[Federal Register Volume 80, Number 162 (Friday, August 21, 2015)]
[Rules and Regulations]
[Pages 50773-50785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-20736]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF EDUCATION

34 CFR Parts 200 and 300

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


Improving the Academic Achievement of the Disadvantaged; 
Assistance to States for the Education of Children With Disabilities

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

ACTION: Final regulations.

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

SUMMARY: The Secretary amends 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 to 
define modified academic achievement standards and develop alternate 
assessments based on those modified academic achievement standards for 
eligible students with disabilities. In order to make conforming 
changes to ensure coordinated administration of programs under title I 
of the ESEA and the Individuals with Disabilities Education Act (IDEA), 
the Secretary is also amending the regulations for Part B of the IDEA. 
Note: Nothing in these regulations changes the ability of States to 
develop and administer alternate assessments based on alternate

[[Page 50774]]

academic achievement standards for students with the most significant 
cognitive disabilities or alternate assessments based on grade-level 
academic achievement standards for other eligible students with 
disabilities in accordance with the ESEA and the IDEA, or changes the 
authority of IEP teams to select among these alternate assessments for 
eligible students.

DATES: These regulations are effective September 21, 2015.

FOR FURTHER INFORMATION CONTACT: For further information regarding the 
Title I regulations, contact Monique M. Chism, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 3W224, Washington, DC 20202-
6132. Telephone: (202) 260-0826.
    For further information regarding the IDEA regulations, contact 
Mary Louise Dirrigl, U.S. Department of Education, 550 12th St. SW., 
Potomac Center Plaza, Room 5156, Washington, DC 20202-2641. Telephone: 
(202) 245-7324.
    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:

Background

    High standards and high expectations for all students and an 
accountability system that provides teachers, parents, students, and 
the public with information about students' academic progress are 
essential to ensure that students graduate from high school prepared 
for college and careers in the 21st century. In 2007, the Department 
amended the Title I regulations to permit States to define modified 
academic achievement standards for eligible students with disabilities 
and to assess those students with alternate assessments based on those 
modified academic achievement standards. The Department promulgated 
those regulations based on the understanding that (1) there was a small 
group of students whose disabilities precluded them from achieving 
grade-level proficiency and whose progress was such that they would not 
reach grade-level achievement standards in the same time frame as other 
students, and (2) the regular State assessment would be too difficult 
for this group of students and the assessment based on alternate 
academic achievement standards would be too easy for them. 72 FR 17748 
(Apr. 9, 2007). In addition, at that time, the Department acknowledged 
that measuring the academic achievement of students with disabilities, 
particularly those eligible to be assessed based on modified academic 
achievement standards, was ``an area in which there is much to learn 
and improve'' and indicated that ``[a]s data and research on 
assessments for students with disabilities improve, the Department may 
decide to issue additional regulations or guidance.'' 72 FR 17748, 
17763 (Apr. 9, 2007).
    Since these regulations went into effect, additional research \1\ 
has demonstrated that students with disabilities who struggle in 
reading and mathematics can successfully learn grade-level content and 
make significant academic progress when appropriate instruction, 
services, and supports are provided. For example, a research study 
conducted a meta-analysis of 70 independent studies investigating the 
effects of special education interventions on student achievement. The 
study found that children with disabilities made significant progress 
across different content areas and across different educational 
settings when they received systematic, explicit instruction; learning 
strategy instruction; and other evidence-based instructional strategies 
and supports.\2\
---------------------------------------------------------------------------

    \1\ See discussion of this research in Assessing Students with 
Disabilities Based on a State's Academic Achievement Standards.
    \2\ See Scruggs, T., Mastropieri, M., Berkeley, S., & Graetz, J. 
(2010). Do Special Education Interventions Improve Learning of 
Secondary Content? A Meta-Analysis. Remedial and Special Education, 
31(6), 437-449.
---------------------------------------------------------------------------

    In addition, nearly all States have developed new college- and 
career-ready standards and new assessments aligned with those 
standards. These new assessments have been designed to facilitate the 
valid, reliable, and fair assessment of most students, including 
students with disabilities who previously took an alternate assessment 
based on modified academic achievement standards. For these reasons, we 
believe that the removal of the authority for States to define modified 
academic achievement standards and to administer assessments based on 
those standards is necessary to ensure that students with disabilities 
are held to the same high standards as their nondisabled peers, and 
that they benefit from high expectations, access to the general 
education curriculum based on a State's academic content standards, and 
instruction that will prepare them for success in college and careers.
    Public Comment: On August 23, 2013, we published in the Federal 
Register (78 FR 52467) a notice of proposed rulemaking (NPRM) that 
would amend the Title I regulations to no longer authorize a State to 
define modified academic achievement standards and administer alternate 
assessments based on those modified academic achievement standards for 
eligible children with disabilities. The NPRM established an October 7, 
2013, deadline for the submission of written comments. Although the 
Federal eRulemaking Portal was in operation during the government 
shutdown in October 2013, which included the final seven days of the 
original public comment period, we recognized that interested parties 
reasonably may have believed that the government shutdown resulted in a 
suspension of the public comment period. To ensure that all interested 
parties were provided the opportunity to submit comments, we reopened 
the public comment period for seven days. The final due date for 
comments was November 23, 2013.
    In response to our invitation in the NPRM, 156 parties submitted 
comments. We group major issues according to subject. In some cases, 
comments addressed issues beyond the scope of the proposed regulations. 
Although we appreciate commenters' concerns for broader issues 
affecting the education of students with disabilities, because those 
comments are beyond the scope of this regulatory action, we do not 
discuss them here. Generally, we do not address technical and other 
minor revisions.
    Analysis of Comments and Changes: An analysis of the comments and 
changes in the regulations since publication of the NPRM follows.

General Comments

    Comments: Several commenters stated that general assessments that 
are accessible for all students are in the best interest of students 
with disabilities and provide better information about the achievement 
of those students for parents, educators, and the public. Several 
commenters pointed to developments in the field of assessment that are 
contributing to general assessments that are accessible for the vast 
majority of students. The commenters noted that using principles of 
``universal design for learning'' and considering accessibility issues 
when designing assessments have resulted in more accessible general 
assessments and have eliminated the need for alternate assessments 
based on modified academic achievement standards. A few commenters 
urged the Department to promote the use of universal design for 
learning in developing assessments, as well as to support the 
development of accessible assessments and accommodations for students 
with disabilities.

[[Page 50775]]

    Discussion: Nearly all States have developed and are administering 
new high-quality general assessments that are valid and reliable and 
measure students with disabilities' knowledge and skills against 
college- and career-ready standards. Including students with 
disabilities in more accessible general assessments aligned to college- 
and career-ready standards promotes high expectations for students with 
disabilities, ensures that they will have access to grade-level 
content, and supports high-quality instruction designed to enable 
students with disabilities to be involved in, and make progress in, the 
general education curriculum--that is, the same curriculum as for 
nondisabled students.
    In response to those commenters who urged the Department to support 
the adoption of universal design principles for student assessments, we 
note that the Department has a history of supporting and promoting 
universal design for learning, assessments that are accessible for all 
students, and appropriate accommodations for students with 
disabilities. Most recently, we included ``universal design for 
learning'' in defining ``high-quality assessments'' required under the 
Race to the Top programs and the ESEA flexibility initiative.\3\ We 
have also focused funding on improving the accessibility of assessments 
through the General Supervision Enhancement Grants (GSEG) and Enhanced 
Assessment Grants (EAG) programs.
---------------------------------------------------------------------------

    \3\ ESEA flexibility refers to the Department's initiative to 
give a State flexibility regarding specific requirements of the No 
Child Left Behind Act of 2001 in exchange for developing a rigorous 
and comprehensive plan designed to improve educational outcomes for 
all students, close achievement gaps, increase equity, and improve 
the quality of instruction.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters from States that administered alternate 
assessments based on modified academic achievement standards discussed 
how these assessments were helpful in meeting the needs of students 
with disabilities. One commenter stated that the assessments improved 
instruction and student achievement while providing students with 
access to the general curriculum. A representative from a State 
educational agency (SEA) commented that five years of research and 
development went into developing their State's alternate assessments, 
which are based on grade-level content, are aligned with college- and 
career-ready standards, and do not compromise academic rigor and 
expectations. The SEA representative stated that the existing 
regulations provide the most flexibility for States and that, without 
access to the State's alternate assessments based on modified academic 
achievement standards, students who would otherwise take the alternate 
assessments would no longer have the opportunity to demonstrate their 
knowledge and skills.
    Discussion: We recognize that some States expended considerable 
resources to develop alternate assessments based on modified academic 
achievement standards. As one commenter suggests, these States' 
research and development efforts generated valuable information on how 
best to teach and assess students with disabilities. States may still 
use this information to prepare and support students to take the new 
general assessments aligned with college- and career-ready standards 
that States have developed since the Department issued the regulations 
in April 2007. Those assessments are more accessible to students with 
disabilities than those in place at the time States began developing 
alternate assessments based on modified academic achievement standards. 
The 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. Moreover, we know the key to successful 
achievement of students with disabilities begins with appropriate 
instruction, services, and supports. More than six years of research 
spurred by the opportunity that States had to research, develop, and 
administer alternate assessments based on modified academic achievement 
standards have dramatically increased the knowledge base about students 
who are struggling in school. States that received funding from the 
Department through the GSEG and EAG programs to develop alternate 
assessments based on modified academic achievement standards focused on 
several topics, including the characteristics of students who were 
participating in such assessments, barriers to these students' learning 
and performance, and approaches to making assessments more accessible. 
For example, research in several States found that some students deemed 
eligible for taking alternate assessments based on modified academic 
achievement standards may not have had an opportunity to learn grade-
level content, and that more effort was needed to support teachers in 
ensuring students have meaningful opportunities to learn grade-level 
content. Other research focused on the appropriateness of test items 
and identified various ways to improve the accessibility of test items, 
such as adjusting format characteristics or content, or carefully 
examining the difficulty of the test items and making items more 
accessible and understandable (e.g., reducing unimportant or extraneous 
details) while still measuring grade-level content.\4\ Therefore, we 
believe that alternate assessments based on modified academic 
achievement standards are no longer needed and, with high-quality 
instruction and appropriate accommodations, students with disabilities 
who took an alternate assessment based on modified academic achievement 
standards will be able to demonstrate their knowledge and skills by 
participating in the new general assessments.
---------------------------------------------------------------------------

    \4\ For more information, see: Thurlow, M. L., Lazarus, S. S., & 
Bechard, S. (Eds.). (2013). Lessons learned in federally funded 
projects that can improve the instruction and assessment of low 
performing students with disabilities. Minneapolis, MN: University 
of Minnesota, National Center on Educational Outcomes.
---------------------------------------------------------------------------

    Changes: None.
    Comments: A parent whose child participated in an alternate 
assessment based on modified academic achievement standards expressed 
concern that, without the assessment, the child would not be able to 
graduate with a high school diploma. Another commenter asked that 
States be allowed to continue to administer alternate assessments based 
on modified academic achievement standards for State purposes, such as 
promotion decisions and graduation requirements. One commenter stated 
that the assessments allowed students with disabilities to be 
successful and meet State exit exam requirements.
    Discussion: Under the final regulations, a State may no longer 
define modified academic achievement standards and administer alternate 
assessments based on modified academic achievement standards to meet 
ESEA requirements. Accordingly, these regulations do not affect State 
promotion decisions and graduation requirements because the Federal 
government does not set promotion or graduation standards for any 
students, including students with disabilities. Rather, States, and, in 
some cases, local educational agencies (LEAs), establish requirements 
for high school graduation and promotion.
    However, we note that, regardless of State or local promotion or 
graduation requirements for a regular high school diploma, in order to 
ensure a free appropriate public education (FAPE) is made available to 
students with disabilities under the IDEA,

[[Page 50776]]

individualized education programs (IEPs), including IEP goals, must be 
aligned with the State's academic content standards, and contain the 
content required by the IDEA to enable students with disabilities to be 
involved in, and make progress in, the general education curriculum 
based on the State's academic content standards. Therefore, in order to 
ensure that a State makes FAPE available to all eligible students with 
disabilities,\5\ promotion or graduation requirements for such students 
may not be lowered if doing so means including goals, special education 
and related services, and supplementary aids and services and other 
supports in a student's IEP that are not designed to enable the student 
to be involved in, and make progress in, the general education 
curriculum based on the State's academic content standards. The general 
education curriculum is the curriculum that is applicable to all 
children and is based on the State's academic content standards that 
apply to all children within the State.
---------------------------------------------------------------------------

    \5\ The IDEA prescribes certain requirements for IEPs for 
students who take alternate assessments aligned to alternate 
academic achievement standards. 34 CFR 300.160(c)(2)(iii), 
300.320(a)(2)(ii), and 300.320(a)(6)(ii). This approach addresses 
the educational and assessment needs of a relatively small 
percentage of students with the most significant cognitive 
disabilities, estimated at approximately 1% of all students in a 
State (approximately 10% of students with disabilities), who cannot 
be held to the same academic achievement standards as students 
without the most significant cognitive disabilities.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Several commenters who expressed support for the proposed 
regulations noted that they are aligned with the requirements in 
several current Department programs, such as the requirement that 
assessments funded under the Race to the Top Assessment (RTTA) program 
be accessible to all students, including students with disabilities 
eligible to participate in an alternate assessment based on modified 
academic achievement standards; the requirement that State recipients 
of Race to the Top grants phase out alternate assessments based on 
modified academic achievement standards; and the requirement that SEAs 
phase out alternate assessments based on modified academic achievement 
standards as a condition of receiving ESEA flexibility.
    One commenter who opposed the proposed regulations expressed an 
understanding that they are based on the premise that States have 
adopted Common Core State Standards, joined an RTTA consortium, or 
received waivers under ESEA flexibility. The commenter stated that 
aligning the proposed regulations with these initiatives would set 
policy for all States based on those participating in voluntary 
Department initiatives and would send a message to States not 
participating in these initiatives that they are disadvantaged for not 
doing so. Another commenter expressed concern that the proposed 
regulations would result in permanent regulatory changes predicated on 
temporary ESEA flexibility waivers.
    Discussion: The purpose of the these regulatory changes is to 
promote high expectations for students with disabilities by encouraging 
teaching and learning to high academic achievement standards for the 
grade in which a student is enrolled, measured by a State's general 
assessments. These regulations are driven by research and advances in 
the development of general assessments aligned with college- and 
career-ready standards that are more accessible to students with 
disabilities than those in place at the time States began developing 
alternate assessments based on modified academic achievement standards. 
The purpose of the regulations is not, as suggested by some commenters, 
to align them with voluntary Department initiatives. To clarify, State 
recipients of Race to the Top grants were not required to phase out 
alternate assessments based on modified academic achievement standards 
as a condition of the grants. States approved for ESEA flexibility did 
agree to phase out those assessments by school year 2014-2015; however, 
these final regulations are not predicated on that agreement. Rather, 
the ESEA flexibility requirement is consistent with the purpose of the 
regulations to promote high expectations for students with disabilities 
by encouraging teaching and learning to high academic achievement 
standards for the grade in which a student is enrolled measured by a 
State's general assessments. Therefore, we disagree with the commenters 
who claimed that the regulations would set policy based on the 
Department's voluntary initiatives. Likewise, the regulations do not 
place any State at a disadvantage as a result of its decision not to 
participate in voluntary Department initiatives.
    Changes: None.
    Comments: One commenter expressed concern that the assessments 
being developed by the Partnership for Assessment of Readiness for 
College and Careers (PARCC), although based on universal design 
features to make them more accessible, will not eliminate the need for 
alternate assessments.
    Discussion: The assessments being developed by States based on 
college- and career-ready standards, including those developed by PARCC 
and the Smarter Balanced Assessment Consortium, do not eliminate the 
authority or need for States to administer alternate assessments based 
on alternate academic achievement standards for students with the most 
significant cognitive disabilities. States may also continue to 
administer alternate assessments based on grade-level academic 
achievement standards, consistent with 34 CFR 200.6(a)(2)(ii)(A). We 
note that the Department is supporting, through the GSEG program, the 
development of alternate assessments based on alternate academic 
achievement standards that will serve as companion assessments to the 
general assessments that States are developing and implementing.
    Changes: None.
    Comments: One commenter questioned the Department's authority to 
amend the Title I regulations in light of the negotiated rulemaking 
requirements in section 1901(b) of the ESEA, including the requirement 
that the rulemaking process be conducted in a timely manner to ensure 
that final regulations are issued by the Secretary not later than one 
year after the date of enactment of the No Child Left Behind Act of 
2001 (NCLB). Similarly, the commenter questioned whether the proposed 
regulations meet the requirement in section 1908 of the ESEA that the 
Secretary issue regulations for sections 1111 and 1116 of the ESEA not 
later than six months after the date of enactment of NCLB.
    Discussion: The statutory requirements for negotiated rulemaking in 
section 1901(b) of the ESEA 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. Similarly, with respect to the timeline for issuing 
regulations implementing title I, the requirements in sections 1901 and 
1908 of the ESEA apply only to the issuance of initial regulations 
following enactment of NCLB, not to subsequent amendments such as these 
final regulations.
    Changes: None.

Assessing Students With Disabilities Based on a State's Academic 
Achievement Standards

    Comments: We received many comments on the standards to which 
students with disabilities should be held. Several commenters stated 
that all students should be held and taught to the same standards and 
that modified academic achievement standards and

[[Page 50777]]

alternate assessments based on those standards inappropriately lower 
expectations for students with disabilities and result in instruction 
that is less challenging than the instruction provided to their 
nondisabled peers. Other commenters stated that students with 
disabilities have the ability to learn grade-level content and can 
achieve at the same levels as their nondisabled peers when provided 
with appropriate instruction, services, and supports. One commenter 
stated that, when students receive instruction based on modified 
academic achievement standards, a negative cycle begins in which the 
students never learn what they need to succeed. One commenter stated 
that a State's standards and assessments should be designed to be 
appropriate for the vast majority of students with disabilities, with 
the exception of students with the most significant cognitive 
disabilities. Other commenters stated that a large number of students 
with disabilities taking alternate assessments based on modified 
academic achievement standards creates a separate education system for 
students with disabilities and focuses on students' limitations, rather 
than strengths.
    On the other hand, some commenters stated that holding students 
with disabilities to the same standards as nondisabled students is 
unfair because students who qualify for special education services have 
a disability that affects their academic functioning. They noted that 
what may be a high standard for one student may not necessarily be the 
same for another student, and that students with disabilities should 
take assessments that reflect realistic expectations for them.
    Discussion: The importance of holding all students, including 
students with disabilities, to high standards cannot be over-
emphasized. Low expectations can lead to students with disabilities 
receiving less challenging instruction that reflects below grade-level 
achievement standards, and thereby not learning what they need to 
succeed at the grade in which they are enrolled.
    Although the Department agrees that some students may have a 
disability that affects their academic functioning, we disagree that 
students with disabilities, except for those with the most significant 
cognitive disabilities, should be held to different academic 
achievement standards than their nondisabled peers. Research 
demonstrates that low-achieving students with disabilities who struggle 
in reading \6\ and low-achieving students with disabilities who 
struggle in mathematics \7\ can successfully learn grade-level content 
when they have access to high-quality instruction. The inclusion of 
students with disabilities in the new, more accessible general 
assessments will promote high expectations for students with 
disabilities, which research demonstrates is associated with improved 
educational outcomes.\8\ Therefore, we disagree with commenters' 
statements that it is unfair to hold students with disabilities, other 
than those with the most significant cognitive disabilities, to the 
same academic achievement standards as their nondisabled peers.
---------------------------------------------------------------------------

    \6\ 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); 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; and 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; and 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.
    \7\ 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; and 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/.
    \8\ For example, see Archamboult, I., Janosz, M., & Chouindard, 
R. (2012). Teacher beliefs as predictors of adolescent cognitive 
engagement and achievement in mathematics. The Journal of 
Educational Research, 105, 319-328; Hinnant, J., O'Brien, M., & 
Ghazarian, S. (2009). The longitudinal relations of teacher 
expectations to achievement in the early school years. Journal of 
Educational Psychology, 101(3), 662-670; and Hornstra, L., Denessen, 
E., Bakker, J., von den Bergh, L., & Voeten, M. (2010). Teacher 
attitudes toward dyslexia: Effects on teacher expectations and the 
academic achievement of students with dyslexia. Journal of Learning 
Disabilities, 43(6), 515-529.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Many commenters, mostly teachers and parents, stated that 
modified academic achievement standards and assessments based on those 
standards meet the needs of certain students with disabilities for whom 
the general assessment is too difficult. The commenters stated that the 
general assessment does not provide meaningful data on these students 
and that alternate assessments based on modified academic achievement 
standards allow students to demonstrate their knowledge, show progress, 
and experience success.
    Several commenters expressed concern about providing assessments to 
students when they know the students will struggle to complete the 
general assessment because, without more supports, it would be too 
challenging for the students. The commenters expressed concern that 
this experience would affect their self-esteem and result in higher 
drop-out rates for students with disabilities.
    Discussion: Since the regulations permitting States to define 
modified academic achievement standards and develop alternate 
assessments based on those standards were promulgated in 2007, there 
has been significant research and progress in developing assessments 
that are appropriate and accessible for most students, including 
students with disabilities for whom alternate assessments based on 
modified academic achievement standards were intended. As discussed in 
the NPRM, the application of universal design principles, new 
technologies, and new research on accommodations has led to the 
development of general assessments that are not only more accessible to 
students with disabilities, but also improve the validity of their 
scores. As a number of commenters noted, the developers of the new 
generation of assessments considered the needs of students with 
disabilities to ensure that the assessments are designed to allow those 
students to demonstrate their knowledge.\9\
---------------------------------------------------------------------------

    \9\ For additional information on assessment accommodations, 
see: PARCC Accessibility Features and Accommodations Manual (Nov. 
2014) at http://www.parcconline.org/sites/parcc/files/parcc-accessibility-features-accommodations-manual-11-14_final.pdf.
---------------------------------------------------------------------------

    The Department shares the goal that students with disabilities 
experience success. Removing the authority for modified academic 
achievement standards and an alternate assessment based on those 
standards furthers this goal because students with disabilities who are 
assessed based on grade-level academic achievement standards will 
receive instruction aligned with such an assessment.
    Changes: None.
    Comments: Some commenters stated that it is unfair for students 
with

[[Page 50778]]

disabilities to have modifications in instruction during the school 
year and then be assessed with a test that is not modified.
    Discussion: For purposes of this response, we assume 
``modifications in instruction'' means accommodations authorized under 
the IDEA. While the IDEA does authorize adaptations in the content, 
methodology, or delivery of instruction (34 CFR 300.39(b)(3)), it also 
requires appropriate accommodations during testing (34 CFR 300.160(a) 
and 300.320(a)(6)(i)). These accommodations, as agreed upon by a 
child's IEP team, which includes the child's parents along with school 
officials, may include, among other things, small group testing, 
frequent breaks, a separate or alternate location, a specified area or 
seating, and adaptive and specialized equipment or furniture. As 
permitted under the IDEA and determined appropriate by a student's IEP 
team, the Department believes that students with disabilities who take 
a general assessment based on a State's challenging academic 
achievement standards should be provided with accommodations during the 
assessment that are similar to the IEP accommodations they receive for 
instructional purposes and for other academic tests or assessments so 
that the students can be involved in, and make progress in, the general 
education curriculum. These regulations will not prevent the provision 
of needed supports to students with disabilities during general 
assessments or for other instructional purposes.
    Changes: None.
    Comments: One commenter expressed support for the proposed 
regulations, stating that alternate assessments based on modified 
academic achievement standards do not take into account a student's 
disability and the content of the instruction he or she is provided, 
and do not provide meaningful information to school districts or 
accurately measure the student's progress. However, the commenter 
maintained that the new general assessments, although more accessible, 
may be too difficult for students who currently participate in an 
alternate assessment based on modified academic achievement standards. 
Instead, the commenter recommended allowing States to base 
participation in the general assessment on a student's instructional 
level, rather than chronological age, with a cap of counting no more 
than two percent of proficient scores for ESEA accountability purposes.
    Discussion: The commenter's recommendation to allow States to base 
participation in the general assessment on a student's instructional 
level is often referred to as ``out-of-level'' or ``off-grade level'' 
testing and generally refers to the practice of assessing a student 
enrolled in one grade using a measure that was developed for students 
in a lower grade. By definition, an out-of-level assessment cannot meet 
the requirements of a grade-level assessment because it does not 
measure mastery of grade-level content or academic achievement 
standards. In addition, out-of-level testing is often associated with 
lower expectations for students with disabilities, tracking such 
students into lower-level curricula with limited opportunities to 
succeed in the general education curriculum.
    The Department disagrees with the commenter's statement that the 
new general assessments may be too difficult for students who currently 
participate in an alternate assessment based on modified academic 
achievement standards. We learned through States that received funding 
from the Department through the GSEG and EAG programs that some 
students with disabilities who might be candidates for an alternate 
assessment based on modified academic achievement standards may not 
have had an opportunity to learn grade-level content, and more effort 
was needed to support teachers in ensuring students have meaningful 
opportunities to learn grade-level content. Six of the projects found 
that students who might be candidates for an alternate assessment based 
on modified academic achievement standards had difficulty using printed 
materials in certain formats or demonstrated other specific challenges 
related to some components of reading. Other projects focused on the 
appropriateness of test items and identified various ways to improve 
the accessibility of test items, while still measuring grade-level 
content.\10\
---------------------------------------------------------------------------

    \10\ For more information, see: Thurlow, M. L., Lazarus, S. S., 
& Bechard, S. (Eds.). (2013). Lessons learned in federally funded 
projects that can improve the instruction and assessment of low 
performing students with disabilities. Minneapolis, MN: University 
of Minnesota, National Center on Educational Outcomes.
---------------------------------------------------------------------------

    Changes: None.
    Comments: Some commenters stated that preparing students to be 
``college ready'' should not be a goal for all public school students.
    Discussion: We understand that not all students will enter a four-
year college upon graduating from high school. However, we strongly 
believe that public schools should prepare all children to be ready for 
college or the workforce. According to research from the American 
Diploma Project, nearly two-thirds of new jobs require some form of 
postsecondary education.\11\ Therefore, in order to compete in the 21st 
century, regardless of whether a student has a disability, some form of 
postsecondary training or education is increasingly important for the 
student to become a productive and contributing adult.
---------------------------------------------------------------------------

    \11\ Achieve. (2012). The Future of the U.S. Workforce: Middle 
Skills Jobs and the Growing Importance of Post Secondary Education. 
American Diploma Project, www.achieve.org.
---------------------------------------------------------------------------

    Changes: None.

Responsibilities of IEP Teams and Students' Participation in 
Assessments

    Comments: Many commenters expressed concern that no longer 
permitting the use of alternate assessments based on modified academic 
achievement standards and requiring students to take the general State 
assessments conflict with IDEA requirements. The commenters argued that 
the IDEA requires a student's education to be individualized in an IEP 
and not standardized with an assessment designed for the general 
student population. A few commenters stated that a student's IEP team 
is responsible for making educational decisions for the student and 
should decide whether an alternate assessment based on modified 
academic achievement standards or a new more accessible general 
assessment is the more appropriate assessment for the student.
    Discussion: The commenters are correct that the IDEA assigns the 
IEP team the responsibility for determining how a student with a 
disability participates in a State or district-wide assessment, 
including assessments required under title I of the ESEA (34 CFR 
300.320(a)(6) and 300.160(a)). This IEP team responsibility is 
essential, given the importance of including all children with 
disabilities in a State's accountability system. These final 
regulations do not contravene this IEP team responsibility.
    The IDEA, Part B regulations at 34 CFR 300.320(a)(6) address what 
each student's IEP must contain regarding participation in State and 
district-wide assessments. Each child's IEP must include, among other 
things: (1) A statement of any individual appropriate accommodations 
that are necessary to measure the academic achievement and functional 
performance of the child on State and district-wide assessments and (2) 
if the IEP team determines that a student with a disability must take 
an alternate assessment, a statement of why

[[Page 50779]]

the child cannot participate in the regular assessment, and why the 
particular alternate assessment selected is appropriate for the child.
    Under these final regulations, to ensure that students with 
disabilities are appropriately included in assessments conducted under 
title I, an IEP team will continue to have the authority and 
responsibility to determine whether students with disabilities should 
take the regular assessment with or without appropriate accommodations, 
an alternate assessment based on grade-level academic achievement 
standards, if any, or, for students with the most significant cognitive 
disabilities, an alternate assessment based on alternate academic 
achievement standards.
    Although an IEP team determines how a student with a disability 
participates in general State and district-wide assessments, States are 
responsible for adopting general and alternate assessments, consistent 
with applicable Title I regulations. Accordingly, IEP teams will 
continue to determine which assessment a student with a disability will 
take in accordance with 34 CFR 300.320(a)(6), and the final regulations 
in 34 CFR 300.160(c) and 200.6(a)(2). However, under these final 
regulations, an IEP team may no longer select an alternate assessment 
based on modified academic achievement standards to assess students 
with disabilities under title I of the ESEA.
    Changes: None.
    Comments: Many commenters opposed the proposed amendments because 
they oppose standardized tests for students with disabilities. Some 
commenters stated that standardized tests cannot measure the 
achievement and progress of a student with a disability, particularly a 
student who is far behind academically. The commenters offered several 
alternatives to standardized assessments for students with disabilities 
including assessments that are specialized and personalized for each 
student; assessments that are based on each student's daily class work 
and cognitive level, rather than their age; assessments that use 
standards for passing that are developed by a student's IEP team; and 
individualized assessments that measure growth. Other commenters 
suggested allowing States to use a number of assessments to measure 
achievement for students with disabilities, rather than a single 
general assessment. A few commenters recommended using measures other 
than assessments to document the achievement of students with 
disabilities such as data on classroom performance collected by 
teachers and a student's progress toward meeting his or her IEP goals.
    Finally, some commenters recommended that States, districts, and 
schools use measures other than performance on standardized assessments 
as evidence of success in educating students with disabilities. For 
example, commenters recommended using the number of students passing 
workforce certification tests, the number of students employed in a 
skilled job after high school, or the number of students who 
effectively use a college's disability assistance center.
    Discussion: The assessment and accountability provisions of title I 
require that all students, including students with disabilities, be 
included in Statewide standardized assessments. 20 U.S.C. 
6311(b)(3)(C)(ix); 34 CFR 200.6. Section 612(a)(16)(A) of the IDEA and 
34 CFR 300.160(a) also provide that all children with disabilities must 
be included in all general State and district-wide assessments, 
including assessments described under section 1111 of the ESEA, with 
appropriate accommodations and alternate assessments where necessary 
and as indicated in their respective IEPs. Parents and teachers have 
the right and need to know how much progress all students, including 
students with disabilities, are making each year toward college and 
career readiness. That means all students, including students with 
disabilities, need to take annual Statewide assessments. Accordingly, 
the commenters' proposals of alternative methods to measure the 
achievement of students with disabilities are inconsistent with title I 
and IDEA.
    Changes: None.
    Comments: Some commenters who supported the proposed regulations 
stated that not holding all students to the same standards has resulted 
in excusing districts from their responsibility to educate students 
with disabilities based on the general curriculum. For example, one 
parent whose child participated in an alternate assessment based on 
modified academic achievement standards commented that the child 
received instruction that was not based on the general education 
curriculum, contrary to the requirements of the IDEA.
    Discussion: Current IDEA regulations (34 CFR 300.320(a)(1)(i) and 
(4)(ii)) require that each child with a disability must receive 
instruction designed to enable the child to be involved in, and make 
progress in, the general education curriculum--i.e., the same 
curriculum as for nondisabled students. The importance of this 
requirement cannot be overemphasized. As the Department stated in the 
Analysis of Comments to the 2006 IDEA, Part B regulations, ``[w]ith 
regard to the alignment of the IEP with the State's content standards, 
Sec.  300.320(a)(1)(i) clarifies that the general education curriculum 
means the same curriculum as all other children. Therefore, an IEP that 
focuses on ensuring that a child is involved in the general education 
curriculum will necessarily be aligned with the State's content 
standards.'' 71 FR 46540, 46662 (Aug. 14, 2006).
    Under section 1111(b)(1)(B) of the ESEA, a State must apply its 
challenging academic content standards to all children in the State, 
including all children with disabilities. Section Sec.  200.1(a)-(b) of 
the current title I regulations defines State academic content 
standards as grade-level standards. The Title I regulations permitting 
a State to define modified academic achievement standards and to 
administer alternate assessments based on those standards in assessing 
the academic progress of students with disabilities were not intended 
to change the requirement that those standards be based on challenging 
academic content standards. In fact, Sec.  200.1(f)(2)(iii) of the 
current title I regulations provides that, if the IEPs of students 
assessed against modified academic achievement standards include goals 
for the subjects to be assessed, the IEPs of such students assessed 
based on modified academic achievement standards must include ``goals 
based on the academic content standards for the grade in which a 
student is enrolled.'' This provision has been removed because the 
authority to define modified academic achievement standards and 
administer alternate assessments based on those standards, has been 
removed. However, IEPs for all students with disabilities must continue 
to be aligned with a State's academic content standards and include 
annual goals, special education and related services, and supplementary 
aids and services and other supports that are designed to enable the 
student to be involved in, and make progress in, the general education 
curriculum based on the State's academic content standards.
    As explained in the Senate Report accompanying the 2004 
reauthorization of the IDEA, ``[f]or most students with disabilities, 
many of their IEP goals would likely conform to State and district wide 
academic content standards and progress indicators consistent with 
standards based reform within education and the new requirements of 
NCLB. IEPs would also include other goals that the IEP Team deemed 
appropriate for the student,

[[Page 50780]]

such as life skills, self-advocacy, social skills, and desired post-
school activities. Moreover, since parents will receive individual 
student reports on their child with a disability's achievement on 
assessments under NCLB, they will have additional information to 
evaluate how well their children are doing against grade-level 
standards.'' S. Rep. No. 108-185, 105th Cong., 1st Sess. 29 (Nov. 3, 
2003). Reading the IDEA and ESEA requirements together, it is incumbent 
upon States and school districts to ensure that the IEPs of students 
with disabilities who are being assessed against grade-level academic 
achievement standards include content and instruction that gives these 
students the opportunity to gain the knowledge and skills necessary for 
them to meet those challenging standards. We strongly urge States and 
school districts to provide IEP Teams with technical assistance on ways 
to accomplish this, consistent with the purposes of the IDEA and the 
ESEA. Technical assistance is available from the following resources: 
National Center on Educational Outcomes http://www.cehd.umn.edu/nceo/default.html and The Center on Standards and Assessments Implementation 
http://csai-online.org/.
    Changes: None.

Timeline To Discontinue Alternate Assessments Based on Modified 
Academic Achievement Standards

    Comments: A number of commenters stated that eliminating the 
authority of a State to use alternate assessments based on modified 
academic achievement standards beginning in the 2014-2015 school year 
is premature. Some commenters stated that a more appropriate time to 
discontinue use of alternate assessments based on modified academic 
achievement standards would be after the 2014-2015 school year when 
many States would have completed their field tests and implemented new 
assessments aligned with college- and career-ready standards. One 
commenter referenced a report that stated that 10 to 15 percent of 
students with disabilities have disabilities that would preclude them 
from meeting new college- and career-ready standards. The commenter 
concluded that these estimates raise questions as to whether the new 
general assessments will be appropriate for all students with 
disabilities (with the exception of students with the most significant 
cognitive disabilities who are eligible to take an alternate assessment 
based on alternate academic achievement standards). The commenters 
asserted that a State should retain the authority to administer 
alternate assessments based on modified academic achievement standards 
until there is information about how adequately the new general 
assessments include students with disabilities who currently take an 
alternate assessment based on modified academic achievement standards.
    Another commenter raised concerns about phasing out alternate 
assessments based on modified academic achievement standards at the 
same time that States are implementing new general assessments. The 
commenter stated that, at such a time of change, more flexibility 
rather than less flexibility should be provided to States. One 
commenter stated that there are indications that implementation of the 
new assessments will be delayed and that these delays would negatively 
affect students with disabilities who currently take an alternate 
assessment based on modified academic achievement standards.
    Discussion: With respect to the commenters who stated that 
eliminating the authority of a State to use alternate assessments based 
on modified academic achievement standards beginning in the 2014-2015 
school year is premature, we disagree. We continue to believe that 
eliminating the authority for alternate assessments based on modified 
academic achievement standards to assess the academic progress of 
students with disabilities under title I of the ESEA at the same time 
those students are included in new general assessments is in the best 
interest of the students. All States that had implemented alternate 
assessments based on modified academic achievement standards have now 
adopted college- and career-ready standards. These States are all 
administering general assessments aligned to college- and career-ready 
standards in 2014-2015. To the extent those are RTTA assessments, they 
will not be delayed. Moreover, the RTTA assessments were field tested 
in 2013-2014 and those field tests included students assessed with an 
alternate assessment based on modified academic achievement standards. 
As a result, students with disabilities who previously participated in 
an alternate assessment based on modified academic achievement 
standards are making the transition to new general assessments along 
with their peers and have had the same benefit as their peers of 
instruction designed to meet new college- and career-ready standards. 
Therefore, it is appropriate that students with disabilities be 
assessed in 2014-2015 with the new general assessments that are aligned 
with their instruction.
    Changes: None.
    Comments: None.
    Discussion: When the proposed regulations were published on August 
23, 2013 (78 FR 52467), we anticipated finalizing the regulations prior 
to the end of the 2013-2014 school year. Therefore, we proposed 
regulations to allow States that administered alternate assessments 
based on modified academic achievement standards during the 2013-2014 
school year to continue to administer those assessments and to use the 
results for accountability purposes through the 2013-2014 school year. 
Given that the final regulations were not published prior to the end of 
the 2013-2014 school year, several of the proposed regulations are no 
longer necessary. We are, therefore, removing proposed regulations that 
refer to the conditions under which a State could continue to use 
modified academic achievement standards and to administer alternate 
assessments based on those standards until the end of the 2013-2014 
school year.
    We also are amending current Title I regulations and making 
conforming changes to current IDEA regulations to remove provisions 
related to alternate assessments based on modified academic achievement 
standards and references to ``modified academic achievement 
standards.'' We did not include these changes in the NPRM because these 
provisions were still necessary during the 2013-2014 transition year 
provided for in the proposed regulations. Now that the transition year 
has passed, there is no longer a need to retain references to 
``modified academic achievement standards'' or alternate assessments 
aligned with those standards, except for the provisions regarding 
reporting on the number of students with disabilities taking alternate 
assessments based on modified academic achievement standards in years 
prior to 2015-2016. In assessing the academic progress of students with 
disabilities under title I of the ESEA, a State retains its authority 
to continue to administer alternate assessments based on grade-level 
academic achievement standards, consistent with 34 CFR 
200.6(a)(2)(ii)(A) and revised 300.160(c)(1). Additionally, a State 
retains its authority to adopt alternate academic achievement 
standards, as permitted in 34 CFR 200.1(d), and to measure the 
achievement of students with the most significant cognitive 
disabilities against those standards, as permitted in 34 CFR 
200.6(a)(2)(ii)(B) and 300.160(c)(2)(iii) (new 300.160(c)(2)(ii)). As 
described

[[Page 50781]]

below, we are making changes to Sec. Sec.  200.1, 200.6, 200.13, and 
200.20 in the Title I regulations and Sec.  300.160 in the IDEA 
regulations.
    Changes: Changes to Sec.  200.1: We are removing proposed 
paragraphs (e)(2) and (e)(4) (both of which refer to conditions under 
which a State could continue to administer alternate assessments based 
on modified academic achievement standards until the end of the 2013-
2014 school year) and revising proposed paragraph (e)(1) (now paragraph 
(e)) to state that a State may not define modified academic achievement 
standards for any students with disabilities. We are removing as no 
longer necessary current paragraph (e)(2) (proposed redesignated 
paragraph (e)(3)), which sets out the criteria a State must establish 
for IEP teams to use to identify students with disabilities who were 
eligible to be assessed based on modified academic achievement 
standards. In addition, we are revising current paragraph (f) regarding 
State guidelines to remove all references to ``modified academic 
achievement standards.'' The requirements in current paragraph (f) 
applicable to alternate academic achievement standards remain unchanged 
and fully applicable to a State that has adopted such standards.
    Changes to Sec.  200.6: We are removing proposed paragraph (a)(3) 
so that a State may no longer measure the achievement of students with 
disabilities based on modified academic achievement standards, 
redesignating current paragraph (a)(4) as new paragraph (a)(3), and 
revising new paragraph (a)(3)(iv) (current paragraph (a)(4)(iv)) to 
require a State to report to the Secretary the number and percentage of 
children with disabilities, if any, participating in alternate 
assessments based on modified academic achievement standards in school 
years prior to 2015-2016.
    Changes to current Sec.  200.13: We are revising current paragraph 
(c) to remove references to ``modified academic achievement 
standards,'' references to the 2.0 percent cap on proficient and 
advanced scores of students taking alternate assessments based on 
modified academic achievement standards, and the Appendix.
    The requirements in current paragraph (c) applicable to alternate 
academic achievement standards remain unchanged and fully applicable to 
a State that has adopted such standards.
    Changes to current Sec.  200.20: We are revising current paragraph 
(c)(3) to remove the reference to ``modified academic achievement 
standards.'' The requirements in current paragraph (c)(3) applicable to 
alternate academic achievement standards remain unchanged and fully 
applicable to a State that has adopted such standards. We also are 
removing current paragraph (g) (which describes a transition provision 
related to modified academic achievement standards) and redesignating 
current paragraph (h) as new paragraph (g).
    Changes to current Sec.  300.160: We are revising Sec.  300.160 of 
the IDEA regulations, which addresses participation of students with 
disabilities in assessments, to make conforming changes with those made 
in the Title I regulations. We are removing current paragraph 
(c)(2)(ii), which authorizes alternate assessments based on modified 
academic achievement standards, as permitted in 34 CFR 200.1(e), in 
assessing the academic progress of students with disabilities under 
title I of the ESEA; and redesignating current paragraph (c)(2)(iii) as 
paragraph (c)(2)(ii). We are adding a new paragraph (c)(2)(iii) to make 
clear that, except as provided in paragraph (c)(2)(ii), a State's 
alternate assessments, if any, must measure the achievement of children 
with disabilities against the State's grade-level academic achievement 
standards, consistent with 34 CFR 200.6(a)(2)(ii)(A).
    Consistent with 34 CFR 200.1(e), we are adding paragraph (c)(3) to 
make clear that a State may no longer adopt modified academic 
achievement standards for any students with disabilities under section 
602(3) of the IDEA. We are revising current paragraphs (d) and (e) to 
remove references to ``modified academic achievement standards''. 
Finally, we are revising current paragraphs (f)(3) and (f)(5) to 
require a State to report to the Secretary the number and performance 
results, respectively, of children with disabilities, if any, 
participating in alternate assessments based on modified academic 
achievement standards in school years prior to 2015-2016.
    The requirements in current paragraphs (c), (d), (e), and (f) 
applicable to alternate academic achievement standards for students 
with the most significant cognitive disabilities remain unchanged and 
fully applicable to a State that has adopted such standards.

Technical Assistance and Monitoring

    Comments: Several commenters offered suggestions regarding the 
technical assistance needed to help States, teachers, and students 
transition from alternate assessments based on modified academic 
achievement standards to new, more accessible general assessments. Some 
commenters recommended providing technical assistance to help States 
develop plans to phase out alternate assessments based on modified 
academic achievement standards, including support for technical issues 
such as measuring student growth when data on two years of performance 
on the same assessment are not available. Other commenters stated that 
technical assistance is needed to ensure that students with 
disabilities receive appropriate instruction and supports to allow them 
to successfully participate in the general assessment. Commenters also 
emphasized the need to provide training and professional development to 
all educators to ensure that students with disabilities have meaningful 
access to the general curriculum, and to emphasize the importance of 
educating IEP teams, including parents, on determining the appropriate 
assessments for students with disabilities.
    Other commenters stated that States that implemented alternate 
assessments based on modified academic achievement standards learned 
important lessons, as did States that elected not to administer these 
alternate assessments and focus on improving student outcomes. The 
commenters recommended that the Department gather this information and 
use it to promote best practices for including students with 
disabilities in assessments required for accountability measures under 
the ESEA.
    Some commenters encouraged the Department to monitor schools and 
States to ensure that supports are provided to students with 
disabilities who previously participated in alternate assessments based 
on modified academic achievement standards.
    Discussion: The Department is supporting States in their transition 
to more accessible general assessment systems. In February 2014, the 
Department's Office of Elementary and Secondary Education (OESE) and 
Office of Special Education and Rehabilitative Services (OSERS) 
sponsored a meeting, ``Successfully Transitioning Away from the 2% 
Assessment,'' for State teams to jointly learn from and plan for 
discontinuing the implementation of alternate assessments based on 
modified academic achievement standards. Materials from this meeting 
are posted at www.cehd.umn.edu/nceo/AAMAStransition/default.html. The 
Department currently funds several technical assistance centers that 
provide resources on students with disabilities and the instructional 
supports they need to access the general curriculum and participate in 
the general assessment (e.g., the Center for Standards and

[[Page 50782]]

Assessment Implementation; see http://csai-online.org/). Moreover, 
several technical assistance centers provide resources that 
specifically address the needs of students who have persistent academic 
and behavioral needs that require intensive intervention to succeed in 
school and prepare them to be college and career ready (e.g., the 
National Center on Intensive Intervention; see http://www.intensiveintervention.org/). In addition, the federally funded 
Parent Training and Information Centers (http://www.parentcenterhub.org/) focus on ensuring that parents of children 
with disabilities have the information they need to participate 
effectively in their child's education, including making decisions 
about the assessments that are appropriate for their child. OESE and 
OSERS will continue to work collaboratively with the Department's 
federally funded technical assistance and dissemination partners to 
ensure that all students, including students with disabilities, have 
the supports and instruction they need to meet college- and career-
ready standards.
    With regard to commenters who recommended the Department compile 
information learned by States that implemented alternate assessments 
based on modified academic achievement standards, we note that the work 
funded by the Department through the GSEG and EAG programs has 
contributed to the knowledge base about students who are struggling in 
school. Projects funded by these programs focused on a number of 
topics, including the characteristics of students who participated in 
alternate assessments based on modified academic achievement standards, 
barriers to their learning and performance, and approaches to making 
assessments more accessible. Several State projects that focused on 
instructional matters found that more effort was needed to support 
teachers in ensuring students with disabilities have meaningful 
opportunities to learn grade-level content. Other projects focused on 
the appropriateness of test items and identified various ways to 
improve the accessibility of test items, such as examining the 
difficulty of test items and making items more accessible and 
understandable without changing the knowledge or skill that is being 
measured (e.g., reducing unimportant or extraneous details from test 
items). The lessons learned from these projects are in ``Lessons 
Learned in Federally Funded Projects that Can Improve the Instruction 
and Assessment of Low Performing Students with Disabilities,'' 
available at: http://www.cehd.umn.edu/nceo/onlinepubs/lessonslearned.pdf.
    With respect to commenters who urged the Department to monitor to 
ensure that supports are provided to students with disabilities who 
previously participated in alternate assessments based on modified 
academic achievement standards, pursuant to 34 CFR 300.149(b) and 
300.600, an SEA must monitor public agencies' implementation of the Act 
and Part B regulations and ensure timely correction of any identified 
noncompliance. We expect, therefore, that SEAs will monitor compliance 
with the provisions in 34 CFR 300.160.
    Changes: None.
    Comments: A few commenters advised the Department to monitor data 
on the percentage of students participating in alternate assessments 
based on alternate academic achievement standards following the phase 
out of alternate assessments based on modified academic achievement 
standards. One commenter stated that the Department should publish the 
assessment data from the 2012-2013 school year as part of the final 
regulations, including the number and percentage of students with 
disabilities who took the general assessment and the number and 
percentage of students who took an alternate assessment based on 
modified academic achievement standards, and the proficiency rates for 
each group.
    Discussion: Pursuant to the authority of section 618(a)(3) of the 
IDEA, the Secretary requires States to report the number of students 
with disabilities who took (1) the general assessment, with and without 
accommodations; (2) the alternate assessment based on modified academic 
achievement standards; (3) the alternate assessment based on grade-
level academic achievement standards; and (4) the alternate assessment 
based on alternate academic achievement standards. These data will help 
SEAs monitor whether the number of students who take an alternate 
assessment based on alternate academic achievement standards increases 
significantly with the elimination of alternate assessments based on 
modified academic achievement standards.
    Under title I and IDEA, States also are required to report the 
number of students with disabilities who scored at each academic 
achievement (performance) level (e.g., basic, proficient, above 
proficient). These numbers can be aggregated to derive the number of 
students with disabilities who scored at or above proficient on each 
assessment. However, States are not required to report the percentages 
of students with disabilities who scored at or above proficient on each 
assessment. The most recent year for which data are available is 2011-
2012. For additional information on these data and links to the data 
files see: https://inventory.data.gov/dataset/95ca1187-69f5-4e70-9f8c-6bbbb3d6d94a/resource/446d130d-5160-4c27-a428-317c6333b38f. In 
addition, the Department routinely publishes on its Web site States' 
Consolidated State Performance Reports (CSPR), which include data on 
the number and percentage of students with disabilities who participate 
in the general assessment and each type of alternate assessment (i.e., 
an alternate assessment based on alternate academic achievement 
standards, an alternate assessment based on modified academic 
achievement standards, and an alternate assessment based on grade-level 
academic achievement standards). The percentage of students with 
disabilities who score at or above proficient is also reported, but is 
not disaggregated by type of assessment (general versus alternate 
assessment). These data are posted at: www2.ed.gov/admins/lead/account/consolidated/index.html. Therefore, we decline to include the 
assessment data from the 2012-2013 school year in the final 
regulations, as requested by one commenter.
    Changes: None.

Alternate Assessments Based on Alternate Academic Achievement Standards

    Comments: Several commenters wrote about the need for alternate 
assessments for students with the most significant cognitive 
disabilities. One commenter asked how the proposed regulations would 
affect students with the most significant cognitive disabilities who 
take alternate assessments based on alternate academic achievement 
standards.
    Discussion: The proposed regulations do not affect the assessment 
of students with the most significant cognitive disabilities. A State 
continues to have the authority under 34 CFR 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 the one percent limitation on 
the number of proficient scores that may be counted for accountability 
purposes, include the results in accountability determinations.
    Changes: None.

[[Page 50783]]

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 final 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 final 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 final regulations are consistent with 
the principles in Executive Order 13563.
    We also have determined that this regulatory action does not unduly 
interfere with State, local, or tribal governments in the exercise of 
their governmental functions.
    In accordance with both Executive orders, the Department has 
assessed the potential costs and benefits, both quantitative and 
qualitative, of this regulatory action. The potential costs associated 
with this regulatory action are those resulting from statutory 
requirements and those we have determined are 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 regulations would not impose additional 
costs to States and LEAs or to the Federal government. For example, 
forty-two States, the District of Columbia, and Puerto Rico agreed, in 
order to receive ESEA flexibility, to phase out their use of alternate 
assessments based on modified academic achievement standards, if they 
had those assessments, by the 2014-2015 school year. Only two States 
have an alternate assessment based on modified academic achievement 
standards but have not received ESEA flexibility. Moreover, these 
regulations do not impose additional costs or administrative burdens 
because States, including the two discussed in the preceding sentence, 
are already developing and implementing 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 assessments must be valid, reliable, 
and fair for all student subgroups, including students with 
disabilities, with the exception of students with the most significant 
cognitive 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 (Apr. 
9, 2010)).
    In this context, these regulations largely reflect already planned 
and funded changes in assessment practices and do not impose additional 
costs on States or LEAs or the Federal government. On the contrary, to 
the extent that these regulations reinforce the transition to State 
assessment systems with fewer components, the Department believes these 
regulations ultimately will reduce the costs of complying with ESEA 
assessment requirements, because States would no longer develop and 
implement separate alternate assessments based on modified academic 
achievement standards based on the new college- and career-ready 
standards.
    Further, to the extent that States must transition students with 
disabilities who took an alternate assessment based on modified 
academic achievement standards to new general assessments, funding to 
support such a transition is available through existing ESEA programs, 
such as the Grants for State Assessments program, which made available 
$378 million in State formula grant assistance in fiscal year 2015.
    In sum, any additional costs imposed on States by these final 
regulations are estimated to be negligible, primarily because they 
reflect changes already under way in State assessment systems under the 
ESEA. Moreover, we believe any costs will be 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 these final regulations would be for the 
Secretary to leave in place the existing regulations permitting a State 
to define modified academic achievement standards and to develop and 
administer alternate assessments based on those standards.

[[Page 50784]]

However, the Secretary believes that these amended 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.

Paperwork Reduction Act of 1995

    These regulations do not contain any information collection 
requirements.

Assessment of Educational Impact

    Based on the response to the NPRM and on our review, we have 
determined that these final regulations do not require transmission of 
information that any other agency or authority of the United States 
gathers or makes available.
    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 either of the program contact 
persons 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.
    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.

List of Subjects

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.

34 CFR Part 300

    Administrative practice and procedure, Education of individuals 
with disabilities, Elementary and secondary education, Equal 
educational opportunity, Grant programs--education, Privacy, Private 
schools, Reporting and recordkeeping requirements.

    Dated: August 18, 2015.
Arne Duncan,
Secretary of Education.

    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. In paragraph (a)(1), removing the words ``paragraphs (d) and (e) of 
this section, which apply'' and adding, in their place, the words 
``paragraph (d) of this section, which applies''.
0
B. In paragraph (a)(2), removing the words ``paragraphs (d) and (e)'' 
and adding, in their place, the words ``paragraph (d)''.
0
C. Revising paragraphs (e) and (f).
    The revisions read as follows:


Sec.  200.1  State responsibilities for developing challenging academic 
standards.

* * * * *
    (e) Modified academic achievement standards. A State may not define 
modified academic achievement standards for any students with 
disabilities under section 602(3) of the Individuals with Disabilities 
Education Act (IDEA).
    (f) State guidelines. If a State defines alternate academic 
achievement standards under paragraph (d) of this section, the State 
must do the following:
    (1) Establish and monitor implementation of clear and appropriate 
guidelines for IEP teams to apply in determining students with the most 
significant cognitive disabilities who will be assessed based on 
alternate academic achievement standards.
    (2) Inform IEP teams that students eligible to be assessed based on 
alternate academic achievement standards may be from any of the 
disability categories listed in the IDEA.
    (3) Provide to IEP teams a clear explanation of the differences 
between assessments based on grade-level academic achievement standards 
and those based on 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 
academic achievement standards (such as whether only satisfactory 
performance on a regular assessment would qualify a student for a 
regular high school diploma).
    (4) Ensure that parents of students selected to be assessed based 
on alternate academic achievement standards under the State's 
guidelines in this paragraph are informed that their child's 
achievement will be measured based on alternate academic achievement 
standards.
* * * * *

0
3. Section 200.6 is amended by:
0
A. Removing paragraph (a)(3).
0
B. Redesignating paragraph (a)(4) as (a)(3).
0
C. Revising newly redesignated paragraph (a)(3)(iv).
    The revision reads as follows:


Sec.  200.6  Inclusion of all students.

* * * * *
    (a) * * *
    (3) * * *
    (iv) Alternate assessments based on modified academic achievement 
standards in school years prior to 2015-2016; and
* * * * *

0
4. Section 200.13 is amended by:
0
A. Revising paragraph (c).
0
B. Removing the Appendix.
    The revision reads 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) A State may include 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.
    (3) A State may not request from the Secretary an exception 
permitting it to exceed the cap on proficient and advanced scores based 
on alternate academic achievement standards under paragraph (c)(2) of 
this section.
    (4)(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) of this section only if--

[[Page 50785]]

    (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.
    (5) In calculating AYP, if the percentage of proficient and 
advanced scores based on alternate academic achievement standards under 
Sec.  200.1(d) exceeds the cap in paragraph (c)(2) 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 academic achievement standards.
    (ii) Count as non-proficient the proficient and advanced scores 
that exceed the cap in paragraph (c)(2) 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 academic achievement standards.
    (iv) Include non-proficient scores that exceed the cap in paragraph 
(c)(2) 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 academic achievement standards are informed of the actual 
academic achievement levels of their child.
* * * * *
0
5. Section 200.20 is amended by:
0
A. Revising paragraph (c)(3).
0
B. Removing paragraph (g).
0
C. Redesignating paragraph (h) as paragraph (g).
    The revision reads as follows:


Sec.  200.20  Making adequate yearly progress.

* * * * *
    (c) * * *
    (3) To count a student who is assessed based on alternate academic 
achievement standards described in Sec.  200.1(d) 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).
* * * * *

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

0
6. The authority citation for part 300 continues to read as follows:

    Authority:  20 U.S.C. 1221e-3, 1406, 1411-1419, 3474, unless 
otherwise noted.


0
7. Section 300.160 is amended by:
0
A. Removing paragraph (c)(2)(ii).
0
B. Redesignating paragraph (c)(2)(iii) as (c)(2)(ii).
0
C. In newly redesignated paragraph (c)(2)(ii), removing the final 
punctuation ``.'' and adding, in its place, ``; and''.
0
D. Adding a new paragraph (c)(2)(iii).
0
E. Adding a new paragraph (c)(3).
0
F. Revising paragraphs (d), (e), (f)(3), and (f)(5) introductory text.
    The revisions and additions read as follows:


Sec.  300.160  Participation in assessments.

* * * * *
    (c) * * *
    (2) * * *
    (iii) Except as provided in paragraph (c)(2)(ii) of this section, a 
State's alternate assessments, if any, must measure the achievement of 
children with disabilities against the State's grade-level academic 
achievement standards, consistent with 34 CFR 200.6(a)(2)(ii)(A).
    (3) Consistent with 34 CFR 200.1(e), a State may not adopt modified 
academic achievement standards for any students with disabilities under 
section 602(3) of the Act.
    (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 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 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 academic achievement standards are informed 
that their child's achievement will be measured based on alternate 
academic achievement standards.
    (f) * * *
    (3) The number of children with disabilities, if any, participating 
in alternate assessments based on modified academic achievement 
standards in school years prior to 2015-2016.
* * * * *
    (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 (prior to 2015-2016), and 
alternate assessments based on alternate academic achievement standards 
if--
* * * * *
[FR Doc. 2015-20736 Filed 8-20-15; 8:45 am]
BILLING CODE 4000-01-P