirement applies to all States, not just those 
that choose to develop and administer an alternate assessment based on 
modified academic achievement standards.
    Multiple test administrations. With the removal of current Sec.  
200.20(c)(3), States will now be permitted to administer their State 
assessments (including regular and alternate assessments) more than 
once and include the student's best score in determining AYP.
    Guidelines for IEP Teams. Title I requires a State to administer 
assessments that are valid and reliable for the purposes for which they 
are used. Accordingly, students, including students with disabilities, 
who are assessed with assessments that are not valid and reliable are 
not ``participants'' for purposes of calculating participation rates in 
determining AYP. The final IDEA regulations that are included in these 
regulations provide that a State's (or in the case of district-wide 
assessments, an LEA's) guidelines require each child to be validly 
assessed and identify, for each assessment, any accommodations that 
would result in an invalid score. Consistent with Title I, a student 
with disabilities must receive a valid score in order to be counted as 
a participant under the IDEA.
    The final Title I regulations in Sec.  200.1(f) place 
responsibility on a State to develop guidelines for IEP Teams and in 
new Sec.  200.20(c)(3) make clear that, to count a student who is 
assessed based on alternate or modified academic achievement standards 
as a participant for purposes of meeting the 95 percent assessment 
participation requirement, a State must have guidelines for IEP Teams 
to use to determine appropriately which students should participate in 
alternate assessments based on alternate or modified academic 
achievement standards that meet the requirements of these regulations.
    Former students with disabilities. The final regulations in Sec.  
200.20(f)(2) provide additional flexibility in calculating AYP for the 
students with disabilities subgroup. Under the final regulations, a 
State may include, for a period of up to two years, the scores of 
students who were previously identified with a disability under the 
IDEA but who no longer receive special education services. A State, 
however, would not be able to include the scores of former students 
with disabilities as part of the students with disabilities subgroup in 
reporting any other information (e.g., participation rates) under Title 
I.
    Assessment of students with disabilities under the IDEA. To ensure 
a coordinated administration of the IDEA and Title I programs, the 
final IDEA regulations on assessment in Sec.  300.160, which are 
included in this regulations package, incorporate provisions regarding 
modified academic achievement standards that are consistent with the 
changes to the regulations under Title I of the ESEA. In addition, the 
final IDEA regulations provide that a State's (or in the case of a 
district-wide assessment, an LEA's) guidelines must require each child 
to be validly assessed and must identify, for each assessment, 
accommodations that would result in an invalid score. Consistent with 
Title I, these final regulations also provide in Sec.  300.160(f)(1) 
that a student taking an assessment with an accommodation that 
invalidates the score would not be reported as a participant under the 
IDEA. This coordination of the regulations for the IDEA and Title I 
programs should avoid confusion among parents, teachers, and 
administrators, and reinforce IDEA's and Title I's shared goal of high 
expectations and accountability for all students.

Major Changes in the Regulations

    The following is a summary of the major substantive changes in 
these final regulations from the regulations proposed in the NRPM (the 
rationale for each of these changes is discussed in the Analysis of 
Comments and Changes section elsewhere in this preamble).

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

State Responsibilities for Developing Challenging Academic Standards 
(Sec.  200.1(a))

     Section 200.1(a)(1) and (a)(2) have been revised to 
clarify that the same

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academic content standards apply to all public schools and all public 
school students and that the authority to develop alternate and 
modified academic achievement standards for eligible students with 
disabilities does not apply to academic content standards. Proposed 
paragraph (b)(1)(i) is redundant with these changes and has been 
removed.

Modified Academic Achievement Standards (Sec.  200.1(e))

     Section 200.1(e)(1), which defines modified academic 
achievement standards for a State that chooses to develop such 
standards, has been revised as follows:
    (1) Paragraph (e)(1) of Sec.  200.1, which permits a State to 
develop modified academic achievement standards for students with 
disabilities, has been changed by deleting the reference to a 
documented and validated standards-setting process. The requirement for 
a State to use a documented and validated standards-setting process has 
been clarified and expanded in new Sec.  200.1(e)(1)(iv).
    (2) Proposed paragraph (e)(1)(i) of Sec.  200.1, which requires 
modified academic achievement standards to be aligned with a State's 
academic content standards for the grade in which the student is 
enrolled, would have permitted modified academic achievement standards 
to reflect reduced breadth or depth of grade level content. The 
requirement has been changed by deleting the reference to reduced 
breadth or depth.
    (3) A new paragraph (e)(1)(ii) has been added to Sec.  200.1 to 
specify that modified academic achievement standards must be 
challenging for eligible students, but may be less difficult than 
grade-level academic achievement standards.
    (4) Proposed paragraph (e)(1)(ii) of Sec.  200.1, which would have 
required modified academic achievement standards to provide access to 
grade-level curriculum, has been removed. This requirement has been 
incorporated into the requirements for State guidelines in new Sec.  
200.1(f)(2)(iii). In addition, we have clarified that grade-level 
curriculum includes instruction.
    (5) A new paragraph (e)(1)(iii) has been added to Sec. 00.1 
indicating that modified academic achievement standards, like grade-
level academic achievement standards, must include at least three 
achievement levels.
    (6) Proposed paragraph (e)(1)(iii) of Sec.  200.1, which would have 
required that modified academic achievement standards not preclude a 
student from earning a high school diploma, has been removed. A similar 
provision has been included in the requirements for State guidelines in 
new Sec.  200.1(f)(2)(iv).
    (7) A new Sec.  200.1(e)(1)(iv) has been added requiring modified 
academic achievement standards to be developed through a documented and 
validated standards-setting process that includes broad stakeholder 
input, including persons knowledgeable about a State's academic content 
standards and experienced in standards setting and special educators 
who are most knowledgeable about children with disabilities.
     Section 200.1(e)(2), regarding the criteria for IEP Teams 
to use in determining whether a student is eligible to be assessed 
based on modified academic achievement standards, has been revised to 
make the following changes:
    (1) The introduction to Sec.  200.1(e)(2) has been changed to 
clarify that a State may include criteria, in addition to those listed 
in paragraphs (e)(2)(i) through (e)(2)(iii), for IEP Teams to use in 
determining whether a student should be assessed based on modified 
academic achievement standards.
    (2) Paragraph (e)(2)(ii) of Sec.  200.1, regarding the guidelines 
that a State must establish for IEP Teams, has been changed by (A) 
removing the requirement that IEP Teams consider a student's progress 
in response to high-quality instruction and replacing it with a 
requirement that IEP Teams consider a student's progress to date in 
response to appropriate instruction; and (B) removing the requirement 
that IEP Teams determine that a student is not likely to achieve grade-
level proficiency within the year covered by the student's IEP, and 
replacing it with a requirement that IEP Teams be reasonably certain 
that, even if significant growth occurs, the student will not achieve 
grade-level proficiency within the year covered by the student's IEP.
    (3) A new paragraph (e)(2)(iii) has been added to Sec.  200.1 
requiring that if a student assessed based on modified academic 
achievement standards has an IEP that includes goals for a subject 
assessed under Sec.  200.2, those goals must be based on the academic 
content standards for the grade in which the student is enrolled. 
Proposed Sec.  200.1(e)(2)(iii), which would have required, as an 
eligibility condition, that a student be receiving instruction in the 
grade-level curriculum for the subjects in which the student is 
assessed, has been removed.
     Proposed Sec.  200.1(e)(3), which would have permitted a 
student assessed based on modified academic achievement standards to be 
in any of the 13 disability categories listed in the IDEA, has been 
removed. This provision has been incorporated into the requirements for 
State guidelines in new Sec.  200.1(f)(1)(ii).
     Proposed Sec.  200.1(e)(4), which would have provided that 
a student could be assessed based on modified academic achievement 
standards in one or more subjects for which assessments are 
administered under Title I, has been removed. This provision has been 
revised and incorporated into the requirements for State guidelines in 
new Sec.  200.1(f)(1)(i)(B) (proposed Sec.  200.1(f)(1)(ii)).
     Proposed Sec.  200.1(e)(5), which would have required the 
decision to assess a student based on modified academic achievement 
standards to be reviewed annually by a student's IEP Team, has been 
removed. This requirement has been revised and incorporated into the 
requirements for State guidelines in new Sec.  200.1(f)(2)(v).

State Guidelines (Sec.  200.1(f))

     Proposed Sec.  200.1(f), regarding the requirements for 
State guidelines, has been restructured into new paragraphs (f)(1) and 
(f)(2). New paragraph (f)(1) includes the requirements for State 
guidelines for students who are assessed based on either alternate or 
modified academic achievement standards. New paragraph (f)(2) includes 
additional requirements for State guidelines for students who are 
assessed based on modified academic achievement standards.
     Proposed Sec.  200.1(f)(1), which would have required a 
State to establish and ensure implementation of clear and appropriate 
guidelines for IEP Teams to determine if students are to be assessed 
based on alternate or modified academic achievement standards, has been 
expanded to require a State to establish and monitor implementation of 
clear and appropriate guidelines for IEP Teams. Proposed Sec. Sec.  
200.1(f)(1) and 200.1(f)(1)(i) have been redesignated as new Sec. Sec.  
200.1(f)(1)(i) and 200.1(f)(1)(i)(A), respectively.
     Proposed Sec.  200.1(f)(1)(ii), which requires a State to 
establish guidelines for IEP Teams to use in determining if students 
are to be assessed based on modified academic achievement standards, 
has been revised to clarify that students may be assessed based on 
modified academic achievement standards in one or more of the subjects 
tested under Title I. Proposed Sec.  200.1(f)(1)(ii) has been 
redesignated as new Sec.  200.1(f)(1)(i)(B).
     A new Sec.  200.1(f)(1)(ii) has been added to require a 
State to inform IEP Teams that students eligible to be

[[Page 17752]]

assessed based on alternate or modified academic achievement standards 
may be from any of the disability categories listed in the IDEA.
     A new Sec.  200.1(f)(1)(iii) has been added to require a 
State to provide IEP Teams with a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on modified or alternate academic achievement 
standards, including any effects of State and local policies on a 
student's education resulting from taking an alternate assessment based 
on alternate or modified academic achievement standards (such as 
whether only satisfactory performance on a regular assessment would 
qualify a student for a regular high school diploma).
     Proposed Sec.  200.1(f)(2), which would have required that 
parents of a student selected to be assessed based on alternate or 
modified academic achievement standards are informed that their child's 
achievement will be measured based on alternate or modified academic 
achievement standards, has been redesignated as Sec.  200.1(f)(1)(iv).
     A new Sec.  200.1(f)(2), regarding requirements for State 
guidelines for a student who is assessed based on modified academic 
achievement standards, has been added and includes the following:
    (1) New paragraph (f)(2)(i) in Sec.  200.1 requires a State to 
inform IEP Teams that a student may be assessed based on modified 
academic achievement standards in one or more subjects for which 
assessments are administered under Title I.
    (2) New paragraph (f)(2)(ii) in Sec.  200.1 requires a State to 
establish and monitor the implementation of clear and appropriate 
guidelines for an IEP Team to apply in developing and implementing an 
IEP for a student who is assessed based on modified academic 
achievement standards. New paragraph (f)(2)(ii)(A) and (B) requires 
that the IEP of a student assessed based on modified academic 
achievement standards include IEP goals that are based on the academic 
content standards for the grade in which the student is enrolled, and 
be designed to monitor the student's progress in achieving the 
student's standards-based goals.
    (3) New paragraph (f)(2)(iii) in Sec.  200.1 requires a State to 
ensure that a student who is assessed based on modified academic 
achievement standards has access to the curriculum, including 
instruction, for the grade in which the student is enrolled.
    (4) New paragraph (f)(2)(iv) in Sec.  200.1 requires a State to 
ensure that a student who takes an alternate assessment based on 
modified academic achievement standards is not precluded from 
attempting to complete the requirements, as defined by the State, for a 
regular high school diploma.
    (5) New paragraph (f)(2)(v) in Sec.  200.1 ensures that each IEP 
Team reviews annually for each subject its decision to assess a student 
based on modified academic achievement standards.

Inclusion of All Students (Sec.  200.6)

     Section 200.6(a)(1)(ii)(A) has been revised to clarify 
that a State must develop, disseminate information on, and promote the 
use of appropriate accommodations to increase the number of students 
who are tested against academic achievement standards for the grade in 
which a student is enrolled.
     Section 200.6(a)(2)(iii), which requires a State to 
document that a student with the most significant cognitive 
disabilities is, to the maximum extent possible, included in the 
general curriculum, has been changed by deleting the word ``maximum.''
     Section 200.6(a)(3), regarding alternate assessments based 
on modified academic achievement standards, has been revised as 
follows:
    (1) The heading in Sec.  200.6(a)(3) has been changed to clarify 
that an assessment based on modified academic achievement standards is 
an ``alternate'' assessment.
    (2) Section 200.6(a)(3) has been revised by removing the regulatory 
references to grade-level assessments and alternate assessments.
    (3) A new Sec.  200.6(a)(3)(i) has been added to clarify that a 
State may develop a new alternate assessment or adapt a grade-level 
assessment to assess a student based on modified academic achievement 
standards.
    (4) A new Sec.  200.6(a)(3)(ii) has been added to include the 
requirements for alternate assessments based on modified academic 
achievement standards. Proposed Sec.  200.6(a)(3)(i) through 
(a)(3)(iv), which included the requirements for alternate assessments 
based on modified academic achievement standards, has been redesignated 
as new Sec.  200.6(a)(3)(ii)(A) through (a)(3)(ii)(D).
     Section 200.6(a)(4), regarding the reporting requirements 
under section 1111(h)(4) of Title I, has been changed by redesignating 
(A) proposed paragraph (a)(4)(iv), regarding alternate assessments 
based on grade-level academic achievement standards, as new paragraph 
(a)(4)(iii); and (B) proposed paragraph (a)(4)(iii), regarding 
alternate assessments based on modified academic achievement standards, 
as new paragraph (a)(4)(iv). In addition, ``to the Secretary'' has been 
added to the introductory sentence in Sec.  200.6(a)(4) to clarify to 
whom States must report the data collected under section 1111(h)(4) of 
the Act.

Disaggregation of Data (Sec.  200.7)

     Section 200.7(a)(ii), providing that a State may not 
establish a different minimum number of students for separate 
subgroups, has been revised by clarifying that this provision also 
applies to the school as a whole. In addition, the final regulations 
make clear that this provision takes effect for AYP determinations 
based on 2007-08 assessment data.

Making Adequate Yearly Progress (Sec.  200.20(f))

     Proposed Sec.  200.20(f)(1), which permits a State to 
include, for a period of up to two years, the scores of students who 
were previously identified with a disability in AYP calculations, has 
been incorporated into current Sec.  200.20(f)(2), which codifies the 
final regulations on accountability for former limited English 
proficient (LEP) students published in the Federal Register on 
September 13, 2006 (71 FR 54187).
     Proposed Sec.  200.20(f)(2) has been changed to clarify 
that if a State includes the scores of former students with 
disabilities in calculating AYP, it must include the scores of all such 
students. Proposed Sec.  200.20(f)(2) has been incorporated into new 
Sec.  200.20(f)(2)(ii).

Transition Provision Regarding Modified Academic Achievement Standards 
(Sec.  200.20(g))

     A new Sec.  200.20(g) has been added to make explicit that 
the Secretary may provide States flexibility in accounting for the 
achievement of some students with disabilities in AYP determinations 
that are based on assessments administered in 2007-08 and 2008-09. 
States must demonstrate, for each year for which flexibility is 
available, that they are expeditiously moving to adopt and administer 
assessments based on modified academic achievement standards consistent 
with these regulations and meet other criteria, as the Secretary 
determines appropriate, in order to be considered for this flexibility.

[[Page 17753]]

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH 
DISABILTIES

Participation in Assessments (Sec.  300.160)

     Section 300.160(b)(2), regarding accommodation guidelines 
that a State must develop, has been revised to clarify that the State 
guidelines must (A) identify the accommodations for each assessment 
that do not invalidate the score; and (B) instruct IEP Teams to select, 
for each assessment, only those accommodations that do not invalidate 
the score.
     Proposed Sec.  300.160(c), which would have required a 
State that has adopted modified academic achievement standards to have 
guidelines for the participation of students with disabilities in 
assessments based on those standards, has been removed. With the 
clarification in Sec.  200.6(a)(3) that assessments based on modified 
academic achievement standards are alternate assessments, proposed 
Sec.  300.160(c) is redundant with new Sec.  300.160(c) (proposed Sec.  
300.160(d)).
     Proposed Sec.  300.160(d)(1), which requires a State (or 
in the case of a district-wide assessment, an LEA) to develop and 
implement alternate assessments and guidelines for children who cannot 
participate in regular assessments, even with accommodations, has been 
redesignated as new Sec.  300.160(c)(1).
     Proposed Sec.  300.160(d)(2)(ii), which would have 
required a State to measure the achievement of children based on 
alternate academic achievement standards if a State has adopted those 
standards, has been changed by replacing ``alternate academic 
achievement standards'' with ``modified academic achievement 
standards,'' and clarifying that modified academic achievement 
standards are permitted for children who meet the State's criteria 
under Sec.  200.1(e)(2). Proposed Sec.  300.160(d)(2)(ii) has been 
redesignated as Sec.  300.160(c)(2)(ii).
     A new Sec.  300.160(c)(2)(iii) has been added, providing 
that, if a State has adopted alternate academic achievement standards, 
the State must measure the achievement of children with the most 
significant cognitive disabilities against those standards.
     A new paragraph (d) has been added, requiring a State to 
provide IEP Teams with a clear explanation of the differences between 
assessments based on grade-level academic achievement standards and 
those based on modified or alternate academic achievement standards, 
including any effects of State or local policies on the student's 
education resulting from taking an alternate assessment based on 
alternate or modified academic achievement standards (such as whether 
only satisfactory performance on a regular assessment would qualify a 
student for a regular high school diploma).
     A new paragraph (e) has been added, requiring a State to 
ensure that parents of a student selected to be assessed based on 
alternate or modified academic achievement standards are informed that 
their child's achievement will be measured based on alternate or 
modified academic achievement standards.
     Proposed Sec.  300.160(e), regarding reports on the 
assessment of students with disabilities, has been redesignated as 
Sec.  300.160(f) and changed as follows:
    (1) Proposed paragraph (e)(1) in Sec.  300.160, which requires a 
State to report on the number of children with disabilities 
participating in regular assessments, and the number of those children 
who were provided accommodations that did not result in an invalid 
score, has been redesignated as Sec.  300.160(f)(1).
    (2) Proposed paragraph (e)(2) in Sec.  300.160 has been 
redesignated as Sec.  300.160(f)(2) and revised to require a State to 
report on the number of children participating in alternate assessments 
based on grade-level academic achievement standards.
    (3) Proposed paragraph (e)(3) in Sec.  300.160, which requires a 
State to report on the number of children with disabilities who are 
assessed based on alternate academic achievement standards, has been 
changed to require a State to report on the number of children with 
disabilities, if any, who are assessed based on modified academic 
achievement standards. The regulatory reference to alternate 
assessments based on alternate academic achievement standards has been 
deleted and proposed Sec.  300.160(e)(3) has been redesignated as Sec.  
300.160(f)(3).
    (4) Proposed paragraph (e)(4) in Sec.  300.160, which requires a 
State to report on the number of children with disabilities who are 
assessed based on modified academic achievement standards, has been 
changed to require a State to report on the number of children with 
disabilities, if any, who are assessed based on alternate academic 
achievement standards. The regulatory reference to modified academic 
achievement standards has been deleted and proposed Sec.  300.160(e)(4) 
has been redesignated as Sec.  300.160(f)(4).
    (5) Proposed paragraph (e)(5) in Sec.  300.160, which required a 
State to report on the performance results of children with 
disabilities on regular assessments and on alternate assessments, has 
been clarified by specifically identifying alternate assessments based 
on grade-level academic achievement standards; alternate assessments 
based on modified academic achievement standards; and alternate 
assessments based on alternate academic achievement standards. It also 
has been revised to require that performance results for children with 
disabilities be compared to the achievement of all students, including 
children with disabilities. Proposed Sec.  300.160(e)(5) has been 
redesignated as Sec.  300.160(f)(5).
     Proposed Sec.  300.160(f), regarding universal design, has 
been redesignated as Sec.  300.160(g).

Analysis of Comments and Changes

    In response to the Secretary's invitation in the NPRM, more than 
300 parties submitted comments on the proposed regulations, many of 
which were substantially similar. An analysis of the comments and 
changes in the regulations since publication of the NPRM follows.
    We discuss substantive issues under the sections of the regulations 
to which they pertain. Generally, we do not address technical or minor 
changes, and suggested changes that we are not authorized to make under 
the law. We also do not address comments on Title I or IDEA regulations 
that were not part of the NPRM published on December 15, 2005 (70 FR 
74624), such as comments concerning the regulations regarding alternate 
academic achievement standards.

Interim Flexibility

    Comment: Several commenters made recommendations regarding the 
Department's interim flexibility, which gave eligible States the 
flexibility to provide credit to schools or districts that missed AYP 
solely because of the achievement of the students with disabilities 
subgroup. Some commenters opposed this flexibility; most others 
suggested extending the flexibility until the final regulations on 
modified academic achievement standards are in effect or until States 
have had time to develop modified academic achievement standards and 
aligned alternate assessments. One commenter recommended that the 
interim flexibility be made permanent instead of the Department 
regulating to permit States to establish modified academic achievement 
standards. Finally, one commenter stated that offering interim 
flexibility prior to rulemaking violated

[[Page 17754]]

Title I negotiated rulemaking requirements.
    Discussion: The Department permitted States that expressed interest 
in developing modified academic achievement standards and assessments 
based on those standards to take advantage of interim flexibility while 
the Department drafted the proposed regulations. This flexibility was 
granted for the 2004-05 school year and then extended for a second year 
(2005-06) to cover the period of time when members of the public were 
commenting on the proposed regulations and while the Department 
developed the final regulations. The interim flexibility will be 
extended for the 2006-07 school year for States that can show evidence 
of a commitment to develop modified academic achievement standards.
    We believe that the flexibility to develop modified academic 
achievement standards provides a means to assess appropriately some 
students with disabilities and include them in State accountability 
systems. Therefore, we do not believe the interim flexibility should be 
used in lieu of setting modified academic achievement standards, as 
recommended by one commenter.
    We do not believe that offering interim flexibility prior to 
rulemaking violated negotiated rulemaking requirements. We understand 
the statutory requirements for negotiated rulemaking in section 1901 of 
the ESEA to apply to Title I standards and assessment regulations 
required to be implemented within one year of enactment of NCLB, not to 
subsequent regulatory amendments such as those included in these 
regulations.
    The Department recognizes that some States may need time beyond the 
2006-07 school year to develop and implement alternate assessments 
based on modified academic achievement standards. Therefore, we are 
adding a new Sec.  200.20(g) providing that the Secretary may give 
flexibility for two additional years (through the 2008-09 school year) 
to States that are developing alternate assessments based on modified 
academic achievement standards consistent with these regulations.
    Changes: We have added a new Sec.  200.20(g) specifying that the 
Secretary may provide a State that is moving expeditiously to adopt and 
administer alternate assessments based on modified academic achievement 
standards flexibility in accounting for the achievement of students 
with disabilities in AYP determinations that are based on assessments 
administered in school years 2007-08 and 2008-09. To be eligible for 
this flexibility, a State must meet criteria, as the Secretary 
determines appropriate, for each year for which the flexibility is 
available.

State Responsibilities for Developing Challenging Academic Standards 
(Sec.  200.1)

    Comment: A few commenters recommended revising Sec.  200.1(a)(1) to 
clarify when the regulation applies to academic content standards 
versus academic achievement standards. The commenters noted that the 
authority to develop modified and alternate academic achievement 
standards appears erroneously also to apply to academic content 
standards.
    Discussion: We agree that the regulation in Sec.  200.1(a)(1) 
should be more specific when referring to academic standards. 
Therefore, we have clarified that the same academic content standards 
apply to all public schools and all public school students in a State 
and that the authority to develop alternate academic achievement 
standards in paragraph (d) and modified academic achievement standards 
in paragraph (e) for eligible students with disabilities does not apply 
to academic content standards. We also have modified paragraph (a)(2) 
to be consistent with these changes. Section 200.1(b)(1)(i) is 
redundant with these changes and has been removed.
    Changes: We have made the following changes in Sec.  200.1(a)(1): 
(1) Added ``content and academic achievement'' before ``standards'; and 
(2) added ``which apply only to the State's academic achievement 
standards'' at the end of the sentence in paragraph (a)(1). Consistent 
with these changes, we have revised paragraph (a)(2) to read, ``Include 
the same knowledge and skills expected of all students and the same 
levels of achievement of all students, except as provided in paragraphs 
(d) and (e) of this section.'' We have removed Sec.  200.1(b)(1)(i).
    Modified Academic Achievement Standards (Sec.  200.1(e))
    Comment: Several commenters recommended that the regulations 
provide more detail on the essential components of the documented and 
validated standards-setting process required in Sec.  200.1(e)(1). 
These commenters stated that the process should include broad 
stakeholder input. One commenter requested that the regulations require 
a State to explain to the public how it proposes to change its content 
standards to coincide with modified academic achievement standards. A 
few commenters requested that the regulations specify the persons who 
should define the standards and participate in the standards-setting 
process, and include information about how parents and specialists 
should be involved.
    Discussion: We do not believe that it is necessary to include the 
details of a validated standards-setting process in these regulations 
because the field generally agrees that the process should be 
consistent with the standards for educational and psychological testing 
(1999).\1\ This process relies on both empirical data and the informed 
judgments of persons familiar with academic content as well as with the 
students with disabilities to be assessed. We agree with the commenters 
that the development of achievement standards typically benefits from 
broad stakeholder involvement to ensure consensus regarding the 
knowledge and skills essential for all students and have clarified this 
in the regulations. In response to the request to define who should be 
involved in the standards-setting process for modified academic 
achievement standards, we believe that the process should include 
persons who are knowledgeable about the State's academic content 
standards and experienced in standards setting, as well as special 
educators who are most knowledgeable about the academic abilities and 
achievement of students with disabilities, and we have added clarifying 
language in the regulations. We decline to comment on how parents and 
specialists should be involved in the process. These determinations are 
best left to State and local officials.
---------------------------------------------------------------------------

    \1\ AERA, APA, & NCME. (1999). (American Educational Research 
Association, American Psychological Association, & National Council 
on Measurement in Education) Joint Committee on Standards for 
Educational and Psychological Testing. Standards for educational and 
psychological testing. Washington, DC: AERA.
---------------------------------------------------------------------------

    With regard to the commenter who requested that the regulations 
require a State to explain to the public how it proposes to change its 
content standards to coincide with modified academic achievement 
standards, we note that a State that intends to develop modified 
academic achievement standards consistent with these regulations would 
not propose to change its academic content standards. As required in 
Sec.  200.1(e)(1), modified academic achievement standards must be 
aligned with the State's academic content standards.
    Changes: We have removed the phrase ``through a documented and 
validated standards-setting process'' in proposed Sec.  200.1(e)(1) and 
have added a new Sec.  200.1(e)(1)(iv) to require that modified 
academic achievement standards be developed through a

[[Page 17755]]

documented and validated standards-setting process that includes broad 
stakeholder input, including persons knowledgeable about the State's 
academic content standards and experienced in standards setting and 
special educators who are most knowledgeable about children with 
disabilities.
    Comment: A number of commenters disagreed with the requirement in 
Sec.  200.1(e)(1)(i) that modified academic achievement standards be 
aligned with the State's academic content standards for the grade in 
which the student is enrolled. Several commenters stated that this 
requirement excludes students who need to be assessed against a truly 
modified set of learning standards. These commenters argued that 
modified academic achievement standards should be for students with 
learning goals that are substantively different from the general 
education standards, but not as different as the learning goals for 
students with the most significant cognitive disabilities who are 
assessed based on alternate academic achievement standards.
    Several commenters stated that modified academic achievement 
standards should focus on the individual needs of a student with 
disabilities and be aligned with standards that are appropriate for the 
student's instructional level, not grade level. A few commenters stated 
that the criteria for modified academic achievement standards are too 
prescriptive and that States should have the flexibility to develop 
modified academic achievement standards in ways that meet their needs.
    Discussion: We disagree with the commenters. Modified academic 
achievement standards are intended for a small group of students who, 
by virtue of their disability, are not likely to meet grade-level 
academic achievement standards in the year covered by their IEPs even 
with appropriate instruction. These students need the benefit of access 
to instruction in grade-level content so that they can move closer to 
grade-level achievement. We believe that allowing modified academic 
achievement standards to focus on something other than grade-level 
content standards (e.g., allowing them to be based on a student's 
instructional level) would lower expectations and limit opportunities 
for these students to access grade-level content and meet grade-level 
achievement standards. We also believe that allowing States to develop 
modified academic achievement standards without placing any parameters 
or restrictions on their use would likely result in lowered 
expectations.
    Changes: None.
    Comment: Many commenters requested specific guidance on how a State 
could appropriately reduce the breadth or depth of grade-level 
standards, as proposed in Sec.  200.1(e)(1)(i). One commenter requested 
that the regulations clarify that reducing breadth or depth would 
permit the assessment of prerequisite skills that are needed to master 
grade-level content standards.
    Discussion: Modified academic achievement standards are intended to 
be challenging for a small group of students whose disability has thus 
far prevented them from attaining grade-level proficiency. However, 
while the modified academic achievement standards may be less demanding 
than grade-level academic achievement standards, these students must 
have access to a curriculum based on grade-level content standards so 
that they can move closer to grade-level achievement. This means that 
an alternate assessment based on modified academic achievement 
standards must cover the same grade-level content, but may include less 
difficult questions overall.
    We agree that the phrase ``breadth or depth'' in the context of 
developing modified academic achievement standards is not clear and 
does not sufficiently convey that only the academic achievement 
standards for students, not the content on which they are assessed, are 
to be modified. In addition, the terms ``breadth'' and ``depth'' are 
descriptive, rather than technical, and do not have consistent meanings 
for the different stakeholders involved in developing and using student 
assessments. Therefore, we have removed the reference to reduced 
breadth or depth from Sec.  200.1(e)(1)(i). Section 200.1(e)(1)(i) 
continues to require modified academic achievement standards to be 
aligned with the State's academic content standards for the grade in 
which the student is enrolled. We have added a new paragraph (e)(1)(ii) 
clarifying that modified academic achievement standards must be 
challenging for eligible students, but may be less difficult than 
grade-level academic achievement standards. Consistent with section 
1111(b)(1)(D)(i) of the ESEA, we also have clarified that modified 
academic achievement standards must include at least three achievement 
levels.
    Changes: The phrase ``reflect reduced breadth or depth of grade 
level content'' has been removed from Sec.  200.1(e)(1)(i). A new Sec.  
200.1(e)(1)(ii) has been added specifying that modified academic 
achievement standards must be challenging for eligible students, but 
may be less difficult than grade-level academic achievement standards. 
We also have added a new Sec.  200.1(e)(1)(iii) to require modified 
academic achievement standards to include at least three achievement 
levels.
    Comment: One commenter stated that modified academic achievement 
standards should be designed to allow a student, over time, to reach 
grade-level academic achievement standards. Many commenters stated that 
the regulations should include protections so that the regulations do 
not result in lowered expectations for students with disabilities.
    Discussion: We added a number of safeguards to the safeguards that 
were already included in the proposed regulations to ensure that a 
student with disabilities who is assessed based on modified academic 
achievement standards has access to grade-level content so that the 
student has the opportunity, over time, to reach grade-level academic 
achievement standards. The safeguards for students that are included in 
these final regulations include the following: Sec.  200.1(e)(1)(i) 
requires that modified academic achievement standards be aligned with a 
State's academic content standards for the grade in which a student is 
enrolled; new Sec.  200.1(e)(2)(iii) requires that a student's IEP 
include goals that are based on the academic content standards for the 
grade in which the student is enrolled and be designed to monitor a 
student's progress in achieving the student's standards-based goals; 
new Sec.  200.1(f)(2)(ii) requires a State to establish and monitor 
implementation of clear and appropriate guidelines for an IEP Team to 
apply in developing and implementing the IEP of a student assessed 
based on modified academic achievement standards; new Sec.  
200.1(f)(2)(iii) requires that a State's guidelines for IEP Teams 
ensure that a student who is assessed based on modified academic 
achievement standards has access to the curriculum, including 
instruction, for the grade in which the student is enrolled; and new 
Sec.  200.1(f)(2)(iv) requires a State to ensure that a student who 
takes an alternate assessment based on modified academic achievement 
standards is not precluded from attempting to complete the 
requirements, as defined by the State, for a regular high school 
diploma.
    Changes: None.
    Comment: We received several comments regarding proposed Sec.  
200.1(e)(1)(iii), which requires that modified academic achievement 
standards not preclude a student from

[[Page 17756]]

earning a regular high school diploma. Several commenters stated that 
it would be an intrusion into State graduation standards if a State was 
required to diminish its standards for a regular diploma to include 
students who are assessed on modified academic achievement standards.
    Discussion: The intent of proposed Sec.  200.1(e)(1)(iii) was not 
to require States to alter their graduation requirements or to provide 
a regular high school diploma to a student who scores proficient on an 
alternate assessment based on modified academic achievement standards. 
Rather, we wanted to ensure that a student is not automatically 
precluded from attempting to earn a regular high school diploma simply 
because the student was assessed based on modified academic achievement 
standards. For example, if a State requires students to pass a State 
graduation test in order to obtain a regular high school diploma, we 
did not want the fact that a student was assessed based on modified 
academic achievement standards to automatically prevent the student 
from attempting to pass the State's graduation test.
    An important requirement for modified academic achievement 
standards is that they be aligned with the State's grade-level academic 
content standards and provide access to grade-level curriculum. 
Therefore, we believe it is reasonable that students assessed based on 
modified academic achievement standards have the opportunity to attempt 
to earn a regular high school diploma. We recognize that proposed Sec.  
200.1(e)(1)(iii) could be misconstrued and, therefore, have changed the 
language to make clear that States may not prevent a student from 
attempting to complete the requirements, as defined by the State, for a 
regular high school diploma simply because the student participates in 
an alternate assessment based on modified academic achievement 
standards.
    Changes: Proposed Sec.  200.1(e)(1)(iii) has been removed. A new 
Sec.  200.1(f)(2)(iv) has been added to require a State to ensure that 
students who take alternate assessments based on modified academic 
achievement standards are not precluded from attempting to complete the 
requirements, as defined by the State, for a regular high school 
diploma.
    Comment: Many commenters requested additional guidance on the 
development of modified academic achievement standards. A few 
commenters requested guidance on addressing the technical issues 
regarding the development of modified academic achievement standards.
    Discussion: The Department recognizes the need to provide States 
with additional guidance on the development and implementation of 
modified academic achievement standards and will provide nonregulatory 
guidance, along with technical assistance and support to States on 
modified academic achievement standards following the release of these 
final regulations.
    Changes: None.

Criteria for Defining Eligible Students (Sec.  200.1(e)(2))

    Comment: Several commenters recommended that the regulations 
clearly state that a student's IEP Team is responsible for determining 
whether the student should be assessed based on modified academic 
achievement standards. One commenter added that LEAs should not be able 
to unilaterally change an IEP Team's decision. Many commenters 
recommended requiring that parents be included in this decision and 
informed in writing of any potential consequences of such decisions. 
Several commenters stated that the information should be provided to 
parents in the parent's native language and in language that is easily 
understandable.
    Discussion: We agree that it would be helpful to clarify that the 
State guidelines are for IEP Teams to use in determining which students 
with disabilities are eligible to be assessed based on modified 
academic achievement standards and have made this change in Sec.  
200.1(e)(2) and (e)(2)(ii)(A). Consistent with Sec.  200.1(f)(1)(i), 
States have an important role in providing clear and appropriate 
guidelines for IEP Teams to use in determining who will be assessed 
based on modified academic achievement standards and in monitoring the 
implementation of these guidelines by IEP Teams. We also agree that an 
LEA cannot unilaterally change an IEP Team's decision regarding whether 
a child will be assessed based on modified academic achievement 
standards. Section 300.320(a)(6), consistent with section 
614(d)(1)(A)(i)(VI) of the IDEA, already provides that it is the 
child's IEP Team, not the LEA, that is responsible for determining how 
the child will participate in State and district-wide assessments.
    We do not believe it is necessary to add language to the Title I 
regulations ensuring that parents are included in decisions regarding 
whether their child will be assessed based on modified academic 
achievement standards. The IDEA regulations already require public 
agencies to include parents of children with disabilities in decisions 
regarding their child's special education, including how the child will 
participate in State and district-wide assessments. Section 300.321(a) 
of the IDEA regulations requires public agencies to include parents of 
children with disabilities as members of the IEP Team. If a child's 
parent and the other members of the child's IEP Team determine that the 
child will take an alternate assessment based on alternate or modified 
academic achievement standards, Sec.  300.320(a)(6)(i), consistent with 
section 614(d)(1)(A)(i)(VI) of the IDEA, requires that the child's IEP 
include a statement of why the particular assessment is appropriate for 
the child.
    We agree with the commenters that it is important for parents to be 
informed of any effects on their child's education that may result from 
the child participating in an alternate assessment based on modified or 
alternate academic achievement standards. In addition to parents, we 
believe it is important for all IEP Team members to have knowledge 
about modified or alternate academic achievement standards and any 
effects that may result from a child participating in such assessments. 
Therefore, we have added language to require States to provide IEP 
Teams, which include the parent, with a clear explanation of the 
differences between assessments based on grade-level academic 
achievement standards and those based on modified or alternate academic 
achievement standards, including any effects of State or local policies 
on the student's education resulting from taking an alternate 
assessment based on alternate or modified academic achievement 
standards, such as whether only satisfactory performance on a regular 
assessment would qualify a student for a regular high school diploma.
    We do not believe, however, that it is necessary to require States 
to inform a parent in writing, in addition to the IEP process, that his 
or her child will not be assessed based on the same academic 
achievement standards as other children. Parents are integral members 
of the IEP Team and participate in the decision regarding the type of 
assessment in which their child will participate. We expect that, in 
the course of determining the appropriate assessment in which a student 
will participate, there will be a discussion of how alternate or 
modified academic achievement standards differ from grade-level 
academic achievement standards and any possible

[[Page 17757]]

consequences of participating in alternate assessments based on those 
standards.
    Finally, we do not believe it is necessary to add language to the 
Title I regulations requiring public agencies to provide explanations 
to parents in the parent's native language and in language that is 
easily understandable, as suggested by the commenters. Section 
300.322(e) of the IDEA regulations already requires public agencies to 
take whatever action is necessary to ensure that parents understand the 
proceedings of IEP Team meetings, including arranging for an 
interpreter for parents with deafness or whose native language is other 
than English.
    Changes: We have changed Sec.  200.1(e)(2) to require that the 
guidelines that a State establishes under Sec.  200.1(f)(1) include 
criteria for IEP Teams to use in determining which students with 
disabilities are eligible to be assessed based on modified academic 
achievement standards. We also have rewritten paragraph (e)(2)(ii)(A) 
to state that the IEP Team must be ``reasonably certain'' that the 
student will not achieve grade-level proficiency within the year 
covered by the student's IEP, ``even if significant growth occurs.''
    We have added a new paragraph (f)(1)(iii) to require the State 
guidelines for IEP Teams to provide a clear explanation of the 
differences between assessments based on grade-level academic 
achievement standards and those based on modified or alternate academic 
achievement standards, including any effect of State and local policies 
on the student's education resulting from taking an alternate 
assessment based on alternate or modified academic achievement 
standards (such as whether only satisfactory performance on a regular 
assessment would qualify a student for a regular high school diploma).
    We also have reorganized paragraph (f) regarding State guidelines 
into two paragraphs: paragraph (f)(1) lists the requirements for 
students who are assessed based on either alternate or modified 
academic achievement standards; and paragraph (f)(2) lists additional 
requirements for students who are assessed based on modified academic 
achievement standards. With this reorganization, proposed Sec.  
200.1(e)(3), has been redesignated as new Sec.  200.1(f)(1)(ii); 
proposed Sec.  200.1(e)(5) has been rewritten and redesignated as Sec.  
200.1(f)(2)(v); and proposed Sec.  200.1(e)(1)(ii) has been rewritten 
and redesignated as Sec.  200.1(f)(2)(iii).
    Comment: Several commenters stated that determining whether a 
student's disability has precluded the student from achieving grade-
level proficiency should not be based solely on a student's performance 
on State assessments because State assessments may not allow the 
accommodations a student needs to demonstrate what the student knows 
and can do. The commenters recommended changing the ``or'' between 
paragraphs (e)(2)(i)(A) and (e)(2)(i)(B) in Sec.  200.1 to ``and.''
    Discussion: We do not believe that the determination of a student's 
progress always must include consideration of a student's performance 
on State assessments and, therefore, decline to make the change 
requested by the commenters. Other objective assessments may be 
necessary, for example, for students who are new to the State or for 
younger students who have not yet taken a State assessment. What is 
important is that the IEP Team consider multiple measurements over a 
period of time that are valid for the subjects being assessed, as 
specified in Sec.  200.1(e)(2)(ii)(B). These measures may include 
evidence from a State assessment or other assessments that can validly 
document the student's achievement.
    Changes: None.
    Comment: Several commenters requested a definition of ``high-
quality instruction,'' as used in proposed Sec.  200.1(e)(2)(ii)(A), 
stating that, without a definition, the requirement that IEP Teams 
consider the student's response to high-quality instruction in 
determining whether the student should be assessed based on modified 
academic achievement standards is not meaningful. One commenter stated 
that the proposed regulation assumes that students with disabilities 
receive high-quality instruction, but stated that this is not always 
the case.
    Discussion: The purpose of Sec.  200.1(e)(2)(ii)(A) is to ensure 
that students are not identified for an alternate assessment based on 
modified academic achievement standards if they have not been receiving 
high-quality instruction and services. We agree that it is difficult to 
establish objective standards that could be used to determine whether 
this criterion has been met and will, therefore, remove this 
requirement. However, we continue to believe that safeguards are needed 
to ensure that IEP Teams consider whether a student has had an 
opportunity to learn grade-level content before determining that the 
student should be assessed based on modified academic achievement 
standards.
    Under Sec.  300.306(b) of the IDEA regulations, a student may not 
be determined to be eligible for special education and related services 
if the determinant factor is lack of appropriate instruction in reading 
or mathematics. Schools use current, data-based evidence to examine 
whether a student responds to appropriate instruction before 
determining that the student needs special education and related 
services. State and local officials are responsible for determining 
what constitutes appropriate instruction. (See 71 FR 46646 (Aug. 14, 
2006).) State and local officials, therefore, have experience and 
knowledge in making judgments about the instruction that a student has 
received and whether it has been appropriate. Accordingly, we have 
changed the language in Sec.  200.1(e)(2)(ii)(A) to ensure that 
students are not identified for an alternate assessment based on 
modified academic achievement standards if they have not been receiving 
appropriate instruction.
    Changes: We have replaced ``high-quality instruction'' with 
``appropriate instruction'' in Sec.  200.1(e)(2)(ii)(A). We also have 
added ``to date'' following ``progress'' for clarity.
    Comment: Several commenters recommended requiring instruction by 
highly qualified teachers, as defined in the ESEA and the IDEA, before 
determining that a student should be assessed based on modified 
academic achievement standards.
    Discussion: Both the ESEA and the IDEA already require teachers to 
meet the highly qualified teacher standards and we do not believe it is 
necessary to reiterate this requirement in these regulations. 
Furthermore, while we expect that the vast majority of students will 
receive instruction from highly qualified teachers, we do not want a 
student who may not have received instruction from a highly qualified 
teacher in the past to be precluded from being assessed based on 
modified academic achievement standards if that alternate assessment is 
most appropriate for that student.
    Changes: None.
    Comment: One commenter asked if the number of years a student with 
disabilities' performance was below grade level could be used to 
identify the student as eligible to be assessed based on modified 
academic achievement standards.
    Discussion: Section 200.1(e)(2)(ii) requires a student's IEP Team 
to consider the student's progress to date in response to appropriate 
instruction and to be reasonably certain that, even if significant 
growth occurs, the student will not achieve grade-level proficiency 
within the year covered by the student's IEP. Data documenting that a 
student

[[Page 17758]]

has been performing below grade level for a number of years could be 
one factor in determining if a student should be assessed based on 
modified academic achievement standards.
    Changes: None.
    Comment: One commenter requested examples of multiple measures over 
time that may be used to determine a student's progress under Sec.  
200.1(e)(2)(ii)(B). Another commenter asked whether States are required 
to use response to intervention procedures to demonstrate student 
progress over a period of time.
    Discussion: In order to determine whether a student may be eligible 
for an alternate assessment based on modified academic achievement 
standards, an IEP Team may examine results from a variety of measures 
that indicate a student's progress over time. These may be either 
criterion-referenced tests (i.e., tests that assess skill mastery and 
compare a student's performance to curricular standards, such as State 
and district-wide tests) or norm-referenced tests (i.e., tests that 
compare a student's performance to that of students of the same age or 
grade). The format of the multiple measures may include performance 
assessments (i.e., an assessment that focuses on specific objectives 
and enables the student to actively demonstrate knowledge and 
understanding, such as direct writing and math assessments); portfolio 
assessments (i.e., a collection of student work samples); curriculum-
based measures (i.e., repeated measures from the student's curriculum 
that assess the specific skills being taught in the classroom and the 
effectiveness of instruction and instructional changes); and teacher-
developed assessments (i.e., assessments developed by individual 
teachers for use in their own classrooms).
    Section 200.1(e)(2)(ii)(B) does not require States to use response 
to intervention procedures; nor does it specify the procedures or 
measures that must be used to determine a student's progress over time. 
We believe that IEP Teams should have as much flexibility as possible 
to use objective data to determine whether a student is eligible for an 
alternate assessment based on modified academic achievement standards. 
The purpose of Sec.  200.1(e)(2)(ii)(B) is to clarify that IEP Teams 
must not rely on a single measure to determine whether it is 
appropriate to assess a student based on modified academic achievement 
standards. So long as the measures are objective and valid for the 
subjects being assessed, they may be used to determine whether a 
student is making progress.
    Changes: None.
    Comment: Several commenters supported the proposed requirement that 
a student be receiving instruction in grade-level content in order to 
be assessed based on modified academic achievement standards and asked 
what documentation would be required to ensure that students with 
disabilities have the opportunity to learn grade-level content. Other 
commenters stated that the proposed regulations did not address the 
broad continuum of cognitive functioning and, instead, focused on the 
wrong group of students. Many commenters stated that modified academic 
achievement standards should be for students who are closer in 
achievement to students with the most significant cognitive 
disabilities rather than students who are close to grade-level 
achievement.
    Discussion: The requirement that a student be receiving grade-level 
instruction was intended to ensure that students identified to be 
assessed based on modified academic achievement standards have access 
to grade-level content. We did not want students to be assessed based 
on modified academic achievement standards merely because they did not 
have access to grade-level content or solely because their achievement 
was one or two grades below their enrolled grade. However, based on the 
comments we received, we believe this requirement was misinterpreted to 
mean that only students achieving close to grade level could 
potentially be assessed based on modified academic achievement 
standards. That was not our intent. Rather, we anticipated that 
students assessed based on modified academic achievement standards 
could include students from any of the disability categories under the 
IDEA and represent a fairly wide spectrum of abilities. Therefore, we 
have removed the requirement in Sec.  200.1(e)(2)(iii) that students 
identified to be assessed based on modified academic achievement 
standards be receiving grade-level instruction.
    However, we continue to believe that it is critical to ensure that 
students who participate in an alternate assessment based on modified 
academic achievement standards receive instruction in grade-level 
content so that they are prepared to demonstrate their mastery of 
grade-level content on an alternate assessment based on modified 
academic achievement standards and can move closer to grade-level 
achievement. One way to help ensure that students have access to grade-
level content before they are assessed based on modified academic 
achievement standards, and receive instruction in grade-level content 
after they are assessed based on modified academic achievement 
standards, is to require IEP Teams to include goals that are based on 
grade-level content standards in the IEPs of these students. Such an 
approach focuses the IEP Team and the student on grade-level content 
and the student's achievement level relative to those content 
standards. Therefore, we have added a requirement that the IEP of a 
student to be assessed based on modified academic achievement standards 
include goals that are based on the academic content standards for the 
grade in which the student is enrolled and that the IEP be designed to 
monitor a student's progress in achieving the student's standards-based 
goals. To further emphasize the importance of ensuring that students 
who participate in an alternate assessment based on modified academic 
achievement standards receive instruction in grade-level content, we 
also make clear in new Sec.  200.1(f)(2)(iii) that States must ensure 
that these students have access to the curriculum, including 
instruction, for the grade in which the student is enrolled.
    Incorporating State content standards in IEP goals is not a new 
idea. Because the reauthorization of IDEA in 1997 required States to 
provide students with disabilities access to the general curriculum, 
the field has been working toward incorporating State standards in IEP 
goals. Some States already require IEP Teams to select the grade-level 
content standards that the student has not yet mastered and to develop 
goals on the basis of the skills and knowledge that the student needs 
to acquire in order to meet those standards. In addition, some States 
have developed extensive training materials and professional 
development opportunities for staff to learn how to write IEP goals 
that are tied to State standards.\2\
---------------------------------------------------------------------------

    \2\ Ahearn, E. (2006). Standards-based IEPs: Implementation in 
Selected States. National Association of State Directors of Special 
Education, 1800 Diagonal Road, Suite 320, Alexandria, VA 22314.
---------------------------------------------------------------------------

    We appreciate that States that have not moved in this direction may 
need technical assistance and support to institute this change for 
students who are assessed based on modified academic achievement 
standards. The Department's Office of Special Education Programs (OSEP) 
is preparing such technical assistance, which will be disseminated and 
available upon publication of these final regulations.

[[Page 17759]]

    We believe that requiring IEP Teams to incorporate grade-level 
content standards in the IEP of a student who is assessed based on 
modified academic achievement standards and to monitor the student's 
progress in achieving the standards-based goals will focus IEP Teams on 
identifying the educational supports and services that the student 
needs to reach those standards. This will align the student's 
instruction with the general education curriculum and the assessment 
that the IEP Team determines is most appropriate for the student.
    Changes: We have removed the requirement in Sec.  200.1(e)(2)(iii) 
that a student be receiving grade-level instruction in order to be 
assessed based on modified academic achievement standards, and replaced 
it with a requirement that, if a student identified for an alternate 
assessment based on modified academic achievement standards has an IEP 
that includes goals for a subject assessed under Sec.  200.2, those 
goals must be based on the content standards for the grade in which the 
student is enrolled. We have added ``the'' before ``curriculum'' and 
``including instruction,'' before ``for the grade in which the students 
are enrolled'' in Sec.  200.1(f)(2)(iii). For consistency with these 
changes, we have added this requirement as new Sec.  200.1(f)(2)(ii)(A) 
to the list of requirements for States to include in their guidelines 
for IEP Teams. We also have added Sec.  200.1(f)(2)(ii)(B) to require 
that a student's IEP be designed to monitor the student's progress in 
achieving the standards-based goals.
    Comment: Some commenters stated that requiring a student to be 
receiving instruction in grade-level content in order to be assessed 
based on modified academic achievement standards would encourage social 
promotion or retention.
    Discussion: As noted above, we removed the requirement that a 
student be receiving instruction in grade-level content in order to be 
assessed based on modified academic achievement standards because it 
was misinterpreted to mean that only students achieving close to grade-
level could potentially be assessed based on modified academic 
achievement standards. However, we continue to believe that it is 
critical to ensure that students who participate in an alternate 
assessment based on modified academic achievement standards receive 
instruction in grade-level content. We believe that students who are 
not exposed to grade-level content will not learn the content, which 
will delay their learning and increase the likelihood of being retained 
or socially promoted.
    Changes: None.
    Comment: One commenter stated that another alternate assessment is 
needed for students with mild cognitive impairments. Several commenters 
stated that, because a student's performance would not be based on 
grade-level academic achievement standards, the requirements for 
participation in an alternate assessment based on modified academic 
achievement standards should be stricter to ensure that students are 
not inappropriately assessed.
    Discussion: We do not believe that another alternate assessment is 
needed for students with mild cognitive disabilities. These final 
regulations give States the flexibility to develop and implement 
modified academic achievement standards in ways that fit within their 
existing assessment systems, while ensuring that students with 
disabilities are not inappropriately assessed based on modified 
academic achievement standards. We believe that the criteria for 
modified academic achievement standards in Sec.  200.1(e), along with 
the safeguards provided by the requirements for State guidelines in 
Sec.  200.1(f), are adequate to ensure that students are not 
inappropriately assessed based on modified academic achievement 
standards. Depending on the nature of a State's grade-level and 
alternate academic achievement standards, a State may wish to tailor 
its alternate assessment based on modified academic achievement 
standards to a more narrowly defined group of students. We, therefore, 
have made clear that the criteria for students to be assessed based on 
modified academic achievement standards in Sec.  200.1(e)(2) are only a 
minimum threshold and that States may add additional criteria if they 
choose to do so.
    Changes: We have added ``Those criteria must include, but are not 
limited to, each of the following:'' to the end of Sec.  200.1(e)(2).
    Comment: Several commenters requested that the regulations clarify 
that an IEP Team must make a determination of eligibility for each 
subject assessed. Other commenters added that a student who has 
difficulty in only one subject area should be allowed to take an 
alternate assessment in that one area and take a regular assessment in 
the other subject(s).
    Discussion: If a State chooses to develop modified academic 
achievement standards, proposed Sec.  200.1(e)(4) would have required 
that a student be allowed to take an alternate assessment based on 
modified academic achievement standards in one or more subjects. Thus, 
a student could take an alternate assessment based on modified academic 
achievement standards in reading, for example, and a regular assessment 
in mathematics. However, we agree that the regulations should state 
more clearly that a student's IEP Team is responsible for making a 
determination for each subject assessed whether the student 
participates in an alternate assessment based on modified academic 
achievement standards. Therefore, we have added a new Sec.  
200.1(f)(2)(i) clarifying that States must inform IEP Teams that a 
student may be assessed based on modified academic achievement 
standards in one or more subjects. We also have added language to new 
Sec.  200.1(f)(1)(i)(B) (proposed Sec.  200.1(f)(1)(ii)) and Sec.  
200.1(f)(2)(v) (proposed Sec.  200.1(c)(5)) to make this clear.
    Changes: We have added a new Sec.  200.1(f)(2)(i) requiring States 
to inform IEP Teams that a student may be assessed based on modified 
academic achievement standards in one or more subjects for which 
assessments are administered under Sec.  200.2. We also have added 
``These students may be assessed based on modified academic achievement 
standards in one or more subjects for which assessments are 
administered under Sec.  200.2'' at the end of new Sec.  
200.1(f)(1)(i)(B) (proposed Sec.  200.1(f)(1)(ii)). With this addition, 
proposed Sec.  200.1(e)(4) is no longer necessary and has been removed. 
Finally, we have added ``for each subject'' following ``Ensure that 
each IEP Team reviews annually'' in new Sec.  200.1(f)(2)(v) (proposed 
Sec.  200.1(c)(5)).
    Comment: Several commenters requested that the decision to assess a 
student based on modified academic achievement standards be reviewed 
annually.
    Discussion: New Sec.  200.1(f)(2)(v) (proposed Sec.  200.1(e)(5)) 
already requires that the decision to assess a student based on 
modified academic achievement standards be reviewed annually for each 
subject by the student's IEP Team to ensure that those standards remain 
appropriate.
    Changes: None.
    Comment: One commenter stated that a student should not be eligible 
for an alternate assessment based on modified academic achievement 
standards unless the student had been provided with all the appropriate 
accommodations for the grade-level assessment.
    Discussion: We believe that a student's IEP Team is in the best 
position to determine whether the student should be assessed on the 
regular assessment with accommodations before participating in an 
alternate assessment based on modified academic achievement

[[Page 17760]]

standards and, therefore, decline to make the requested change.
    Changes: None.

State Guidelines (Sec.  200.1(f))

    Comment: Several commenters recommended that the regulations 
require a State to provide training to IEP Teams so that the guidelines 
are implemented in a manner that ensures that students can progress to 
grade-level achievement standards. The commenters also recommended 
requiring a State to collect and review data from LEAs on how the 
guidelines are being implemented and investigate LEAs when proficiency 
rates are higher on alternate assessments than on the regular 
assessment.
    Discussion: Proposed Sec.  200.1(f)(1) already requires a State 
that defines alternate or modified academic achievement standards to 
establish and ensure implementation of clear and appropriate guidelines 
for IEP Teams to apply in determining whether a student will be 
assessed based on modified or alternate academic achievement standards. 
Furthermore, the general supervision requirements in section 612(a)(11) 
of the IDEA require a State to monitor the implementation of State 
guidelines for the participation of students with disabilities in State 
and district-wide assessments. The specific ways in which a State 
conducts its monitoring are best left to the State to determine based 
on State and local needs. Therefore, we decline to require a State to 
investigate when proficiency rates are higher on alternate assessments 
as compared with regular assessments. We also do not believe it is 
necessary to duplicate monitoring requirements under Title I that would 
generate additional and unnecessary paperwork. However, we do believe 
that it is important to emphasize that a State is responsible for 
monitoring, as well as establishing and implementing State guidelines, 
and have made this change in the regulations.
    Changes: We have changed ``establish and ensure implementation of 
clear and appropriate guidelines'' to ``establish and monitor 
implementation of clear and appropriate guidelines'' in new Sec.  
200.1(f)(1)(i) (proposed Sec.  200.1(f)(1)). We also have added a new 
Sec.  200.1(f)(2)(ii), which reiterates the responsibility of a State 
to establish and monitor implementation of clear and appropriate 
guidelines for IEP Teams to apply for students who are assessed based 
on modified academic achievement standards.
    Comment: One commenter argued that a State's guidelines for IEP 
Teams would not have the force of law and recommended that the 
regulations require the State to implement requirements that are 
enforceable by law.
    Discussion: It is unnecessary to add a regulation requiring States 
to implement requirements that are enforceable by law because, 
regardless of the legal mechanism a State uses to implement guidelines 
for IEP Teams, those guidelines must meet the requirements of these 
regulations in order for the State to be in compliance with part A of 
Title I and to continue to receive funds under this part.
    Changes: None.
    Comment: Several commenters stated that the regulations should 
include additional guidelines to ensure that States use similar 
criteria to identify students to be assessed based on modified academic 
achievement standards. One commenter stated that the guidelines should 
draw a ``bright line'' between students with the most significant 
cognitive disabilities and students assessed based on modified academic 
achievement standards. Specifically, the commenter recommended 
clarifying that students with the most significant cognitive 
disabilities are those who will never be able to demonstrate progress 
on grade-level academic achievement standards even if provided with the 
very best possible education and accommodations.
    Discussion: Section 200.1(d), regarding alternate academic 
achievement standards, and Sec.  200.1(e), regarding modified academic 
achievement standards, leave to each State the responsibility to define 
the students with disabilities who may be assessed based on alternate 
or modified academic achievement standards. These final regulations set 
certain parameters that a State must meet, but we do not believe it is 
the proper role of the Federal government to specifically set forth a 
``bright line'' between the students who should participate in an 
alternate assessment based on alternate academic achievement standards 
versus an alternate assessment based on modified academic achievement 
standards. Moreover, such a distinction may vary from one State to the 
next depending on how States have organized their State content 
standards and established their academic achievement standards.
    Changes: None.

Inclusion of All Students (Sec.  200.6)

Students Eligible Under IDEA and Section 504 (Sec.  200.6(a))
    Comment: One commenter recommended that the regulations permit 
students with disabilities to use modifications, as well as 
accommodations, in State assessments. The commenter stated that an 
accommodation in one State (e.g., a calculator) may be considered a 
modification in another State and that this variation is unfair to 
students and schools.
    Discussion: A ``modification'' used in an assessment is generally 
regarded as a change in test administration that alters what is being 
measured and, therefore, results in an invalid test score. Whether a 
particular support, such as use of a calculator, is considered a 
modification or an accommodation can only be determined by considering 
the intended purpose and content of an assessment. States vary in terms 
of the purposes and content of their assessments and, therefore, may 
vary in terms of whether a particular support provided to a student 
during an assessment is considered a modification or an accommodation. 
States determine whether a particular testing procedure or support, 
such as use of a calculator, invalidates the results. States must 
provide evidence for the Department's peer review of Statewide 
assessment systems under Title I of the ESEA that their State 
assessments are valid and reliable for the purposes for which the 
assessments are used, and are consistent with relevant, nationally 
recognized professional and technical standards. Therefore, we decline 
to make the change requested by the commenter.
    Changes: None.
    Comment: Several commenters recommended that States develop and 
disseminate information on, and promote the use of, appropriate 
accommodations for alternate assessments based on modified and 
alternate academic achievement standards, in addition to assessments 
based on grade-level standards.
    Discussion: Section 1111(b)(3)(C)(ix)(II) of the ESEA and section 
612(a)(16) of the IDEA already require a State to provide appropriate 
accommodations for students to participate in a State's assessment 
system. This includes accommodations for alternate assessments. 
Therefore, the change recommended by the commenters is unnecessary.
    Changes: None.
    Comment: None.
    Discussion: In reviewing the proposed regulations, we noted that

[[Page 17761]]

Sec.  200.6(a)(1)(ii)(A) referred to ``grade-level academic achievement 
standards.'' We wanted to be clear that Sec.  200.6(a)(1)(ii)(A) refers 
to the academic achievement standards for the grade in which the 
student is enrolled. Therefore, we have made this change in Sec.  
200.6(a)(1)(ii)(A).
    Changes: Section 200.6(a)(1)(ii)(A) has been changed by adding 
``for the grade in which a student is enrolled'' following ``academic 
achievement standards'' and removing ``grade-level'' before ``academic 
achievement standards.''
    Comment: One commenter recommended requiring a State to (A) develop 
assessments that are universally designed and valid for the widest 
possible range of students; (B) study the effect of accommodations on 
the validity of the State's assessment in order to identify which 
accommodations are valid for each assessment; and (C) document the 
extent to which universal design principles are not used.
    Discussion: We decline to make the changes requested by the 
commenter. The IDEA regulations already require a State (or in the case 
of a district-wide assessment, an LEA), to the extent feasible, to use 
universal design principles in developing and administering 
assessments. (See new Sec.  300.160(g) (proposed Sec.  300.160(f)) and 
section 612(a)(16)(E) of the IDEA.)
    The Department's peer review of Statewide assessment systems under 
Title I of the ESEA requires a State to provide evidence that its State 
assessments are valid and reliable for the purposes for which they are 
used and are consistent with relevant, nationally recognized 
professional and technical standards. In order to ensure that 
assessments are valid and reliable and meet the technical quality 
requirements of the peer review, a State must study the effect of 
accommodations on the validity of the State's assessment.
    We believe that implementing the commenter's recommendation to 
require States to document the extent to which universal design 
principles are not used (e.g., defining ``universal design 
principles'') would require significant resources and time and be a 
burden for a State to report. Therefore, we decline to make the changes 
requested by the commenters.
    Changes: None.
    Comment: One commenter recommended changing Sec.  
200.6(a)(1)(ii)(B) to require a State to ensure that related services 
providers, in addition to regular and special education teachers, know 
how to administer assessments and use appropriate accommodations.
    Discussion: Section 200.6(a)(1)(ii)(B) already requires States to 
ensure that ``other appropriate staff,'' in addition to regular and 
special education teachers, know how to administer assessments and make 
appropriate use of accommodations. We believe State and local 
authorities are in the best position to determine the other appropriate 
staff, which could include related services providers, who must know 
how to administer assessments and make use of appropriate 
accommodations. Therefore, we decline to make the change requested by 
the commenter.
    Changes: None.
    Comment: A few commenters recommended requiring a State to develop 
personnel standards and provide professional development in order to 
ensure that all educators are skilled in administering assessments and 
providing appropriate accommodations.
    Discussion: Section 200.6(a)(1)(ii)(B) requires States to ensure 
that regular and special educators, as well as other appropriate staff, 
know how to administer assessments and make use of appropriate 
accommodations. Whether a State ensures that this occurs through 
developing personnel standards or professional development is best left 
for each State to determine.
    Changes: None.
    Comment: One commenter recommended changing Sec.  200.6(a)(2)(iii) 
to require that students with the most significant cognitive 
disabilities be involved in and make progress in the general 
curriculum, consistent with the IDEA. The commenter also recommended 
that the regulations be changed to require students with the most 
significant cognitive disabilities to be included in assessments that 
are aligned to the content standards for the grade in which the student 
is enrolled.
    Discussion: Section 200.6(a)(2)(iii) already requires a State to 
document that students with the most significant cognitive disabilities 
are included in the general curriculum. Further, as the commenter 
notes, the IDEA requires students with disabilities to be involved in 
the general curriculum. Specifically, section 614(d)(1)(A)(i)(IV)(bb) 
of the IDEA requires each student's IEP to include a statement of the 
special education and related services and supplementary aids and 
services to be provided to the child to be involved in and make 
progress in the general education curriculum. This requirement applies 
to all students with disabilities, including students with the most 
significant cognitive disabilities. Therefore, we do not believe it is 
necessary to repeat this requirement in Sec.  200.6(a)(2)(iii). 
However, in preparing these final regulations, we noted an error in 
current Sec.  200.6(a)(2)(iii) \3\ in the NPRM. Current Sec.  
200.6(a)(2)(iii) requires that, if a State permits the use of alternate 
assessments based on alternate academic achievement standards, the 
State must document that students with the most significant cognitive 
disabilities are, to the extent possible, included in the general 
curriculum. In the NPRM for these final regulations on modified 
academic achievement standards, ``maximum'' was inadvertently added 
before ``extent possible.'' We have corrected this error in the final 
regulations. It is important to correct this error because the 
provision could be interpreted as extending authority beyond the IDEA, 
which requires each student's IEP to include a statement of the special 
education and related services and supplementary aids and services to 
be provided to the child to be involved in and make progress in the 
general education curriculum.\4\
---------------------------------------------------------------------------

    \3\ Current Sec.  200.6(a)(2)(iii) was finalized in the December 
9, 2003 regulations for students with the most significant cognitive 
disabilities (68 FR 68698).
    \4\ See section 614(d)(1)(A)(i)(IV)(bb) of the IDEA.
---------------------------------------------------------------------------

    With regard to the comment that the regulations be changed to 
require students with the most significant cognitive disabilities to be 
included in assessments that are aligned to the curriculum for the 
grade in which the student is enrolled, the Department's non-regulatory 
guidance on alternate academic achievement standards for students with 
the most significant cognitive disabilities states that, if a State 
chooses to establish alternate academic achievement standards, such 
standards must be aligned with the State's academic content standards 
for the grade in which the student is enrolled (or in the case of 
students in un-graded classrooms, the grade level commensurate to the 
student's age). (See C-3 of the guidance.) \5\
---------------------------------------------------------------------------

    \5\ Alternate Achievement Standards for Students with the Most 
Significant Cognitive Disabilities (August, 2005) is available at 
http://www.ed.gov/policy/elsec/guid/altguidance.doc.
---------------------------------------------------------------------------

    Substantive changes to existing regulations cannot be made without 
publishing an NPRM and providing an opportunity for the public to 
comment on proposed regulations. The NPRM published on December 15, 
2005 regarding modified academic achievement standards did not include 
the recommended change to the regulations governing alternate 
assessments based on alternate

[[Page 17762]]

academic achievement standards. Therefore, we cannot make the requested 
change in these final regulations.
    Changes: We have deleted ``maximum'' before ``extent possible'' in 
Sec.  200.6(a)(2)(iii).

Alternate Assessments that Measure Performance Based on Modified 
Academic Achievement Standards (Sec.  200.6)(a)(3))

    Comment: Many commenters recommended requiring that an assessment 
based on modified academic achievement standards be referred to as an 
alternate assessment.
    Discussion: We did not describe assessments based on modified 
academic achievement standards as alternate assessments in the NPRM 
because we wanted to distinguish such assessments from alternate 
assessments based on alternate academic achievement standards. However, 
we agree with the commenter that it would be clearer to refer to such 
assessments as alternate assessments and have made this change in the 
regulations.
    Changes: Where appropriate, we have inserted ``alternate'' before 
``assessment'' throughout the regulations to make clear that an 
assessment based on modified academic achievement standards is an 
alternate assessment.
    Comment: Many commenters suggested that terminology be clarified to 
differentiate among various alternate assessments using ``modified 
assessment'' to refer to an assessment based on modified academic 
achievement standards and ``adapted assessment'' to refer to an 
alternate assessment based on alternate academic achievement standards.
    Discussion: Precise use of terminology to avoid confusion in the 
development and use of alternate assessments for students with 
disabilities is desirable. However, the particular terms suggested by 
the commenters would not likely accomplish this goal. In the 
measurement community ``modified assessment'' has a restricted meaning 
that is not consistent with the intent of the assessment permitted 
under these regulations, and we believe ``adapted assessment'' does not 
accurately convey that an alternate assessment is based on alternate 
academic achievement standards. Therefore, we decline to make the 
changes recommended by the commenters.
    Changes: None.
    Comment: Several commenters requested that the regulations define 
``aligned,'' as used in new Sec.  200.6(a)(3)(ii)(A) (proposed Sec.  
200.6(a)(3)(i)). One commenter requested that the regulations include 
the criteria that will be used to determine whether there is sufficient 
coverage of grade-level content standards. One commenter recommended 
requiring alternate assessments based on modified academic achievement 
standards to assess the core objectives of a State's grade-level 
academic content standards.
    Discussion: We decline to include a definition of ``alignment'' in 
these regulations because it is a term of art in the assessment field. 
However, the Department's standards and assessment peer review guidance 
for Title I includes several characteristics of alignment that are 
considered by peer reviewers in determining whether assessments are 
aligned with content standards. First, reviewers consider the range of 
content, meaning that all of the standards are represented in the 
assessment and that the assessment is as cognitively challenging as the 
standards (depth/difficulty). This is the single aspect of alignment 
that may differ between the regular grade-level assessment and an 
alternate assessment based on modified academic achievement standards. 
Second, reviewers look for evidence that the assessment represents both 
the content knowledge and the process skills evident in the content 
standards. Third, reviewers consider whether the assessment reflects 
the same degree and pattern of emphasis as the content standards 
(balance). Generally, an alternate assessment based on modified 
academic achievement standards should be aligned with grade-level 
content standards in the same manner as the regular assessment. That 
is, it should represent the full array of content standards, including 
factual knowledge and application skills, with the same pattern of 
emphasis that is evident in the content standards. The Department's 
peer review guidance further states ``[i]f a State's assessments do not 
adequately measure the knowledge and skills specified in the State's 
academic content standards, or if they measure something other than 
what these standards specify, it will be difficult to determine whether 
students have achieved the intended knowledge and skills. As a result, 
it will be difficult to make appropriate policy, program, and 
instructional decisions meant to improve students' achievement.'' (page 
41) \6\
---------------------------------------------------------------------------

    \6\ Standards and assessment peer review guidance: Information 
and examples for meeting requirements of the No Child Left Behind 
Act of 2001, (April 28, 2004). Available at http://www.ed.gov/policy/elsec/guid/saaprguidance.doc.
---------------------------------------------------------------------------

    An alternate assessment based on modified academic achievement 
standards should be aligned with grade-level content standards in the 
same manner as the general test, with the possible exception of a 
reduced level of cognitive demand, sometimes referred to as depth of 
knowledge. This is a critical difference between an alternate 
assessment based on modified academic achievement standards and an 
alternate assessment based on alternate academic achievement standards, 
which is viewed as aligned with grade-level content standards even 
though the content has been simplified or represented as pre-requisite 
skills that are an essential part of the grade-level content.
    The assumption underlying the requirement for alignment is that 
many students eligible for an alternate assessment based on modified 
academic achievement standards are in a regular classroom with children 
of the same chronological age; they are receiving instruction in the 
grade-level curriculum but because of their disability are not likely 
to meet grade-level academic achievement standards in the year covered 
by their IEPs. These students may need a less difficult test in order 
to effectively demonstrate their knowledge of the grade-level content 
standards.
    We do not agree with the recommendation that an alternate 
assessment based on modified academic achievement standards be required 
to assess only the ``core objectives'' of a State's grade-level 
academic content standards. Modified academic achievement standards 
must represent the full array of content standards, including factual 
knowledge and application of skills, with the same pattern of emphasis 
that is evident in the content standards. This is so, regardless of how 
a State structures its academic content standards. The approach taken 
by a State to ensure the alignment of modified academic achievement 
standards to grade-level content standards will depend on how the State 
has structured its academic content standards. Content standards may be 
grade specific or may cover more than one grade if grade-level content 
expectations are provided for each grade. Ultimately, a State that 
chooses to develop and implement modified academic achievement 
standards must demonstrate during the Department's peer review of State 
assessments that its alternate assessment based on modified academic 
achievement standards is aligned with challenging grade-level academic 
content standards in the same manner as is required for the approval of 
the

[[Page 17763]]

State's regular assessment. The Department acknowledges that measuring 
the academic achievement of students with disabilities, particularly 
those who will be eligible to be assessed based on modified academic 
achievement standards, is an area in which there is much to learn and 
improve. We welcome information from States and others on ways to 
improve the assessment of students with disabilities. As data and 
research on assessments for students with disabilities improve, the 
Department may decide to issue additional regulations or guidance.
    Changes: None.
    Comment: Several commenters argued that the regulations should 
permit the use of out-of-level assessments. Another commenter 
questioned whether out-of-level assessments would be as valid as 
alternate assessments based on modified academic achievement standards.
    Discussion: Alternate assessments based on modified academic 
achievement standards are intended for a small group of students who, 
by virtue of their disability, are not likely to meet grade-level 
achievement standards in the year covered by their IEPs, despite 
appropriate instruction. These students need the benefit of access to 
grade-level content so that they can move closer to grade-level 
achievement. Therefore, alternate assessments based on modified 
academic achievement standards must be aligned with grade-level content 
standards.
    Out-of-level testing means assessing students enrolled in a 
specific grade with tests designed for students at lower grades. By 
definition, an out-of-level assessment does not cover the same content 
as an assessment based on grade-level content standards. Out-of-level 
testing is often associated with lower expectations for students with 
disabilities, tracking such students into lower-level curricula with 
limited opportunities. Therefore, an out-of-level assessment cannot be 
used as an alternate assessment based on modified academic achievement 
standards.
    Changes: None.
    Comment: One commenter recommended requiring an alternate 
assessment based on modified academic achievement standards to be 
distinguished from the regular assessment by more than a lower cut 
score or a change in administration or format.
    Discussion: New Sec.  200.1(e)(1)(iv) makes clear that modified 
academic achievement standards must be developed through a documented 
and validated standards setting process that includes broad stakeholder 
input, and Sec. Sec.  200.2(b) and 200.3(a)(1) make clear that an 
alternate assessment based on modified academic achievement standards 
must meet the requirements for high technical quality, including 
validity, reliability, accessibility, objectivity, and consistency with 
nationally recognized professional and technical standards. Merely 
changing the cut-score on a regular assessment would not be sufficient 
to meet these requirements.
    Changes: None.
    Comment: Many commenters requested additional guidance on 
developing an alternate assessment based on modified academic 
achievement standards.
    Discussion: Grade-level content standards serve as the foundation 
of an alternate assessment based on modified academic achievement 
standards. Beyond this essential requirement, a State may construct a 
unique assessment or adapt its regular assessment. We have added this 
language to the regulations to make this clear. In addition, the 
Department will be issuing nonregulatory guidance and providing 
technical assistance to assist States in developing alternate 
assessments based on modified academic achievement standards.
    Changes: We have simplified proposed Sec.  200.6(a)(3) by deleting 
references to paragraphs (a)(1) and (a)(2) and including a new 
paragraph (a)(3)(i) to permit a State that chooses to assess students 
with disabilities based on modified academic achievement standards to 
develop a new alternate assessment or adapt an assessment based on 
grade-level academic achievement standards. We also have added a new 
paragraph (a)(3)(ii) that lists the requirements for an alternate 
assessment based on modified academic achievement standards. Proposed 
paragraphs (a)(3)(i) through (a)(3)(iv) have been redesignated as new 
paragraphs (a)(3)(ii)(A) through (a)(3)(ii)(D), respectively.

Reporting (Sec.  200.6(a)(4))

    Comment: Several commenters recommended requiring a State to report 
the number and percentage of students using accommodations who take 
alternate assessments based on modified academic achievement standards, 
alternate assessments based on grade-level academic achievement 
standards, and alternate assessments based on alternate academic 
achievement standards. The commenters stated that these data are 
necessary to measure whether students are receiving appropriate 
accommodations and whether these accommodations are helping students 
achieve.
    Discussion: Section 200.6(a)(4) already requires a State to report 
on the number and percentage of students with disabilities taking 
regular assessments; regular assessments with accommodations; alternate 
assessments based on grade-level academic achievement standards; 
alternate assessments based on modified academic achievement standards; 
and alternate assessments based on alternate academic achievement 
standards. We believe that requiring a State to report the additional 
data requested by the commenters would place a significant burden on 
the State. In addition, such data would not, by itself, provide 
information regarding whether students are receiving appropriate 
accommodations and whether those accommodations are helping students 
achieve. Therefore, we decline to make the change requested by the 
commenters.
    We have, however, changed the order of the list of assessments in 
Sec.  200.6(a)(4) so that ``alternate assessments based on the grade-
level academic achievement standards'' follows ``regular assessments 
with accommodations.'' This will appropriately keep the three types of 
assessments based on grade-level academic achievement standards 
together in the list, to be followed by ``alternate assessments based 
on the modified academic achievement standards,'' and ``alternate 
assessments based on the alternate academic achievement standards.''
    Changes: We have redesignated proposed paragraph (a)(4)(iv), 
regarding alternate assessments based on grade-level academic 
achievement standards, as new paragraph (a)(4)(iii), and proposed 
(a)(4)(iii), regarding alternate assessments based on modified academic 
achievement standards, as new paragraph (a)(4)(iv).
    Comment: One commenter recommended requiring the Department to 
provide an annual report to Congress on the implementation of the 
regulations regarding modified academic achievement standards. One 
commenter asked who receives the data required under Sec.  200.6(a)(4). 
Another commenter expressed concern that reporting the data in Sec.  
200.6(a)(4) could violate a student's right to privacy under the Family 
Educational Rights and Privacy Act (FERPA) if there were small numbers 
of students taking any of the assessments.
    Discussion: Section 200.6(a)(4) pertains to the requirements in 
part A of Title I for reporting data to the Secretary and ensures that 
the data reported in

[[Page 17764]]

accordance with section 1111(h) of the ESEA include data on assessments 
based on alternate academic achievement standards and modified academic 
achievement standards. We have added language to Sec.  200.6(a)(4) to 
make this clear. These data are also reported to Congress and, 
therefore, we do not believe that an additional report to Congress is 
necessary, as suggested by one commenter. With regard to the commenter 
who expressed concern with the data reporting requirements and a 
student's right to privacy, a State is not required to report data that 
would violate FERPA (20 U.S.C. 1232g).
    Changes: We have added ``to the Secretary'' following ``A State 
must report separately'' to make clear that the assessment data 
referred to in Sec.  200.6(a)(4) are reported separately to the 
Secretary.
    Comment: One commenter recommended requiring LEAs and SEAs to 
collect data on the disability and race of students who are assessed 
based on modified academic achievement standards.
    Discussion: We believe that requiring LEAs and SEAs to collect data 
on the disability and race of students who are assessed based on 
modified academic achievement standards would place an unnecessary 
burden on SEAs and LEAs and, therefore, decline to implement the 
commenter's recommendation.
    Changes: None.

Disaggregation of Data (Sec.  200.7)

    Comment: Several commenters supported proposed Sec.  200.7(a)(2) 
that would prohibit a State from establishing a different minimum 
number (group size or ``n size'') of students for some subgroups, 
regardless of whether a State chooses to implement modified academic 
achievement standards. The commenters stated that having the same group 
size for all subgroups would ensure transparency and greater 
accountability.
    However, one commenter stated that the same group size across all 
subgroups should be required only for States that develop modified 
academic achievement standards. The commenter also expressed concern 
that requiring the same group size across all subgroups could reduce 
the desire by some schools and districts to accept out-of-area students 
due to concerns that adding more students in a subgroup would affect 
their accountability status.
    Discussion: Prior to the implementation of the final regulations on 
alternate academic achievement standards for students with the most 
significant cognitive disabilities and the announcement of the proposed 
regulations on modified academic achievement standards, a State had 
limited flexibility in measuring the achievement of students with 
disabilities for AYP purposes. Because of ongoing concerns about how 
accurately State assessments measure the achievement of a very 
heterogeneous subgroup of students (many of whom were assessed with a 
range of accommodations to the regular assessment), some States 
requested permission to use a larger group size for their students with 
disabilities and limited English proficient subgroups. In support of 
their requests, States argued that a larger group size for these 
subgroups of students would take into consideration the challenges of 
measuring their achievement.
    With the implementation of these final regulations on modified 
academic achievement standards and the Title I regulations on 
assessment and accountability for recently arrived and former limited 
English proficient (LEP) students (71 FR 54187 (Sept. 13, 2006)), we 
believe that States now have sufficient flexibility to measure the 
achievement of students with disabilities and LEP students 
appropriately and, therefore, no longer need a different group size for 
these subgroups. In addition, all States now test in grades 3 through 8 
and once in high school, as opposed to just once per grade span, 
thereby decreasing the sampling error associated with smaller group 
sizes. With these additional test scores to include in AYP 
determinations, the argument for a larger group size for these two 
subgroups is no longer statistically justified. Setting a different 
subgroup size also may lead to unintended consequences, such as 
manipulating the number of students with disabilities in a particular 
school to ensure that the school will not be held accountable for those 
students. We believe that, in order to ensure that schools are held 
accountable for the achievement of students with disabilities (as well 
as for students with limited English proficiency), the use of 
differentiated subgroup sizes for purposes of measuring AYP must end.
    Given the timing of these regulations, we do not expect States with 
differentiated subgroup sizes to make this change for the 2006-07 
school year. Therefore, we have added language to make clear that this 
provision takes effect for AYP determinations based on assessments 
administered in the 2007-08 school year.
    Changes: We have added ``Beginning with AYP decisions that are 
based on the assessments administered in the 2007-08 school year,'' at 
the beginning of the sentence in Sec.  200.7(a)(2)(ii).
    Comment: Some commenters recommended changing Sec.  200.7(a)(2)(ii) 
to require a State to set group sizes consistent with the smallest of 
its existing subgroups.
    Discussion: States that need to adjust their group sizes in order 
to comply with Sec.  200.7(a)(2)(ii) must do so by amending their 
accountability plans with the approval of the Department. The 
Department will consider each State's rationale for its proposed group 
size (consistent across all groups). We do not believe it is 
appropriate to mandate a particular group size or to require a specific 
process by which a State establishes its group size and, therefore, 
decline to make the recommended change.
    Changes: None.
    Comment: One commenter agreed with the decision to prohibit 
different group sizes for subgroups, but did not agree that the group 
size for the school as a whole should be the same as that of each 
subgroup.
    Discussion: Section 200.7(a)(2)(ii) was intended to require the 
minimum group size for a school as a whole (the ``all students'' group) 
to be the same as that of each subgroup. Therefore, we have changed 
Sec.  200.7(a)(2)(ii) to make this clear.
    There may be instances where the number of students in a school is 
less then a State's minimum group size. A State must have a policy in 
place to determine AYP for every school, even in these cases. Given 
that requirement, a State may choose to have a minimum group size of 
zero for the ``all students'' group. However, a State may not choose a 
minimum group size for the ``all students'' group, other than zero, 
that is different than that of its subgroups.
    Changes: Section 200.7(a)(2)(ii) has been revised by adding ``or 
for the school as a whole'' at the end of the sentence.

Adequate Yearly Progress in General (Sec.  200.13)

    Comment: Many commenters stated that there is no extant research to 
support establishing a 2.0 percent cap on the number of proficient and 
advanced scores based on modified academic achievement standards that 
may be included in AYP determinations. Many commenters stated that the 
research cited in the NPRM excludes IDEA-eligible students, is based 
only on reading interventions for early elementary-age students, and 
does not include research on math or on older students.

[[Page 17765]]

    Some commenters stated that the 2.0 percent cap is too low. 
However, many commenters expressed concern that the cap is too high, 
stating that the 2.0 percent cap on modified academic achievement 
standards and the 1.0 percent cap on alternate academic achievement 
standards translates to 3.0 percent of all students or 30 percent of 
students with disabilities counted as proficient for AYP purposes on 
alternate assessments that are not based on grade-level academic 
achievement standards. A few commenters stated this is considerably 
higher than data reported by the National Center on Educational 
Outcomes (NCEO) in its report on the participation of students with 
disabilities in 2002-03 and the 2003 data from the State of Kansas.
    Discussion: To ensure that modified academic achievement standards 
are used appropriately, these regulations set a cap of 2.0 percent on 
the proficient and advanced scores of students who are assessed based 
on modified academic achievement standards that may be included in AYP 
determinations. Together with the State guidelines required in Sec.  
200.1(f), we believe that a numeric cap of 2.0 percent will discourage 
schools from inappropriately holding students with disabilities to 
lower standards.
    We acknowledge that it is difficult to determine a numerical limit 
on the number of proficient and advanced scores based on modified 
academic achievement standards to be included in AYP determinations. 
Unlike the 1.0 percent cap on proficient and advanced scores based on 
alternate academic achievement standards for students with the most 
significant cognitive disabilities, we cannot rely on disability 
incidence rates because students who would be appropriately assessed 
based on modified academic achievement standards are less likely to be 
predominately from a few disability categories, as is the case with 
students with the most significant cognitive disabilities. In fact, we 
anticipate that students who are assessed based on modified academic 
achievement standards will be from most, if not all, the different 
disability categories listed in the IDEA.
    We also considered data from States, including the data from NCEO 
\7\ and the State of Kansas \8\ referred to by the commenters, 
recognizing that there may be variability among States in the number of 
students who meet the requirements to be assessed based on modified 
academic achievement standards. We do not expect that every State will 
use the full 2.0 percent cap. Therefore, rather than relying on 
incidence data or data from a single State or study to establish the 
cap for modified academic achievement standards, we relied on multiple 
sources of data from research and State experiences. We believe that 
these multiple sources of data, when considered together, provide a 
sound and legitimate basis for establishing the 2.0 percent cap, while 
at the same time protecting students from being inappropriately 
assigned to take an alternate assessment based on modified academic 
achievement standards. Because our major concern is holding students 
with disabilities to high standards, we have taken a conservative 
approach to estimating the cap. As a matter of policy, we believe this 
to be the right approach.
---------------------------------------------------------------------------

    \7\ Clapper, A.T., Morse, A.B., Lazarus, S.S., Thompson, S.J., & 
Thurlow, M.L. (2005). 2003 State policies on assessment 
participation and accommodations for students with disabilities 
(Synthesis Report 56). Minneapolis, MN: University of Minnesota, 
National Center on Educational Outcomes.
    \8\ Posny, A. (2004). Clash of the titans: No child left behind 
and students with disabilities. Paper presented at the Center on 
Education Policy's forum on ideas to improve the NCLB accountability 
provisions for students with disabilities and English language 
learners, September 14, 2004, Washington, DC. Available at: http://www.cep-c.org/pubs/Forum14September2004/PochowskiPaper.pdf.
---------------------------------------------------------------------------

    The Department reviewed several studies that indicate 2.0 percent 
is an appropriate cap when States, districts, and schools work to 
ensure that students receive appropriate educational services and 
interventions. The studies cited in the preamble to the NPRM included 
students with disabilities, but excluded students with the most severe 
cognitive impairments.\9\ For example, McMaster et al. (2005) defined a 
group of low-performing students who were persistent non-responders to 
reading interventions. The group included both students identified as 
students with disabilities and students not identified to receive 
special education services, but did not include students with the most 
severe cognitive disabilities. McMaster et al. reported that 22 percent 
of the group remained two standard deviations below average on an 
outcome reading assessment following reading intervention. Torgensen et 
al. (2001) indicated that 15 to 20 percent of students with severe 
reading disabilities remained below average in reading comprehension 
following intervention. Finally, literature reviewed and reported by 
Lyon et al. (in press) indicates that a 2.0 percent cap is appropriate, 
based on the percent of students who may not reach grade-level 
achievement standards within the same time frame as other students, 
even after receiving the best-designed instructional interventions from 
highly trained teachers.
---------------------------------------------------------------------------

    \9\ McMaster, K.L., Fuchs, D., Fuchs, L.S., & Compton, D.L. 
(2005). Responding to non-responders: An experimental field trial of 
identification and intervention methods. Exceptional Children, 71, 
445-463; Torgensen, J.K., Alexander, A.W., Wagner, R.K., Rashotee, 
C.A., Voeller, K.K.S., & Conway, T. (2001). Intensive remedial 
instruction for children with severe reading disabilities: Immediate 
and long-term outcomes from two instructional approaches. Journal of 
Learning Disabilities, 34, 33-58; Lyon, G.R., Fletcher, J.M., Fuchs, 
L.S., & Chhabra, V. (in press). Learning Disabilities. In E. Mash & 
R. Barkley (Eds.), Treatment of Childhood Disorders (2nd ed.) New 
York: Guilford Press.
---------------------------------------------------------------------------

    Ideally, we would have preferred to base the 2.0 percent cap on a 
greater number of studies across a greater age range and encompassing 
more math, as well as reading, scores. However, we believe that, given 
the available evidence, and our desire to protect students with 
disabilities from being inappropriately assessed based on modified 
academic achievement standards, the 2.0 percent cap is appropriate, 
particularly considering that the cap is not a limit on the number of 
students who may participate in an alternate assessment based on 
modified academic achievement standards, and the numerous safeguards 
that we included in the regulations. However, the Department also 
desires to maintain high standards and accountability for the 
achievement of all students with disabilities and, therefore, welcomes 
comments and data from States and others about how the regulations are 
working and may consider revising the regulations 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 these regulations 
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.
    Changes: None.
    Comment: A few commenters stated that the 2.0 percent cap violates 
the IDEA requirement that students with disabilities receive a free 
appropriate public education (FAPE). The commenters acknowledged that 
the cap imposes a limit on the number of proficient and advanced scores 
that may be counted as proficient for purposes of calculating AYP and 
is not a limit on the number of students who may be assessed based on 
modified academic achievement standards. However, the commenters stated 
that LEAs will put pressure on IEP Teams to

[[Page 17766]]

inappropriately include students in the regular assessment when an LEA 
is close to reaching the 2.0 percent cap, which would be a violation of 
FAPE.
    Discussion: Section 200.1(f) of these final regulations requires 
States to establish and monitor guidelines for IEP Teams to apply in 
determining which students with disabilities will be assessed based on 
alternate and modified academic achievement standards. In addition, 
Sec.  300.160(c), consistent with section 612(a)(16) of the IDEA, 
requires a State (or in the case of a district-wide assessment, an LEA) 
to develop and implement alternate assessments and guidelines for the 
participation of students who cannot participate in the regular 
assessment even with accommodations. These guidelines are intended to 
increase the options for IEP Teams regarding appropriate assessments. 
The guidelines, however, cannot guarantee that all IEP Team decisions 
are the most appropriate.
    Under the general supervision requirements in Sec.  300.149, 
consistent with section 612(a)(11) of the IDEA, we anticipate that a 
State will exercise its authority to ensure that LEAs and IEP Teams 
follow the State guidelines and give thoughtful, careful consideration 
to the assessment that is most appropriate for an individual student so 
that the situation described by the commenters does not occur.
    Changes: None.
    Comment: One commenter recommended that the regulations allow a 
State to determine the number of students in an LEA who may take an 
alternate assessment based on alternate or modified academic 
achievement standards. The commenter also recommended giving a State 
the authority to take corrective action to prevent an LEA from 
exceeding the 1.0 and 2.0 percent caps.
    Discussion: Permitting a State to impose numeric limits on the 
number of students to whom an LEA may administer alternate assessments, 
thereby excluding a student whose IEP Team determines that an alternate 
assessment is the most appropriate assessment for the student, would be 
inconsistent with the IDEA. Section 614(d)(1)(A)(i)(VI) of the IDEA 
gives a student's IEP Team the authority to determine how a student 
with a disability will participate in State and district-wide 
assessments. IEP Team decisions should be consistent with State 
guidelines, including guidelines for alternate assessments based on 
alternate or modified academic achievement standards. Therefore, we 
cannot make the change requested by the commenter.
    With regard to the commenter's second recommendation to give a 
State the authority to take corrective action to prevent an LEA from 
exceeding the 1.0 percent and 2.0 percent caps, under Sec.  
200.13(c)(3), an LEA may exceed the 2.0 percent cap only if the number 
of proficient and advanced scores on the alternate assessment based on 
alternate academic achievement standards is less than 1.0 percent, and 
the number of proficient and advanced scores based on modified and 
alternate academic achievement standards combined does not exceed 3.0 
percent of all students assessed. Likewise, a State may grant an 
exception to an LEA and permit the LEA to exceed the 1.0 percent cap 
under the conditions listed in Sec.  200.13(c)(5). If an LEA does not 
abide by these provisions and exceeds the 1.0 and 2.0 percent caps 
inappropriately, Sec.  200.13(c)(7) already requires a State to count 
as non-proficient the proficient and advanced scores that exceed the 
caps and determine which scores to count as non-proficient in the 
schools and LEAs responsible for students who are assessed based on 
alternate or modified academic achievement standards.
    Changes: None.
    Comment: One commenter asked if a State would be allowed to assess 
students on alternate assessments based on alternate academic 
achievement standards if the State chose not to assess students based 
on modified academic achievement standards.
    Discussion: The development of modified academic achievement 
standards and assessments based on those standards is voluntary and 
does not affect a State's implementation of alternate assessments based 
on alternate academic achievement standards. Therefore, a State that 
already provides an alternate assessment based on alternate academic 
achievement standards may choose not to provide an alternate assessment 
based on modified academic achievement standards.
    Changes: None.
    Comment: Several commenters opposed the prohibition on a State 
requesting an exception to the 1.0 percent cap on the number of 
proficient and advanced scores on alternate assessments based on 
alternate academic achievement standards that may be included in AYP 
determinations. Some commenters recommended permitting a State to 
exceed a combined total of 3.0 percent; other commenters supported a 
``dotted line'' approach that would set an absolute cap of 3.0 percent, 
but would permit a State to exceed the 1.0 percent cap or the 2.0 
percent cap. Some commenters stated that, by not allowing exceptions, 
the Department was eliminating the distinction between students with 
the most significant cognitive disabilities and students for whom 
modified academic achievement standards are appropriate and asked what 
would happen to the scores of students in a State that had previously 
received an exception to exceed the 1.0 percent cap. Commenters also 
were concerned about rural States and the need for exceptions for very 
small school districts. Other commenters supported not allowing 
exceptions. One commenter stated that there should be a lower cap, and 
that exceptions should be permitted based on a lower cap.
    Discussion: The final regulations on alternate academic achievement 
standards permitted a State to request an exception to the 1.0 percent 
cap to account for extraordinary circumstances in the State that 
warranted an exception, or for a rural State with small numbers of 
students. Since the final regulations were issued in December 2003, the 
Department has granted exception requests to four States. Two requests 
were for statistical reasons due to the rural nature of the State. The 
other two requests were for very small increments over 1.0 percent. In 
both of the latter cases neither State has used the exception because 
less than 1.0 percent of students tested scored proficient or advanced 
on the alternate assessment based on alternate academic achievement 
standards.
    Based on the requests submitted to date, we believe that there is 
no real need to have an exception to the 1.0 percent cap at the State 
level. When there are truly unique circumstances within an LEA, such as 
a hospital with special services, the LEA exception process should 
suffice. In addition, as we stated in the preamble to the proposed 
regulations on modified academic achievement standards, we do not 
believe that it is appropriate or necessary to permit more than 3.0 
percent of proficient and advanced scores on alternate assessments 
based on alternate or modified academic achievement standards to be 
included in AYP determinations.
    We do not agree with the commenters who proposed an absolute cap of 
3.0 percent while allowing a State to exceed the 1.0 or 2.0 percent 
caps. Section 200.13(c)(3) permits a State's or LEA's number of 
proficient and advanced scores based on modified academic achievement 
standards to exceed the 2.0 cap only if the number of proficient and 
advanced scores based on alternate academic achievement standards is 
less

[[Page 17767]]

than 1.0 percent. We believe that this may encourage the participation 
of students who are currently assessed based on alternate academic 
achievement standards to be assessed based on the more challenging 
modified academic achievement standards. A State may not exceed the 1.0 
percent cap when there are less than 2.0 percent of proficient and 
advanced scores on modified academic achievement standards because we 
do not want to create an incentive to identify more students for 
alternate assessments based on the less challenging alternate academic 
achievement standards.
    Changes: None.
    Comment: One commenter recommended changing Sec.  
200.13(c)(5)(i)(C) to require an LEA to document that it is ``fully and 
effectively'' implementing the State's guidelines for IEP Teams before 
it is granted an exception to the 1.0 percent cap on proficient and 
advanced scores based on alternate academic achievement standards.
    Discussion: Section 200.13(c)(5) permits a State to grant an 
exception to an LEA to exceed the 1.0 percent cap on proficient and 
advanced scores based on alternate academic achievement standards if 
the LEA demonstrates that the incidence of students with the most 
significant cognitive disabilities exceeds 1.0 percent of all students 
in the combined grades assessed, and if the LEA explains why the 
incidence of such students exceeds 1.0 percent of all students in the 
combined grades assessed.
    We do not believe it is necessary to add the requirement suggested 
by the commenter that an LEA demonstrate that it has fully and 
effectively implemented the State's guidelines. A State must seriously 
consider whether to grant an exception to an LEA to exceed the 1.0 
percent cap because the State may not exceed the 1.0 percent cap. We 
believe that, in the course of determining whether to grant an 
exception to an LEA, a State will consider whether the LEA has followed 
the State's guidelines and appropriately identified students to 
participate in an alternate assessment based on alternate academic 
achievement standards.
    Changes: None.

Making Adequate Yearly Progress (Sec.  200.20)

    Comment: One commenter stated that multiple assessment 
administrations should be permitted for all students, not just for 
students with disabilities.
    Discussion: Current Sec.  200.20(c)(3) applies to all students, not 
just students with disabilities. Therefore, the removal of current 
Sec.  200.20(c)(3) permits multiple test administrations for all 
students.
    Changes: None.
    Comment: Most commenters supported removing current Sec.  
200.20(c)(3), which requires a State to use a student's results from 
the first administration of the State assessment to determine AYP. 
However, a number of commenters opposed this change and requested that 
the regulations continue to require a State to use the results from the 
first administration of a test. A few commenters stated that the 
results from only the first administration of an assessment should be 
used because these scores provide a more accurate measure of school 
accountability. The commenters stated that accountability 
determinations based on the first assessment administered reflect the 
effectiveness of a school's core academic program, while scores from 
subsequent administrations improve a school's AYP and give credit for 
successful remediation.
    One commenter expressed concern that administering an assessment 
multiple times compromises the reliability of accountability 
determinations because students learn the test. Another commenter 
requested additional guidance regarding how many times a State may 
administer an assessment and whether different forms of the assessment 
must be used. Some commenters suggested limiting retests to one 
additional test administration each year to avoid excessive testing and 
delays in releasing AYP data.
    One commenter suggested changing the regulations to prevent 
retesting a student with a different type of assessment or in a 
different manner (e.g., with an accommodation) for the sole purpose of 
obtaining a proficient score. Several commenters expressed concern that 
the removal of current Sec.  200.20(c)(3) would result in excessive 
testing. Other commenters stated that allowing a State to use the best 
score from multiple administrations of a test might result in teachers 
concentrating on test preparation instead of improving instruction.
    Discussion: A State that permits multiple administrations of its 
assessment must ensure that the assessment continues to be reliable and 
valid and provides an accurate measure of school accountability.
    We understand that permitting multiple administrations of an 
assessment may raise concerns about over-testing and focusing on test 
preparation, rather than instruction. However, we continue to believe 
that allowing a State to use the best score of multiple administrations 
of an assessment will motivate students, parents, schools, and States 
to continue working to attain grade-level achievement and thereby 
result in greater student success.
    Changes: None.
    Comment: A few commenters recommended allowing a student's IEP Team 
to determine the number of times the student may retake an assessment.
    Discussion: The IEP Team is responsible for determining how a 
student will participate in State and district-wide assessments. (See 
Sec.  300.320(a)(6) of the IDEA regulations.) Determining the number of 
times a student retakes an assessment is not the role of the IEP Team. 
IEP Teams do not have the authority to override a State policy 
regarding the number of times a student may take an assessment.
    Changes: None.
Including Scores of Students Previously Identified Under IDEA in AYP 
Calculations for the Students With Disabilities Subgroup (Sec.  
200.20(f))
    Comment: A number of commenters supported proposed Sec.  
200.20(f)(1), which permits a State, in calculating AYP for the 
students with disabilities subgroup, to include, for up to two years, 
the scores of students who were previously identified under section 
602(3) of the IDEA but who no longer receive special education 
services. These commenters applauded this section as acknowledging 
students' academic achievement and recognizing the positive impact of 
schools, teachers, and parents in facilitating that success.
    A number of other commenters, however, disagreed. These commenters 
expressed concern that allowing a State to include former students with 
disabilities in the students with disabilities subgroup would mask the 
true performance of students with disabilities and shift the focus away 
from improving instruction for those students. One commenter stated 
that including former students with disabilities in the disabilities 
subgroup would ensure that the disability label would continue to 
follow the students.
    Discussion: We recognize that the students with disabilities 
subgroup is one whose membership can change from year to year as 
students who were once identified as needing services and an IEP exit 
the subgroup. Because these students have exited the subgroup, school 
assessment results for the students with disabilities subgroup would 
not reflect the gains the exiting students have made in academic 
achievement. Recognizing this situation, the final regulations allow a 
State to

[[Page 17768]]

include ``former students with disabilities'' within the students with 
disabilities subgroup in making AYP determinations for up to two AYP 
determination cycles after they no longer receive special education 
services.
    At the same time, however, we recognize that it is important that 
parents and the public have a clear picture of the academic achievement 
of those students with disabilities who remain identified under section 
602(3) of the IDEA. Thus, the final regulations distinguish between 
including former students with disabilities in the subgroup for 
reporting assessment data and including them in the subgroup when 
reporting AYP on State and LEA report cards.
    Under section 1111(h)(1)(C) and section 1111(h)(2)(B) (as that 
section applies to an LEA and each school served by the LEA) of the 
ESEA, information on subgroups is reported in two distinct ways. Under 
section 1111(h)(1)(C)(i), (iii), (iv), (v), and (vi) and section 
1111(h)(2)(B) (as that section applies to an LEA and each school served 
by the LEA) of the ESEA, information is reported for all students and 
the students in each subgroup, regardless of whether a student's 
achievement is used in determining if the subgroup has made AYP (i.e., 
reporting includes students who have not been enrolled for a full 
academic year, as defined by the State, and students in subgroups too 
small to meet the State's minimum group size for determining AYP). For 
reporting under these provisions, former students with disabilities may 
not be included in the students with disabilities subgroup because it 
is important that parents and the public have a clear picture of the 
academic achievement of students with disabilities who are currently 
identified under section 602(3) of the IDEA and are receiving services. 
On the other hand, section 1111(h)(1)(C)(ii) and section 1111(h)(2)(B) 
(as that section applies to an LEA and each school within the LEA) 
provide for a comparison between the achievement levels of subgroups 
and the State's annual measurable achievement objectives for AYP in 
reading/language arts and mathematics (for all students and 
disaggregated by race/ethnicity, disability status, English 
proficiency, and status as economically disadvantaged). For this 
section of State and LEA report cards, a State and its LEAs are 
reporting on how students whose assessment scores were used in 
determining AYP (i.e., students enrolled for a full academic year) for 
reading/language arts and mathematics compare to the State's annual 
measurable objective for AYP. For reporting AYP by subgroup, former 
students with disabilities may be included in the students with 
disabilities subgroup. In this way, a school's and district's 
accountability status will reflect their good work in successfully 
enabling students with disabilities to make progress so that they no 
longer need special education services while providing parents and the 
public clear information on how the subgroup of students with 
disabilities who are still receiving services is performing.
    We note, of course, that former students with disabilities, because 
they are no longer receiving services under section 602(3) of the IDEA, 
would not be eligible to be assessed based on either alternate or 
modified academic achievement standards.
    With regard to the commenter who expressed concern that including 
the scores of former students with disabilities in the students with 
disabilities subgroup would ensure that the disability label would 
follow the student, we do not agree. Students who no longer receive 
special education services are not ``labeled'' as such. The inclusion 
of their scores in the students with disabilities subgroup is for AYP 
purposes only.
    Since the publication of the NPRM on modified academic achievement 
standards, the Department published final regulations on the 
accountability for recently-arrived and former limited English 
proficient (LEP) students (71 FR 54187 (Sept. 13, 2006)) (referred to 
in this notice as the LEP regulations). The final LEP regulations 
permit a State, in determining AYP for the subgroup of LEP students, to 
include, for up to two AYP determination cycles, the scores of students 
who were LEP, but who no longer meet the State's definition of limited 
English proficiency. The final regulations regarding including the 
scores of former students with disabilities in AYP determinations that 
are a part of this notice mirror the final LEP regulations in current 
Sec.  200.20(f)(2). Therefore, we have incorporated the provisions from 
proposed Sec.  200.20(f)(1), regarding former students with 
disabilities, into current Sec.  200.20(f)(2). Incorporating these 
provisions into current Sec.  200.20(f)(2) has resulted in several 
changes to the structure of current Sec.  200.20(f)(2) and the 
provisions in proposed Sec.  200.20(f)(1). For example, current Sec.  
200.20(f)(2) has been organized into paragraphs (f)(2)(i)(A) and 
(f)(2)(i)(B) to include provisions regarding the scores of former LEP 
students and former students with disabilities in the LEP subgroup and 
students with disabilities subgroup, respectively. We have not detailed 
all these changes in the discussion that follows because, while the 
structure of new Sec.  200.20(f)(2) differs from proposed Sec.  
200.20(f), the content regarding former students with disabilities is 
the same as proposed Sec.  200.20(f), with one exception, which is 
noted in the ``Changes'' section in the next comment.
    Changes: We have incorporated the provisions in proposed Sec.  
200.20(f) into current Sec.  200.20(f)(2). With these changes, proposed 
paragraphs (a)(1), (b), and (c)(1) are no longer needed and have been 
removed.
    Comment: Several commenters noted that the proposed regulations 
could permit a State to include only the scores of some students who 
have exited the students with disabilities subgroup. The commenters 
recommended that the regulations be amended to clarify that the scores 
of all former students with disabilities must be included in 
determining AYP if the scores of any former students with disabilities 
are included. The commenters reasoned that a State should not have the 
option to include only the proficient and advanced scores of former 
students with disabilities in order to raise the achievement level of 
the students with disabilities subgroup.
    Discussion: We agree with the commenters. Whether to include the 
scores of former students with disabilities in the students with 
disabilities subgroup for up to two years is a discretionary decision 
of each State. However, if a State makes the decision to include the 
scores of former students with disabilities for AYP calculations, it 
must include the scores of all such students; it may not include just 
the scores of some students--for example, those who scored proficient 
or advanced--and exclude the scores of others. Of course, former 
students with disabilities must be included in each other subgroup to 
which they belong--e.g., economically disadvantaged, Hispanic, etc. We 
have changed the regulations to require a State to use the scores of 
all former students with disabilities for AYP calculations if the State 
decides to include the scores of any former student with a disability.
    Changes: New Sec.  200.20(f)(2)(ii) has been changed by adding 
``must include the scores of all such students, but'' at the end of the 
sentence.
    Comment: One commenter recommended that proposed Sec.  200.20(f)(1) 
be amended to clarify that former students with disabilities also may 
be included in calculating the participation rate for the students with 
disabilities subgroup.

[[Page 17769]]

    Discussion: We do not believe it is appropriate to permit a State 
to include former students with disabilities in calculating the 
participation rate for the students with disabilities subgroup. Those 
students will be counted as participants in the ``all students'' group 
and in any other subgroup to which they belong. These final regulations 
permit a State to include the scores of former students with 
disabilities to determine AYP for the students with disabilities 
subgroup so that a school and LEA receive the benefits of their efforts 
in providing special education and related services that enabled 
students with disabilities to no longer need special education 
services. There is no similar justification for including former 
students with disabilities in calculating the participation rate of the 
students with disabilities subgroup. In fact, it is important for the 
public to know the participation rate of just students with 
disabilities because historically they have been excluded from 
Statewide assessments.
    Changes: None.
    Comment: Several commenters recommended that proposed Sec.  
200.20(f)(2) be amended to require that the number of former students 
with disabilities whose scores are used for AYP must also be included 
in the subgroup size for all purposes for which the scores are used. 
The commenters reasoned that the only reason to permit inclusion of the 
scores of former students with disabilities in determining AYP without 
adding those students to the number of students who make up the 
subgroup is to keep those students from increasing the subgroup beyond 
the minimum group size and thereby making it visible in AYP.
    Discussion: The regulations are designed to assist schools and LEAs 
that have a students with disabilities subgroup of sufficient size 
(without including former students with disabilities) to yield 
statistically reliable information to demonstrate their progress with 
that subgroup by enabling those schools and LEAs to include the scores 
of former students with disabilities in AYP calculations for up to two 
years after the students no longer need special education services. 
Therefore, we decline to require a State or LEA that takes advantage of 
this flexibility also to include former students with disabilities in 
determining whether the students with disabilities subgroup meets the 
State's minimum group size. Nothing in these regulations would prevent 
a State or LEA that wishes to include former students with disabilities 
in the students with disabilities subgroup in determining whether a 
school or LEA has a sufficient number of students to yield 
statistically reliable information under Sec.  200.7(a) from doing so.
    Changes: None.

Definitions (Sec.  200.103)

    Comment: A few commenters recommended including a definition of 
``universal design'' in these regulations.
    Discussion: We do not believe it is appropriate to include a 
definition of ``universal design'' in these regulations because it is a 
term of art with different meanings when applied to different products 
and services. As applied to assessments, universal design generally 
means that assessments are developed to be accessible for the widest 
possible range of students.
    Changes: None.
    Comment: A few commenters recommended defining ``pupil services'' 
to mean ``related services,'' as defined in section 602(26) of the 
IDEA.
    Discussion: Equating ``pupil services'' with ``related services'' 
would be inconsistent with the ESEA. Section 9101(36) of the ESEA 
already defines ``pupil services'' as including ``related services.'' 
Therefore, we decline to make the change requested by the commenter.
    Changes: None.

Part 300--Assistance to States for the Education of Children With 
Disabilities

    This summary includes comments made in response to the Title I NPRM 
published in the Federal Register on December 15, 2005 (70 FR 74624), 
as well as comments made in response to the proposed IDEA regulations 
published in the Federal Register on June 21, 2005 (70 FR 35839) to 
implement the IDEA as reauthorized by the Individuals with Disabilities 
Education Improvement Act of 2004, Public Law No. 108-446, enacted on 
December 3, 2004, regarding the inclusion of children with disabilities 
in State and district-wide assessment systems in accordance with 
section 612(a)(16) of the IDEA.

Participation in Assessments (Sec.  300.160)

General (Sec.  300.160)

    Comment: A few commenters requested that the regulations clearly 
state that all students must participate in a State's assessment 
program except for a child with a disability who is medically fragile 
and cannot tolerate the stress of participating in an assessment.
    Discussion: We cannot make the requested change. Section 
300.160(a), consistent with section 612(a)(16)(A) of the IDEA, is clear 
that a State must ensure that all children with disabilities are 
included in State and district-wide assessment programs. Neither the 
IDEA nor these regulations permit categorical exceptions to this 
requirement.
    Changes: None.
    Comment: One commenter expressed concern that LEAs would have 
difficulty developing alternate assessments for district-wide 
assessments and requested assistance in identifying ways for LEAs to 
meet the requirements in section 612(a)(16)(A) of the IDEA.
    Discussion: Section 612(a)(16)(A) of the IDEA is clear that all 
children must participate in State as well as district-wide 
assessments. This has been a requirement since the 1997 reauthorization 
of the IDEA. LEAs that conduct district-wide assessments must provide 
an alternate assessment for children who cannot participate in the 
district-wide assessment even with accommodations. Identifying the 
manner in which an LEA meets this requirement, however, is a matter 
that is best determined by State and local officials.
    Changes: None.
    Comment: One commenter recommended requiring benchmarks or short-
term objectives to be developed for students with disabilities 
participating in alternate assessments based on modified academic 
achievement standards.
    Discussion: Section 614(d)(1)(A)(i)(I)(cc) of the IDEA requires 
benchmarks or short-term objectives to be included only in the IEPs of 
children with disabilities who participate in alternate assessments 
based on alternate academic achievement standards. Alternate 
assessments based on modified academic achievement standards are not 
alternate assessments based on alternate academic achievement 
standards. Therefore, we do not believe that benchmarks or short-term 
objectives should be required for children with disabilities who 
participate in alternate assessments based on modified academic 
achievement standards. Congress specifically limited the requirement 
for benchmarks and short-term objectives to the IEPs of children with 
the most significant cognitive disabilities who participate in 
alternate assessments based on alternate academic achievement 
standards. As the Senate Committee on Health, Education, Labor, and 
Pensions noted in Sen. Rep. No. 108-185 (p. 28), ``Short-term 
objectives and benchmarks can focus too much on minor details and 
distract from the real purpose of special education, which is to ensure 
that all children and youth with disabilities

[[Page 17770]]

achieve high educational outcomes and are prepared to participate fully 
in the social and economic fabric of their communities.''
    We believe that students participating in alternate assessments 
based on modified academic achievement standards will benefit more when 
IEP Teams focus on goals that are based on grade-level content 
standards, rather than on short-term objectives or benchmarks. In the 
discussion of comments under Sec.  200.1(e)(2)(iii) in this notice, we 
explain why we are requiring that the IEPs of children taking alternate 
assessments based on modified academic achievement standards include 
goals based on the academic content standards for the grade in which 
the student is enrolled and that the IEP be designed to monitor the 
student's progress in achieving the student's standards-based goals.
    Changes: None.

Accommodation Guidelines (Sec.  300.160(b))

    Comment: A few commenters requested that the regulations clarify 
that accommodations that invalidate a score when used in an assessment 
may continue to be used in classroom instruction. Other commenters 
recommended that the regulations clarify that the accommodation 
guidelines are to be used by IEP Teams to recommend necessary and 
reasonable accommodations to enable a student to participate both in 
the instructional program and in the assessment.
    Discussion: The requirements in Sec.  300.160(b) pertain to 
guidelines for the use of accommodations in assessments, and do not 
speak to the use of accommodations in the classroom. However, there is 
nothing in the IDEA or these regulations that would prohibit the use of 
accommodations in classroom instruction that, if used in a State 
assessment, would invalidate a student's score. Likewise, there is 
nothing in the IDEA or these regulations that would prohibit a State 
from encouraging IEP Teams to use the accommodation guidelines for 
assessments to determine the instructional supports to be provided in 
the classroom. Such instructional supports are generally referred to as 
supplementary aids and services. Section 300.320(a)(4)(i), consistent 
with section 614(d)(1)(A)(i)(IV)(aa) of the IDEA, requires the IEP Team 
to identify the supplementary aids and services to be provided to a 
child to enable the child to advance appropriately toward meeting the 
child's annual IEP goals.
    Changes: None.
    Comment: One commenter recommended requiring States and LEAs to 
have methodologies in place to determine that the accommodations 
provided are valid and reliable and can be objectively determined. A 
few commenters recommended requiring a State to submit proposed 
accommodations for review and approval by a panel of peer reviewers.
    Discussion: The Department's peer review of Statewide assessment 
systems under Title I of the ESEA already requires a State to provide 
evidence that the State's assessments are valid and reliable for the 
purposes for which the assessments are used, and are consistent with 
relevant, nationally recognized professional and technical standards. A 
State must also provide evidence that appropriate accommodations are 
available to students with disabilities.
    For State and LEA assessments that are not part of a State's 
assessment system under Title I of the ESEA, a State and its LEAs also 
have an obligation, under the IDEA, to ensure that children with 
disabilities have available the accommodations that are necessary to 
measure the academic achievement and functional performance of the 
child. In order to do this, States and LEAs need to determine, for each 
particular assessment, the accommodations that will not result in 
invalid scores and identify those accommodations in their accommodation 
guidelines. We have revised Sec.  300.160(b)(2)(i) to make this clear.
    The IDEA does not dictate a specific process to be followed in 
determining allowable accommodations, and, therefore, we decline to 
adopt the recommendations that we do so at this time. We will continue 
to evaluate whether States are ensuring that accommodations that would 
not result in invalid scores are available and revisit this decision if 
the need to do so becomes apparent.
    The commenters who recommended requiring a State to submit proposed 
accommodations for review and approval by a panel of peer reviewers 
seem to be proposing a review to determine the appropriateness of 
accommodations that would be divorced from any review of the technical 
qualities of the State's assessments. Since decisions about whether a 
particular accommodation is or is not allowed depend on how a test is 
constructed and validated, we are not making the requested change. As 
required by Sec. Sec.  200.2(b)(2) and 200.6(a)(1), a State already is 
under the obligation to ensure that its assessments under Title I of 
the ESEA are designed to be used by the widest possible number of 
students, and to ensure that accommodations are provided, when 
necessary, to measure the academic achievement of students with 
disabilities.
    Changes: Section 300.160(b)(2)(i) has been changed to require a 
State's guidelines (or in the case of a district-wide assessment, an 
LEA's guidelines) to identify the accommodations for each assessment 
that do not invalidate the score.
    Comment: One commenter noted that the regulations must continue to 
allow IEP Teams to select accommodations based on the needs of their 
students, without regard to whether the accommodation could yield a 
valid score.
    Discussion: Several sections of the IDEA must be considered to 
evaluate the proper role of a State in identifying accommodations that 
do not invalidate the scores of children with disabilities (and result 
in children being counted as nonparticipants) and the responsibility of 
individual IEP Teams to select accommodations for individual children. 
Under section 612(a)(16) of the IDEA, a State has a responsibility to 
ensure that all children with disabilities are included in State and 
district-wide assessments. Under section 614(d)(1)(A)(i)(VI) of the 
IDEA and Sec.  300.320(a)(6)(i) of the IDEA regulations, a child's IEP 
must include the individual appropriate accommodations that are 
necessary to measure the academic achievement and functional 
performance of the child.
    A State's role in this regard is thus twofold--it must ensure that 
children with disabilities are included in the assessments and that the 
accommodations that are offered to individual children with 
disabilities are ones that allow a child's academic achievement to be 
measured. This carries with it, we believe, a responsibility for each 
State to clearly identify for IEP Teams those accommodations that, if 
used, will not result in an invalid score, so that children with 
disabilities will be appropriately included in assessments. Therefore, 
as noted earlier, we have changed Sec.  300.160(b)(2)(i) to require 
State and LEA guidelines to identify the accommodations for each 
assessment that do not result in invalid scores. We also believe that, 
to meet its responsibility to ensure that children with disabilities 
are included in assessments, a State needs to instruct IEP Teams to 
select only accommodations that do not result in invalid scores. The 
child's IEP Team, though, remains the primary decisionmaker for the 
accommodations

[[Page 17771]]

that will be made available to the child. Therefore, we have changed 
Sec.  300.160(b)(2)(ii) to make clear that State and LEA guidelines 
must instruct IEP Teams to select only accommodations that do not 
result in invalid scores.
    Changes: We have changed Sec.  300.160(b)(2)(ii) to require that 
State and LEA guidelines instruct IEP Teams to select, for each 
assessment, only those accommodations that do not invalidate a score.
    Comment: Several commenters stated that a State's accommodation 
guidelines should focus on ``appropriate accommodations'' and not 
require ``valid accommodations.'' These commenters stated that the 
focus should be on universally-designed assessments that allow many 
more accommodations, rather then denying children with disabilities the 
right to use the accommodations that are necessary to meet the child's 
needs. Another commenter recommended defining ``appropriate 
accommodations'' and ``individually appropriate accommodations'' as 
accommodations that are needed to meet a child's unique needs that 
maintain and preserve test validity, reliability, and technical testing 
standards.
    Discussion: Tests administered with accommodations that do not 
maintain test validity are not measuring academic achievement and 
functional performance. Therefore, providing these accommodations would 
be inconsistent with Sec.  300.320(a)(6)(i) and section 
614(d)(1)(A)(i)(VI)(aa) of the IDEA, which require each IEP to include 
the appropriate accommodations that are necessary to measure the 
academic and functional performance of a child on State and district-
wide assessments. With regard to the recommendation that a State focus 
on universally designed assessments, new Sec.  300.160(g) (proposed 
Sec.  300.160(f)) already incorporates the requirement in section 
612(a)(16)(E) of the IDEA that a State, in the case of Statewide 
assessments, and an LEA, in the case of district-wide assessments, to 
the extent possible, use universal design in developing and 
implementing assessments. Moreover, Sec.  200.2(b)(2) of the Title I 
regulations requires a State's assessment system to ``[b]e designed to 
be valid and accessible for use by the widest possible range of 
students, including students with disabilities.''
    It is not necessary to provide specific definitions of the terms 
``appropriate accommodations'' and ``individually appropriate 
accommodations'' because we have revised the provisions in Sec.  
300.160(b) to clarify what the accommodations guidelines need to 
include.
    Changes: None.
    Comment: One commenter requested that the regulations require a 
State and its LEAs to provide research-based decision-making tools for 
IEP Team members to determine appropriate testing accommodations. A few 
commenters recommended that the Department provide guidance regarding 
accommodations for children with disabilities and require States and 
LEAs to provide professional development to school personnel regarding 
the participation of students with disabilities in State and district-
wide assessments.
    Discussion: We do not believe that additional regulations are 
necessary to address the commenters' concerns. Section 300.160(b) 
already requires each State (or in the case of a district-wide 
assessment, an LEA) to develop guidelines for IEP Teams to use 
regarding the provision of appropriate accommodations. Section 
200.6(a)(1)(ii)(B) of the Title I regulations also requires each State 
to 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 disabilities.
    The Department has devoted considerable resources to provide 
technical assistance to States regarding the appropriate use of 
accommodations for children with disabilities. For example, the Office 
of Special Education Programs supports the National Center on 
Educational Outcomes (See http://www.education.umn.edu/nceo/) and the 
Office of Elementary and Secondary Education supports a Comprehensive 
Center on Accountability and Assessments (See http://www.aacompcenter.org/). In addition, the Department's Institute of 
Education Sciences supports research to address questions of how 
assessments for accountability can best be designed and used to capture 
and represent proficiency and growth for children with disabilities 
(See http://ies.ed.gov/ncser/).
    Changes: None.
    Comment: One commenter recommended requiring a State to have in 
effect policies and procedures that explain how children with 
disabilities are included in assessments. The commenter stated that the 
policies and procedures related to assessments must include a clear 
statement that the IEP Team, including the parent, makes the decision 
regarding a child's participation in State and district-wide 
assessments; how parents will be notified when decisions regarding the 
child's participation in assessments will be made; and when reports 
will be distributed to parents and the public. A few commenters 
requested that the regulations require the IEP to include the 
accommodations to be provided to a child.
    Discussion: The requirements recommended by the commenters are 
already addressed in these and other existing regulations. Section 
300.160(a), consistent with section 612(a)(16) of the IDEA, requires 
each State to have in effect policies and procedures to ensure that all 
children with disabilities in the State are included in State and 
district-wide assessments, with appropriate accommodations and 
alternate assessments where necessary. Section 300.320(a)(6), 
consistent with section 614(d)(1)(A)(i)(VI) of the IDEA, requires a 
child's IEP Team, which includes the parent, to include in the IEP any 
individual appropriate accommodations that are necessary to measure the 
academic achievement and functional performance of the child on State 
and district-wide assessments. If the IEP Team determines that a child 
will take an alternate assessment, the IEP Team must explain why the 
child cannot participate in the regular assessment and why the 
particular alternate assessment selected is appropriate for the child. 
Section 300.322(b) requires that the notice to the parent regarding an 
IEP Team meeting indicate the purpose of the meeting, in addition to 
the time and location of the meeting. Finally, new Sec.  300.160(f) 
(proposed Sec.  300.160(e)) requires that reports on the performance of 
children with disabilities on State and district-wide assessments be 
available to the public with the same frequency and in the same detail 
as reports on the assessment of nondisabled children.
    Changes: None.
    Comment: One commenter stated that the requirement for valid 
accommodations will lead to increased litigation because it violates 
section 607(a) and (b) of the IDEA.
    Discussion: We disagree with the commenter. Section 607(a) of the 
IDEA states that the Secretary shall issue regulations only to the 
extent that such regulations are necessary to ensure compliance with 
the specific requirements of the IDEA. Section 607(b) of the IDEA 
provides that the Secretary cannot publish final regulations that would 
procedurally or substantively lessen the protections provided to 
children with disabilities in

[[Page 17772]]

the regulations that were in effect on July 20, 1983, except to the 
extent that such regulations reflect the clear and unequivocal intent 
of Congress in legislation. We believe that Sec.  300.160(a) is 
necessary to ensure that the requirements in sections 612(a)(16) and 
614(d)(1)(A)(i)(VI)(aa) of the IDEA are met, does not lessen 
protections for children with disabilities that were in regulations in 
effect in 1983 (the 1983 regulations did not address assessments), and 
reflects the clear and unequivocal intent of Congress. Section 
614(d)(1)(A)(i)(VI)(aa) of the IDEA requires each IEP Team to include 
in an IEP the appropriate accommodations that are necessary to measure 
the academic and functional performance of a child on State and 
district-wide assessments. Tests administered with accommodations that 
do not maintain test validity are not measuring academic achievement. 
Moreover, the importance of identifying valid accommodations was 
recognized on page 97 of the House Committee Report No. 108-77 (2003):

    * * * States have an affirmative obligation to determine what 
types of accommodations can be made to assessments while maintaining 
their reliability and validity * * *. The Committee is intent on 
ensuring that each child with a disability receives appropriate 
accommodations, but is equally intent that these accommodations not 
invalidate the particular assessment.

    Similarly, the Senate Committee Report No. 108-185 (2003) on page 
30 acknowledges that appropriate accommodations will not affect the 
test's validity. Accordingly, we disagree that the validation 
requirement violates section 607(a) or (b) of the IDEA.
    Changes: None.
    Comment: One commenter requested a definition of ``valid.'' Another 
commenter stated that the regulations should make clear that 
accommodations that alter the construct being assessed are not allowed.
    Discussion: As used in Sec.  300.160(a), a ``valid'' accommodation 
is an accommodation that does not alter the construct that the test is 
intended to measure. Accommodations that affect test validity do not 
measure a child's academic achievement. We believe the requirement for 
valid accommodations is sufficient to guide IEP Teams and, therefore, 
decline to add the suggested language to the regulation.
    The Department's nonregulatory guidance on standards and assessment 
defines validity (See question F-4.) and further clarifies a State's 
responsibilities for the validity and reliability of assessments under 
Title I. This document can be found at http://www.ed.gov/policy/elsec/guid/saaguidance03.doc. We do not believe additional clarification is 
needed in these regulations.
    Changes: None.
    Comment: Several commenters requested that definitions of 
``accommodations'' and ``modifications'' be included in these 
regulations because definitions of these two terms vary across States.
    Discussion: The terms ``accommodations'' and ``modifications'' are 
terms of art and have different meanings depending on the context in 
which they are used. The terms are used in a number of ways, for 
example, to refer to changes to a test or testing environment, or to 
adaptations to an educational environment, the presentation of 
educational material, the method of response, or the educational 
content. We do not believe it is appropriate to define such terms of 
art in these regulations. We also note that the term ``modifications'' 
is not used in the IDEA amendments of 2004 or the ESEA, as amended by 
NCLB.
    Changes: None.
    Comment: One commenter stated that special accommodations should be 
given for children with the most significant cognitive disabilities.
    Discussion: Section 1111(b)(3)(C)(ix)(II) of the ESEA and section 
612(a)(16) of the IDEA already require a State to provide appropriate 
accommodations for students with disabilities to participate in State 
assessment systems. This includes accommodations for alternate 
assessments.
    Changes: None.
Alternate Assessments (New Sec.  300.160(c)) (Proposed Sec.  
300.160(d))
    Comment: One commenter stated that the regulations must specify 
that States and LEAs are required to develop two alternate 
assessments--one measuring the same academic achievement standards as 
all other students and the other based on alternate academic 
achievement standards for students with the most significant cognitive 
disabilities. A few commenters requested clarification as to whether 
alternate assessments are based on high academic achievement standards 
or alternate academic achievement standards. One commenter stated that 
a State should be required to provide a definition of what constitutes 
an alternate assessment.
    Discussion: Section 612(a)(16)(C)(i) of the IDEA is clear that a 
State must develop and implement alternate assessments and guidelines 
for children with disabilities, but does not specify whether the 
alternate assessments must be based on grade-level academic achievement 
standards, modified academic achievement standards, or alternate 
academic achievement standards. Modified academic achievement standards 
under Sec.  200.1(e) and alternate academic achievement standards under 
Sec.  200.1(d) are optional. However, having an alternate assessment is 
not optional if there are children with disabilities who cannot be 
appropriately assessed with the regular assessment. Therefore, if a 
State chooses not to develop an alternate assessment based on modified 
or alternate academic achievement standards, the State must have an 
alternate assessment based on grade-level academic achievement 
standards, unless all children with disabilities can be appropriately 
assessed using the regular assessment.
    Section 612(a)(16)(A) of the IDEA and Sec.  300.160(a) of these 
regulations require a State to ensure that all children with 
disabilities are included in general State and district-wide 
assessments. Section 612(a)(16)(C)(i) of the IDEA and new Sec.  
300.160(c) (proposed Sec.  300.160(d)) further require that a State (or 
in the case of a district-wide assessment, an LEA) develop and 
implement alternate assessments and guidelines for children with 
disabilities who cannot participate in regular assessments even with 
accommodations. Under Sec. Sec.  200.1(e) and 200.6(a)(3) of the Title 
I regulations published in this notice and new Sec.  300.160(c), a 
State has the option of developing alternate assessments based on 
modified academic achievement standards. For clarity, we have 
redesignated proposed Sec.  300.160(c) as new Sec.  300.160(c)(2)(ii) 
so that it is clear that an assessment based on modified academic 
achievement standards is an alternate assessment.
    Because a State has options regarding the type of alternate 
assessments that it will provide for students with disabilities, a 
State would not necessarily report on the number of students who 
participated in each of the alternate assessments. To acknowledge this 
and for clarity, we have made clear in new Sec.  300.160(f)(2) through 
(f)(4) (proposed Sec.  300.160(e)(2) through (e)(4)) that a State must 
report the number of children with disabilities, if any, who are 
assessed, using an Alternate assessment based on grade-level, modified, 
or alternate academic achievement standards, respectively. We also have 
removed the regulatory citations for the different academic achievement 
standards (e.g., ``described in paragraph (d)(2)(i)'') and added the 
name of the particular achievement standard to which we are referring 
(e.g., ``grade-level'') in new Sec.  300.160(f)(2)

[[Page 17773]]

through (f)(4) (proposed Sec.  300.160(e)(2) through (e)(4)).
    With regard to the request to clarify whether alternate assessments 
are based on high achievement standards or alternate academic 
achievement standards, this will depend on the type of alternate 
assessment. We believe that the regulations are clear that there are 
three types of alternate assessments permitted under Title I and the 
IDEA: alternate assessments based on grade-level academic achievement 
standards; Alternate assessments based on modified academic achievement 
standards; and alternate assessments based on alternate academic 
achievement standards.
    We do not believe it is necessary for a State to provide a 
definition of what constitutes an alternate assessment, as requested by 
one commenter. New Sec.  300.160(c)(2) (proposed Sec.  300.160(d)(2)) 
clearly lays out that alternate assessments under Title I of the ESEA 
must be aligned with a State's challenging academic content standards 
and challenging academic achievement standards and, if a State has 
adopted modified academic achievement standards or alternate academic 
achievement standards, measure student achievement against those 
standards.
    Changes: We have (1) redesignated proposed Sec.  300.160(c) as new 
Sec.  300.160(c)(2)(ii) and renumbered the subsequent paragraph; (2) 
added ``if any'' following ``number of children with disabilities'' in 
new paragraphs (f)(2) through (f)(4) (proposed paragraphs (e)(2) 
through (e)(4)); and (3) replaced the regulatory citation in new 
paragraphs (f)(2) through (f)(4) (proposed (e)(2) through (e)(4)) with 
the name of the particular academic achievement standards to which we 
are referring.
    Comment: Several commenters recommended requiring public agencies 
to notify parents in writing when a child's IEP Team determines that 
the child will participate in an alternate assessment. A few commenters 
recommended requiring parents to be informed in writing of the 
consequences of their child taking an alternate assessment, including 
any effect on the child's eligibility for graduation with a regular 
high school diploma. The commenters stated that providing this 
information to parents is particularly important in a State that 
requires students to pass a State exam in order to receive a regular 
high school diploma.
    Discussion: We agree that it is important for parents to be 
informed that their child will be assessed based on alternate or 
modified academic achievement standards. We also believe that it is 
important that parents, as well as other IEP Team members, are informed 
about any effects of State or local policies on their student's 
education that may result from taking an alternate assessment based on 
alternate or modified academic achievement standards. As the commenters 
point out, this information is particularly important in a State where 
students must pass a particular assessment to be eligible to receive a 
regular high school diploma. Therefore, we have added a regulation 
requiring a State to provide IEP Teams, which include the parent, with 
a clear explanation of the differences between assessments based on 
grade-level academic achievement standards and those based on modified 
or alternate academic achievement standards, including any effects of 
State or local policies on the student's education resulting from 
taking an alternate assessment based on alternate or modified academic 
achievement standards (such as whether only satisfactory performance on 
a regular assessment would qualify a student for a regular high school 
diploma). We also have required a State to ensure that parents of 
students selected to be assessed based on alternate or modified 
academic achievement standards are informed that their child's 
achievement will be measured based those standards. This also is 
consistent with Sec.  200.1(f)(1)(iii) and (iv) of the Title I 
regulations.
    We do not believe it is necessary to add an additional requirement 
that such parental notification be provided in writing, as suggested by 
several commenters. Parents are integral members of the IEP Team and, 
as such, are involved in decisions about how their child will 
participate in the Statewide assessment system. Section 
300.320(a)(6)(ii) of the IDEA regulations already provides that, if an 
IEP Team determines that a child will not participate in a particular 
regular State or district-wide assessment, the child's IEP must include 
a statement of why the child cannot participate in the regular 
assessment and how that child will be assessed. Under Sec.  300.322(f), 
a copy of the child's IEP must be provided to the parents.
    Changes: We have added new paragraph (d) to Sec.  300.160 requiring 
a State to provide IEP Teams with a clear explanation of the 
differences between assessments based on grade-level academic 
achievement standards and those based on modified or alternate academic 
achievement standards, including any effects of State or local policies 
on the student's education resulting from taking an alternate 
assessment based on alternate or modified academic achievement 
standards (such as whether only satisfactory performance on a regular 
assessment would qualify the student for a regular high school 
diploma). We also have added a new paragraph (e) requiring a State to 
ensure that parents of students selected to be assessed based on 
alternate or modified academic achievement standards are informed that 
their child's achievement will be measured based on alternate or 
modified academic achievement standards. The subsequent paragraph has 
been redesignated as new paragraph (f).
Reports (New Sec.  300.160(f)) (Proposed Sec.  300.160(e))
    Comment: One commenter strongly disagreed with reporting on the 
number of students with disabilities who receive accommodations. The 
commenter stated that, since accommodations do not change the outcome 
or alter the knowledge measured by the test, it is inappropriate to 
maintain this information.
    Discussion: This is a statutory requirement and therefore cannot be 
deleted. Section 612(a)(16)(D)(i) of the IDEA requires a State (or in 
the case of a district-wide assessment, an LEA) to make available to 
the public information on the number of children with disabilities 
participating in regular assessments and the number of these children 
who were provided accommodations in order to participate in those 
assessments.
    Changes: None.
    Comment: A few commenters stated that accommodations that 
invalidate a test score should not be used and, therefore, it is 
unnecessary to qualify in new Sec.  300.160(f)(1) (proposed Sec.  
300.160(e)(1)) that the number of children participating in regular 
assessments who were provided with accommodations refers to the number 
of children participating in regular assessments who were provided with 
accommodations ``that did not result in an invalid score.''
    Discussion: We agree that accommodations that invalidate a test 
score should not be used. However, given the lack of consistency in the 
field regarding the use of the term ``accommodations,'' we believe it 
is important to be clear and to qualify in new Sec.  300.160(f)(1) 
(proposed Sec.  300.160(e)(1)) that reports on the assessment of 
children with disabilities who participate in regular assessments with 
accommodations include only those children who were provided with

[[Page 17774]]

accommodations that did not result in an invalid score. For clarity, we 
also have reordered the sequence in which the alternate assessments are 
listed in new paragraph (f) (proposed paragraph (e)) to be consistent 
with the order in new Sec.  300.160(c)(2) (proposed Sec.  
300.160(d)(2)).
    Changes: We have redesignated proposed Sec.  300.160(e)(3), 
regarding alternate academic achievement standards, as new Sec.  
300.160(f)(4) and redesignated proposed Sec.  300.160(e)(4)), regarding 
modified academic achievement standards, as new Sec.  300.160(f)(3).
    Comment: A few commenters recommended requiring a State to report 
on the number of children with disabilities who participated in the 
regular assessment with accommodations that invalidated their test 
scores. One commenter recommended requiring a State to report on the 
number of children who received accommodations that invalidated their 
test scores on alternate assessments based on alternate academic 
achievement standards and alternate assessments based on modified 
academic achievement standards.
    Discussion: Children taking an assessment with accommodations that 
invalidate their score should not be reported as participants. We 
specify in Sec.  300.160(b)(2)(ii) that a State must instruct IEP Teams 
to select only those accommodations for each assessment that do not 
result in invalid scores. Therefore, we decline to make the changes 
requested by the commenters.
    Changes: None.
    Comment: One commenter requested that a State be required to report 
on the performance of children with disabilities for each assessment, 
not just for regular assessments and alternate assessments.
    Discussion: We agree that the regulation would be clearer if it 
identified separately alternate assessments based on grade-level 
academic achievement standards, alternate assessments based on modified 
academic achievement standards, and alternate assessments based on 
alternate academic achievement standards. We have made this change in 
new Sec.  300.160(f)(5) (proposed Sec.  300.160(e)(5)). In addition, we 
have added the language inadvertently omitted requiring the performance 
results for children with disabilities to be compared to the 
achievement of all children, including children with disabilities, as 
specified in section 612(a)(16)(D)(iv) of the Act.
    Changes: We have changed Sec.  300.160(f)(5) (proposed Sec.  
300.160(e)(5)) to separately identify regular assessments, alternate 
assessments based on grade-level academic achievement standards, 
alternate assessments based on modified academic achievement standards, 
and alternate assessments based on alternate academic achievement 
standards. We also have added an introductory phrase requiring 
comparison with assessment results for all children, including children 
with disabilities.
    Comment: One commenter recommended requiring a State to widely 
distribute information about the reports required in new Sec.  
300.160(f) (proposed Sec.  300.160(e)) by posting the reports on Web 
sites, making the reports available in schools and libraries, and 
providing parents with notices that the information is available.
    Discussion: New Sec.  300.160(f) (proposed Sec.  300.160(e)), 
consistent with section 612(a)(16)(D)(i) of the IDEA, requires a State 
(or in the case of a district-wide assessment, an LEA) to make 
available to the public, and report to the public, with the same 
frequency and in the same detail as it reports on the assessment of 
nondisabled children, the information outlined in new Sec.  300.160(f) 
(proposed Sec.  300.160(e)) regarding the participation and performance 
of children with disabilities on State and district-wide assessments. 
The manner in which the information is provided to the public (e.g., 
via Web sites, parent notices) is a matter that is best left to State 
and local officials to determine.
    Changes: None.
Universal Design (New Sec.  300.160(g)) (Proposed Sec.  300.160(f))
    Comment: One commenter recommended requiring a State to document 
where universal design principles are not used.
    Discussion: New 300.160(g) (proposed Sec.  300.160(f)), consistent 
with section 612(a)(16)(E) of the IDEA, requires a State (or in the 
case of a district-wide assessment, an LEA), to the extent feasible, to 
use universal design principles in developing and administering 
assessments. We believe that implementing the commenter's 
recommendation (e.g., documenting ``universal design principles'') 
would require significant resources and time and be a burden for a 
State to report. Therefore, we decline to make the change requested by 
the commenter.
    Changes: None.

Executive Order 12866

    Under Executive Order 12866, the Secretary must determine whether 
this regulatory action is ``significant'' and therefore subject to the 
requirements of the Executive Order and subject to review by OMB. 
Section 3(f) of Executive Order 12866 defines a ``significant 
regulatory action'' as an action likely to result in a rule that may 
(1) have an annual effect on the economy of $100 million or more, or 
adversely affect a sector of the economy, productivity, competition, 
jobs, the environment, public health or safety, or State, local, or 
tribal governments or communities in a material way (also referred to 
as an ``economically significant'' rule); (2) create serious 
inconsistency or otherwise interfere with an action taken or planned by 
another agency; (3) materially alter the budgetary impacts of 
entitlement grants, user fees, or loan programs or the rights and 
obligations of recipients thereof; or (4) raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in the Executive order. The Secretary has 
determined that this regulatory action is significant under section 
3(f)(4) of the Executive Order.

1. Costs and Benefits

    Under Executive Order 12866, we have assessed the potential costs 
and benefits of this regulatory action.
    Summary of Public Comments: Several commenters suggested that the 
cost of implementing an alternate assessment based on modified academic 
achievement standards would be significant and that the Federal 
government should fund new assessments, including universally designed 
assessments. Some commenters disagreed with the figures from a study by 
the Government Accountability Office (GAO) cited in the NPRM, regarding 
the amount of funds spent on assessments in several States.
    These comments were considered in conducting the analysis of the 
costs and benefits of the final regulations. The Department's estimates 
and assumptions on which they are based are described below.

Summary of Potential Costs and Benefits

    These regulations provide States with additional flexibility in 
implementing the accountability requirements in Title I and the IDEA 
with respect to students with disabilities. Specifically, the final 
regulations permit States to develop and implement alternate 
assessments based on modified academic achievement standards for the 
group of students with disabilities, for whom, according to recent 
research and the experience of many States, these alternate assessments 
are appropriate, and then to use their

[[Page 17775]]

results in making AYP determinations. Implementation of these alternate 
assessments and standards would be a component of State and local 
efforts to improve educational outcomes for this group of students, 
consistent with the principles and objectives of NCLB.
    The primary impact of the regulations is on the students with 
disabilities who are eligible to be assessed based on modified academic 
achievement standards. The regulations provide educational benefits to 
students by permitting States and LEAs to assess eligible students with 
disabilities using assessments that are appropriately challenging but 
better designed to measure their educational strengths and weaknesses 
and evaluate their achievement of grade-level content, and to provide 
information that would be helpful to teachers to guide instruction to 
meet the academic needs of these students so they can work toward 
grade-level achievement. Based on an actual enrollment of 26.3 million 
students \10\ in grades 3 through 8 and 10 in school year 2004-2005, we 
estimate that as many as 530,000 children with disabilities could be 
affected by, and benefit from, this change in the assessment and 
accountability structure in school year 2008-2009.
---------------------------------------------------------------------------

    \10\ Common Core of Data (CCD), ``State Nonfiscal Survey of 
Public Elementary/Secondary Education, 2004-05 v.1c, National Center 
for Education Statistics, U.S. Department of Education.
---------------------------------------------------------------------------

    The potential costs to students would be the harm associated with 
including the ``wrong'' children in the group to be assessed based on 
modified academic achievement standards. Given the history of 
inappropriately low expectations for children with disabilities, the 
potential harm relates to finding students to be eligible for alternate 
assessments based on modified academic achievement standards who, in 
fact, with appropriate instruction and high quality special education 
services, might be able to achieve at the same high level as their non-
disabled peers. The risk is that low expectations could impede the 
ability of these students to perform to their potential. The Secretary 
believes that the risk of including the ``wrong'' students in the group 
to be assessed based on modified academic achievement standards is not 
high because of the central role that IEP Teams play in determining how 
individual children will be assessed. Moreover, any harm would be 
minimal because the regulations require the assessment determinations 
to be made on an annual basis by the IEP Team and they also include a 
number of safeguards to ensure that students who are to be assessed 
based on modified academic achievement standards have access to grade-
level content so that they can work toward grade-level achievement. The 
Secretary has concluded that the educational benefits of assessing a 
large number of students whose disabilities have prevented them from 
achieving grade-level proficiency using more appropriate assessments 
and standards will outweigh any potential harm associated with 
assessing children based on modified academic achievement standards who 
might have been able to reach grade-level proficiency in the same time 
frame as other students. In addition to these benefits to children, 
these regulations will give teachers and schools credit for work that 
they do with these students to help them progress toward grade-level 
achievement, even if they are unable to reach grade-level proficiency.
    Although States are not required to take advantage of the 
flexibility provided in these regulations, States may elect to do so, 
and, as a result, may incur additional administrative costs associated 
with the development of modified academic achievement standards and 
assessments based on those standards. However, little information is 
available for estimating these costs; we have used the limited 
information available to us to develop a rough estimate of the 
development costs for States that choose to take advantage of this 
flexibility.
    This analysis is based on a 2003 report, issued by the GAO, ``Title 
I: Characteristics of Tests Will Influence Expenses: Information 
Sharing May Help States Realize Efficiencies,'' that examined the costs 
of developing assessments based on grade-level academic achievement 
standards and provides estimates for the ongoing development 
expenditures for existing assessments for 7 States.\11\ We have some 
concerns about the accuracy of this information, its generalizibility, 
and its direct relevance to estimating the costs of developing 
alternate assessments based on modified academic achievement standards. 
With those caveats, we believe the report does provide some indication 
of the variation in costs among States in developing assessments and 
represents the best information available to us at this point in 
time.\12\
---------------------------------------------------------------------------

    \11\ U.S. Government Accountability Office, Report 03-389, pg. 
17.
    \12\ We received a comment from one State indicating that the 
cost of developing its assessments was approximately $250,000. 
However, we do not have any information about how that figure was 
derived and have, therefore, declined to use that estimate in this 
analysis.
---------------------------------------------------------------------------

    If we assume that GAO's category of ongoing development, which 
includes question writing and review, involves the kinds of activities 
that States would undertake in developing alternate assessments based 
on modified academic achievement standards, the GAO data can be used as 
a basis for projecting the possible costs of developing assessments 
based on modified academic achievement standards. For example, we can 
estimate an upper limit on the total costs of developing these 
alternate assessments--$169 million--by using the GAO data reported for 
Massachusetts \13\ and assuming that 52 jurisdictions would choose to 
develop alternate assessments based on modified academic achievement 
standards for each of the 17 assessments required by Title I to be 
administered in 2008-2009. Although this upper-bound estimate 
represents the best information available to us at this point in time, 
we believe it may significantly overstate the costs of developing these 
alternate assessments insofar as the estimate GAO included for 
Massachusetts, which was more than 2.4 times as large as the estimates 
included for 5 of the other States, may not be indicative of the costs 
of assessment development in other States using different types of 
questions or approaches to assessment.
---------------------------------------------------------------------------

    \13\ GAO reported test development expenditures of $190,870 for 
the State of Massachusetts.
---------------------------------------------------------------------------

    In addition, this estimate does not reflect the reduced costs for 
the 4 States that already have alternate assessments based on modified 
academic achievement standards in place under the interim flexibility 
policy. States that adopted alternate assessments based on modified 
academic achievement standards under the interim flexibility policy 
would still be required to undergo peer review once the final 
regulations are in effect. However, if the peer review determines that 
no adjustments are needed to any of the assessments in these States, 
the estimated cost of producing alternate assessments in the other 48 
jurisdictions would be reduced to $155 million.
    In addition, we do not know the extent to which States would elect 
to develop alternate assessments based on modified academic achievement 
standards for each grade and subject, since States that choose to take 
advantage of the flexibility are not required to develop modified 
academic achievement standards in every grade or every subject. 
However, in light of what we know about the performance of students 
with disabilities on State assessments and AYP determinations,

[[Page 17776]]

we think it is highly unlikely that all States would elect to develop 
alternate assessments based on modified academic achievement standards 
for all of the required 17 assessments. If we assume that typically 
States would develop only 8 assessments (e.g., reading/language arts 
and mathematics assessments for grades 6, 7, 8, and a high school 
grade), which may be a more accurate estimate of the impact of the rule 
based on the available information, the total costs would be estimated 
to be $79 million for 52 jurisdictions and $73 million for 48 
jurisdictions.
    Since the regulations would not require that States adopt separate 
test administration or scoring procedures, we assume that no additional 
costs would be incurred in administering assessments based on modified 
academic achievement standards. In addition, although many States 
choose to create new assessments or revise parts of assessments at 
regular intervals, this is not required by these regulations so these 
estimates assume that development costs are nonrecurring.
    States that elect to develop modified academic achievement 
standards would also incur minimal costs for the development and 
implementation of guidelines for IEP Teams to apply in determining 
whether these modified academic achievement standards are appropriate 
for particular students with disabilities. The Department will provide 
non-regulatory guidance regarding alternate assessments and modified 
academic achievement standards that States can use in developing their 
IEP Team guidelines.
    We assume States that elect to take advantage of this new 
flexibility to use modified academic achievement standards and 
assessments based on these standards will do so because they believe 
they will realize net benefits, primarily because of the benefits to 
students of being more appropriately assessed and, secondarily, because 
of the effect on AYP determinations. The benefits to States from 
adopting assessments based on modified academic achievement standards 
depend on such factors as whether the State has implemented assessments 
based on alternate academic achievement standards and whether the 
assessments are adaptable to a wide range of abilities, and the extent 
to which students with disabilities are able to participate 
appropriately in the State's general assessments. It also will depend, 
in part, on the extent to which the scores for the 2.0 percent of 
students affected by these regulations increase enough to meet the AYP 
goals for schools currently in need of improvement. Testing data for 
the 2003-2004 school year for 33 States for the Department's ``Study of 
State Implementation of Accountability and Teacher Quality Under 
NCLB,'' published in the ``National Assessment of Title I Interim 
Report: Volume I; Implementation of Title I,'' indicates that 13.0 
percent of schools missed AYP solely due to the achievement of the 
students with disabilities subgroup. Under Title I, LEAs are required 
to spend an amount equal to 20.0 percent of their Title I allocations 
to fund supplemental services and choice-related transportation in 
schools that fail to make AYP for two or more consecutive years and are 
identified for improvement. LEAs will have greater flexibility in the 
use of their Title I allocations if fewer schools miss AYP goals and 
are subject to consequences as a school in need of improvement.
    States that decide to adopt modified academic achievement standards 
and implement alternate assessments based on those standards will be 
able to use funds from Title I, Title VI State Assessment Grants, and 
IDEA programs to finance those activities. The costs of developing and 
implementing assessments vary considerably but are modest when compared 
to the amounts available under Federal programs that States can draw on 
for test development and implementation. The fiscal year 2007 
appropriation for Title I Grants to Local Educational Agencies is 
approximately $12.8 billion, and States could reserve approximately 1 
percent of this amount for administrative expenses, including paying 
the costs of developing assessments. The appropriation for IDEA Grants 
to States is $10.8 billion, and States could reserve more than $900 
million for such activities as the development and provision of 
appropriate accommodations and assessments of children with 
disabilities under Title I. For State Assessment Grants, the 
appropriation is $408 million. The Department believes that the 
regulations will not impose a financial burden that States and LEAs 
will have to meet from non-Federal sources.
    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 than $100 million 
in any one year.

Regulatory Flexibility Act Certification

    The Secretary certifies that these regulations will not have a 
significant economic impact on a substantial number of small entities. 
These provisions require States and LEAs to take certain actions only 
if States choose to implement the flexibility these regulations afford. 
The Department believes that these activities will be financed through 
the appropriations for Title I and the IDEA and that the 
responsibilities encompassed in these laws and regulations will not 
impose a financial burden that States and LEAs will have to meet from 
non-Federal sources.

Paperwork Reduction Act of 1995

    There are several sections of the revised Title I regulations 
(Sec. Sec.  200.1, 200.6, and 200.20) and one section of the revised 
IDEA regulations (Sec.  300.160) that require collection of information 
under the Paperwork Reduction Act. The following chart describes those 
regulatory sections, the information being collected, and the 
collections the Department will submit to the Office of Management and 
Budget for approval and public comment. Separate notices will be 
published in the Federal Register requesting comment on these 
collections.

 
------------------------------------------------------------------------
                                      Collection
       Regulatory section             information         Collection
------------------------------------------------------------------------
Sec.   200.1(f).................  Requires SEAs       Information
                                   opting for the      collection 1810-
                                   flexibility         0576,
                                   offered by these    ``Consolidated
                                   regulations to      State
                                   develop and         Application.''
                                   monitor the
                                   implementation of
                                   clear guidelines
                                   for IEP Teams to
                                   apply in
                                   determining
                                   students who will
                                   be assessed based
                                   on modified
                                   academic
                                   achievement
                                   standards.

[[Page 17777]]

 
Sec.   200.6(a)(4) and Sec.       Requires SEAs to    Information
 300.160(f)(3).                    report in their     collection 1875-
                                   annual State        0240, ``Annual
                                   performance         Mandatory
                                   reports the total   Collection of
                                   number and          Elementary and
                                   percentage of       Secondary
                                   students tested     Education Data
                                   in math and         for EDFacts.''
                                   reading with
                                   alternate
                                   assessments based
                                   on modified
                                   academic
                                   achievement
                                   standards.
Sec.   200.20...................  Permits SEAs and    Information
                                   LEAs to include     collection 1810-
                                   the scores of       0581, ``State
                                   former students     Educational
                                   with disabilities   Agency and Local
                                   in the students     Educational
                                   with disabilities   Agency and School
                                   subgroup when       Data Collection
                                   reporting AYP on    and Reporting
                                   SEA and LEA         under ESEA, Title
                                   report cards.       I, Part A.''
------------------------------------------------------------------------

Federalism

    Executive Order 13132 requires us to ensure meaningful and timely 
input by State and local elected officials in the development of 
regulatory policies that have Federalism implications. ``Federalism 
implications'' means substantial direct effects on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.
    The need for the NPRM was raised to the Department by State and LEA 
assessment professionals who were concerned that the assessment 
alternatives contemplated in the existing Title I regulations (regular 
assessments based on grade-level academic achievement standards and 
alternate assessments for students with the most significant cognitive 
disabilities), and reflected in the IDEA, did not recognize that there 
was a group of students with disabilities who were not the most 
significantly cognitively disabled, but who could not achieve to grade-
level academic achievement standards. Based on the concerns raised, the 
Department convened several meetings with State and LEA officials, 
parents of students with disabilities, and researchers to learn more 
about the issues involved in assessing students with disabilities, the 
concerns of parents and advocates for ensuring that all students with 
disabilities be held to high academic achievement standards, and about 
how some States were designing assessments for students with 
disabilities. In issuing the NPRM, however, we did not believe that the 
proposed regulations had Federalism implications as defined in the 
Executive order.
    We received several comments on Federalism issues. First, several 
commenters stated that proposed Sec.  200.1(e)(1)(iii), which would 
require that modified academic achievement standards not preclude a 
student from earning a regular high school diploma, would be an 
intrusion into State graduation standards if a State was required to 
diminish its standards for a regular diploma to include students who 
are assessed based on modified academic achievement standards. As we 
have stated elsewhere in this preamble, the intent of proposed Sec.  
200.1(e)(1)(iii) was not to require States to alter their graduation 
requirements or to provide a regular high school diploma to a student 
who scores proficient on an alternate assessment based on modified 
academic achievement standards. Rather, we wanted to ensure that a 
student is not automatically precluded from attempting to earn a 
regular high school diploma simply because the student was assessed 
based on modified academic achievement standards. To clarify our 
intent, we have removed proposed Sec.  200.1(e)(1)(iii) and replaced it 
with Sec.  200.1(f)(2)(iv), which requires a State to ensure that 
students who take alternate assessments based on modified academic 
achievement standards are not precluded from attempting to complete the 
requirements, as defined by the State, for a regular high school 
diploma.
    Second, a few commenters stated that the criteria we proposed for 
modified academic achievement standards were too prescriptive and that 
States should have the flexibility to develop modified academic 
achievement standards in ways that meet their needs. As we stated 
elsewhere in this preamble, we do not agree with these commenters. We 
believe that allowing States to develop modified academic achievement 
standards without placing any parameters or restrictions on their use 
would likely result in lowered expectations for this group of students 
and limit opportunities for these students to access grade-level 
content and meet grade-level achievement standards.
    Taking into account these comments, and these final regulations, we 
believe that we have sufficiently addressed any Federalism concerns 
raised by the commenters with respect to Executive Order 13132.

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.gpoaccess.gov/nara/index.html.


(Catalog of Federal Domestic Assistance Numbers: 84.010 Improving 
Programs Operated by Local Educational Agencies; 84.027 Assistance 
to States for the Education of Children with Disabilities).

List of Subjects

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, 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.

34 CFR Part 300

    Administrative practice and procedure, Education of individuals 
with disabilities, Elementary and secondary education, Equal 
educational opportunity, Grant programs--

[[Page 17778]]

education, Privacy, Private Schools, Reporting and recordkeeping 
requirements.

    Dated: April 2, 2007.
Margaret Spellings,
Secretary of Education.

0
For the reasons discussed in the preamble, the Secretary amends parts 
200 and 300 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. Section 200.1 is amended by:
0
A. Revising paragraphs (a)(1) and (a)(2).
0
B. Redesignating paragraphs (e) and (f) as paragraphs (g) and (h), 
respectively.
0
C. Adding new paragraphs (e) and (f).
    The revisions and additions read as follows:


Sec.  200.1  State responsibilities for developing challenging academic 
standards.

    (a) * * *
    (1) Be the same academic content and academic achievement 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 paragraphs 
(d) and (e) of this section, which apply only to the State's academic 
achievement standards;
    (2) Include the same knowledge and skills expected of all students 
and the same levels of achievement expected of all students, except as 
provided in paragraphs (d) and (e) of this section; and
* * * * *
    (e) Modified academic achievement standards. (1) For students with 
disabilities under section 602(3) of the Individuals with Disabilities 
Education Act (IDEA) who meet the State's criteria under paragraph 
(e)(2) of this section, a State may define modified academic 
achievement standards, provided those standards--
    (i) Are aligned with the State's academic content standards for the 
grade in which the student is enrolled;
    (ii) Are challenging for eligible students, but may be less 
difficult than the grade-level academic achievement standards under 
paragraph (c) of this section;
    (iii) Include at least three achievement levels; and
    (iv) Are developed through a documented and validated standards-
setting process that includes broad stakeholder input, including 
persons knowledgeable about the State's academic content standards and 
experienced in standards setting and special educators who are most 
knowledgeable about students with disabilities.
    (2) In the guidelines that a State establishes under paragraph 
(f)(1) of this section, the State must include criteria for IEP teams 
to use in determining which students with disabilities are eligible to 
be assessed based on modified academic achievement standards. Those 
criteria must include, but are not limited to, each of the following:
    (i) The student's disability has precluded the student from 
achieving grade-level proficiency, as demonstrated by such objective 
evidence as the student's performance on--
    (A) The State's assessments described in Sec.  200.2; or
    (B) Other assessments that can validly document academic 
achievement.
    (ii)(A) The student's progress to date in response to appropriate 
instruction, including special education and related services designed 
to address the student's individual needs, is such that, even if 
significant growth occurs, the IEP team is reasonably certain that the 
student will not achieve grade-level proficiency within the year 
covered by the student's IEP.
    (B) The determination of the student's progress must be based on 
multiple measurements, over a period of time, that are valid for the 
subjects being assessed.
    (iii) If the student's IEP includes goals for a subject assessed 
under Sec.  200.2, those goals must be based on the academic content 
standards for the grade in which the student is enrolled, consistent 
with paragraph (f)(2) of this section.
    (f) State guidelines. If a State defines alternate or modified 
academic achievement standards under paragraph (d) or (e) of this 
section, the State must do the following--
    (1) For students who are assessed based on either alternate or 
modified academic achievement standards, the State must--
    (i) Establish and monitor implementation of clear and appropriate 
guidelines for IEP teams to apply in determining--
    (A) Students with the most significant cognitive disabilities who 
will be assessed based on alternate academic achievement standards; and
    (B) Students with disabilities who meet the criteria in paragraph 
(e)(2) of this section who will be assessed based on modified academic 
achievement standards. These students may be assessed based on modified 
academic achievement standards in one or more subjects for which 
assessments are administered under Sec.  200.2;
    (ii) Inform IEP teams that students eligible to be assessed based 
on alternate or modified academic achievement standards may be from any 
of the disability categories listed in the IDEA;
    (iii) Provide to IEP teams a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on modified or alternate academic achievement 
standards, including any effects of State and local policies on the 
student's education resulting from taking an alternate assessment based 
on alternate or modified academic achievement standards (such as 
whether only satisfactory performance on a regular assessment would 
qualify a student for a regular high school diploma); and
    (iv) Ensure that parents of students selected to be assessed based 
on alternate or modified academic achievement standards under the 
State's guidelines in this paragraph are informed that their child's 
achievement will be measured based on alternate or modified academic 
achievement standards.
    (2) For students who are assessed based on modified academic 
achievement standards, the State must--
    (i) Inform IEP teams that a student may be assessed based on 
modified academic achievement standards in one or more subjects for 
which assessments are administered under Sec.  200.2;
    (ii) Establish and monitor implementation of clear and appropriate 
guidelines for IEP teams to apply in developing and implementing IEPs 
for students who are assessed based on modified academic achievement 
standards. These students' IEPs must--
    (A) Include IEP goals that are based on the academic content 
standards for the grade in which a student is enrolled; and
    (B) Be designed to monitor a student's progress in achieving the 
student's standards-based goals;
    (iii) Ensure that students who are assessed based on modified 
academic achievement standards have access to the curriculum, including 
instruction, for the grade in which the students are enrolled;
    (iv) Ensure that students who take alternate assessments based on 
modified academic achievement standards are not

[[Page 17779]]

precluded from attempting to complete the requirements, as defined by 
the State, for a regular high school diploma; and
    (v) Ensure that each IEP team reviews annually for each subject, 
according to the criteria in paragraph (e)(2) of this section, its 
decision to assess a student based on modified academic achievement 
standards to ensure that those standards remain appropriate.
* * * * *

0
3. Section 200.6 is amended by:
0
A. Revising paragraph (a)(1) and (a)(2)(iii).
0
B. Adding paragraphs (a)(3) and (a)(4).
    The revisions and additions read as follows:


Sec.  200.6  Inclusion of all students.

* * * * *
    (a) Students eligible under IDEA and Section 504--(1) Appropriate 
accommodations. (i) A State's academic assessment system must provide--
    (A) For each student with a disability, as defined under section 
602(3) of the IDEA, appropriate accommodations that the student's IEP 
team determines are necessary to measure the academic achievement of 
the student relative to the State's academic content and academic 
achievement standards for the grade in which the student is enrolled, 
consistent with Sec.  200.1(b)(2), (b)(3), and (c); and
    (B) For each student covered under section 504 of the 
Rehabilitation Act of 1973, as amended (Section 504), appropriate 
accommodations that the student's placement team determines are 
necessary to measure the academic achievement of the student relative 
to the State's academic content and academic achievement standards for 
the grade in which the student is enrolled, consistent with Sec.  
200.1(b)(2), (b)(3), and (c).
    (ii) A State must--
    (A) Develop, disseminate information on, and promote the use of 
appropriate accommodations to increase the number of students with 
disabilities who are tested against academic achievement standards for 
the grade in which a student is enrolled; and
    (B) 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 disabilities and 
students covered under Section 504.
    (2) * * *
    (iii) If a State permits the use of alternate assessments that 
yield results based on alternate academic achievement standards, the 
State must document that students with the most significant cognitive 
disabilities are, to the extent possible, included in the general 
curriculum.
    (3) Alternate assessments that are based on modified academic 
achievement standards. (i) To assess students with disabilities based 
on modified academic achievement standards, a State may develop a new 
alternate assessment or adapt an assessment based on grade-level 
academic achievement standards.
    (ii) An alternate assessment under paragraph (a)(3)(i) of this 
section must--
    (A) Be aligned with the State's grade-level academic content 
standards;
    (B) Yield results that measure the achievement of those students 
separately in reading/language arts and mathematics relative to the 
modified academic achievement standards;
    (C) Meet the requirements in Sec. Sec.  200.2 and 200.3, including 
the requirements relating to validity, reliability, and high technical 
quality; and
    (D) Fit coherently in the State's overall assessment system under 
Sec.  200.2.
    (4) Reporting. A State must report separately to the Secretary, 
under section 1111(h)(4) of the Act, the number and percentage of 
students with disabilities taking--
    (i) Regular assessments described in Sec.  200.2;
    (ii) Regular assessments with accommodations;
    (iii) Alternate assessments based on the grade-level academic 
achievement standards described in Sec.  200.1(c);
    (iv) Alternate assessments based on the modified academic 
achievement standards described in Sec.  200.1(e); and
    (v) Alternate assessments based on the alternate academic 
achievement standards described in Sec.  200.1(d).
* * * * *

0
4. Section 200.7 is amended by redesignating paragraph (a)(2) as 
(a)(2)(i) and adding a new paragraph (a)(2)(ii) to read as follows:


Sec.  200.7  Disaggregation of data.

    (a) * * *
    (2)(i) * * *
    (ii) Beginning with AYP decisions that are based on the assessments 
administered in the 2007-08 school year, a State may not establish a 
different minimum number of students under paragraph (a)(2)(i) of this 
section for separate subgroups under Sec.  200.13(b)(7)(ii) or for the 
school as a whole.
* * * * *

0
5. Section 200.13 is amended by:
0
A. Revising paragraph (c).
0
B. Adding an appendix at the end of the section.
    The revisions and addition read as follows:


Sec.  200.13  Adequate yearly progress in general.

* * * * *
    (c)(1) In calculating AYP for schools, LEAs, and the State, a State 
must, consistent with Sec.  200.7(a), include the scores of all 
students with disabilities.
    (2) With respect to scores based on alternate or modified academic 
achievement standards, a State may include--
    (i) The proficient and advanced scores of students with the most 
significant cognitive disabilities based on the alternate academic 
achievement standards described in Sec.  200.1(d), provided that the 
number of those scores 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; and
    (ii) The proficient and advanced scores of students with 
disabilities based on the modified academic achievement standards 
described in Sec.  200.1(e)(1), provided that the number of those 
scores at the LEA and at the State levels, separately, does not exceed 
2.0 percent of all students in the grades assessed in reading/language 
arts and in mathematics.
    (3) A State's or LEA's number of proficient and advanced scores of 
students with disabilities based on the modified academic achievement 
standards described in Sec.  200.1(e)(1) may exceed 2.0 percent of all 
students in the grades assessed if the number of proficient and 
advanced scores based on the alternate academic achievement standards 
described in Sec.  200.1(d) is less than 1.0 percent, provided the 
number of proficient and advanced scores based on modified and 
alternate academic achievement standards combined does not exceed 3.0 
percent of all students in the grades assessed.
    (4) A State may not request from the Secretary an exception 
permitting it to exceed the caps on proficient and advanced scores 
based on alternate or modified academic achievement standards under 
paragraph (c)(2) and (3) of this section.
    (5)(i) A State may grant an exception to an LEA permitting it to 
exceed the 1.0 percent cap on proficient and advanced scores based on 
the alternate academic achievement standards described in paragraph 
(c)(2)(i) of this section only if--

[[Page 17780]]

    (A) The LEA demonstrates that the incidence of students with the 
most significant cognitive disabilities exceeds 1.0 percent of all 
students in the combined grades assessed;
    (B) The LEA 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 LEA that have drawn large 
numbers of families of students with the most significant cognitive 
disabilities, or that the LEA has such a small overall student 
population that it would take only a few students with such 
disabilities to exceed the 1.0 percent cap; and
    (C) The LEA documents that it is implementing the State's 
guidelines under Sec.  200.1(f).
    (ii) The State must review regularly whether an LEA's exception to 
the 1.0 percent cap is still warranted.
    (6) A State may not grant an exception to an LEA to exceed the 2.0 
percent cap on proficient and advanced scores based on modified 
academic achievement standards under paragraph (c)(2)(ii) of this 
section, except as provided in paragraph (c)(3) of this section.
    (7) In calculating AYP, if the percentage of proficient and 
advanced scores based on alternate or modified academic achievement 
standards under Sec.  200.1(d) or (e) exceeds the caps in paragraph (c) 
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 based on 
alternate and modified academic achievement standards.
    (ii) Count as non-proficient the proficient and advanced scores 
that exceed the caps in paragraph (c) of this section.
    (iii) Determine which proficient and advanced scores to count as 
non-proficient in schools and LEAs responsible for students who are 
assessed based on alternate or modified academic achievement standards.
    (iv) Include non-proficient scores that exceed the caps in 
paragraph (c) of this section in each applicable subgroup at the 
school, LEA, and State level.
    (v) Ensure that parents of a child who is assessed based on 
alternate or modified academic achievement standards are informed of 
the actual academic achievement levels of their child.
* * * * *

Appendix to Sec.  200.13--When May a State or LEA Exceed the 1% and 2% 
Caps?

    The following table provides a summary of the circumstances in 
which a State or LEA may exceed the 1% and 2% caps described in 
Sec.  200.13.

                               When May a State or LEA Exceed the 1% and 2% Caps?
----------------------------------------------------------------------------------------------------------------
                                          Alternate academic       Modified academic      Alternate and modified
                                       achievement standards--  achievement standards--    academic achievement
                                                1% cap                   2% cap               standards--3%
----------------------------------------------------------------------------------------------------------------
State................................  Not permitted..........  Only if State is below   Not permitted.
                                                                 1% cap, but cannot
                                                                 exceed 3%.
LEA..................................  Only if granted an       Only if LEA is below 1%  Only if granted an
                                        exception by the SEA.    cap, but cannot exceed   exception to the 1%
                                                                 3%.                      cap by the SEA, and
                                                                                          only by the amount of
                                                                                          the exception.
----------------------------------------------------------------------------------------------------------------


0
6. Section 200.20 is amended by:
0
A. Revising paragraph (c)(3).
0
B. Revising paragraph (f)(2).
0
C. Adding a new paragraph (g).
    The revisions and addition read as follows:


Sec.  200.20  Making adequate yearly progress.

* * * * *
    (c) * * *
    (3) To count a student who is assessed based on alternate or 
modified academic achievement standards described in Sec.  200.1(d) or 
(e) as a participant for purposes of meeting the requirements of this 
paragraph, the State must have, and ensure that its LEAs adhere to, 
guidelines that meet the requirements of Sec.  200.1(f).
* * * * *
    (f) * * *
    (2)(i) In determining AYP for the subgroup of limited English 
proficient students and the subgroup of students with disabilities, a 
State may include, for up to two AYP determination cycles, the scores 
of--
    (A) Students who were limited English proficient but who no longer 
meet the State's definition of limited English proficiency; and
    (B) Students who were previously identified under section 602(3) of 
the IDEA but who no longer receive special education services.
    (ii) If a State, in determining AYP for the subgroup of limited 
English proficient students and the subgroup of students with 
disabilities, includes the scores of the students described in 
paragraph (f)(2)(i) of this section, the State must include the scores 
of all such students, but is not required to--
    (A) Include those students in the limited English proficient 
subgroup or in the students with disabilities subgroup in determining 
if the number of limited English proficient students or students with 
disabilities, respectively, is sufficient to yield statistically 
reliable information under Sec.  200.7(a); or
    (B) With respect to students who are no longer limited English 
proficient--
    (1) Assess those students' English language proficiency under Sec.  
200.6(b)(3); or
    (2) Provide English language services to those students.
    (iii) For the purpose of reporting information on report cards 
under section 1111(h) of the Act--
    (A) A State may include the scores of former limited English 
proficient students and former students with disabilities as part of 
the limited English proficient and students with disabilities 
subgroups, respectively, for the purpose of reporting AYP at the State 
level under section 1111(h)(1)(C)(ii) of the Act;
    (B) An LEA may include the scores of former limited English 
proficient students and former students with disabilities as part of 
the limited English proficient and students with disabilities 
subgroups, respectively, for the purpose of reporting AYP at the LEA 
and school levels under section 1111(h)(2)(B) of the Act; but
    (C) A State or LEA may not include the scores of former limited 
English proficient students or former students with disabilities as 
part of the limited English proficient or students with disabilities 
subgroup, respectively, in reporting any other information under 
section 1111(h) of the Act.
    (g) Transition provision regarding modified academic achievement 
standards. The Secretary may provide a State that is moving 
expeditiously to adopt and administer alternate assessments based on 
modified academic achievement standards flexibility in accounting for 
the achievement of students with

[[Page 17781]]

disabilities in AYP determinations that are based on assessments 
administered in 2007-08 and 2008-09. To be eligible for this 
flexibility, a State must meet criteria, as the Secretary determines 
appropriate, for each year for which the flexibility is available.

0
7. Section 200.103 is amended by adding a new paragraph (c) to read as 
follows:


Sec.  200.103  Definitions.

* * * * *
    (c) Student with a disability means child with a disability, as 
defined in section 602(3) of the IDEA.

PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH 
DISABILITIES

0
8. The authority citation for part 300 is revised to read as follows:

    Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, unless otherwise 
noted.

0
9. A new Sec.  300.160 is added to read as follows:


Sec.  300.160  Participation in assessments.

    (a) General. A State must ensure that all children with 
disabilities are included in all general State and district-wide 
assessment programs, including assessments described under section 1111 
of the ESEA, 20 U.S.C. 6311, with appropriate accommodations and 
alternate assessments, if necessary, as indicated in their respective 
IEPs.
    (b) Accommodation guidelines. (1) A State (or, in the case of a 
district-wide assessment, an LEA) must develop guidelines for the 
provision of appropriate accommodations.
    (2) The State's (or, in the case of a district-wide assessment, the 
LEA's) guidelines must--
    (i) Identify only those accommodations for each assessment that do 
not invalidate the score; and
    (ii) Instruct IEP Teams to select, for each assessment, only those 
accommodations that do not invalidate the score.
    (c) Alternate assessments. (1) A State (or, in the case of a 
district-wide assessment, an LEA) must develop and implement alternate 
assessments and guidelines for the participation of children with 
disabilities in alternate assessments for those children who cannot 
participate in regular assessments, even with accommodations, as 
indicated in their respective IEPs, as provided in paragraph (a) of 
this section.
    (2) For assessing the academic progress of students with 
disabilities under Title I of the ESEA, the alternate assessments and 
guidelines in paragraph (c)(1) of this section must provide for 
alternate assessments that--
    (i) Are aligned with the State's challenging academic content 
standards and challenging student academic achievement standards;
    (ii) If the State has adopted modified academic achievement 
standards permitted in 34 CFR 200.1(e), measure the achievement of 
children with disabilities meeting the State's criteria under Sec.  
200.1(e)(2) against those standards; and
    (iii) If the State has adopted alternate academic achievement 
standards permitted in 34 CFR 200.1(d), measure the achievement of 
children with the most significant cognitive disabilities against those 
standards.
    (d) Explanation to IEP Teams. A State (or in the case of a 
district-wide assessment, an LEA) must provide IEP Teams with a clear 
explanation of the differences between assessments based on grade-level 
academic achievement standards and those based on modified or alternate 
academic achievement standards, including any effects of State or local 
policies on the student's education resulting from taking an alternate 
assessment based on alternate or modified academic achievement 
standards (such as whether only satisfactory performance on a regular 
assessment would qualify a student for a regular high school diploma).
    (e) Inform parents. A State (or in the case of a district-wide 
assessment, an LEA) must ensure that parents of students selected to be 
assessed based on alternate or modified academic achievement standards 
are informed that their child's achievement will be measured based on 
alternate or modified academic achievement standards.
    (f) Reports. An SEA (or, in the case of a district-wide assessment, 
an LEA) must make available to the public, and report to the public 
with the same frequency and in the same detail as it reports on the 
assessment of nondisabled children, the following:
    (1) The number of children with disabilities participating in 
regular assessments, and the number of those children who were provided 
accommodations (that did not result in an invalid score) in order to 
participate in those assessments.
    (2) The number of children with disabilities, if any, participating 
in alternate assessments based on grade-level academic achievement 
standards.
    (3) The number of children with disabilities, if any, participating 
in alternate assessments based on modified academic achievement 
standards.
    (4) The number of children with disabilities, if any, participating 
in alternate assessments based on alternate academic achievement 
standards.
    (5) Compared with the achievement of all children, including 
children with disabilities, the performance results of children with 
disabilities on regular assessments, alternate assessments based on 
grade-level academic achievement standards, alternate assessments based 
on modified academic achievement standards, and alternate assessments 
based on alternate academic achievement standards if--
    (i) The number of children participating in those assessments is 
sufficient to yield statistically reliable information; and
    (ii) Reporting that information will not reveal personally 
identifiable information about an individual student on those 
assessments.
    (g) Universal design. An SEA (or, in the case of a district-wide 
assessment, an LEA) must, to the extent possible, use universal design 
principles in developing and administering any assessments under this 
section.

(Authority: 20 U.S.C. 1412(a)(16))

[FR Doc. 07-1700 Filed 4-4-07; 8:45 am]
BILLING CODE 4000-01-P