[Federal Register Volume 78, Number 164 (Friday, August 23, 2013)]
[Proposed Rules]
[Pages 52467-52473]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-20665]


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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810-AB16
[Docket ID ED-2012-OESE-0018]


Title I--Improving the Academic Achievement of the Disadvantaged

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes to amend the regulations governing 
Title I, Part A of the Elementary and Secondary Education Act of 1965, 
as amended (ESEA) (the ``Title I regulations''), to no longer authorize 
a State, in satisfying ESEA accountability requirements, to define 
modified academic achievement standards and develop alternate 
assessments based on those modified academic achievement standards. 
These proposed amendments would permit, as a transitional measure and 
for a limited period of time, States that administered alternate 
assessments based on modified academic achievement standards in the 
2012-13 school year to continue to administer alternate assessments 
based on modified academic achievement standards and include the 
results in adequate yearly progress (AYP) calculations, subject to 
limitations on the number of proficient scores that may be counted for 
AYP purposes. These proposed amendments also would apply to 
accountability determinations made by eligible States that receive 
``ESEA flexibility'' and have requested a waiver of making AYP 
determinations.

DATES: We must receive your comments on or before October 7, 2013.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments by fax or by email. To ensure that we do not receive 
duplicate copies, please submit your comments only once. In addition, 
please include the Docket ID at the top of your comments.
     Federal eRulemaking Portal: Go to www.regulations.gov to 
submit your comments electronically. Information on using 
Regulations.gov, including instructions for accessing agency documents, 
submitting comments, and viewing the docket, is available on the site 
under ``How To Use This Site.''
     Postal Mail, Commercial Delivery, or Hand Delivery. If you 
mail or deliver your comments about these proposed regulations, address 
them to Monique M. Chism, Director, Student Achievement and School 
Accountability Programs, Office of Elementary and Secondary Education, 
U.S. Department of Education, 400 Maryland Avenue SW., Room 3W224, 
Washington, DC 20202-6132.

    Privacy Note:  The Department's policy is to make all comments 
received from members of the public available for public viewing in 
their entirety on the Federal eRulemaking Portal at 
www.regulations.gov. Therefore, commenters should be careful to 
include in their comments only information that they wish to make 
publicly available.


FOR FURTHER INFORMATION CONTACT: Monique M. Chism, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 3W224, Washington, DC 20202-
6132. Telephone: (202) 260-0826.
    If you use a telecommunications device for the deaf (TDD) or a text 
telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-
800-877-8339.

SUPPLEMENTARY INFORMATION:
    Invitation to Comment: We invite you to submit comments regarding 
these proposed regulations. To ensure that your comments have maximum 
effect in developing the final regulations, we urge you to identify 
clearly the specific section or sections of the proposed regulations 
that each of your comments addresses and to arrange your comments in 
the same order as the proposed regulations.
    We invite you to assist us in complying with the specific 
requirements of Executive Orders 12866 and 13563 and their overall 
requirement of reducing regulatory burden that might result from these 
proposed regulations. Please let us know of any further ways we could 
reduce potential costs or increase potential benefits while preserving 
the effective and efficient administration of the Department's programs 
and activities.
    During and after the comment period, you may inspect all public 
comments about these proposed regulations by accessing Regulations.gov. 
You may also inspect the comments in person in 3W226 at 400 Maryland 
Avenue SW., Washington, DC, between the hours of 8:30 a.m. and 4:00 
p.m., Washington, DC time, Monday through Friday of each week except 
Federal holidays. Please contact the person listed under FOR FURTHER 
INFORMATION CONTACT. Assistance to Individuals with Disabilities in 
Reviewing the Rulemaking Record: On request, we will provide an 
appropriate accommodation or auxiliary aid to an individual with a 
disability who needs assistance to review the comments or other 
documents in the public rulemaking record for these proposed 
regulations. If

[[Page 52468]]

you want to schedule an appointment for this type of accommodation or 
auxiliary aid, please contact the person listed under FOR FURTHER 
INFORMATION CONTACT.

Background

    These proposed regulations would amend the Title I regulations that 
are designed to help disadvantaged children meet high academic 
standards. Specifically, the proposed amendments to current Sec. Sec.  
200.1 and 200.6 would no longer authorize a State to define modified 
academic achievement standards for certain students with disabilities, 
develop and administer alternate assessments based on those standards, 
and, subject to limitations on the number of proficient scores that may 
be counted for AYP purposes under current Sec.  200.13(c), use the 
scores from those alternate assessments in AYP calculations.
    In April 2007, the Department amended the Title I regulations to 
permit States to define modified academic achievement standards for 
certain students with disabilities, specifically those whose disability 
has precluded them from achieving grade-level proficiency and whose 
progress is such that they will not reach grade-level proficiency in 
the same time frame as other students. The Department also amended the 
Title I regulations to permit States to develop alternate assessments 
based on those modified academic achievement standards and administer 
them to eligible students with disabilities (72 FR 17748).
    As explained in the preamble to the final regulations published in 
the Federal Register on April 9, 2007 (72 FR 17748), the Department 
acknowledged the possibility that neither a general assessment nor an 
alternate assessment based on alternate academic achievement standards 
would provide an accurate assessment of what these students know and 
can do. This position was based on information received from some 
States, as well as research available at the time, which indicated that 
general grade-level assessments may be too difficult for this small 
group of students with disabilities, while alternate assessments based 
on alternate academic achievement standards may be too easy. Thus, in 
the interest of ensuring that States could meaningfully assess these 
students' achievement across the full range of content and provide 
teachers and parents with information that would help these students 
progress toward grade-level achievement, the Department issued 
regulations to permit States to define modified academic achievement 
standards and develop and administer alternate assessments based on 
those standards.
    Since the Department amended the Title I regulations in April 2007, 
many States have been working collaboratively to develop and implement 
general assessments aligned with college- and career-ready standards 
that will be more accessible to students with disabilities than those 
in place at the time States began developing alternate assessments 
based on modified academic achievement standards. These new general 
assessments will facilitate the valid, reliable, and fair assessment of 
most students with disabilities, including those for whom alternate 
assessments based on modified academic achievement standards were 
intended.
    As described later in this notice, research has shown that low-
achieving students with disabilities make academic progress when 
provided with appropriate supports and instruction. More accessible 
general assessments, in combination with such supports and instruction 
for students with disabilities, can promote high expectations for all 
students, including students with disabilities, by encouraging teaching 
and learning to the academic achievement standards measured by the 
general assessments.
    For these reasons, these proposed regulations anticipate that 
alternate assessments based on modified academic achievement standards 
will no longer be needed as States develop more accessible general 
assessments that can also be used for those students with disabilities 
for whom alternate assessments based on modified academic achievement 
standards currently are being administered. Accordingly, States would 
be able to refocus their assessment efforts and resources on the 
development of more accessible general assessments. For students with 
the most significant cognitive disabilities, States will continue to 
have the authority under Sec. Sec.  200.1(d) and 200.6(a)(2)(ii)(B) to 
define alternate academic achievement standards, administer alternate 
assessments based on those alternate academic achievement standards, 
and, subject to limitations on the number of proficient scores that may 
be counted for AYP purposes, include the results in AYP calculations.
    To allow for a smooth transition to more accessible general 
assessment systems, including systems with assessments aligned with 
college- and career-ready standards, these proposed regulations would 
allow States, under certain circumstances and for a limited period of 
time, to continue to implement their alternate assessments based on 
modified academic achievement standards and, subject to limitations on 
the number of proficient scores that may be counted for AYP purposes in 
current Sec.  200.13(c), include the results of such assessments in AYP 
calculations.\1\ More specifically, under these proposed regulations, a 
State could continue to administer alternate assessments based on 
modified academic achievement standards and use the results of those 
assessments for accountability purposes in accordance with the current 
Title I regulations and Part B of the Individuals with Disabilities 
Education Act (IDEA) if the State administered alternate assessments 
based on modified academic achievement standards in the 2012-13 school 
year. A State meeting this criterion would be permitted to administer 
alternate assessments based on modified academic achievement standards 
and use the results of those assessments for accountability purposes 
through the 2013-14 school year.
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    \1\ The Department is offering States flexibility from certain 
requirements of the ESEA in exchange for implementing rigorous, 
comprehensive State-developed plans designed to improve educational 
outcomes for all students, close achievement gaps, increase equity, 
and improve the quality of instruction. Under this initiative, known 
as ``ESEA flexibility,'' a State may request a waiver of the 
requirements to make AYP determinations and instead use its own 
differentiated State-developed recognition, accountability, and 
support system to hold schools accountable. Accordingly, a State 
that meets the criteria in these proposed regulations, subject to 
the limitations on the number of proficient scores that may be 
counted for making AYP determinations in Sec.  200.13(c), which is 
not waived under ESEA flexibility, could count the proficient scores 
of students with disabilities assessed using alternate assessments 
based on modified academic achievement standards in making 
accountability determinations, including determinations of whether 
schools meet a State's annual measurable objectives (AMOs).
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    Although these proposed regulations do not amend the regulations 
implementing Part B of the IDEA in 34 CFR part 300, they nonetheless 
will affect the application of the assessment regulations under 34 CFR 
300.160. Under section 612(a)(16)(A) of the IDEA and 34 CFR 300.160(a), 
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, if necessary with 
appropriate accommodations and alternate assessments, as indicated in 
their respective individualized education programs (IEPs). Under Sec.  
300.160(c)(1), a State (or, in the case of a district-wide assessment, 
a local educational agency (LEA)) must develop and implement alternate 
assessments

[[Page 52469]]

and guidelines for the participation of children with disabilities in 
alternate assessments for those children who cannot participate in 
regular assessments even with the accommodations provided for in their 
IEPs. Section 300.160(c)(2)(ii) further provides that, if a State has 
adopted modified academic achievement standards to assess the academic 
progress of students with disabilities under Title I of the ESEA, it 
must measure the achievement of children with disabilities meeting the 
State's criteria under current Sec.  200.1(e)(2) against those 
standards. Thus, the proposed regulations would mean that the 
transition from alternate assessments based on modified academic 
achievement standards under Title I of the ESEA also would apply to how 
States include children with disabilities in these assessments under 
the IDEA. However, to the extent that a State is permitted to 
administer alternate assessments based on modified academic achievement 
standards, Sec.  300.160(c)(2)(ii) will continue to apply.

Significant Proposed Regulations

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

Section 200.1--State Responsibilities for Developing Challenging 
Academic Standards

    Statute: Section 1111(b)(1) of the ESEA requires each State to 
adopt challenging academic content standards and challenging student 
academic achievement standards in at least mathematics, reading or 
language arts, and science. These standards must be the same for all 
public elementary and secondary schools and all public school students 
in the State. The State's challenging academic content standards must 
specify what all students are expected to know and be able to do, 
contain coherent and rigorous content, and encourage the teaching of 
advanced skills. The State's challenging student academic achievement 
standards must be aligned with the State's academic content standards 
and must describe at least three levels of achievement: Advanced, 
proficient, and basic.
    Current Regulations: Current Sec.  200.1 of the Title I regulations 
implements the statutory requirements in section 1111(b)(1) of the ESEA 
regarding the development of challenging academic content standards and 
challenging academic achievement standards. Regarding academic 
achievement standards, current Sec.  200.1(e)(1) permits a State to 
define modified academic achievement standards for eligible students 
with disabilities, so long as those standards are aligned with the 
State's academic content standards for the grade in which the student 
is enrolled, are challenging for eligible students (but may be less 
difficult than the grade-level academic achievement standards under 
current Sec.  200.1(c)), include at least three achievement levels, and 
are developed through a documented and validated standards-setting 
process that includes broad stakeholder input.
    For a State implementing modified academic achievement standards, 
current Sec.  200.1(e)(2) requires the State to adopt criteria for IEP 
teams to use in determining which students with disabilities are 
eligible to be assessed based on modified academic achievement 
standards. At a minimum, these criteria must include the following:
    (i) The student's disability has precluded the student from 
achieving grade-level proficiency, as demonstrated by objective 
evidence;
    (ii) The student's progress to date (based on multiple measurements 
over a period of time that are valid for the subjects being assessed) 
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; and
    (iii) If the student's IEP includes goals for a subject assessed 
under Sec.  200.2, those goals are based on the academic content 
standards for the grade in which the student is enrolled.
    In addition, current Sec.  200.1(f) requires a State to establish 
guidelines related to assessing eligible students with disabilities 
with alternate assessments based on modified academic achievement 
standards. In particular, current Sec.  200.1(f)(1)(i)(B) requires a 
State to establish and monitor implementation of guidelines for IEP 
teams to apply in determining which students with disabilities meet the 
State's criteria to be assessed based on modified academic achievement 
standards under current Sec.  200.1(e)(2) and provides that these 
students may be assessed based on modified academic achievement 
standards in one or more subjects. Current Sec.  200.1(f)(2) specifies 
additional requirements for State guidelines for students assessed 
based on modified academic achievement standards.
    Proposed Regulations: Under these proposed amendments, current 
Sec.  200.1(e) would be amended to limit a State's authority to define 
modified academic achievement standards. Specifically, we propose to 
amend current Sec.  200.1(e)(1) to no longer authorize a State to 
define modified academic achievement standards, unless the State meets 
certain criteria.
    Under proposed Sec.  200.1(e)(2), a State could define modified 
academic achievement standards only if the State administered alternate 
assessments based on modified academic achievement standards in the 
2012-13 school year.
    Proposed Sec.  200.1(e)(4) would then provide that, for any State 
meeting the criterion in proposed Sec.  200.1(e)(2), the authority to 
define modified academic achievement standards terminates at the end of 
the 2013-14 school year. The remaining requirements in current Sec.  
200.1 applicable to modified academic achievement standards, as well as 
those requirements related to determining student eligibility to be 
assessed based on alternate academic achievement standards, would 
remain unchanged and fully applicable to a State that has adopted such 
standards.
    Finally, we would redesignate current paragraph (e)(2) of Sec.  
200.1 as paragraph (e)(3) to accommodate the proposed additions of new 
paragraphs (e)(2) and (e)(4), as described in the preceding paragraphs.
    Reasons: Through these proposed amendments to Sec.  200.1, we seek 
to reemphasize the importance of holding all students, including 
students with disabilities, to high standards. Research demonstrates 
that low-achieving students with disabilities who struggle in reading 
\2\ and low-achieving students

[[Page 52470]]

with disabilities who struggle in mathematics \3\ can make academic 
progress when provided appropriate supports and instruction. As noted 
earlier in the preamble, many States are now working together to 
develop and implement new general assessments that will be more 
accessible to most students with disabilities. More specifically, 44 
States and the District of Columbia are participating in two consortia, 
funded by the Race to the Top Assessment (RTTA) program, that are 
developing new assessments to measure student achievement against 
college- and career-ready standards. As stated in the notice inviting 
applications for the RTTA program, published in the Federal Register on 
Friday, April 9, 2010, these assessments must be valid, reliable, and 
fair for all student subgroups, including students with disabilities 
(see 75 FR 18171, 18173). The only exception is for students with 
disabilities who are eligible to participate in alternate assessments 
based on alternate academic achievement standards under 34 CFR 
200.6(a)(2)(ii)(B); those students are excluded from the definition of 
``students with disabilities'' under the RTTA program (see 75 FR 18171, 
18178). We expect that the application of universal design principles, 
new technologies, and new research on accommodations to the new 
assessments developed through the RTTA program will improve access to 
the assessments and the validity of scores for students with 
disabilities, including students who currently are eligible for 
alternate assessments based on modified academic achievement standards. 
Other new assessments also may draw on universal design principles, new 
technologies, and new research to improve access for students with 
disabilities and more validly measure the achievement of these 
students.
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    \2\ For example, see: Allor, J. H., Mathes, P. G., Roberts, J. 
K., Cheatham, J.P., & Champlin, T. M. (2010). Comprehensive reading 
instruction for students with intellectual disabilities. Psychology 
in the Schools, 47, 445-466; Kamps, D., Abbott, M., Greenwood, C., 
Wills, H., Veerkamp, M., & Kaufman, J. (2008). Effects of small-
group reading instruction and curriculum differences for students 
most at risk in kindergarten: Two-year results for secondary- and 
tertiary-level interventions. Journal of Learning Disabilities, 41, 
101-114; Mautone, J. A., DuPaul, G. J., Jitendra, A. K., Tresco, K. 
E., Junod, R. V., & Volpe, R. J. (2009). The relationship between 
treatment integrity and acceptability of reading interventions for 
children with attention-deficit/hyperactivity disorder. Psychology 
in the Schools, 46, 919-931; Scammacca, N., Vaughn, S., Roberts, G., 
Wanzek, J., & Torgesen, J. K. (2007). Extensive reading 
interventions in grades K-3: From research to practice. Portsmouth, 
N.H.: RMC Research Corporation, Center on Instruction; Vaughn, S., 
Denton, C. A., & Fletcher, J. M. (2010). Why intensive interventions 
are necessary for students with severe reading difficulties. 
Psychology in the Schools, 47, 32-444; Wanzek, J. & Vaughn, S. 
(2010). Tier 3 interventions for students with significant reading 
problems. Theory Into Practice, 49, 305-314.
    \3\ For example, see: Fuchs, L. S. & Fuchs, D., Powell, S. R., 
Seethaler, P. M., Cirino, P. T., & Fletcher, J. M. (2008). Intensive 
intervention for students with mathematics disabilities: Seven 
principles of effective practice. Learning Disabilities Quarterly, 
31, 79-92; Gersten, R., Beckmann, S., Clarke, B., Foegen, A., Marsh, 
L., Star, J. R., & Witzel, B. (2009). Assisting students struggling 
with mathematics: Response to Intervention (RtI) for elementary and 
middle schools (NCEE 2009-4060). Washington, DC: National Center for 
Education Evaluation and Regional Assistance, Institute of Education 
Sciences, U.S. Department of Education. Retrieved November 1, 2010 
from http://ies.ed.gov/ncee/wwc/publications/practiceguides/.
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    With the development and implementation of more accessible general 
assessments, combined with appropriate supports and instruction, we 
believe that modified academic achievement standards and alternate 
assessments based on those standards will no longer be educationally 
appropriate. Consequently, it is no longer in the best interest of 
students with disabilities for a State to invest further resources in 
the development or refinement of modified academic achievement 
standards and alternate assessments based on those standards. Rather, 
resources for future assessment development are best focused on 
preparing for implementation of more accessible general assessments, 
such as those currently being developed in many States. Therefore, 
these proposed regulations would no longer authorize a State to define 
modified academic achievement standards and administer alternate 
assessments based on those standards.
    Although we believe that new, more accessible assessments will 
eliminate the need for modified academic achievement standards and 
alternate assessments based on those standards, we recognize that these 
new assessments cannot be implemented immediately. In particular, we 
recognize that assessments being developed through the RTTA program are 
not expected to be fully operational in all participating States until 
the 2014-15 school year. We also recognize that some States have 
devoted substantial resources toward developing and implementing 
alternate assessments based on modified academic achievement standards. 
For these reasons, we believe that providing States with time to move 
from alternate assessments based on modified academic achievement 
standards and complete development of more accessible general 
assessments, such as those aligned with college- and career-ready 
standards that are currently being developed in many States, will 
support a smooth transition between assessments for the students 
affected by this regulatory change. Accordingly, proposed Sec.  
200.1(e)(2) would permit a State that administered alternate 
assessments based on modified academic achievement standards in the 
2012-13 school year to continue to administer those alternate 
assessments. Proposed Sec.  200.1(e)(4) would require a State to 
terminate its use of such alternate assessments, and concomitantly its 
use of modified academic achievement standards, at the end of the 2013-
14 school year. In setting this proposed timeline, we believe we have 
provided States sufficient time and notice to phase out their alternate 
assessments based on modified academic achievement standards. Moreover, 
any State interested in ESEA flexibility knew as early as September 
2011 that alternate assessments based on modified academic achievement 
standards were not part of the definition of high-quality assessments 
that are required to be administered beginning in 2014-15.

Section 200.6--Inclusion of All Students

    Statute: Section 1111(b)(3)(C) of the ESEA requires, among other 
things, that a State's academic assessment system be aligned with the 
State's challenging academic content and student academic achievement 
standards and that it measure the achievement of all students in the 
grades assessed, including students with disabilities as defined under 
section 602(3) of the IDEA. For students with disabilities in 
particular, under section 1111(b)(3)(C)(ix)(II) of the ESEA, a State's 
academic assessment system must provide for reasonable accommodations 
necessary to measure their academic achievement against the State's 
academic content and achievement standards that all students are 
expected to meet.
    Current Regulations: Current Sec.  200.6 sets forth the 
requirements under which a State must provide for the participation of 
all students in the State's academic assessment system. Current Sec.  
200.6(a)(3) permits a State to develop and implement alternate 
assessments to assess eligible students with disabilities based on 
modified academic achievement standards. In particular, current Sec.  
200.6(a)(3)(ii) provides that any alternate assessments based on 
modified academic achievement standards must--(i) be aligned with the 
State's grade-level academic content standards; (ii) yield results that 
measure the achievement of those students separately in reading or 
language arts and in mathematics relative to the modified academic 
achievement standards; (iii) meet the requirements in Sec. Sec.  200.2 
and 200.3, including the requirements relating to validity, 
reliability, and high technical quality; and (iv) fit coherently in the 
State's overall assessment system.
    In addition, current Sec.  200.6(a)(4) requires a State to report 
to the Secretary the number and percentage of students with 
disabilities taking regular assessments described in Sec.  200.2, 
regular assessments with accommodations, alternate assessments based on 
the grade-level academic achievement standards described in Sec.  
200.1(c), alternate assessments based on the modified academic 
achievement

[[Page 52471]]

standards described in Sec.  200.1(e), and alternate assessments based 
on the alternate academic achievement standards described in Sec.  
200.1(d).
    Proposed Regulations: We propose to amend Sec.  200.6(a)(3)(i) to 
no longer authorize a State to develop and administer alternate 
assessments based on modified academic achievement standards for ESEA 
assessment and accountability purposes, unless the State administered 
alternate assessments based on modified academic achievement standards 
in the 2012-13 school year.
    Under proposed Sec.  200.6(a)(3)(ii), a State would be able to 
administer alternate assessments based on modified academic achievement 
standards and use the results of these assessments in accountability 
determinations only if the State administered alternate assessments 
based on modified academic achievement standards in the 2012-13 school 
year. Additionally, a State meeting this criterion would be further 
limited on how long it could use these assessments. Under proposed 
Sec.  200.6(a)(3)(iv), such a State would only be able to administer 
and use the results of these assessments for accountability 
determinations through the 2013-14 school year. All other requirements 
in current Sec.  200.6 applicable to alternate assessments based on 
modified academic achievement standards would remain unchanged and 
fully applicable to States administering these alternate assessments. 
Please note that, to the extent a State is permitted to administer 
alternate assessments based on modified academic achievement standards, 
inclusion of the results in accountability determinations would remain 
subject to limitations on the number of proficient scores that may be 
counted for AYP purposes in current Sec.  200.13(c).
    Finally, for the sake of readability, we would redesignate current 
paragraph (a)(3)(ii) of Sec.  200.6 as paragraph (a)(3)(iii) to 
accommodate the proposed additions of new paragraphs (a)(3)(ii) and 
(a)(3)(iv), as described in the preceding paragraphs.
    Reasons: For the reasons discussed earlier with respect to the 
proposed amendments to Sec.  200.1(e), the proposed amendments to Sec.  
200.6 are necessary to make clear the limitations on a State's 
authority to develop and administer alternate assessments based on 
modified academic achievement standards.

Executive Orders 12866 and 13563

Regulatory Impact Analysis
    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 the 
Office of Management and Budget (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 stated in the 
Executive order.
    This proposed regulatory action is a significant regulatory action 
subject to review by OMB under section 3(f) of Executive Order 12866.
    We have also reviewed these regulations under Executive Order 
13563, which supplements and explicitly reaffirms the principles, 
structures, and definitions governing regulatory review established in 
Executive Order 12866. To the extent permitted by law, Executive Order 
13563 requires that an agency--
    (1) Propose or adopt regulations only on a reasoned determination 
that their benefits justify their costs (recognizing that some benefits 
and costs are difficult to quantify);
    (2) Tailor its regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives and taking into 
account--among other things and to the extent practicable--the costs of 
cumulative regulations;
    (3) In choosing among alternative regulatory approaches, select 
those approaches that maximize net benefits (including potential 
economic, environmental, public health and safety, and other 
advantages; distributive impacts; and equity);
    (4) To the extent feasible, specify performance objectives, rather 
than the behavior or manner of compliance a regulated entity must 
adopt; and
    (5) Identify and assess available alternatives to direct 
regulation, including economic incentives--such as user fees or 
marketable permits--to encourage the desired behavior, or provide 
information that enables the public to make choices.
    Executive Order 13563 also requires an agency ``to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible.'' The Office of 
Information and Regulatory Affairs of OMB has emphasized that these 
techniques may include ``identifying changing future compliance costs 
that might result from technological innovation or anticipated 
behavioral changes.''
    We are issuing these regulations only on a reasoned determination 
that their benefits justify their costs. In choosing among alternative 
regulatory approaches, we selected those approaches that maximize net 
benefits. Based on the analysis that follows, the Department believes 
that these proposed regulations are consistent with the principles in 
Executive Order 13563.
    We also have determined that this regulatory action would not 
unduly interfere with State, local, and tribal governments in the 
exercise of their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits of this regulatory action. 
The potential costs associated with this regulatory action are those 
resulting from statutory requirements and those we have determined as 
necessary for administering the Department's programs and activities.
    Potential Costs and Benefits: Under Executive Order 12866, we have 
assessed the potential costs and benefits of this regulatory action and 
have determined that these proposed regulations would not impose 
additional costs to State and local educational agencies or to the 
Federal Government. For example, each of the forty States and the 
District of Columbia that has received ESEA flexibility has agreed to 
phase out its use of alternate assessments based on modified academic 
achievement standards, if it has those assessments, by the 2014-15 
school year. Only California, North Dakota, and Texas have an alternate 
assessment based on modified academic achievement standards but have 
not received ESEA flexibility, and Texas' request for ESEA flexibility 
is pending. Moreover, the proposed regulations would not impose 
additional costs or administrative burdens on the large majority of 
States, including California and North Dakota, that are working 
collaboratively through the RTTA program to develop and implement 
general assessments aligned with college- and career-ready standards 
that

[[Page 52472]]

will be more accessible to students with disabilities than those in 
place at the time States began developing alternate assessments based 
on modified academic achievement standards. Under the RTTA program 
requirements, these new assessments already must be valid, reliable, 
and fair for all student subgroups, including students with 
disabilities, with the exception of students with disabilities who are 
eligible to participate in alternate assessments based on alternate 
academic achievement standards consistent with 34 CFR 
200.6(a)(2)(ii)(B) (see 75 FR 18171, 18173).
    In this context, the proposed regulations largely reflect already 
planned and funded changes in assessment practices and would not impose 
additional costs on States or LEAs or the Federal Government. On the 
contrary, to the extent that the proposed regulations reinforce the 
transition to State assessment systems with fewer components, the 
Department believes these proposed regulations ultimately would reduce 
the costs of complying with ESEA assessment requirements (because 
States would no longer have to develop and implement separate alternate 
assessments based on modified academic achievement standards).
    Further, a State that administered alternate assessments based on 
modified academic achievement standards in the 2012-13 school year 
would be permitted to continue to use such assessments through the 
2013-14 school year. Thus, the proposed regulations would not impose 
any new costs on States that have already developed modified academic 
achievement standards and alternate assessments based on those 
standards. The proposed regulations also would not impose significant 
additional costs on States that have not developed modified academic 
achievement standards because the proposed regulations do not place any 
additional requirements on such States. In addition, to the extent that 
the proposed regulations encourage States to strengthen their plans to 
transition to new general assessments that would be used to assess 
students currently taking alternate assessments based on modified 
academic achievement standards, funding to support such a transition is 
available through existing ESEA programs, such as the Grants for State 
Assessments program, which will make available $360 million in State 
formula grant assistance in fiscal year 2012.
    In sum, the additional costs imposed on States by the proposed 
regulations are estimated to be negligible, primarily because they 
reflect changes already under way in State assessment systems under the 
ESEA. Moreover, we believe these costs are significantly outweighed by 
the potential educational benefits of increasing the access of students 
with disabilities to the general assessments as States develop new, 
more accessible assessments, including assessments aligned with 
college- and career-ready standards.
Regulatory Alternatives Considered
    An alternative to the amendments proposed in this notice would be 
for the Secretary to leave in place the existing regulations permitting 
the development and administration of alternate assessments based on 
modified academic achievement standards. However, the Department 
believes that the proposed regulations are needed to help refocus 
assessment efforts and resources on the development of new general 
assessments that are accessible to a broader range of students with 
disabilities. Such new general assessments will eliminate the 
usefulness of separate alternate assessments based on modified academic 
achievement standards for eligible students with disabilities.
Clarity of the Regulations
    Executive Order 12866 and the Presidential memorandum ``Plain 
Language in Government Writing'' require each agency to write 
regulations that are easy to understand.
    The Secretary invites comments on how to make these proposed 
regulations easier to understand, including answers to questions such 
as the following:
     Are the requirements in the proposed regulations clearly 
stated?
     Do the proposed regulations contain technical terms or 
other wording that interferes with their clarity?
     Does the format of the proposed regulations (grouping and 
order of sections, use of headings, paragraphing, etc.) aid or reduce 
their clarity?
     Would the proposed regulations be easier to understand if 
we divided them into more (but shorter) sections? (A ``section'' is 
preceded by the symbol ``Sec. '' and a numbered heading; for example, 
Sec.  200.1(e)(1).)
     Could the description of the proposed regulations in the 
SUPPLEMENTARY INFORMATION section of this preamble be more helpful in 
making the proposed regulations easier to understand? If so, how?
     What else could we do to make the proposed regulations 
easier to understand?
    To send any comments that concern how the Department could make 
these proposed regulations easier to understand, see the instructions 
in the ADDRESSES section of this preamble.
Regulatory Flexibility Act Certification
    The Secretary certifies that these proposed regulations would not 
have a significant economic impact on a substantial number of small 
entities. The small entities that this proposed regulatory action would 
affect are small LEAs administering assessments under the ESEA.
    These proposed regulations would not have a significant economic 
impact on small LEAs because most affected LEAs would continue to 
implement existing State assessments required by the ESEA, including 
general assessments and alternate assessments for certain students with 
disabilities, until either the reauthorization of the ESEA or the 
implementation of new State assessments aligned with college- and 
career-ready standards. In addition, the implementation of these new 
assessments can be expected to result in a positive economic impact by 
reducing the number of separate assessments that must be administered 
to comply with the ESEA.
    The Secretary invites comments from small LEAs as to whether they 
believe this proposed regulatory action would have a significant 
economic impact on them and, if so, requests evidence to support that 
belief.
Paperwork Reduction Act of 1995
    These proposed regulations do not contain any information 
collection requirements.
Intergovernmental Review
    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.
    Accessible Format: Individuals with disabilities can obtain this 
document in an accessible format (e.g., braille, large print, 
audiotape, or compact disc) on request to the program contact person 
listed under FOR FURTHER INFORMATION CONTACT.
    Electronic Access to This Document: 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 via the Federal Digital System 
at: www.gpo.gov/fdsys. At this site you can view this document, as well 
as all other documents of this Department published in the Federal 
Register, in text or Adobe Portable Document Format (PDF). To use PDF 
you must have Adobe Acrobat Reader, which is available free at the 
site.

[[Page 52473]]

    You may also access documents of the Department published in the 
Federal Register by using the article search feature at: 
www.federalregister.gov. Specifically, through the advanced search 
feature at this site, you can limit your search to documents published 
by the Department.

(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 in 34 CFR Part 200

    Education of disadvantaged, Elementary and secondary education, 
Grant programs--education, Indians--education, Infants and children, 
Juvenile delinquency, Migrant labor, Private schools, Reporting and 
recordkeeping requirements.

    Dated: August 20, 2013.
Arne Duncan,
Secretary of Education.
    For the reasons discussed in the preamble, the Secretary proposes 
to amend part 200 of title 34 of the Code of Federal Regulations as 
follows:

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

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 paragraph (e)(1) introductory text.
0
B. Redesignating paragraph (e)(2) as (e)(3).
0
C. Adding new paragraph (e)(2) and paragraph (e)(4).
    The revision and additions read as follows:


Sec.  200.1  State responsibilities for developing challenging academic 
standards.

* * * * *
    (e) Modified academic achievement standards. (1) Except as provided 
in paragraphs (e)(2) and (e)(4) of this section, a State may not define 
modified academic achievement standards 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)(3) of this 
section. Modified academic achievement standards are standards that--
* * * * *
    (2) A State may define modified academic achievement standards for 
students with disabilities who meet the State's criteria under 
paragraph (e)(3) of this section only if the State administered 
alternate assessments based on modified academic achievement standards 
in the 2012-13 school year.
* * * * *
    (4) A State's authority to define modified academic achievement 
standards under paragraph (e)(2) of this section terminates following 
the State's administration of alternate assessments based on those 
standards during the 2013-14 school year.
* * * * *
0
3. Section 200.6 is amended by:
0
A. Revising paragraph (a)(3)(i).
0
B. Redesignating paragraph (a)(3)(ii) as (a)(3)(iii).
0
C. Adding new paragraph (a)(3)(ii) and paragraph (a)(3)(iv).
    The revision and additions read as follows:


Sec.  200.6  Inclusion of all students.

* * * * *
    (a) * * *
    (3) Alternate assessments that are based on modified academic 
achievement standards. (i) Except as provided in paragraphs (a)(3)(ii) 
and (iv) of this section, a State may not develop and administer an 
alternate assessment based on modified academic achievement standards 
as defined in Sec.  200.1(e)(1) to assess students with disabilities 
who meet the State's criteria under Sec.  200.1(e)(3).
    (ii) A State may continue to administer an alternate assessment 
based on modified academic achievement standards to assess students 
with disabilities who meet the State's criteria under Sec.  200.1(e)(3) 
and use the results of that assessment for accountability 
determinations only if the State administered the assessment in the 
2012-13 school year.
* * * * *
    (iv) A State's authority to administer an alternate assessment 
based on modified academic achievement standards and use the results 
for accountability determinations terminates following the State's 
administration of that assessment during the 2013-14 school year.
* * * * *
[FR Doc. 2013-20665 Filed 8-22-13; 8:45 am]
BILLING CODE 4000-01-P