[Federal Register Volume 81, Number 132 (Monday, July 11, 2016)]
[Proposed Rules]
[Pages 44958-44979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16125]



[[Page 44957]]

Vol. 81

Monday,

No. 132

July 11, 2016

Part III





Department of Education





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34 CFR Part 200





Elementary and Secondary Education Act of 1965, as Amended by the Every 
Student Succeeds Act--Innovative Assessment Demonstration Authority; 
Proposed Rule

  Federal Register / Vol. 81 , No. 132 / Monday, July 11, 2016 / 
Proposed Rules  

[[Page 44958]]


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DEPARTMENT OF EDUCATION

34 CFR Part 200

RIN 1810-AB31
[Docket ID ED-2016-OESE-0047]


Elementary and Secondary Education Act of 1965, as Amended by the 
Every Student Succeeds Act--Innovative Assessment Demonstration 
Authority

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

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Secretary proposes new regulations under title I, part B 
of the Elementary and Secondary Education Act of 1965 (ESEA) to 
implement changes made to the ESEA by the Every Student Succeeds Act 
(ESSA) enacted on December 10, 2015, including the ability of the 
Secretary to provide demonstration authority to a State educational 
agency (SEA) to pilot an innovative assessment and use it for 
accountability and reporting purposes under title I, part A of the ESEA 
before scaling such an assessment statewide.

DATES: We must receive your comments on or before September 9, 2016.

ADDRESSES: Submit your comments through the Federal eRulemaking Portal 
or via postal mail, commercial delivery, or hand delivery. We will not 
accept comments submitted by fax or by email or those submitted after 
the comment period. 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 Regulations.gov.''
     Postal Mail, Commercial Delivery, or Hand Delivery: If you 
mail or deliver your comments about these proposed regulations, address 
them to Jessica McKinney, U.S. Department of Education, 400 Maryland 
Avenue SW., Room 3W107, Washington, DC 20202-2800.
    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: Jessica McKinney, U.S. Department of 
Education, 400 Maryland Avenue SW., Room 3W107, Washington, DC 20202-
2800. Telephone: (202) 401-1960 or by email: [email protected].
    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: 

Executive Summary

    Purpose of This Regulatory Action: On December 10, 2015, President 
Barack Obama signed the ESSA into law. The ESSA reauthorizes the ESEA, 
which provides Federal funds to improve elementary and secondary 
education in the Nation's public schools. Through the reauthorization, 
the ESSA made significant changes to the ESEA for the first time since 
the ESEA was reauthorized through the No Child Left Behind Act of 2001 
(NCLB), including significant changes to title I. In particular, the 
ESSA includes in title I, part B of the ESEA a new demonstration 
authority under which an SEA or consortium of SEAs that meets certain 
application requirements may establish, operate, and evaluate an 
innovative assessment, including for use in the State accountability 
system, with the goal of using the innovative assessment after the 
demonstration authority ends to meet the academic assessment and 
statewide accountability system requirements under title I, part A of 
the ESEA. An SEA would require this demonstration authority under title 
I, part B, if the SEA is proposing to implement an innovative 
assessment initially in only a subset of its LEAs without also 
continuing administration of its current statewide assessment to all 
students in those LEAs for school accountability and reporting 
purposes. We propose these regulations to provide clarity to SEAs 
regarding the requirements for applying for and implementing innovative 
assessment demonstration authority. These regulations will also help to 
ensure that SEAs provided this authority can develop and administer 
high-quality, valid, and reliable assessments that measure student 
mastery of challenging State academic standards, improve the design and 
delivery of large-scale assessments, and better inform classroom 
instruction, ultimately leading to improved academic outcomes for all 
students.
    Summary of the Major Provisions of This Regulatory Action: The 
proposed regulations would support implementation of provisions in 
section 1204 of title I, part B of the ESEA, as amended by the ESSA, 
that permit the Secretary to provide innovative assessment 
demonstration authority to an SEA or consortium of SEAs, including by:
     Establishing requirements for applications for the 
demonstration authority and selection criteria for evaluating those 
applications through a peer-review process;
     Establishing requirements for the transition, at the 
conclusion of an SEA's or consortium's demonstration authority period, 
to statewide use of the innovative assessment for the purposes of 
academic assessments and the statewide accountability system under 
section 1111; and
     Establishing parameters for withdrawing an SEA's or 
consortium's demonstration authority if the SEA or consortium does not 
meet certain requirements.
    Please refer to the Significant Proposed Regulations section of 
this preamble for a detailed discussion of the major provisions 
contained in the proposed regulations.
    Costs and Benefits: We believe that the benefits of this regulatory 
action outweigh any associated costs to a participating SEA, which may 
be supported with Federal grant funds. These benefits include the 
administration of assessments that may measure student mastery of State 
academic content standards more effectively than current State 
assessments and better inform classroom instruction and student 
supports, ultimately leading to improved academic outcomes for all 
students. Please refer to the Regulatory Impact Analysis section of 
this document for a more detailed discussion of costs and benefits.
    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

[[Page 44959]]

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 Room 3W107, 400 Maryland 
Ave. SW., Washington, DC, between 9:00 a.m. and 4:30 p.m., Washington, 
DC time, Monday through Friday of each week except Federal holidays. 
Please contact the person listed under FOR FURTHER INFORMATION CONTACT.
    Particular Issue for Comment: We request comments from the public 
on any issues related to these proposed regulations. However, we 
particularly request the public to comment on, and provide additional 
information regarding, the following issue. Please provide a detailed 
rationale for any response you make.
     Whether the suggested options to support SEAs or consortia 
of SEAs in evaluating their innovative assessment system will be 
effective and appropriate for determining that the innovative 
assessment generates results that are comparable for all students and 
for each subgroup of students as compared to the results for such 
students on the State assessments; whether any additional options 
should be considered; and which options, if any, should not be included 
or should be modified. (See proposed Sec.  200.77.)
    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 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

    On December 10, 2015, President Barack Obama signed the ESSA into 
law. The ESSA reauthorizes the ESEA, which provides Federal funds to 
improve elementary and secondary education in the Nation's public 
schools. Through the reauthorization, the ESSA made significant changes 
to the ESEA, including in title I, part B, permitting a new innovative 
assessment demonstration authority. This authority is aligned with the 
principles of President Obama's testing action plan, which seeks to 
ensure that assessments are high-quality, worth taking, and time-
limited.\1\ Under this authority, an SEA or consortium of SEAs that 
meets certain application requirements may establish, operate, and 
evaluate an innovative assessment system, and use the innovative 
assessment system for purposes of school accountability and reporting 
in its local educational agencies (LEAs), or a subset of its LEAs or 
schools, instead of the applicable statewide assessment. SEAs already 
have flexibility to innovate their statewide assessment systems under 
title I, part A without using this demonstration authority--for 
example, by adopting computer-adaptive testing, breaking up a single 
summative assessment into interim or modular assessments, or adopting 
innovative item types. An SEA requires this authority under title I, 
part B only if the SEA is proposing to implement an innovative 
assessment initially in a subset of its LEAs without also continuing 
administration of its current statewide assessment to all students in 
those LEAs for school accountability and reporting purposes.
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    \1\ U.S. Department of Education (2015). Fact Sheet: Testing 
Action Plan [Press release]. Retrieved from http://www.ed.gov/news/press-releases/fact-sheet-testing-action-plan.
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    An SEA may propose an innovative assessment system that includes 
academic content assessments in all of the required grades and subjects 
under section 1111(b)(2)(B) of the ESEA, as amended by the ESSA, or a 
system that includes a subset of those grades or subjects. For example, 
an SEA could administer an innovative assessment only in high school 
mathematics and reading/language arts, in science within each grade 
span, or in mathematics in grades 3-5, so long as the SEA maintained 
its statewide assessments in any required grade or subject in which an 
innovative assessment would not be administered. An SEA or consortium 
may implement the demonstration authority for up to five years (and may 
request to extend this authority for an additional two years if 
needed), with the goal of using the innovative assessment statewide 
after the demonstration authority period to meet the academic 
assessment and accountability requirements under title I, part A of the 
ESEA. We propose these regulations to provide clarity to SEAs regarding 
the requirements for applying for and implementing the innovative 
assessment demonstration authority. The proposed regulations are 
further described under the Significant Proposed Regulations section of 
this NPRM.

Public Participation

    On December 22, 2015, the Department published a request for 
information in the Federal Register soliciting advice and 
recommendations from the public on the implementation of title I of the 
ESEA, as amended by the ESSA. We received 369 comments. We also held 
two public meetings with stakeholders--one on January 11, 2016, in 
Washington, DC, and one on January 19, 2016, in Los Angeles, 
California--at which we heard from over 100 speakers regarding the 
development of regulations, guidance, and technical assistance. In 
addition, Department staff have held more than 200 meetings with 
education stakeholders and leaders across the country to hear about 
areas of interest and concern regarding implementation of the new law.

Significant Proposed Regulations

    The Secretary proposes new regulations in 34 CFR part 200 to 
implement the innovative assessment demonstration authority under 
section 1204 of title I, part B of the ESEA, as amended by the ESSA. We 
discuss substantive issues under the sections of the proposed 
regulations to which they pertain.

Section 200.76 Innovative Assessment Demonstration Authority

    Statute: Under section 1204 of the ESEA, as amended by the ESSA, 
the Secretary may provide an SEA or consortium of SEAs with authority 
to establish an innovative assessment system (referred to as 
``demonstration authority'') if the SEA or consortium meets certain 
application requirements. Section 1204(f) requires the Secretary to 
implement a peer review process to inform the awarding of demonstration 
authority. Section 1204(b) specifies that the Secretary may provide 
demonstration authority for a period not to exceed five years and that, 
during the first three years in which the Secretary provides 
demonstration authority (referred to as the ``initial demonstration 
period''), no more than seven SEAs may participate (including those 
participating in a consortium), and a consortium may include no more 
than four SEAs.
    Section 1204(a) provides examples of the types of assessments that 
may be part of an innovative assessment system including: (1) 
Competency-based assessments, instructionally embedded assessments, 
interim assessments, cumulative year-end assessments, or performance-
based assessments that

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combine into an annual summative determination for a student, which may 
be administered through computer-adaptive assessments; and (2) 
assessments that validate when students are ready to demonstrate 
mastery or proficiency and allow for differentiated student support 
based on individual learning needs.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  200.76 would establish general 
requirements that SEAs and consortia of SEAs must meet when applying 
for, and implementing, the innovative assessment demonstration 
authority in the ESEA, as amended by the ESSA, including definitions 
and a requirement that applications from SEAs and consortia of SEAs be 
peer reviewed based on the proposed requirements and selection criteria 
established in subsequent sections of the proposed regulations. 
Proposed Sec.  200.76(b) would define key terms used in subsequent 
sections of the proposed regulations, including ``demonstration 
authority period'' and ``innovative assessment system.'' Proposed Sec.  
200.76(c) would clarify the process by which the Secretary may assign 
values to each proposed selection criterion and factors under a 
criterion, and proposed Sec.  200.76(d) would clarify limitations on 
participation during the initial demonstration period, including 
clarifications related to consortia of SEAs that have affiliate members 
not yet implementing the innovative assessment system.
    Reasons: Title I, part B of the ESEA, as amended by the ESSA, 
includes a new innovative assessment demonstration authority under 
which an SEA or consortium of SEAs may apply to the Secretary to 
establish, operate, and evaluate an innovative assessment system, and 
use such an assessment instead of, or in addition to, its statewide 
assessments for purposes of school accountability and reporting. An SEA 
may initially administer its innovative assessment in a subset of 
schools or LEAs. However, the goal of the demonstration authority 
period is to provide an SEA with the time to implement, improve, and 
evaluate the technical quality of its innovative assessment to 
determine whether it should be continued, taken to scale, and 
administered statewide, and whether it can be used to meet the 
statewide academic assessment and accountability requirements under 
title I, part A of the ESEA, as amended by the ESSA, at the end of the 
demonstration authority period. The demonstration authority period is 
capped at five years, although an SEA may request an extension of no 
more than two years if it needs additional time to scale its system to 
operate statewide and receive approval to use its system for purposes 
of title I, part A of the ESEA.
    We believe the proposed regulations are critical to provide clarity 
for SEAs interested in applying for the demonstration authority. First, 
proposed Sec.  200.76 would help SEAs understand the purpose and goal 
of the demonstration authority by defining key terms and timelines. By 
defining the ``demonstration authority period'' for an individual SEA 
or consortium of SEAs, the proposed regulations would clarify that the 
SEA must be ready to implement an operational innovative assessment in 
at least some LEAs at the time of its application and that the period 
cannot be used solely for planning. The SEA must also be ready to use 
such an assessment for purposes of accountability and reporting student 
achievement during each year of its demonstration authority period.
    We recognize that many SEAs will need time to plan, develop or 
procure, pilot, and field test components of an innovative assessment 
prior to operation. An SEA does not need demonstration authority to 
plan for or develop an innovative assessment, or to administer such an 
assessment in schools or LEAs alongside current statewide assessments, 
or in place of required LEA assessments. Only SEAs that are ready to 
administer an innovative assessment, in at least some schools or LEAs, 
in place of the statewide assessment require authority. For these 
reasons, we intend to work with external partners and organizations to 
assist interested SEAs in planning for innovative assessment 
demonstration authority and understanding the application process and 
purpose and opportunity for innovation within the authority. 
Specifically, the Department intends to offer SEAs that are not yet 
ready to implement an innovative assessment under the demonstration 
authority, including SEAs that are affiliate members of consortia, the 
opportunity to receive technical assistance focused on innovative 
assessments, such as by participating in a community of practice. SEAs 
will have an opportunity to receive support and learn from experts in 
assessment and accountability system design as they plan their systems. 
These innovative assessment technical assistance opportunities would 
create a space for SEAs to engage in thoughtful planning of their 
innovative assessment system, as well as share ideas and receive useful 
feedback--ultimately increasing the strength of future proposals and 
creating a cohort of additional SEAs that may be ready to implement the 
demonstration authority.
    We also note that, under part A of title I of the ESEA, as amended 
by the ESSA, States have the flexibility to use computer-adaptive 
statewide assessments, to administer a single summative statewide 
assessment, or to offer multiple statewide interim assessments during 
the course of the academic year that result in a single summative score 
and provides valid, reliable, and transparent information on student 
achievement (e.g., modular assessments). A State may administer and 
submit any of these assessments for Federal peer review of State 
assessment systems without seeking demonstration authority, because 
they are permitted under section 1111(b)(2) and are given statewide, 
rather than in a subset of LEAs initially. In other words, an SEA could 
use a peer-reviewed innovative assessment statewide without this 
authority. Similarly, an SEA could test an innovative assessment in 
some LEAs without this authority, so long as it continued to use the 
existing statewide assessment for accountability purposes in those 
LEAs. However, if an SEA desires to begin to use an innovative 
assessment system for accountability purposes under title I in a select 
handful of LEAs, while using the statewide assessment for those 
purposes in other LEAs--that is, if they wish to maintain two separate 
assessment systems for accountability for some temporary period of 
time--then demonstration authority is required.
    Because the statute lists types of assessments, such as 
performance-based and interim assessments, that an SEA may use in its 
innovative assessment system, proposed Sec.  200.76 would also define 
``innovative assessment system'' to provide greater clarity that any 
innovative assessment design may be used under the demonstration 
authority, so long as it meets applicable requirements and produces an 
annual summative determination for each student of grade-level 
achievement aligned to the State's challenging academic standards under 
section 1111(b)(1), or, when a student is assessed with an alternate 
assessment aligned with alternate academic achievement standards, an 
annual summative determination for the student relative to such 
alternate academic achievement standards. This would promote 
flexibility and innovation in assessment design, while ensuring that 
students in schools participating in the authority would be held to the 
same high standards as other students in the State and that parents

[[Page 44961]]

and educators receive the same vital information about student progress 
toward meeting those standards each year.
    Finally, proposed Sec.  200.76 would clarify the process for 
applying to the Secretary for the demonstration authority, including 
the statutory requirement that applications from an SEA or a consortium 
of SEAs be peer reviewed to inform the Secretary's decision to award an 
SEA with the authority. The proposed regulations would provide greater 
clarity by specifying that each applicant must address all of the 
requirements and selection criteria, described in proposed Sec. Sec.  
200.77 and 200.78, in its application. In particular, the peer review 
process would be designed to help the Secretary determine whether an 
applicant will be able to successfully meet the requirements of the 
demonstration authority based on the extent to which the applicant's 
plan sufficiently addresses the selection criteria. Such peer review 
panels would include experts in the design, development, and 
implementation of innovative assessment systems (including 
psychometricians, measurement experts, and researchers) and State and 
local practitioners with experience implementing such systems (such as 
State and local assessment directors and educators). Further, proposed 
Sec.  200.76 would specify the process by which the Secretary informs 
applicants of the value assigned to each selection criterion or factor 
under a criterion. The proposed regulations do not assign values for 
particular selection criterion at this time, but, rather, help inform 
interested SEAs that these criteria will each be scored during the peer 
review process in a similar manner to how the Department uses selection 
criteria in other programs, as specified under 34 CFR 75.201. Taken 
together, these proposed regulations would help ensure that SEAs 
understand the expectations and terms of the demonstration authority 
and increase the likelihood that SEAs will submit applications that 
meet the requirements and fully address the selection criteria.

Sections 200.77 and 200.78 Demonstration Authority Application 
Requirements and Selection Criteria

    Statute: Section 1204(e) of the ESEA, as amended by the ESSA, 
requires an SEA or consortium of SEAs seeking demonstration authority 
to submit an application to the Secretary. Specifically, section 
1204(e) requires that an application include a description of the 
experience of the applicant in implementing any components of its 
innovative assessment system, the timeline over which it proposes to 
exercise demonstration authority, and a demonstration that the 
innovative assessment system will--
    (1) Be developed in collaboration with stakeholders representing 
the interests of children with disabilities, English learners, and 
other historically underserved children; teachers, principals, and 
other school leaders; LEAs; parents; and civil rights organizations in 
the State;
    (2) Meet all requirements of section 1111(b)(2)(B), excluding 
requirements that the assessments be the same assessments administered 
to all public school students in the State (if the system will be 
initially administered in a subset of LEAs) and be administered 
annually in grades 3-8 and at least once in grades 9-12 in reading/
language arts and mathematics and at least once in each of grades 3-5, 
6-9, and 10-12 in science;
    (3) Be aligned to the challenging State academic content standards 
under section 1111(b)(1) and address the depth and breadth of those 
standards;
    (4) Express student results or student competencies in terms 
consistent with the State's aligned academic achievement standards 
under section 1111(b)(1);
    (5) Generate results that are valid, reliable, and comparable for 
all students and for each subgroup of students in section 
1111(b)(2)(B)(xi) as compared to the results for such students on the 
statewide academic assessments under section 1111(b)(2);
    (6) Be accessible to all students, such as by incorporating the 
principles of universal design for learning;
    (7) Provide teachers, principals, other school leaders, students, 
and parents with timely data, disaggregated by each subgroup of 
students described in section 1111(b)(2)(B)(xi), to inform and improve 
instructional practice and student supports;
    (8) Identify which students are not making progress toward meeting 
the challenging State academic standards so that teachers can provide 
instructional support and targeted interventions to all students;
    (9) Annually measure the progress of not less than the same 
percentage of students overall and in each of the subgroups of students 
in section 1111(c)(2), as measured under section 1111(c)(4)(E), as were 
assessed under the statewide academic assessments required by section 
1111(b)(2);
    (10) Generate an annual, summative achievement determination, based 
on the aligned State academic achievement standards under section 
1111(b)(1) and based on annual data, for each individual student; and
    (11) Allow the SEA to validly and reliably aggregate data from the 
innovative assessment system for purposes of accountability, consistent 
with the requirements of section 1111(c), and reporting, consistent 
with the requirements of section 1111(h).
    In addition, section 1204(e) requires an application that includes 
a description of how an SEA will--
    (1) Continue use of the statewide academic assessments required 
under section 1111(b)(2) if those assessments will be used for 
accountability purposes for the duration of the demonstration authority 
period;
    (2) Ensure that students with the most significant cognitive 
disabilities may be assessed with alternate assessments consistent with 
section 1111(b)(2)(D);
    (3) Inform parents of students in participating LEAs about the 
innovative assessment system at the beginning of each school year in 
which the system will be implemented;
    (4) Report data from the system annually to the Secretary;
    (5) Identify the distinct purposes for each assessment that is part 
of the system;
    (6) Provide support and training to LEA and school staff to 
implement the system;
    (7) Engage and support teachers in developing and scoring 
assessments that are part of the system, including through the use of 
high-quality professional development, standardized and calibrated 
scoring rubrics, and other strategies, consistent with relevant 
nationally recognized professional and technical standards, to ensure 
inter-rater reliability and comparability;
    (8) Acclimate students to the system;
    (9) If the SEA is proposing to administer the system initially in a 
subset of LEAs, scale the system to administer the system statewide or 
in additional LEAs;
    (10) Gather data, solicit regular feedback from teachers, 
principals, other school leaders, and parents, and assess the results 
of each year of the demonstration authority, and respond by making 
needed changes;
    (11) Ensure that all students and each of the subgroups of students 
in section 1111(c)(2) participating in the system receive the 
instructional support needed to meet the State's aligned academic 
achievement standards;
    (12) Ensure that each LEA has the technological infrastructure to 
implement the system; and
    (13) Hold all schools in participating LEAs accountable for meeting 
the

[[Page 44962]]

State's expectations for student achievement.
    Finally, section 1204(e) requires an application from an SEA 
seeking to administer an innovative assessment system initially in a 
subset of LEAs to include--
    (1) A description of the LEAs that will participate, including what 
criteria the SEA has for approving any additional LEAs to participate 
during the demonstration authority period;
    (2) Assurances from participating LEAs that they will comply with 
the requirements of section 1204(e);
    (3) A description of how the SEA will ensure that the inclusion of 
additional LEAs contributes to progress toward achieving high-quality 
and consistent implementation across demographically diverse LEAs 
during the demonstration authority period and that the participating 
LEAs, as a group, will be demographically similar to the State as a 
whole by the end of the demonstration authority period; and
    (4) A description of the SEA's plan to hold all students and each 
subgroup of students in section 1111(c)(2) to the same high standard as 
other students in the State.
    Section 1204(f) requires the Secretary to implement a peer review 
process to inform the awarding of demonstration authority to applicants 
and determinations of whether an applicant's innovative assessment 
system meets requirements in addition to those listed in section 
1204(e).
    Specifically, the peer review must help inform the Secretary's 
determination as to whether the system--
    (1) Is comparable to the State academic assessments under section 
1111(b)(2);
    (2) Is valid, reliable, of high technical quality, and consistent 
with relevant, nationally recognized professional and technical 
standards; and
    (3) Provides an unbiased, rational, and consistent determination of 
progress toward the long-term goals described under section 
1111(c)(4)(A)(i) for the academic achievement of all students based on 
academic assessments.
    Section 1204(l) specifies that each State member of a consortium 
seeking demonstration authority must meet all applicable requirements. 
Section 1204(c) and 1204(m) describes the role of the Institute for 
Education Sciences in producing a progress report on implementation of 
the authority during the initial demonstration period, as well as 
disseminating regular information and best practices to the field on 
innovative assessments after the initial demonstration period 
concludes.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  200.77 would clarify the 
requirements that an SEA or consortium of SEAs must meet in its 
application in order to be approved to implement the demonstration 
authority. The SEA or consortium would be required to submit to the 
Secretary an application that addresses three areas: Consultation, as 
described in proposed Sec.  200.77(a); innovative assessment systems, 
as described in proposed Sec.  200.77(b); selection criteria, as 
described in proposed Sec.  200.78; and assurances, as described in 
proposed Sec.  200.77(d). In addition, proposed Sec.  200.77(e) would 
clarify certain application requirements that apply to an SEA or 
consortium seeking to implement demonstration authority initially in a 
subset of schools or LEAs, and proposed Sec.  200.77(f) would clarify 
application requirements that apply specifically to a consortium.
Consultation
    Proposed Sec.  200.77(a) would require an SEA or consortium to 
provide evidence that it developed the innovative assessment system in 
collaboration with partners, including (1) experts in the planning, 
development, implementation, and evaluation of innovative assessments 
and (2) affected stakeholders, including those representing the 
interests of children with disabilities, English learners, and other 
subgroups of students under section 1111(c)(2) of the ESEA; teachers, 
principals, and other school leaders; LEAs; students and parents; and 
civil rights organizations.
Innovative Assessment System Requirements
    Proposed Sec.  200.77(b) would clarify requirements for an 
innovative assessment system by requiring a demonstration from each SEA 
or consortium describing how its system does or will:
     Meet all requirements under section 1111(b)(2)(B), with 
two exceptions. First, innovative assessments would not need to be the 
same assessments administered to all public school students in the 
State during the demonstration authority period, if the innovative 
assessment will be administered initially in a subset of schools or 
LEAs, provided that non-participating schools continue to administer 
the statewide academic assessments under section 1111(b)(2). Second, 
innovative assessments would not need to be administered annually in 
grades 3-8 and at least once in grades 9-12 (in the case of reading/
language arts and mathematics assessments) and at least once in grades 
3-5, 6-9, and 10-12 (in the case of science assessments), so long as 
the statewide academic assessments under section 1111(b)(2) are 
administered in each required grade and subject in which the SEA does 
not implement an innovative assessment.
     Align with the State academic content standards under 
section 1111(b)(1), including their full depth and breadth.
     Express individual student results or competencies in 
terms consistent with the State academic achievement standards under 
section 1111(b)(1), and identify which students are not making 
sufficient progress toward, and attaining, grade-level proficiency on 
such standards.
     Provide for comparability to the State academic 
assessments under section 1111(b)(2) and generate results that are 
valid, reliable, and comparable for all students and for each subgroup 
of students under section 1111(b)(2)(B)(xi), as compared to the results 
for such students on the State assessments. Consistent with the 
selection criterion for evaluation and continuous improvement described 
in proposed Sec.  200.78(e), an SEA would be required to submit a plan 
to annually determine comparability to the State assessments using one 
of several specified methods, which include assessing all students 
using an existing State assessment at least once in each grade span for 
which there is an innovative assessment; assessing a representative 
sample of students in the same school year on both the innovative and 
corresponding State assessment; incorporating common items on both 
innovative and statewide assessments; or an alternative method that an 
SEA can demonstrate will provide for an equally rigorous and 
statistically valid comparison between student performance on the 
innovative assessment and the existing statewide assessment, including 
for each subgroup of students under section 1111(b)(2)(B)(xi).
     Provide for the participation of, and be accessible for, 
all students, including children with disabilities and English 
learners, and provide appropriate accommodations consistent with 
section 1111(b)(2). An SEA may also incorporate the principles of 
universal design for learning in developing its innovative assessments.
     For purposes of the accountability system under section 
1111(c)(4)(E), annually measure the progress on the Academic 
Achievement indicator of at least 95 percent of all students, and 95

[[Page 44963]]

percent of students in each subgroup of students under section 
1111(c)(2) who are required to take such assessments in participating 
schools.
     Generate an annual summative determination for each 
student in a school participating in the innovative assessment system 
describing the student's grade-level mastery of the State's challenging 
academic standards under section 1111(b)(1), or, in the case of a 
student assessed with an alternate assessment aligned with alternate 
academic achievement standards, an annual summative determination for 
the student relative to such alternate academic achievement standards.
     Provide disaggregated results by each subgroup of students 
under section 1111(b)(2)(B)(xi), including timely data for teachers, 
principals and other school leaders, students, and parents consistent 
with the statutory requirements for the statewide assessment system and 
reporting data on State and LEA report cards and provided in an 
accessible manner to parents.
     Provide an unbiased, rational, and consistent 
determination of progress toward the State's long-term goals under 
section 1111(c)(4)(A), for all students and each subgroup of students 
under section 1111(c)(2), and a comparable measure of student 
performance on the Academic Achievement indicator under section 
1111(c)(4)(B)(i) for participating schools relative to non-
participating schools so that the SEA may validly and reliably 
aggregate data from the system for purposes of meeting the statutory 
requirements for the statewide accountability system (including how the 
SEA identifies participating and non-participating schools in a 
consistent manner for comprehensive and targeted support and 
improvement, consistent with section 1111(c)) and reporting on State 
and LEA report cards.
Selection Criteria
    Proposed Sec.  200.77(c) would require each SEA or consortium to 
submit an application that addresses each of the selection criteria, 
described further in proposed Sec.  200.78.
Assurances
    Proposed Sec.  200.77(d) would require an SEA, or each SEA in the 
consortium, to provide the following assurances:
     The SEA will continue use of the statewide academic 
assessments during the demonstration authority period in any school 
that is not participating in the demonstration authority, as well as in 
each participating school if the statewide assessments will be used in 
addition to the innovative assessments for accountability purposes 
under section 1111(c) during grades or grade spans when the innovative 
assessments are not offered, or for purposes of evaluation of the 
innovative assessments consistent with proposed Sec.  200.78(e).
     The SEA will ensure that all students and each subgroup of 
students under section 1111(c)(2) in participating schools and LEAs are 
held to the same challenging academic standards as all other students, 
except that students with the most significant cognitive disabilities 
may be assessed with an alternate assessment aligned to alternate 
academic achievement standards consistent with section 1111(b)(2)(D), 
and that all students and subgroups of students will receive the 
instructional support needed to meet those standards.
     The SEA will annually report information pertaining to 
implementation of the innovative assessment system to the Secretary, 
including: (1) An update on implementation, including the SEA's 
progress against its timeline under proposed Sec.  200.78(c), any 
outcomes or results from its ongoing evaluation and continuous 
improvement under proposed Sec.  200.78(e), and, if the innovative 
assessment system is not yet used statewide, the SEA's progress in 
scaling up the system to additional LEAs or schools consistent with its 
strategies under proposed Sec.  200.78(a)(4); (2) the performance of 
participating students, at the State, LEA, and school level, for all 
students and disaggregated by each subgroup of students under section 
1111(c)(2) on the innovative assessment in a manner that does not 
reveal personally identifiable information; (3) if the innovative 
assessment system is not yet implemented statewide, school demographic 
and student achievement information (including by each subgroup of 
students under section 1111(c)(2)) for participating schools and LEAs 
and for any schools or LEAs that will participate for the first time in 
the following year, as well as a description of how the participation 
of additional schools or LEAs in that year contributes to progress 
toward achieving high-quality and consistent implementation across 
demographically diverse LEAs in the State consistent with the SEA's 
plan and benchmarks under proposed Sec.  200.78(a)(4)(iii); and (4) 
feedback from teachers, principals, other school leaders, parents, and 
other stakeholders consulted under proposed Sec.  200.77(a)(2)(i) 
through (v) about their satisfaction with the innovative assessment 
system.
     The SEA will ensure that each LEA provides parents of 
students enrolled in participating schools with specific information 
about the innovative assessment system consistent with section 
1112(e)(2)(B) at the beginning of each school year during which the 
innovative assessment system will be implemented, in an understandable 
and uniform format and, to the extent practicable, a language that 
parents can understand.
     The SEA will ensure that it will coordinate with and 
provide information to, as applicable, the Institute of Education 
Sciences for purposes of the progress report described in section 
1204(c) and ongoing dissemination of information under section 1204(m).
Initial Implementation in a Subset of LEAs or Schools
    If an SEA or consortium seeks to implement an innovative assessment 
system initially in a subset of its LEAs or schools, rather than 
statewide, proposed Sec.  200.77(e) would require the SEA or consortium 
to provide: (1) A description of each LEA, and its participating 
schools, that will initially participate, including demographic 
information and its most recent LEA report card under section 
1111(h)(2); and (2) an assurance from each LEA that it will comply with 
all applicable requirements.
Applications From a Consortium
    Finally, proposed Sec.  200.77(f) would require a consortium to 
describe its governance structure, including:
     The role of each SEA member (including financial 
responsibilities), which may include a description of ``affiliate 
members'' that are involved in the consortium's work but are not 
seeking demonstration authority to implement the innovative assessment 
system;
     How the member SEAs will manage and, at their discretion, 
share intellectual property developed by the consortium as a group; and
     How the member SEAs will consider requests from other SEAs 
to join or leave the consortium and ensure that changes in membership 
do not affect the consortium's ability to implement the demonstration 
authority.
    Reasons: Proposed Sec.  200.77 would clarify and organize each 
statutory requirement that an SEA or consortium of SEAs seeking the 
demonstration authority must meet in its application to the Secretary. 
Determinations of whether an SEA or consortium meets the requirements 
would be informed by the peer review process under proposed Sec.  
200.76. Proposed Sec.  200.77 would group similar requirements together 
into

[[Page 44964]]

the categories below to facilitate application preparation and 
organization of work.
Consultation
    Given the statutory requirement in section 1204(e)(2)(A)(v) of the 
ESEA, as amended by the ESSA, that innovative assessments be developed 
in collaboration with certain partners, proposed Sec.  200.77(a) would 
clarify that consultation with stakeholders must occur prior to the 
submission of an application and specify that students and experts in 
the planning, development, and implementation of innovative assessments 
must be among the stakeholders consulted. Students, especially English 
learners and students with disabilities, will be significantly affected 
by the implementation of an innovative assessment and considering their 
perspectives would help improve the likelihood that the innovative 
assessment promotes high-quality instruction and sufficient student 
supports. The proposed regulations would also require that experts be 
included in the collaboration given the technical challenges of 
designing and implementing innovative assessments or items that are 
aligned to challenging State academic standards and are valid, 
reliable, and of adequate quality for use in State accountability 
systems. Experts and other partners would provide additional guidance 
to SEAs and consortia, increasing the strength of their applications.
 Innovative Assessment System Requirements
    Proposed Sec.  200.77(b) would organize and clarify the statutory 
requirements related to the design of innovative assessment systems 
that an SEA or consortium must address in its application for 
demonstration authority. Clarifying these requirements would help 
ensure that SEAs can provide a plan for how their innovative 
assessments does or will meet the relevant requirements under part A of 
title I, including for assessments to be valid, reliable, of high 
technical quality, and consistent with relevant, nationally recognized 
professional and technical standards and to provide for the 
participation of all students. Proposed Sec.  200.77(b) would also 
ensure that participating SEAs continue to administer reading/language 
arts and mathematics assessments to all students annually in grades 3-8 
and once in high school, and science assessments to all students once 
in each grade span, even if students in some schools are taking the 
innovative assessment, while students in other schools take the 
statewide assessment. Further, proposed Sec.  200.77(b) would clarify 
that an SEA may develop an innovative assessment system for use only in 
certain grades or subjects so long as the statewide assessment is 
administered to students in participating schools in any required grade 
or subject in which the SEA is not using an innovative assessment. This 
would help ensure that an SEA developing an innovative assessment in 
certain grades or subjects maintains its statewide assessments in other 
grades and subjects in order to comply with part A of title I during, 
and after, the demonstration authority period. We also note that an SEA 
or consortium may propose to develop and scale: (1) An innovative 
assessment to be used as its general assessment in reading/language 
arts, mathematics, or science; (2) an innovative alternate assessment 
to be used as its alternate assessment for students with the most 
significant cognitive disabilities in any of those subjects; or (3) 
both.
    Proposed Sec.  200.77(b) would also clarify critical statutory 
requirements related to alignment with the State academic content 
standards, including the full depth and breadth of those standards, and 
the State academic achievement standards. These requirements would help 
ensure that all students are held to the same high expectations and 
that students not making progress toward those standards are identified 
so they can receive additional instruction and support. Further, these 
requirements would reinforce another innovative assessment system 
requirement: Generating comparable, valid, and reliable results between 
the statewide and innovative assessment for all students and subgroups 
of students described in section 1111(b)(2)(B)(xi).
    Comparable information about student achievement across schools 
using different assessments during the demonstration authority period 
is critical to ensure consistent information on student progress across 
the State and support valid, reliable, and fair accountability 
determinations. Consistent with the statute, the proposed regulations 
would require an SEA to have a plan, which would be evaluated in the 
application peer review, to annually determine comparability between 
the two assessment systems while providing the SEA flexibility to 
select the method of demonstration from a list of options, or to 
propose an alternative equally rigorous and statistically valid option 
for demonstrating comparability, based on its specific innovative 
assessment approach. The peer review will determine the extent to which 
the innovative assessment system is consistent with, or better than, 
the State academic assessment in: (1) The validity of inferences drawn 
about student achievement, (2) the alignment with challenging State 
academic standards, (3) the classification of students into achievement 
levels based on the same breadth of knowledge and skills, and (4) 
reliability, among other criteria. While there are several possible 
methods of demonstrating comparability across innovative and existing 
State assessments, a rigorous evaluation of comparability will best 
support the SEA's ability to meet the statutory requirements. Though 
innovative assessments need not be the same as existing State tests, 
the academic expectations they articulate and measure should be 
consistent. Further, with SEAs likely using both tests concurrently to 
make school accountability determinations for a period of time, student 
results must be sufficiently interchangeable for these purposes, making 
establishing comparability in a psychometrically acceptable manner 
urgently important. For these reasons, we are particularly interested 
in receiving comments on whether the options for evaluating 
comparability of student results from innovative assessments with 
respect to results from the State assessments will be effective; 
whether any additional options should be considered; and which options, 
if any, should not be included or should be modified.
    Proposed Sec.  200.77(b) would also clarify the specific elements 
of the accountability system for which an SEA would need to demonstrate 
that its innovative assessment system generates consistent and 
comparable information between participating and non-participating 
schools and LEAs: Progress toward the State's long-term goals for 
academic achievement for all students and subgroups of students, and 
the Academic Achievement indicator used in the State's system of annual 
meaningful differentiation. Because the ESEA, as amended by the ESSA, 
relies on multiple measures for differentiation and identification of 
schools, it is helpful to clarify which measures must be comparable and 
identify those that are likely to be affected by implementation of the 
innovative assessment system. Further, proposed Sec.  200.77(b) would 
ensure that participating schools continue to be held accountable in 
the same ways as other schools in the State.
    Participation in the demonstration authority should not exempt 
schools from accountability--only from

[[Page 44965]]

administering the statewide test to all students in each required grade 
and subject for which an innovative assessment is used instead. The 
proposed regulations would ensure that all LEAs and schools across the 
State are treated fairly for accountability purposes and that all 
students receive the supports they need if their schools are low 
performing. For these reasons, each SEA would describe how it will 
continue to identify schools for comprehensive and targeted support and 
improvement, which would be facilitated by having a consistent measure 
of progress toward the State's long-term goals and on the Academic 
Achievement indicator.
    Finally, proposed Sec.  200.77(b) would reinforce two other 
statutory requirements for innovative assessments that are designed to 
protect equity and promote inclusion of all students. Specifically, an 
SEA would be required to demonstrate that its innovative assessments 
provide for the participation of, and are accessible for, all students, 
including children with disabilities and English learners, by providing 
appropriate accommodations, where necessary. In addition, for purposes 
of school accountability under section 1111(c), an SEA must annually 
measure the academic progress of at least 95 percent of all students 
and 95 percent of students in each subgroup who are enrolled in schools 
that are participating under the demonstration authority. By requiring 
an SEA to include, with its application, a demonstration that it will 
satisfy these statutory requirements, proposed Sec.  200.77(b) would 
help ensure that the SEA has designed its innovative assessment system 
with these requirements in mind and can implement the system consistent 
with the requirements upon receiving demonstration authority.
Assurances
    Proposed Sec.  200.77(d) would clarify the assurances each 
applicant for demonstration authority must provide. These assurances 
are related to use of the statewide assessments in schools that are 
initially not participating in the demonstration authority, as well as 
in participating schools if the innovative assessment is not given in 
all required grades and subjects or if the statewide assessment is used 
for accountability purposes in addition to the innovative assessment; 
the continued expectation for all students in the State to be held to 
the same challenging academic standards, including the provision of 
alternate assessments aligned with alternate academic achievement 
standards for students with the most significant cognitive 
disabilities; annual reporting of data to the Secretary pertaining to 
implementation of the demonstration authority and coordination with the 
Institute of Education Sciences; and the provision of information 
related to the innovative assessment system to parents, consistent with 
the testing transparency requirements in section 1112. Requiring these 
assurances would safeguard critical information on the progress of all 
students that is necessary for accountability and reporting on State 
and LEA report cards, ensure that the Department receives information 
necessary from each participating SEA on its progress in implementing 
and scaling its innovative assessment over time, and promote greater 
understanding of the implications of a school's use of an innovative 
assessment among parents by ensuring this information is provided in 
ways that are accessible and understandable. It would also promote a 
proactive and supportive relationship between SEAs and the Department 
in providing technical assistance and guidance to promote high-quality 
implementation of the demonstration authority.
Selection Criteria
    The proposed regulations would also clarify that all applications 
from SEAs or consortia of SEAs must include information related to each 
selection criteria described in proposed Sec.  200.78 (i.e., project 
narrative, prior experience, capacity, and stakeholder support, 
timeline and budget, supports for educators and students, and 
evaluation and continuous improvement), so that the components of the 
application and application process are clear for all interested SEAs. 
In addition, this will ensure that all SEAs address the entirety of the 
selection criteria, increasing both the strength of SEA applications 
and their preparedness to implement the authority.
Initial Implementation in a Subset of LEAs or Schools
    The proposed regulations would also reinforce the statutory 
requirements related to an application from an SEA or consortium that 
is not proposing to use the innovative assessment initially in all LEAs 
or schools, including requirements to describe initially participating 
LEAs and schools and to include from each participating LEA an 
assurance that it will comply with relevant requirements. Given 
differences between LEAs, such as size and capacity, that affect the 
implementation of innovative assessments, proposed Sec.  200.77(e) 
would promote flexibility for SEAs in how they scale their innovative 
assessment system to be used statewide.
Applications From a Consortium of States
    Finally, proposed Sec.  200.77(f) would clarify how the 
requirements for demonstration authority apply to a consortium of SEAs. 
Working in partnership to develop an innovative assessment adds 
complexity to the work of developing and scaling the assessment, 
particularly because certain requirements, like alignment to 
challenging State academic standards, will be specific to individual 
member SEAs, while the work--and resources required--to meet other 
requirements, like providing appropriate accommodations, could be 
shared. As a result, participating in the authority as part of a 
consortium could promote more efficient development of innovative 
assessments, or lead to unnecessary delays in implementation. For these 
reasons, a consortium applicant would be required to describe its 
governance structure and member SEA roles, including financial 
responsibilities, as determined by its membership; how member SEAs will 
manage and share, at their discretion, any intellectual property 
developed by the consortium; and how the consortium will consider 
requests from additional States to join or leave the consortium. A 
consortium could also describe the role of affiliate SEA members. Each 
of these proposed requirements is critical to help ensure that the 
consortium is productive, that all required activities are completed by 
consortium members in a timely manner, and that the innovative 
assessment can be successfully implemented statewide and used for 
assessment, accountability, and reporting purposes under part A of 
title I at the end of the demonstration authority period in each SEA.
    Proposed Regulations: Proposed Sec.  200.78 would clarify the 
selection criteria the Secretary will use to evaluate an application to 
participate in the demonstration authority, which each SEA must address 
in its application. The proposed selection criteria fall in five broad 
areas: (1) Project narrative described in proposed Sec.  200.78(a); (2) 
prior experience, capacity, and stakeholder support described in 
proposed Sec.  200.78(b); (3) timeline and budget described in proposed 
Sec.  200.78(c); (4) supports for educators and students described in 
proposed Sec.  200.78(d); and (5) evaluation and continuous improvement 
described in proposed Sec.  200.78(e).

[[Page 44966]]

Project Narrative
    The first selection criteria that would be established in proposed 
Sec.  200.78(a) would consider the quality of an SEA's or consortium's 
plan for implementing the demonstration authority. In determining the 
quality of the plan, the Secretary would consider:
     The rationale for developing or selecting the proposed 
innovative assessment system, including the distinct purpose of each 
assessment; how the system will advance the design and delivery of 
large-scale assessment in innovative ways; and the extent to which the 
system as a whole will promote high-quality instruction, mastery of 
challenging State academic standards, and improved student outcomes for 
all students and subgroups of students under section 1111(c)(2).
     The SEA's or consortium's plan, developed in consultation 
with partners, if applicable, to: (1) Develop and use standardized and 
calibrated scoring tools, rubrics, or other strategies, consistent with 
relevant nationally recognized professional and technical standards, to 
ensure high inter-rater reliability and comparability of innovative 
assessment results, which may include evidence of inter-rater 
reliability, if available; and (2) train evaluators to use these 
strategies.
    Further, if the innovative assessment system will initially be 
administered in a subset of schools or LEAs, the Secretary would also 
consider:
     The strategies each SEA, including each SEA in a 
consortium, will use to scale the innovative assessment for use in all 
schools statewide, with its rationale for selecting those strategies.
     The strength of the SEA's or consortium's criteria for 
determining which LEAs and schools to include in its initial 
application and when to approve additional LEAs and schools, if 
applicable, to participate during the demonstration authority period.
     The SEA's plan, including each SEA in a consortium, for 
ensuring that the inclusion of new LEAs and schools continues to 
reflect high-quality and consistent implementation across 
demographically diverse LEAs and schools, or contributes to progress 
toward achieving such implementation across demographically diverse 
LEAs and schools, including diversity based on subgroups of students 
under section 1111(c)(2) and student achievement, during the 
demonstration authority period. The plan must also include annual 
benchmarks throughout the five-year demonstration authority period 
toward achieving high-quality and consistent implementation across LEAs 
over time that are, as a group, demographically similar to the State as 
a whole, using the demographics of LEAs initially participating as a 
baseline.
     The strategies the SEA, including each SEA in a 
consortium, will use to ensure that all students and each subgroup of 
students are held to the same challenging academic standards under 
section 1111(b)(1) as all other students in the State.
Prior Experience, Capacity, and Stakeholder Support
    Proposed Sec.  200.78(b) would establish selection criteria related 
to prior experience and capacity of an SEA, including each SEA in a 
consortium, and LEAs. An SEA may also describe the prior experience and 
capacity of any external partners that would support the development 
and implementation of the innovative assessment under the authority. In 
evaluating the extent and depth of experience, the Secretary would 
consider:
     The success and track record of efforts to implement 
innovative assessments or innovative assessment items aligned to the 
challenging State academic standards under section 1111(b)(1), in LEAs 
planning to participate; and
     The SEA's or LEA's development or use of: (1) Effective 
supports and appropriate accommodations consistent with section 
1111(b)(2) for all students, including English learners and children 
with disabilities, including professional development for school staff 
on providing such accommodations; (2) effective and high-quality 
supports for school staff to implement innovative assessments, 
including professional development; and (3) standardized and calibrated 
scoring rubrics with documented evidence of the validity, reliability, 
and comparability of determinations of student mastery or proficiency 
on the innovative assessments.
    Each SEA would also be evaluated on the extent and depth of its 
capacity to successfully implement innovative assessments, including 
within each SEA in a consortium, and the quality of its plan to build 
its capacity, which may include how the SEA or consortium plans to 
enhance its capacity by collaborating with external partners that will 
be participating in or supporting its demonstration authority. In 
evaluating the extent and depth of the SEA and LEA capacity to 
implement innovative assessment demonstration authority, the Secretary 
would consider:
     An analysis of how capacity influenced the success of 
prior efforts to develop and implement innovative assessments or 
innovative assessment items.
     The strategies the SEA is using, or will use, to mitigate 
risks, including those identified in its analysis (e.g., risks 
associated with scaling the innovative assessment system to LEAs with 
varying levels of capacity, ensuring comparable and reliable scoring of 
innovative assessments for all students and subgroups of students, 
availability of funding and staff), and support successful 
implementation.
    Finally, each SEA, including those in a consortia, would be 
evaluated on the extent and depth of State and local support for the 
application, as demonstrated by signatures from the following: 
Superintendents (or equivalent) of LEAs; presidents of local school 
boards (or equivalent, where applicable); local teacher organizations 
(including labor organizations, where applicable); and additional 
affected stakeholders, such as parent organizations, civil rights 
organizations, and business organizations. In evaluating the strength 
of support, signatures from these groups from within LEAs participating 
in the first year of the demonstration authority would also be 
considered.
    Proposed Sec.  200.78(b) also would describe factors that must be 
considered in evaluating capacity, including the availability of 
technological infrastructure; State and local laws; dedicated and 
sufficient staffing, expertise, and resources; and other relevant 
factors.
Timeline and Budget
    In determining the quality of the SEA's or consortium's timeline 
and budget for implementing demonstration authority, under proposed 
Sec.  200.78(c) the Secretary would consider:
     The extent to which the timeline reasonably demonstrates 
that each SEA will implement the innovative assessment system statewide 
by the end of the demonstration authority period, including a 
description of the activities to occur in each year, the parties 
responsible for those activities, and, if applicable, how the member 
SEAs in a consortium will implement activities at different paces and 
how the consortium will implement interdependent activities, so long as 
each member SEA begins using the innovative assessment system in the 
same school year, consistent with proposed Sec.  200.76(b)(1).
     The adequacy of the project budget for the duration of the 
requested demonstration authority period, including Federal funds 
(e.g., consistent with statutory requirements: State

[[Page 44967]]

assessment grants under section 1201, grants for supporting effective 
instruction under section 2101, and consolidated funds for State 
administration under section 8201), as well as State, local, and non-
public sources of funds, to support and sustain, as applicable, the 
activities in the SEA's or consortium's timeline. Considerations of the 
budget's adequacy would also include how funding be sufficient to meet 
expected costs as the SEA takes its innovative assessment system to 
scale and the degree to which funding is contingent upon future 
appropriations action at the State or local level or additional 
commitments from non-public sources of funds.
Supports for Educators and Students
    Proposed Sec.  200.78(d) would establish selection criteria related 
to the quality of supports that each SEA or consortium will use to 
improve instruction and student outcomes as part of innovative 
assessment implementation. In determining the quality of supports for 
educators and students, the Secretary would consider:
     The extent to which the SEA or consortium has developed, 
provided, and will continue to provide training to LEA and school 
staff, including teacher, principals, and other school leaders, that 
will familiarize them with the innovative assessment system, such as 
procedures for administration, scoring, and reporting.
     The strategies the SEA or consortium has developed and 
will use to familiarize students, teachers, principals, other school 
leaders, and other school and LEA staff with the innovative assessment 
system.
     The strategies the SEA or consortium will use to ensure 
that all students and each subgroup of students under section 
1111(c)(2) in participating schools receive the support, including 
appropriate accommodations under section 1111(b)(2), they need to meet 
the challenging State academic standards under section 1111(b)(1).
     If the system includes assessment items that are developed 
or scored by teachers or other school staff, the strategies the SEA or 
consortium has developed, or plans to develop, to validly and reliably 
score those items in an unbiased and objective fashion, including how 
these strategies engage and support teachers and staff in developing 
and scoring the assessments, and a description of how the SEA or 
consortium will use professional development to aid these efforts. 
Proposed Sec.  200.78(d) would also include examples of strategies, 
such as templates, prototypes, test blueprints, scoring tools, rubrics, 
audit plans, and other guides for educators.
Evaluation and Continuous Improvement
    The final selection criteria that would be established in proposed 
Sec.  200.78(e) would consider the quality of the SEA's or consortium's 
plan to evaluate its implementation of innovative assessment 
demonstration authority. In determining the quality of its evaluation 
and continuous improvement plan, the Secretary would consider:
     The strength of its proposed annual evaluation of the 
innovative assessment system included in its application, including 
whether the evaluation will be conducted by an independent and 
experienced third party, and the likelihood this evaluation will 
sufficiently determine the system's validity, reliability, and 
comparability to the statewide assessment system consistent with the 
requirements in proposed Sec.  200.77(b)(4) and (9).
     The SEA's or consortium's plan for continuous improvement 
of its innovative assessment system, including its process for: (1) 
Using data, feedback, evaluation results, and other information from 
participating LEAs and schools to make changes necessary to improve the 
quality of the innovative assessment system; and (2) evaluating and 
monitoring implementation of the innovative assessment system in 
participating LEAs and schools annually.
    Reasons: Proposed Sec.  200.78 would set forth the selection 
criteria that will be used to evaluate applications for the innovative 
assessment demonstration authority. Selection criteria are useful for 
SEAs and the Department for several reasons. First, because only seven 
SEAs may be awarded demonstration authority during the initial 
demonstration period, peer reviewers and the Secretary will need 
criteria to assist them in determining which applicants are likely to 
be successful, and help select applicants in a situation where more 
than seven SEAs submit high-quality proposals. Additionally, the 
statutory requirements for the demonstration authority are extensive. 
By reflecting some of them in the selection criteria, proposed Sec.  
200.78 would recognize that SEAs may benefit from having a plan to meet 
these requirements, so that they can improve and adjust their plans 
over time, based on the results of their initial implementation of an 
innovative assessment.
    To support SEAs and consortia interested in applying, the proposed 
regulations would group similar selection criteria together into broad 
categories to provide clarity for SEAs as they develop applications and 
organize their work. The categories would be: Project narrative; prior 
experience, capacity, and stakeholder support; timeline and budget; 
supports for educators and students; and evaluation and continuous 
improvement.
Project Narrative
    The selection criterion related to an SEA's or consortium's project 
plan is necessary to support the selection of SEAs for the 
demonstration authority that have a strong rationale behind their 
innovative assessment approach, and a clear theory of action to explain 
how this approach will promote better teaching and learning experiences 
and improved student outcomes. Further, this criterion will help 
support the development of an array of innovative assessments so that 
we may learn from a variety of models, rather than establish a 
preference for one particular approach, and use the demonstration 
authority as a vehicle for promoting positive change in the design and 
delivery of large-scale academic assessments.
    This criterion would also support SEAs in developing thoughtful 
plans to implement requirements of the demonstration authority that may 
be particularly complex and challenging, including reliable and valid 
scoring of innovative assessments across participating schools and LEAs 
and scaling the innovative assessment system to operate statewide. 
Given that the demonstration authority period may not exceed five 
years, SEAs and consortia will be most likely to succeed in scaling 
their innovative assessment system if they have strong criteria for 
determining when to add new LEAs or schools to the demonstration 
authority, with strategies to support this process, and a plan to 
implement the demonstration authority over time in LEAs that are 
demographically diverse and similar to the State as a whole, so that 
SEAs promote high-quality implementation of the innovative assessment 
for all students, including low-income students, minority students, 
English learners, and children with disabilities, and ensure the 
assessment is viable in a wide variety of LEA and school contexts.
Prior Experience, Capacity, and Stakeholder Support
    Given the challenge of developing and scaling an innovative 
assessment system, proposed Sec.  200.78(b) would build on the 
statutory requirement for SEAs to have experience in innovative

[[Page 44968]]

assessments by establishing selection criteria related to both prior 
experience and capacity to successfully complete the work. Asking 
prospective SEAs to examine the success and lessons learned from prior 
experiences with innovative assessments (which may include experiences 
learned from any external partners) would help reinforce other critical 
requirements for the demonstration authority like the inclusion of all 
students and producing reliable, comparable determinations of student 
proficiency. Creating selection criteria for experience would also 
encourage SEAs to plan and pilot their efforts at some level prior to 
submitting an application, so that they will successfully scale the 
assessment statewide within the requested demonstration authority 
period.
    Similarly, establishing selection criteria based on the extent and 
depth of an SEA's and, if applicable, its LEAs' capacity and 
stakeholder support would also help ensure that the Secretary selects 
SEAs that are most likely to be successful and have critical support 
from leaders in participating LEAs, including LEA superintendents, 
local school boards, local teachers' organizations, and other affected 
constituencies in the community, such as parents, civil rights, and 
business organizations. Technological infrastructure, current State and 
local laws and policies, the availability of staff, expertise (e.g., 
engagement with technical experts, universities and other researchers, 
non-profits, and foundations), and other resources are all 
considerations that will affect whether an SEA can implement and scale 
an innovative assessment system that is valid, reliable, and high 
quality. Similarly, SEAs are unlikely to be able to develop and scale 
their innovative assessment if they do not have sufficient support from 
the local communities that are expected to implement the innovative 
assessment. These selection criteria would also provide some 
flexibility by providing SEAs an opportunity to include strategies they 
have or will use to mitigate risks and support successful 
implementation of the demonstration authority.
Timeline and Budget
    Proposed Sec.  200.78(c) would establish selection criteria related 
to the quality of an applicant's timeline and budget for implementing 
and scaling its innovative assessment system. A detailed timeline, 
along with adequate budgetary resources, are necessary to support SEAs 
in this work and to ensure that the Secretary awards demonstration 
authority to SEAs that are best-equipped to implement a high-quality, 
statewide innovative assessment within the requested demonstration 
authority period and, if needed, extension period under proposed Sec.  
200.80(b).
    Further, proposed Sec.  200.78(c) would recognize that some SEAs in 
a consortium may need more time than others to scale the innovative 
assessment by providing flexibility as to the pace of activities across 
SEAs in the consortium, so long as all member SEAs begin implementation 
of the innovative assessment in the first year of the demonstration 
authority period, consistent with the proposed definition in Sec.  
200.76. Consistent with proposed Sec.  200.77(f), other SEAs may join 
the demonstration authority of the consortium at a future date when 
they are ready to implement and use the innovative assessment instead 
of their statewide academic assessments for accountability and 
reporting purposes.
Supports for Educators and Students
    The fourth proposed selection criteria area would consider how SEAs 
will support educators and students to successfully implement the 
innovative assessment system. Each SEA or consortium would be evaluated 
on the quality of their supports in this area. Without a network of 
effective supports, and a strong rationale for selecting them, 
innovative assessments, regardless of the quality of their design, are 
unlikely to enhance classroom instruction and student outcomes. By 
including these statutory requirements as selection criteria, the 
Secretary would be better able to select applicants for demonstration 
authority whose innovative assessment systems are not only valid, 
reliable, and high-quality, but also most likely to lead to meaningful 
changes for students and teachers in daily classroom instruction.
Evaluation and Continuous Improvement
    The final selection criteria area in proposed Sec.  200.78(e) would 
consider the quality of each SEA's or consortium's plan to annually 
evaluate its implementation of the innovative assessment system 
demonstration authority. These regulations are needed so that an SEA 
would be evaluated favorably for proposing an evaluation plan that is 
likely to provide unbiased results and sufficiently determine if its 
innovative assessment system is valid, reliable, and comparable with 
respect to the statewide assessment system, a key requirement that must 
be met to successfully transition to using the innovative assessment 
statewide for purposes of section 1111(b)(2) and 1111(c), consistent 
with proposed Sec.  200.79. Further, the selection criteria would 
support SEAs in developing a continuous improvement process that 
encourages adjustments in innovative assessments over time, based on 
lessons learned from implementation, and would help ensure that 
innovative assessments provide useful and timely information to 
educators and parents about a student's knowledge and abilities. 
Because innovative assessment approaches are novel, by design, a high-
quality evaluation and continuous improvement process is critical to 
ensure that both SEAs and the Department learn from their experiences 
and make improvements over time, consistent with the assurance for 
annual reporting under proposed Sec.  200.77(d)(3)(A). Establishing 
this selection criterion would signal the importance for SEAs to create 
processes to enable these adjustments to be made from start to finish, 
instead of conducting an evaluation on the back-end when the results 
would be provided too late to inform the SEA's assessment design or 
implementation approach.

Section 200.79 Transition to Statewide Use

    Statute: Section 1204(j) of the ESEA, as amended by the ESSA, 
permits an SEA to operate its innovative assessment system for the 
purposes of academic assessments and the statewide accountability 
system under section 1111(b) and (c) if, at the conclusion of the 
demonstration authority period or extension period, the SEA has scaled 
the system to be used statewide and demonstrated that the system is of 
high quality, as determined by the Secretary through the peer review 
process described in section 1111(a)(4). Section 1204(j) specifies that 
an innovative assessment system is of high quality if:
    (1) It meets all requirements of section 1204;
    (2) The SEA has examined the effects of the system on other 
measures of student success, including indicators in the statewide 
accountability system under section 1111(c)(4)(B);
    (3) The system provides coherent and timely information about 
student achievement based on the challenging State academic standards, 
including objective measurements of academic achievement, knowledge, 
and skills, that is valid, reliable, and consistent with relevant, 
nationally recognized professional and technical standards;
    (4) The SEA has solicited feedback from teachers, principals, other 
school leaders, and parents about their satisfaction with the system; 
and

[[Page 44969]]

    (5) The SEA has demonstrated that the system was used to measure: 
(a) The achievement of all students that participated in the system; 
and (b) the achievement of not less than the same percentage of 
students overall and in each of the subgroups of students in section 
1111(c)(2), as measured under section 1111(c)(4)(E), as were assessed 
with the academic assessments required by section 1111(b)(2).
    Section 1204(j) specifies that, in determining whether an 
innovative assessment system is of high quality based on the factors 
listed, the baseline year for an affected LEA is the first year in 
which the LEA used the system.
    Current Regulations: None.
    Proposed Regulations: In general, proposed Sec.  200.79 would 
implement and clarify the statutory provisions in section 1204(j) of 
the ESEA, as amended by the ESSA. Consistent with section 1204(j), 
proposed Sec.  200.79(a) would permit an SEA to request that the 
Secretary determine whether the SEA's innovative assessment system is 
of high quality and may be used for purposes of academic assessments 
and the statewide accountability system under section 1111(b)(2) and 
(c). Proposed Sec.  200.79(a) would clarify that the SEA may use the 
system for such purposes only after the Secretary determines that the 
system is of high quality.
    Proposed Sec.  200.79(b) would provide the criteria for the 
Secretary to use in determining at the end of the demonstration 
authority period (through the peer review process of assessments and 
accountability systems described in section 1111(a)(4)) whether an 
innovative assessment system is of high quality, including that each 
innovative assessment in a required grade or subject meets all of the 
requirements of section 1111(b)(2) and the statutory requirements in 
section 1204 specific to an innovative assessment. Specifically:
     Regarding the criterion that an SEA has examined the 
effects of the system on other measures of student success, including 
indicators in the statewide accountability system under section 
1111(c)(4)(B), proposed Sec.  200.79(b) would require the SEA to 
demonstrate it has examined the statistical relationship between 
student performance on the innovative assessment in each subject area 
and on the other measures in remaining indicators in the statewide 
accountability system (i.e., Graduation Rate, Academic Progress, 
Progress in Achieving English Language Proficiency, and School Quality 
or Student Success), for each grade span in which an innovative 
assessment is used and how the use of an innovative assessment in the 
Academic Achievement indicator affects meaningful differentiation of 
schools.
     Regarding the criterion that an SEA has solicited feedback 
from teachers, principals, other school leaders, parents, and other 
affected stakeholders described in proposed Sec.  200.77(a)(2)(i) 
through (v) about their satisfaction with the innovative assessment 
system, proposed Sec.  200.79(b) would require the SEA to have 
solicited and taken into account feedback from these groups.
     Regarding the criterion that an SEA demonstrate that the 
innovative assessment system was used to measure the achievement of all 
students, proposed Sec.  200.79(b) would require that such a 
demonstration be provided for all students and each subgroup of 
students under section 1111(c)(2) and include how appropriate 
accommodations were provided consistent with section 1111(b)(2).
    Proposed Sec.  200.79(c) would implement the provision in section 
1204(j) specifying that, in determining whether an innovative 
assessment system is of high quality, the baseline year for an affected 
LEA is the first year in which the LEA used the system.
    Finally, proposed Sec.  200.79(d) would clarify, in the case of a 
consortium of SEAs, that each SEA must submit evidence to the Secretary 
to determine whether the innovative assessment system is of high 
quality and, if evidence is submitted for the consortium as a whole, 
the evidence must demonstrate how each member SEA meets each 
requirement of proposed Sec.  200.79(b) applicable to an SEA.
    Reasons: Proposed Sec.  200.79 would clarify the statutory 
requirements, including peer review under proposed Sec.  200.79(a) 
through (b), for how an SEA can transition from implementing an 
innovative assessment system under the demonstration authority to 
implementing an innovative assessment system as part of its statewide 
assessment system under title I, part A of the ESEA.
    The proposed regulations are necessary to ensure that innovative 
assessments, before they are used for purposes of both State 
assessments and accountability under part A of title I, meet the same 
requirements that all State academic assessments must meet, including, 
but not limited to, alignment to challenging State academic standards, 
validity, reliability, technical quality, and accessibility for all 
students. These proposed regulations would help ensure that innovative 
assessments are treated similarly in terms of the peer review process, 
rather than held to a different standard than other academic 
assessments States may use under title I, part A while also 
incorporating the unique requirements innovative assessments must meet 
under the statutory provisions in section 1204(j)(1)(B).
    Further, proposed Sec.  200.79(b) would support an SEA in meeting 
these specific requirements. For example, in demonstrating the SEA has 
examined the effects of its innovative assessments on other measures of 
student success in the accountability system, the proposed regulations 
would clarify that this means examining the statistical relationship 
between student performance in each subject area on the innovative 
assessment and student performance on the remaining indicators in the 
State accountability system within a particular grade-span, such as the 
Graduation Rate, Academic Progress, and School Quality or Student 
Success indicators. This would provide the SEA and the Department with 
a better understanding of how the innovative assessments relate to or 
correlate with other student performance data and how their inclusion 
in the State accountability system will affect the ability of the 
system to meaningfully differentiate among all public schools, as 
required under section 1111(c).
    Proposed Sec.  200.79(d) would also provide flexibility for how 
SEAs participating in the demonstration authority within a consortium 
may transition to using the innovative assessments for purposes of part 
A of title I so that SEA members of the consortium that have reached 
statewide implementation of the innovative assessment system may 
undergo peer review of the system on their own, recognizing that not 
all SEA members may be implementing the innovative assessments on the 
same timeline under proposed Sec.  200.77(b).
    By clarifying the process for transition to statewide use in these 
ways, proposed Sec.  200.79 would provide essential safeguards to 
maintain high-quality, annual assessments and information about student 
progress toward meeting the challenging State academic standards for 
parents, educators, administrators, and the public.

Section 200.80 Extension, Waivers, and Withdrawal of Authority

    Statute: Section 1204(g) of the ESEA, as amended by the ESSA, 
permits the Secretary to extend a demonstration authority for an 
additional two years if the SEA provides evidence that its innovative 
assessment system continues

[[Page 44970]]

to meet the requirements of section 1204(c) [sic] of the ESEA, as 
amended by the ESSA, and that the SEA has a plan for, and capacity to, 
transition to statewide use of the system by the end of the extension 
period.
    Section 1204(i) of the ESEA, as amended by the ESSA, requires the 
Secretary to withdraw an SEA's demonstration authority if, at any time 
during the demonstration authority period or extension period, the SEA 
cannot provide evidence to the Secretary that: (1) It has a high-
quality plan to transition to statewide use of its innovative 
assessment system by the end of the demonstration authority period or 
extension period (if the system will initially be administered in a 
subset of LEAs); and (2) its innovative assessment system:
    (a) Meets the requirements in section 1204(c) [sic];
    (b) Includes all students attending participating schools, 
including each of the subgroups of students in section 1111(c)(2);
    (c) Provides an unbiased, rational, and consistent determination of 
progress toward the long-term academic achievement goals described 
under section 1111(c)(4)(A)(i) for all students in participating 
schools, which are comparable to measures of academic achievement under 
section 1111(c)(4)(B)(i) across the State; and
    (d) Demonstrates comparability to the statewide assessments under 
section 1111(b)(2) in content coverage, difficulty, and quality.
    Section 1204(j) of the ESEA, as amended by the ESSA, permits an SEA 
to request, and the Secretary to grant, a delay of the withdrawal of 
the demonstration authority under section 1204(i) of the ESEA, as 
amended by the ESSA, for the purpose of providing the SEA with the time 
necessary to transition to statewide use of its innovative assessment 
system if, at the conclusion of the SEA's demonstration authority 
period and two-year extension, the State has otherwise met and 
continues to comply with all requirements of section 1204 of the ESEA, 
as amended by the ESSA, and provides a high-quality plan for transition 
to statewide use of the system in a reasonable period of time.
    Current Regulations: None.
    Proposed Regulations: Proposed Sec.  200.80(a) would implement the 
statutory provision permitting the Secretary to extend demonstration 
authority for an additional two years (i.e., one two-year extension, or 
two one-year extensions) if the SEA provides evidence that:
     Its innovative assessment system continues to meet the 
requirements of title I, part B of the ESEA, as amended by the ESSA;
     It is implementing the authority consistent with its 
application for demonstration authority; and
     The SEA has a plan for, and capacity to, transition to 
statewide use of the system by the end of the extension period.
    Proposed Sec.  200.80(a) would also specify that the SEA's plan to 
transition to statewide use must include input from the stakeholders in 
proposed Sec.  200.77(a)(2)(i) through (v) and that the SEA's evidence 
of capacity to transition to statewide use must be provided for the SEA 
and each LEA not currently participating. Proposed Sec.  200.80(a) 
would further clarify that, in the case of a consortium, the Secretary 
may extend demonstration authority for the consortium as a whole or for 
individual member SEAs, as necessary.
    Proposed Sec.  200.80(b) would implement the statutory requirements 
for the Secretary to withdraw an SEA's demonstration authority, with 
the following clarifications:
     Regarding the SEA's high-quality plan to transition to 
statewide use of an innovative assessment, proposed Sec.  200.80(b)(i) 
would require that the plan include input from all stakeholders in 
proposed Sec.  200.77(a)(2)(i) through (v).
     Regarding evidence an SEA may be asked to provide, 
proposed Sec.  200.80(b)(ii) would clarify that evidence may be 
requested related to how the SEA has met all requirements for 
innovative assessments under proposed Sec.  200.77, including Sec.  
200.77(b), and how the SEA is implementing the authority in accordance 
with its responses to the selection criteria under proposed Sec.  
200.78.
     Regarding evidence of inclusion of all students in 
participating schools that an SEA may be asked to provide, proposed 
Sec.  200.80(b)(ii) would require that such evidence include how the 
system provides for appropriate accommodations consistent with section 
1111(b)(2).
     Regarding evidence that the system provides unbiased, 
rational, and consistent determinations of progress toward academic 
achievement goals that an SEA may be asked to provide, proposed Sec.  
200.80(b)(ii) would require that such determinations consider the long-
term goals and measurements of interim progress described in section 
1111(c)(4)(A) for all students and subgroups of students listed in 
section 1111(c)(2), and provide a comparable measure of performance, 
including with data comparing performance disaggregated by subgroup, on 
the Academic Achievement indicator under section 1111(c)(4)(B) for 
participating schools relative to non-participating schools.
    Further, proposed Sec.  200.80(b)(2) would clarify that, in the 
case of a consortium: (1) The Secretary may withdraw the demonstration 
authority provided to the consortium as a whole if the Secretary 
requests, and no member SEA presents, the required information in a 
timely manner; and (2) a consortium may continue to operate after one 
or more of its members has had its authority withdrawn, so long as 
remaining member SEAs continue to meet all requirements.
    Proposed Sec.  200.80(c) would implement the statutory requirements 
regarding delay of the withdrawal of demonstration authority, with the 
following specifications:
     Proposed Sec.  200.80(c) would require that a waiver to 
delay withdrawal of demonstration authority may be awarded by the 
Secretary to an SEA for one year.
     Regarding the SEA's high-quality plan to transition to 
statewide use in a reasonable period of time, proposed Sec.  200.80(c) 
would require the plan to include input from the stakeholders in 
proposed Sec.  200.77(a)(2)(i) through (v).
     Regarding a consortium, proposed Sec.  200.80(c) would 
permit the Secretary to grant a one-year waiver for the consortium as a 
whole or individual member SEAs, as needed.
    Finally, proposed Sec.  200.80(d) would clarify that an SEA must 
return to using, in all LEAs and schools, an annual statewide 
assessment system that meets the requirements of section 1111(b)(2), if 
the Secretary withdraws demonstration authority or if the SEA 
voluntarily decides to terminate use of the innovative assessment 
system, and notify participating LEAs that authority has been withdrawn 
and of the SEA's plan to transition back to a statewide assessment.
    Reasons: Proposed Sec.  200.80(a) would provide clarity to SEAs and 
consortia that require additional time, beyond the demonstration 
authority period of five years, to scale their innovative assessment 
system statewide and successfully submit the system for approval for 
use under part A of title I through the peer review process for 
assessments and accountability systems described in proposed Sec.  
200.79. These clarifications would recognize that taking an innovative 
assessment system to scale is challenging and complex work, while also 
providing necessary guardrails to ensure that an SEA

[[Page 44971]]

requesting an extension of authority, for up to two years, has 
developed a high-quality plan and necessary capacity to implement the 
innovative assessment in all remaining LEAs and schools by the end of 
the extension. As the purpose of the authority is to develop a new 
statewide innovative assessment system, rather than operate multiple 
assessments in perpetuity, the proposed regulations would strike a 
balance between flexibility for States and the expectation to scale 
innovative assessments in a reasonable timeframe.
    Similarly, proposed Sec.  200.80(c) would clarify the purpose of 
the statutory provision allowing for waivers under section 1204(j)(3) 
of the ESEA, as amended by the ESSA, for SEAs that need additional time 
after the extension period to implement the innovative assessment 
system statewide for purposes of part A of title I. By specifying that 
the purpose of a waiver is to provide an SEA with an additional year, 
after the expiration of the extension period, in order to receive final 
approval from the Secretary, through peer review, to use its innovative 
assessment under part A of title I, the proposed regulations would help 
distinguish between the purpose of an extension (i.e., to finish 
scaling the innovative assessment statewide) and a waiver (i.e., to 
provide time for SEAs to complete the peer review process). Together, 
these provisions would provide needed flexibility for SEAs that require 
more time, without undermining the ultimate goal of the demonstration 
authority to develop an innovative assessment that meets the statutory 
requirements for statewide assessments under part A of title I.
    Proposed Sec.  200.80(b) and (d) are necessary to clarify the 
provisions for withdrawal of demonstration authority. Because 
withdrawal of demonstration authority is a significant consequence for 
SEAs that have invested time and resources in developing an innovative 
assessment, we believe it is critical to provide States clear guidance 
around transitioning away from exclusively using innovative assessments 
in some LEAs and to clarify the reasons enumerated in the statute for 
which an SEA may lose demonstration authority, including lacking a 
high-quality plan for transition to statewide use or failure to meet 
statutory requirements for the quality of innovative assessments, such 
as validity, reliability, technical quality, accessibility, and 
comparability. The proposed regulations would also help maintain 
similar expectations for the quality of innovative assessments across 
all participating SEAs, including SEAs in a consortium, by not unfairly 
penalizing all member SEAs in a consortium for poor implementation by 
one of its members.
    Together, these clarifications are necessary in order to ensure 
that States continue to administer high-quality assessments annually to 
all students and provide critical information on student progress to 
parents, educators, and the public, even if the Secretary withdraws 
authority or if an SEA voluntarily ceases implementation of its 
innovative assessment. In this way, proposed Sec.  200.80 would 
underscore the importance of having annual information on student 
progress not only for purposes of accountability and reporting, as 
required in the statute, but also for informing high-quality 
instruction tailored to students' needs and empowering parents and 
families in supporting their child's education.

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 proposed regulations only on a reasoned 
determination that their benefits would 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 this regulatory impact analysis we discuss the need for 
regulatory action and the potential costs and benefits. Elsewhere in 
this section under Paperwork Reduction Act of 1995, we identify and 
explain burdens specifically associated with information collection 
requirements.

Need for Regulatory Action

    As discussed in detail in the Significant Proposed Regulations

[[Page 44972]]

section of this document, the Department believes that regulatory 
action is needed to ensure effective implementation of section 1204 of 
the ESEA, as amended by the ESSA, which permits the Secretary to 
provide an SEA or consortium of SEAs that meets the application 
requirements with authority to establish, operate, and evaluate a 
system of innovative assessments. Crucially, the Department believes 
that regulatory action is needed to ensure that these assessments 
ultimately can meet requirements for academic assessments and be used 
in statewide accountability systems under section 1111 of the ESEA, as 
amended by the ESSA, including requirements for assessment validity, 
reliability, technical quality, and alignment to challenging State 
academic standards. Absent regulatory action, SEAs implementing 
innovative assessment authority run a greater risk of developing 
assessments that are inappropriate or inadequate for these purposes, 
which could hinder State and local efforts to provide all children 
significant opportunity to receive a fair, equitable, and high-quality 
education and to close educational achievement gaps consistent with the 
purpose of title I of the ESEA, as amended by the ESSA. By increasing 
the likelihood that innovative academic assessments are both high 
quality and can be used in an SEA's statewide accountability system 
under section 1111 of the ESEA, as amended by the ESSA, as demonstrated 
through the peer review process under section 1111(a)(4) at the end of 
the SEA's demonstration authority period, these regulations also have 
the potential to provide proof points for other States so that those 
not participating may consider and benefit from high-quality, 
innovative assessment models developed under the demonstration 
authority.

Discussion of Potential Costs and Benefits

    The primary benefit of the regulations proposed in this document is 
the administration of statewide assessments that more effectively 
measure student mastery of challenging State academic standards and 
better inform classroom instruction and student supports, ultimately 
leading to improved academic outcomes for all students. We believe that 
this benefit outweighs associated costs to a participating SEA, which 
may be financed with funds received under the Grants for State 
Assessments and Related Activities program and funds reserved for State 
administration under part A of title I.
    Participation in the innovative assessment demonstration authority 
is voluntary and limited during the initial demonstration period to 
seven SEAs. In light of the initial limits on participation, the number 
and rigor of the statutory application requirements, and the high 
degree of technical complexity involved in establishing, operating, and 
evaluating innovative assessment systems, we anticipate that few SEAs 
will seek to participate. Based on currently available information, we 
estimate that, initially, up to five SEAs will apply.
    For those SEAs that apply and are provided demonstration authority 
(consistent with the proposed regulations), implementation costs may 
vary considerably based on a multitude of factors, including: The 
number and type(s) of assessments the SEA elects to include in its 
system; the differences between those assessments and the SEA's current 
statewide assessments, including with respect to assessment type, use 
of assessment items, and coverage of State academic content standards; 
the number of grades and subjects in which the SEA elects to administer 
those assessments; whether the SEA will implement its system statewide 
upon receiving demonstration authority and, if not, the SEA's process 
and timeline for scaling the system up to statewide implementation; and 
whether the SEA is part of a consortium (and thus may share certain 
costs with other consortium members). Because of the potential wide 
variation in innovative assessment systems along factors such as these, 
we do not believe we can produce useful or reliable estimates of the 
potential cost to implement the innovative assessment demonstration 
authority for the typical SEA participant and, for the purpose of 
determining whether it is feasible to provide estimates of 
implementation cost under the final regulations, will consider input 
from interested SEAs regarding their anticipated costs and the extent 
to which those costs can be met with Federal funds.

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.  200.76 Innovative assessment demonstration authority.)
     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.

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. Under the U.S. Small Business Administration's Size 
Standards, small entities include small governmental jurisdictions such 
as cities, towns, or school districts (LEAs) with a population of less 
than 50,000. Although the majority of LEAs qualify as small entities 
under this definition, the regulations proposed in this document would 
not have a significant economic impact on a substantial number of small 
LEAs because few SEAs are expected to implement innovative assessment 
demonstration authority and the implementation costs for those SEAs and 
their participating LEAs can be supported with Federal grant funds. We 
believe the benefits provided under this proposed regulatory action 
would outweigh the associated costs for these small LEAs. In 
particular, the proposed regulations would help ensure that the LEAs 
can implement assessments that measure student mastery of State 
academic content standards more effectively and better inform classroom 
instruction and student supports, ultimately leading to improved 
academic outcomes for all students. We invite comments from small LEAs 
as to whether they believe the proposed regulations would have a 
significant economic impact on them and, if so, request evidence to 
support that belief.

[[Page 44973]]

Paperwork Reduction Act of 1995

    As part of its continuing effort to reduce paperwork and respondent 
burden, the Department provides the general public and Federal agencies 
with an opportunity to comment on proposed and continuing collections 
of information in accordance with the Paperwork Reduction Act of 1995 
(PRA) (44 U.S.C. 3506(c)(2)(A)). This helps ensure that: The public 
understands the Department's collection instructions, respondents can 
provide the requested data in the desired format, reporting burden 
(time and financial resources) is minimized, collection instruments are 
clearly understood, and the Department can properly assess the impact 
of collection requirements on respondents.
    Sections 200.76(c), 200.77, and 200.78 of the proposed regulations 
contain information collection requirements. The Department is 
developing an Information Collection Request based upon these proposed 
regulations, and will submit a copy of these sections and the 
information collection instrument to OMB for its review before 
requiring the submission of any information based upon these 
regulations.
    A Federal agency may not conduct or sponsor a collection of 
information unless OMB approves the collection under the PRA and the 
corresponding information collection instrument displays a currently 
valid OMB control number. Notwithstanding any other provision of law, 
no person is required to comply with, or is subject to penalty for 
failure to comply with, a collection of information if the collection 
instrument does not display a currently valid OMB control number.

Intergovernmental Review

    This program is not subject to Executive Order 12372 and the 
regulations in 34 CFR part 79.

Federalism

    Executive Order 13132 requires us to ensure meaningful and timely 
input by State and local elected officials in the development of 
regulatory policies that have federalism implications. ``Federalism 
implications'' means substantial direct effects on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. Although we do not believe the proposed regulations would 
have federalism implications, we encourage State and local elected 
officials to review and provide comments on these proposed regulations.
    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 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.
    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 Number does 
not apply.)

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: July 1, 2016.
John B. King, Jr.,
Secretary of Education.

    For the reasons discussed in the preamble, the Secretary of 
Education 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 6301-6576, unless otherwise noted.

0
2. Add a new undesignated center heading following Sec.  200.75 to read 
as follows:

Innovative Assessment Demonstration Authority

0
3. Add Sec.  200.76 to read as follows:


Sec.  200.76  Innovative assessment demonstration authority.

    (a) In general. (1) The Secretary may provide an SEA, or consortium 
of SEAs, with authority to establish and operate an innovative 
assessment system in its public schools (hereinafter referred to as 
``innovative assessment demonstration authority'').
    (2) An SEA or consortium of SEAs may implement the innovative 
assessment demonstration authority during its demonstration authority 
period and, if applicable, extension or waiver period described in 
Sec.  200.80(a) and (c), after which the Secretary will either approve 
the system for statewide use consistent with Sec.  200.79 or withdraw 
the authority consistent with Sec.  200.80(b).
    (b) Definitions. For purposes of Sec. Sec.  200.76 through 200.80--
    (1) Demonstration authority period refers to the period of time 
over which an SEA, or consortium of SEAs, is authorized to implement 
the innovative assessment demonstration authority, which may not exceed 
five years and does not include the extension or waiver period under 
Sec.  200.80. An SEA must use its innovative assessment system in all 
participating schools instead of, or in addition to, the statewide 
assessment under section 1111(b)(2) of the Act for purposes of 
accountability and reporting under section 1111(c) and 1111(h) of the 
Act in each year of the demonstration authority period.
    (2) Innovative assessment system means a system of reading/language 
arts, mathematics, or science assessments administered in at least one 
required grade under section 1111(b)(2)(B)(v) of the Act that produces 
an annual summative determination of grade-level achievement aligned to 
the State's challenging academic standards under section 1111(b)(1) of 
the Act for each student, or in the case of a student assessed using an 
alternate assessment aligned with alternate academic achievement 
standards under section 1111(b)(1)(E) of the Act, an annual summative 
determination relative to such alternate academic achievement standards 
for each such student, and that may include one or more of the 
following types of assessments:
    (i) Cumulative year-end assessments.
    (ii) Competency-based assessments.
    (iii) Instructionally embedded assessments.
    (iv) Interim assessments.
    (v) Performance-based assessments.
    (vi) Another innovative assessment design that meets the 
requirements under Sec.  200.77(b).

[[Page 44974]]

    (c) Peer review of applications. (1) An SEA or consortium of SEAs 
seeking innovative assessment demonstration authority under paragraph 
(a) of this section must submit an application to the Secretary that 
demonstrates how the applicant meets all application requirements under 
Sec.  200.77 and that addresses all selection criteria under Sec.  
200.78.
    (2) The Secretary uses a peer review process, including a review of 
the SEA's application to determine that it has met each of the 
requirements under Sec.  200.77 and sufficiently addressed each of the 
selection criteria under Sec.  200.78, to inform the Secretary's 
decision of whether to award the innovative assessment demonstration 
authority to an SEA or consortium of SEAs. Peer review teams consist of 
experts and State and local practitioners who are knowledgeable about 
innovative assessment systems, including--
    (i) Individuals with past experience developing innovative 
assessment and accountability systems that support all students and 
subgroups of students under section 1111(c)(2) of the Act (e.g., 
psychometricians, measurement experts, researchers); and
    (ii) Individuals with experience implementing such innovative 
assessment and accountability systems (e.g., State and local assessment 
directors, educators);
    (3)(i) If points or weights are assigned to the selection criteria 
under Sec.  200.78, the Secretary will inform applicants in the 
application package or a notice published in the Federal Register of--
    (A) The total possible score for all of the selection criteria 
under Sec.  200.78; and
    (B) The assigned weight or the maximum possible score for each 
criterion or factor under that criterion.
    (ii) If no points or weights are assigned to the selection criteria 
and selected factors under Sec.  200.78, the Secretary will evaluate 
each criterion equally and, within each criterion, each factor equally.
    (d) Initial demonstration period. (1) The initial demonstration 
period includes the first three years in which the Secretary awards at 
least one SEA, or consortium of SEAs, with the innovative assessment 
demonstration authority, concluding with publication of the progress 
report described in section 1204(c) of the Act. During the initial 
demonstration period, the Secretary may provide innovative assessment 
demonstration authority to--
    (i) No more than seven SEAs in total, including those SEAs 
participating in consortia; and
    (ii) Consortia that include no more than four SEAs.
    (2) An SEA that is affiliated with a consortium, but not currently 
proposing to use its innovative assessment system under the 
demonstration authority, is not included in the application under 
paragraph (c) of this section or counted toward the limitation in 
consortia size under paragraph (d)(ii) of this section.

(Authority: 20 U.S.C. 6364; 20 U.S.C. 1221e-3)

0
4. Section 200.77 is revised to read as follows:


Sec.  200.77  Demonstration authority application requirements.

    An SEA or consortium of SEAs seeking the innovative assessment 
demonstration authority must submit to the Secretary an application 
that includes the following:
    (a) Consultation. Evidence that the SEA or consortium has developed 
an innovative assessment system in collaboration with partners, 
including--
    (1) Experts in the planning, development, implementation, and 
evaluation of innovative assessment systems; and
    (2) Affected stakeholders in the State, or in each State in the 
consortium, including--
    (i) Those representing the interests of children with disabilities, 
English learners, and other subgroups of students under section 
1111(c)(2) of the Act;
    (ii) Teachers, principals, and other school leaders;
    (iii) LEAs;
    (iv) Students and parents; and
    (v) Civil rights organizations.
    (b) Innovative assessment system. A demonstration that the 
innovative assessment system does or will--
    (1) Meet the requirements of section 1111(b)(2)(B) of the Act, 
except that an innovative assessment--
    (i) Need not be the same assessment administered to all public 
elementary and secondary school students in the State during the 
demonstration authority period, if the innovative assessments will be 
administered initially in a subset of LEAs, or schools within an LEA, 
provided that the statewide academic assessments under section 
1111(b)(2) of the Act are administered in any school that is not 
participating in the innovative assessments; and
    (ii) Need not be administered annually in each of grades 3-8 and at 
least once in grades 9-12 in the case of reading/language arts and 
mathematics assessments, and at least once in grades 3-5, 6-9, and 10-
12 in the case of science assessments, so long as the statewide 
academic assessments under section 1111(b)(2) of the Act are 
administered in any required grade and subject in which the SEA does 
not choose to implement an innovative assessment;
    (2) Align with the State academic content standards under section 
1111(b)(1) of the Act, including the full depth and breadth of such 
standards;
    (3) Express student results or competencies in terms consistent 
with the State's academic achievement standards under section 
1111(b)(1) of the Act and identify which students are not making 
sufficient progress toward, and attaining, grade-level proficiency on 
such standards;
    (4) Provide for comparability to the State academic assessments 
under section 1111(b)(2) of the Act, including by generating results 
that are valid, reliable, and comparable for all students and for each 
subgroup of students under section 1111(b)(2)(B)(xi) of the Act, as 
compared to the results for such students on the State assessments. 
Consistent with the SEA's or consortium's evaluation plan under Sec.  
200.78(e), the SEA must plan to annually determine comparability during 
each year of its demonstration authority period in one of the following 
ways:
    (i) Administering full assessments from both the innovative and 
statewide assessment system to all students enrolled in schools 
participating in the demonstration authority, such that at least once 
in any grade span (e.g., 3-5, 6-8, or 9-12) and subject for which there 
is an innovative assessment, a statewide assessment in the same subject 
would also be administered to all such students. As part of this 
demonstration, the innovative assessment and statewide assessment need 
not be administered to an individual student in the same school year.
    (ii) Administering full assessments from both the innovative and 
statewide assessment system to a demographically representative sample 
of students and subgroups of students under section 1111(c)(2) of the 
Act, from among those students enrolled in schools participating in the 
demonstration authority, such that at least once in any grade span 
(e.g., 3-5, 6-8, or 9-12) and subject for which there is an innovative 
assessment, a statewide assessment in the same subject would also be 
administered in the same school year to all students included in the 
sample.
    (iii) Including, as a significant portion of the innovative and 
statewide assessment systems in each required grade and subject in 
which both

[[Page 44975]]

assessments are administered, common items that, at a minimum, have 
been previously pilot tested or field tested for use in either the 
statewide or innovative assessment system.
    (iv) An alternative method for demonstrating comparability that an 
SEA can demonstrate will provide for an equally rigorous and 
statistically valid comparison between student performance on the 
innovative assessment and the existing statewide assessment, including 
for each subgroup of students under section 1111(b)(2)(B)(xi) of the 
Act.
    (5) Provide for the participation of, and be accessible for, all 
students, including children with disabilities and English learners, 
provide appropriate accommodations consistent with section 1111(b)(2) 
of the Act, and, as appropriate, incorporate the principles of 
universal design for learning;
    (6) For purposes of the State accountability system consistent with 
section 1111(c)(4)(E) of the Act, annually measure in participating 
schools the progress on the Academic Achievement indicator under 
section 1111(c)(4)(B)(i) of the Act of at least 95 percent of all 
students, and 95 percent of students in each subgroup of students under 
section 1111(c)(2) of the Act, who are required to take such 
assessments consistent with paragraph (b)(1)(ii) of this section;
    (7) Generate an annual summative determination for each student in 
a school participating in the demonstration authority that describes 
the student's mastery of the State's grade-level academic content 
standards based on the State's academic achievement standards under 
section 1111(b)(1) of the Act, or in the case of a student assessed 
using an alternate assessment aligned to alternate academic achievement 
standards under section 1111(b)(1)(E) of the Act, an annual summative 
determination relative to such alternate academic achievement standards 
for each such student, using the annual data from the innovative 
assessment;
    (8) Provide disaggregated results by each subgroup of students 
under section 1111(b)(2)(B)(xi) of the Act, including timely data for 
teachers, principals and other school leaders, students, and parents 
consistent with section 1111(b)(2)(B) and (h) of the Act, and provide 
results to parents in a manner consistent with paragraph (c)(4)(i) of 
this section; and
    (9) Provide an unbiased, rational, and consistent determination of 
progress toward the State's long-term goals under section 1111(c)(4)(A) 
of the Act for all students and each subgroup of students under section 
1111(c)(2) of the Act and a comparable measure of student performance 
on the Academic Achievement indicator under section 1111(c)(4)(B)(i) of 
the Act for participating schools relative to non-participating schools 
so that the SEA may validly and reliably aggregate data from the system 
for purposes of meeting requirements for--
    (i) Accountability under section 1111(c) of the Act, including how 
the SEA will identify participating and non-participating schools in a 
consistent manner for comprehensive and targeted support and 
improvement; and
    (ii) Reporting on State and LEA report cards under section 1111(h) 
of the Act.
    (c) Selection Criteria. Information that addresses each of the 
selection criteria under Sec.  200.78.
    (d) Assurances. Assurances that the SEA, or each SEA in the 
consortium, will--
    (1) Continue use of the statewide academic assessments in reading/
language arts, mathematics, and science required under section 
1111(b)(2)(B) of the Act--
    (i) In all schools that are not participating in the innovative 
assessment demonstration authority; and
    (ii) In all schools that are participating in the innovative 
assessment demonstration authority but for which such assessments will 
be used in addition to innovative assessments for accountability 
purposes under section 1111(c) of the Act consistent with paragraph 
(b)(1)(ii) of this section or for evaluation purposes consistent with 
Sec.  200.78(e) during the demonstration authority period;
    (2) Ensure that all students and each subgroup of students under 
section 1111(c)(2) of the Act in participating schools and LEAs are 
held to the same challenging academic standards under section 
1111(b)(1) of the Act as all other students, except that students with 
the most significant cognitive disabilities may be assessed with 
alternate assessments aligned to alternate academic achievement 
standards consistent with section 1111(b)(2)(D) of the Act, and receive 
the instructional support needed to meet such standards;
    (3) Report the following annually to the Secretary:
    (i) An update on implementation of the innovative assessment 
demonstration authority, including--
    (A) The SEA's progress against its timeline under Sec.  200.78(c) 
and any outcomes or results from its evaluation and continuous 
improvement process under Sec.  200.78(e); and
    (B) If the innovative assessment system is not yet implemented 
statewide, a description of the SEA's progress in scaling up the system 
to additional LEAs or schools consistent with its strategies under 
Sec.  200.78(a)(4).
    (ii) The performance of all participating students at the State, 
LEA, and school level, for all students and disaggregated for each 
subgroup of students under section 1111(c)(2) of the Act, on the 
innovative assessment, except that such data may not reveal any 
personally identifiable information.
    (iii) If the innovative assessment system is not yet implemented 
statewide, school demographic and student achievement information, 
including for the subgroups of students under section 1111(c)(2) of the 
Act, for participating schools and LEAs and for any schools or LEAs 
that will participate for the first time in the following year, and a 
description of how the participation of any additional schools or LEAs 
in that year contributes to progress toward achieving high-quality and 
consistent implementation across demographically diverse LEAs in the 
State consistent with the SEA's benchmarks described in Sec.  
200.78(a)(4)(iii).
    (iv) Feedback from teachers, principals, other school leaders, 
parents, and other stakeholders consulted under Sec.  200.77(a)(2)(i) 
through (v) from participating schools and LEAs about their 
satisfaction with the innovative assessment system;
    (4) Ensure that each LEA informs parents of students in 
participating schools about the innovative assessment consistent with 
section 1112(e)(2)(B) of the Act at the beginning of each school year 
during which an innovative assessment will be implemented. Such 
information must be--
    (i) In an understandable and uniform format;
    (ii) To the extent practicable, written in a language that parents 
can understand or, if it is not practicable to provide written 
translations to a parent with limited English proficiency, be orally 
translated for such parent; and
    (iii) Upon request by a parent who is an individual with a 
disability as defined by the Americans with Disabilities Act, 42 U.S.C. 
12101, provided in an alternative format accessible to that parent; and
    (5) Coordinate with and provide information to, as applicable, the 
Institute of Education Sciences for purposes of the progress report 
described in section 1204(c) of the Act and ongoing dissemination of 
information under section 1204(m) of the Act.

[[Page 44976]]

    (e) Initial implementation in a subset of LEAs or schools. If the 
system will initially be administered in a subset of LEAs or schools in 
a State--
    (1) A description of each LEA, and each of its participating 
schools, that will initially participate, including demographic 
information and its most recent LEA report card under section 
1111(h)(2) of the Act; and
    (2) An assurance from each participating LEA that the LEA will 
comply with all requirements of this section.
    (f) Applications from a consortium. If submitted by a consortium of 
SEAs--
    (1) A description of the governance structure of the consortium, 
including--
    (i) The roles and responsibilities of each member SEA, which may 
include a description of affiliate members, if applicable, not seeking 
demonstration authority to implement the innovative assessment system 
and must include a description of financial responsibilities of member 
SEAs;
    (ii) How the member SEAs will manage and, at their discretion, 
share intellectual property developed by the consortium as a group; and
    (iii) How the member SEAs will consider requests from SEAs to join 
or leave the consortium and ensure that changes in membership do not 
affect the consortium's ability to implement innovative assessment 
demonstration authority consistent with the requirements and selection 
criteria in Sec. Sec.  200.77 and 200.78.

(Authority: 20 U.S.C. 6364; 20 U.S.C. 1221e-3)


0
5. Section 200.78 is revised to read as follows:


Sec.  200.78  Demonstration authority selection criteria.

    The Secretary reviews an application by an SEA or consortium of 
SEAs seeking innovative assessment demonstration authority consistent 
with Sec.  200.76(c) based on the following selection criteria:
    (a) Project narrative. The quality of the SEA's or consortium's 
plan for implementing innovative assessment demonstration authority. In 
determining the quality of the plan, the Secretary considers--
    (1) The rationale for developing or selecting the particular 
innovative assessment system to be implemented under the demonstration 
authority, including--
    (i) The distinct purpose of each assessment that is part of the 
innovative assessment system and how the system will advance the design 
and delivery of large-scale, statewide academic assessments in 
innovative ways; and
    (ii) The extent to which the innovative assessment system as a 
whole will promote high-quality instruction, mastery of challenging 
State academic standards, and improved student outcomes, including for 
each subgroup of students under section 1111(c)(2) of the Act;
    (2) The plan the SEA or consortium, in consultation with its 
partners, if applicable, has to--
    (i) Develop and use standardized and calibrated scoring tools, 
rubrics, or other strategies throughout the demonstration authority 
period, consistent with relevant nationally recognized professional and 
technical standards, to ensure inter-rater reliability and 
comparability of innovative assessment results, which may include 
evidence of inter-rater reliability; and
    (ii) Train evaluators to use such strategies; and
    (3) If the system will initially be administered in a subset of 
schools or LEAs in a State--
    (i) The strategies the SEA, including each SEA in a consortium, 
will use to scale the innovative assessment to all schools statewide, 
with a rationale for selecting those strategies;
    (ii) The strength of the SEA's or consortium's criteria that will 
be used to determine LEAs and schools that will initially participate 
and when to approve additional LEAs and schools, if applicable, to 
participate during the requested demonstration authority period; and
    (iii) The SEA's plan, including each SEA in a consortium, for how 
it will ensure that, during the demonstration authority period, the 
inclusion of additional LEAs and schools continues to reflect high-
quality and consistent implementation across demographically diverse 
LEAs and schools, or contributes to progress toward achieving such 
implementation across demographically diverse LEAs and schools, 
including diversity based on subgroups of students under section 
1111(c)(2) of the Act, and student achievement. The plan must also 
include annual benchmarks toward achieving high-quality and consistent 
implementation across LEAs that are, as a group, demographically 
similar to the State as a whole during the demonstration authority 
period, using the demographics of LEAs initially participating as a 
baseline.
    (b) Prior experience, capacity, and stakeholder support. (1) The 
extent and depth of prior experience that the SEA, including each SEA 
in a consortium, and its LEAs have in developing and implementing the 
components of the innovative assessment system. An SEA may also 
describe the prior experience of any external partners that will be 
participating in or supporting its demonstration authority in 
implementing those components. In evaluating the extent and depth of 
prior experience, the Secretary considers--
    (i) The success and track record of efforts to implement innovative 
assessments or innovative assessment items aligned to the challenging 
State academic standards under section 1111(b)(1) of the Act in LEAs 
planning to participate; and
    (ii) The SEA's or LEA's development or use of--
    (A) Effective supports and appropriate accommodations consistent 
with section 1111(b)(2) of the Act for administering innovative 
assessments to all students, including English learners and children 
with disabilities, which must include professional development for 
school staff on providing such accommodations;
    (B) Effective and high-quality supports for school staff to 
implement innovative assessments and innovative assessment items, 
including professional development; and
    (C) Standardized and calibrated scoring rubrics for innovative 
assessments, with documented evidence of the validity, reliability, and 
comparability of determinations of student mastery or proficiency on 
the assessments.
    (2) The extent and depth of SEA, including each SEA in a 
consortium, and LEA capacity to implement the innovative assessment 
system considering the availability of technological infrastructure; 
State and local laws; dedicated and sufficient staff, expertise, and 
resources; and other relevant factors. An SEA or consortium may also 
describe how it plans to enhance its capacity by collaborating with 
external partners that will be participating in or supporting its 
demonstration authority. In evaluating the extent and depth of 
capacity, the Secretary considers--
    (i) The SEA's analysis of how capacity influenced the success of 
prior efforts to develop and implement innovative assessments or 
innovative assessment items; and
    (ii) The strategies the SEA is using, or will use, to mitigate 
risks, including those identified in its analysis, and support 
successful implementation of the innovative assessment.
    (3) The extent and depth of State and local support for the 
application for demonstration authority in each SEA, including each SEA 
in a consortium, as demonstrated by signatures from the following:

[[Page 44977]]

    (i) Superintendents (or equivalent) of LEAs, including LEAs 
participating in the first year of the demonstration authority period.
    (ii) Presidents of local school boards (or equivalent, where 
applicable), including within LEAs participating in the first year of 
the demonstration authority.
    (iii) Local teacher organizations (including labor organizations, 
where applicable), including within LEAs participating in the first 
year of the demonstration authority.
    (iv) Other affected stakeholders, such as parent organizations, 
civil rights organizations, and business organizations.
    (c) Timeline and budget. The quality of the SEA's or consortium's 
timeline and budget for implementing innovative assessment 
demonstration authority. In determining the quality of the timeline and 
budget, the Secretary considers--
    (1) The extent to which the timeline reasonably demonstrates that 
each SEA will implement the system statewide by the end of the 
requested demonstration authority period, including a description of--
    (i) The activities to occur in each year of the requested 
demonstration authority period;
    (ii) The parties responsible for each activity; and
    (iii) If applicable, how a consortium's member SEAs will implement 
activities at different paces and how the consortium will implement 
interdependent activities, so long as each SEA begins using the 
innovative assessment in the same school year consistent with Sec.  
200.76(b)(1); and
    (2) The adequacy of the project budget for the duration of the 
requested demonstration authority period, including Federal, State, 
local, and non-public sources of funds to support and sustain, as 
applicable, the activities in the timeline under paragraph (c)(1) of 
this section, including--
    (i) How the budget will be sufficient to meet the expected costs at 
each phase of the SEA's planned expansion of its innovative assessment 
system; and
    (ii) The degree to which funding in the project budget is 
contingent upon future appropriations action at the State or local 
level or additional commitments from non-public sources of funds.
    (d) Supports for educators and students. The quality of the 
supports that the SEA or consortium will provide to educators and 
students to enable successful implementation of the innovative 
assessment system and improve instruction and student outcomes. In 
determining the quality of supports, the Secretary considers--
    (1) The extent to which the SEA or consortium has developed, 
provided, and will continue to provide training to LEA and school 
staff, including teachers, principals, and other school leaders, that 
will familiarize them with the innovative assessment system;
    (2) The strategies the SEA or consortium has developed and will use 
to familiarize students with the innovative assessment system;
    (3) The strategies the SEA will use to ensure that all students and 
each subgroup of students under section 1111(c)(2) of the Act in 
participating schools receive the support, including appropriate 
accommodations consistent with section 1111(b)(2) of the Act, needed to 
meet the challenging State academic standards under section 1111(b)(1) 
of the Act; and
    (4) If the system includes assessment items that are developed or 
scored by teachers or other school staff, the strategies (e.g., 
templates, prototypes, test blueprints, scoring tools, rubrics, audit 
plans) the SEA or consortium has developed, or plans to develop, to 
validly and reliably score such items, including how the strategies 
engage and support teachers and other staff in developing and scoring 
high-quality assessments and how the SEA will use effective 
professional development to aid in these efforts, to help ensure 
unbiased, objective scoring of assessment items.
    (e) Evaluation and continuous improvement. The quality of the SEA's 
or consortium's plan to annually evaluate its implementation of 
innovative assessment demonstration authority. In determining the 
quality of the evaluation, the Secretary considers--
    (1) The strength of the proposed evaluation of the innovative 
assessment system included in the application, including whether the 
evaluation will be conducted by an independent, experienced third 
party, and the likelihood that the evaluation will sufficiently 
determine the system's validity, reliability, and comparability to the 
statewide assessment system consistent with the requirements of Sec.  
200.77(b)(4) and (9); and
    (2) The SEA's or consortium's plan for continuous improvement of 
the innovative assessment system, including its process for--
    (i) Using data, feedback, evaluation results, and other information 
from participating LEAs and schools to make changes to improve the 
quality of the innovative assessment; and
    (ii) Evaluating and monitoring implementation of the innovative 
assessment system in participating LEAs and schools annually.

(Authority: 20 U.S.C. 6364; 20 U.S.C. 1221e-3)

0
6. Section 200.79 is revised to read as follows:


Sec.  200.79  Transition to statewide use.

    (a)(1) After an SEA has scaled its innovative assessment system to 
operate statewide in all schools and LEAs in the State, the SEA must 
submit evidence for peer review under section 1111(a)(4) of the Act to 
determine whether the system may be used for purposes of both academic 
assessments and the State accountability system under section 
1111(b)(2) and (c) of the Act.
    (2) An SEA may only use the innovative assessment system for the 
purposes described in paragraph (a)(1) of this section if the Secretary 
determines that the system is of high quality consistent with paragraph 
(b) of this section.
    (b) Through the peer review process of State assessments and 
accountability systems under section 1111(a)(4) of the Act, the 
Secretary determines that the innovative assessment system is of high 
quality if--
    (1) An innovative assessment developed in any grade or subject 
under section 1111(b)(2)(B)(v) of the Act--
    (i) Meets all of the requirements under section 1111(b)(2) of the 
Act and Sec.  200.77(b) and (c);
    (ii) Provides coherent and timely information about student 
achievement based on the challenging State academic standards under 
section 1111(b)(1) of the Act;
    (iii) Includes objective measurements of academic achievement, 
knowledge, and skills; and
    (iv) Is valid, reliable, and consistent with relevant, nationally 
recognized professional and technical standards;
    (2) The SEA provides satisfactory evidence that it has examined the 
statistical relationship between student performance on the innovative 
assessment in each subject area and student performance on other 
measures of success, including the measures used for each relevant 
grade-span within the remaining indicators (i.e., indicators besides 
Academic Achievement) in the statewide accountability system under 
section 1111(c)(4)(B) of the Act, and how the inclusion of the 
innovative assessment in its Academic Achievement indicator affects the 
annual meaningful differentiation of schools;
    (3) The SEA has solicited information, consistent with the 
requirements under

[[Page 44978]]

Sec.  200.77(d)(3)(iv), and taken into account feedback from teachers, 
principals, other school leaders, parents, and other stakeholders under 
Sec.  200.77(a)(2)(i) through (v) about their satisfaction with the 
innovative assessment system; and
    (4) The SEA has demonstrated that the same innovative assessment 
system was used to measure--
    (i) The achievement of all students and each subgroup of students 
under section 1111(c)(2) of the Act, and that appropriate 
accommodations were provided consistent with section 1111(b)(2) of the 
Act; and
    (ii) For purposes of the State accountability system consistent 
with section 1111(c)(4)(E) of the Act, progress on the Academic 
Achievement indicator under section 1111(c)(4)(B)(i) of the Act of at 
least 95 percent of all students, and 95 percent of students in each 
subgroup of students under section 1111(c)(2) of the Act.
    (c) With respect to the evidence submitted to the Secretary to make 
the determination described in paragraph (b)(2) of this section, the 
baseline year for any evaluation is the first year, as applicable, that 
each LEA in the State administered the innovative assessment system.
    (d) In the case of a consortium of SEAs, evidence may be submitted 
for the consortium as a whole so long as the evidence demonstrates how 
each member SEA meets each requirement of paragraph (b) of this section 
applicable to an SEA.

(Authority: 20 U.S.C. 6311(a); 20 U.S.C. 6364; 20 U.S.C. 1221e-3)


0
7. Section 200.80 is revised to read as follows:


Sec.  200.80  Extension, waivers, and withdrawal of authority.

    (a) Extension. (1) The Secretary may extend an SEA's demonstration 
authority period for no more than two years if the SEA submits to the 
Secretary--
    (i) Evidence that its innovative assessment system continues to 
meet the requirements under Sec.  200.77 and the SEA continues to 
implement the plan described in its application in response to the 
selection criteria in Sec.  200.78 in all participating schools and 
LEAs;
    (ii) A high-quality plan, including input from stakeholders under 
Sec.  200.77(a)(2)(i) through (v), for transitioning to statewide use 
of the innovative assessment system by the end of the extension period; 
and
    (iii) A demonstration that the SEA and all LEAs that are not yet 
fully implementing the innovative assessment system have sufficient 
capacity to support use of the system statewide by the end of the 
extension period.
    (2) In the case of a consortium of SEAs, the Secretary may extend 
the demonstration authority period for the consortium as a whole or for 
an individual member SEA.
    (b) Withdrawal of demonstration authority. (1) The Secretary may 
withdraw the innovative assessment demonstration authority provided to 
an SEA, including an individual SEA member of a consortium, if at any 
time during the approved demonstration authority period or extension 
period, the Secretary requests, and the SEA does not present in a 
timely manner--
    (i) A high-quality plan, including input from stakeholders under 
Sec.  200.77(a)(2)(i) through (v), to transition to full statewide use 
of the innovative assessment system by the end of its approved 
demonstration authority period or extension period, as applicable; or
    (ii) Evidence that--
    (A) The innovative assessment system meets all requirements under 
Sec.  200.77, including a demonstration that the innovative assessment 
system has met the requirements under Sec.  200.77(b);
    (B) The SEA continues to implement the plan described in its 
application in response to the selection criteria in Sec.  200.78;
    (C) The innovative assessment system includes and is used to assess 
all students attending schools participating in the demonstration 
authority, consistent with the requirements under section 1111(b)(2) of 
the Act to provide for participation in State assessments, including 
among each subgroup of students as defined in section 1111(c)(2) of the 
Act, and for appropriate accommodations;
    (D) The innovative assessment system provides an unbiased, 
rational, and consistent determination of progress toward the State's 
long-term goals and measurements of interim progress under section 
1111(c)(4)(A) of the Act for all students and subgroups of students 
under section 1111(c)(2) of the Act and a comparable measure of student 
performance on the Academic Achievement indicator under section 
1111(c)(4)(B)(i) of the Act for participating schools relative to 
schools that are not participating; or
    (E) The innovative assessment system demonstrates comparability to 
the statewide assessments under section 1111(b)(2) of the Act in 
content coverage, difficulty, and quality.
    (2)(i) In the case of a consortium of SEAs, the Secretary may 
withdraw innovative assessment demonstration authority for the 
consortium as a whole at any time during its demonstration authority 
period or extension period if the Secretary requests, and no member of 
the consortium provides, the information under paragraph (b)(1)(i) or 
(ii) of this section.
    (ii) If innovative assessment demonstration authority for one or 
more SEAs in a consortium is withdrawn, the consortium may continue to 
implement the authority if it can demonstrate, in an amended 
application to the Secretary that, as a group, the remaining SEAs 
continue to meet all requirements and selection criteria in Sec. Sec.  
200.77 and 200.78.
    (c) Waiver authority. (1) At the end of the extension period, an 
SEA that is not yet approved consistent with Sec.  200.79 to implement 
its innovative assessment system statewide may request a waiver from 
the Secretary consistent with section 8401 of the Act to delay the 
withdrawal of authority under paragraph (b) of this section for the 
purpose of providing the SEA with the time necessary to receive 
approval to transition to use of the innovative assessment system 
statewide under Sec.  200.79(b).
    (2) The Secretary may grant to an SEA a one-year waiver to continue 
innovative assessment demonstration authority, if the SEA submits, in 
its request under paragraph (c)(1) of this section, evidence 
satisfactory to the Secretary that it--
    (i) Has met all of the requirements under paragraph (b)(1) of this 
section and of Sec. Sec.  200.77 and 200.78; and
    (ii) Has a high-quality plan, including input from stakeholders 
under Sec.  200.77(a)(2)(i) through (v), for transition to statewide 
use of the innovative assessment system, including peer review 
consistent with Sec.  200.79, in a reasonable period of time.
    (3) In the case of a consortium of SEAs, the Secretary may grant a 
one-year waiver consistent with paragraph (c)(1) of this section for 
the consortium as a whole or for individual member SEAs, as necessary.
    (d) Return to the statewide assessment system. If the Secretary 
withdraws innovative assessment demonstration authority consistent with 
paragraph (b) of this section, or if an SEA voluntarily terminates use 
of its innovative assessment system prior to the end of its 
demonstration authority, extension, or waiver period under paragraph 
(c) of this section, as applicable, the SEA must--
    (1) Return to using, in all LEAs and schools in the State, a 
statewide assessment that meets the requirements of section 1111(b)(2) 
of the Act; and

[[Page 44979]]

    (2) Provide timely notice to all participating LEAs and schools of 
the withdrawal of authority and the SEA's plan for transition back to 
use of a statewide assessment.

(Authority: 20 U.S.C. 6364; 20 U.S.C. 1221e-3)


[FR Doc. 2016-16125 Filed 7-6-16; 4:15 pm]
 BILLING CODE 4000-01-P